Topics in Halachic Thought – Lesson 10

Table of Contents

• Derashot HaRan, the king’s law, and the historical accident of concentrated authority
• The topic in Sanhedrin 5a: the Exilarch, scepter and lawgiver, and the struggle over authority
• A dual-headed model in our time, the authority of the state, and secular courts
• Jewish law and morality: three approaches and conflict as a coherent structure
• The validity of normative systems, oaths, and reason
• A sweeping value principle versus a particular one, “we will do and we will hear,” and conflicts between systems
• Torah, Jewish law, and “you shall do what is upright and good”
• Practical decision-making, lex specialis, and postponing the discussion

Summary

General Overview

The lecture presents Ran’s model of dual authority, between Torah law, which is aimed at “the application of the divine matter,” and the king’s law, which is aimed at repairing society. It argues that the surprise people feel at this model comes from a “historical accident” in which royal rule was lost and its powers were funneled into the religious courts and the halakhic decisors. Based on the passage in Sanhedrin 5a, it is argued that one can see a struggle for authority between the president of the Sanhedrin and the Exilarch as reflecting a separation between religious authority and secular authority, and this serves as the basis for the claim that a state can exercise the king’s law without being subject to Jewish law in monetary law and punishment. The lecture then moves from institutional structure to content, arguing that Jewish law and morality are two foreign systems that can clash, and that the existence of conflict is not a contradiction but a coherent situation that requires a practical decision.

Derashot HaRan, the king’s law, and the historical accident of concentrated authority

The speaker describes Ran as distinguishing between two parallel legal systems: the king’s law, which is similar to the laws of the nations and whose goal is the repair of society and social justice, and Torah law, whose goal is “the application of the divine matter,” in the sense of bringing about the indwelling of the Divine Presence. He argues that Torah law may reach a less socially and morally refined outcome because it is also subject to religious goals, and therefore the king’s law is needed to fill the gaps. He explains that after the loss of the monarchy, the king’s authority was funneled into the Sanhedrin, and the presidents of the Sanhedrin functioned as kings in the absence of a king, so that all governmental powers became concentrated in their hands.

The speaker connects this to the historical habit whereby the religious court and the halakhic decisors also managed the ordinary affairs of communities, including setting voting rules, collecting taxes, building, and educational institutions, to the point that this entered the Shulchan Arukh. He argues that the idea that “a religious court may flog and punish not according to the strict law” is seen today as natural, even though the purpose of a religious court is to judge according to the law, and he interprets this as a remnant of the king’s powers that were transferred to the religious court. He states that the notion that every social solution is found in the Torah and must be provided by halakhic decisors is nonsense, and that there is no obligation to conduct ourselves that way even if the Shulchan Arukh records such patterns as rulings.

The topic in Sanhedrin 5a: the Exilarch, scepter and lawgiver, and the struggle over authority

The speaker turns to the passage in Sanhedrin 5a, where Rav and Shmuel say that a judge who wants to adjudicate and be exempt from payment if he errs must “take authorization from the house of the Exilarch.” He interprets the exposition of “The scepter shall not depart from Judah… nor the lawgiver from between his feet” to mean that the “scepter” is governmental-secular power and the “lawgiver” is Torah authority, and he emphasizes that the lawgiver must receive authorization from the scepter in order to judge. He compares this to appointing judges in a modern system, where professional knowledge alone is not enough; formal authorization from the government is also required.

The speaker explains that according to the Talmud, the Exilarch in Babylonia was seen as the embodiment of Jewish kingship in that period, while in the Land of Israel primarily religious authority remained, and the secular powers were lent to the president of the Sanhedrin. He reads the Talmud’s questions about the validity of authorization between Babylonia and the Land of Israel as an expression of a sovereignty struggle between centers, and argues that the Babylonian Talmud’s conclusion is that the Exilarch’s authorization is effective throughout the world, including the Land of Israel, whereas the authorization of the president of the Sanhedrin is effective only in the Land of Israel. He interprets the line “I did not take authorization from you…” as evidence of tension between authorities, when the sages of the Land of Israel found it hard to accept kingship in Babylonia after becoming accustomed to a model in which the president of the Sanhedrin held everything together.

A dual-headed model in our time, the authority of the state, and secular courts

The speaker argues that the correct model is a dual-headed model of secular government alongside religious government, where “secular” means managing ordinary life on the basis of common sense rather than on the basis of Torah, similar to the “commandment of laws” among non-Jews, where there is no detailed given law code. He presents the return of sovereignty in the State of Israel as a renewed appearance of the “king’s law” side, even if in practice this is a government some of whose people are not committed to Torah and commandments, and he emphasizes that the basic authority of such a government to act not according to Torah law is grounded in a Torah-based conception.

The speaker states that the State of Israel is not subject to Jewish law in monetary law, criminal punishment, and “flogging and punishing not according to the strict law,” so long as it is not commanding transgression of Torah prohibitions in the realm of prohibition and permission. He suggests that viewing the courts as an expression of the king’s law solves the “problem of secular courts” without excuses, because the king has the authority to establish laws as he wishes on that plane. He adds that the details of dividing authority between religious courts and state courts require further discussion, but the very idea of dual authorities is a fundamental method that was forgotten because of the historical accident.

Jewish law and morality: three approaches and conflict as a coherent structure

The speaker seeks to draw substantive conclusions from Ran and argues that a halakhic legal system may be less moral than a legal system of non-Jews because it is also directed toward religious goals. He illustrates this with the images of a “washing machine and dryer” and a “kosher restaurant” as a trade-off between goals. He sets out three approaches to the tension between Jewish law and morality: one approach says Jewish law is perfect morality, and therefore any contradiction is the person’s moral mistake; a liberal approach identifies morality with Jewish law, so whatever is not moral cannot be halakhic; and a third approach according to which these are two foreign and parallel systems with no mutual obligation to each other.

The speaker applies this to examples such as killing Amalekite babies, violating the Sabbath to save the life of a non-Jew, divorce law, and the wife of a priest who was raped, and argues that under the third approach there can be situations where Jewish law requires an action that morality forbids, and the person is in conflict. He emphasizes that such a halakhic instruction is not presented as moral, but as a religious demand that has a moral cost, like a medical operation that hurts but is required for healing. He argues that conflict is not a logical contradiction but a natural situation arising from loyalty to two binding systems, and that not finding oneself in conflict between Jewish law and morality characterizes someone who identifies them as one single system.

The validity of normative systems, oaths, and reason

The speaker moves to the question of what gives a normative system validity, and brings the dispute between Maimonides and Nachmanides about the source of obligation in rabbinic laws, arguing that every system needs some principle external to it that grants it validity. He presents the model of being “already under oath from Mount Sinai” as a fiction similar to the “social contract,” and argues that the Mishneh LaMelekh challenges this model because the very obligation to keep oaths is itself part of Jewish law. He cites Avnei Nezer in the name of Ri Migash, who distinguishes between the halakhic obligation of an oath and the obligation to keep an oath by force of reason, which exists even before the giving of the Torah, and he explains this as making it possible to ground commitment to the Torah on an oath that does not depend on Torah law itself.

The speaker adds a discussion of Maimonides in the Laws of Hiring, about not administering an oath to a minor “because he does not know the punishment for an oath,” in order to show that obligations whose source is reason also have validity with respect to minors, to the extent that they understand the reasoning. He uses this to demonstrate that an obligation can rest on a principle that is not itself part of Jewish law, thereby solving the circularity in the claim of validity. He leaves open the question of the source of that foundational principle, and notes that one can continue asking until one arrives at something self-evident that does not require an earlier basis.

A sweeping value principle versus a particular one, “we will do and we will hear,” and conflicts between systems

The speaker distinguishes between a particular value principle, in which a person accepts a normative system only after checking each and every detail, and a sweeping value principle, in which a person accepts the system by virtue of trust in the giver of the system. He interprets “we will do and we will hear” and the criticism, “a hasty people, who put your mouths before your ears,” as illustrating sweeping acceptance, and the midrash about the giving of the Torah to the nations of the world as illustrating a particular examination of “what is written in it?” He compares this to trusting a doctor versus independently checking every medication.

The speaker argues that a conflict between two normative systems can arise only if at least one of them was accepted by virtue of a sweeping value principle, whereas someone who accepts both on a detailed, item-by-item basis could not accept two contradictory instructions. He explains that in this sense, conflicts between Jewish law and morality belong to someone who is committed to the Torah in a sweeping way and at the same time committed to morality, and he presents this as a coherent conflict that does not cancel either commitment. He distinguishes between conflict and contradiction with the example of chocolate as something that is both tasty and fattening, and emphasizes that the difficulty lies in the practical decision, not in the principled coherence of the double commitment.

Torah, Jewish law, and “you shall do what is upright and good”

The speaker responds to a question about verses such as “life and good,” and distinguishes between Torah and Jewish law, arguing that morality is part of the Torah but not part of Jewish law in its legal-decisive sense. He notes “and you shall do what is upright and good” as a moral Torah command that is not counted as a commandment by those who enumerate the commandments, and presents the tension as taking place between a halakhic category and a moral category, both of them as different expressions of the will of God. He argues that the existence of conflicts is not unique to the morality-Jewish law relationship, because even within Jewish law there are decision mechanisms between clashing principles, such as saving life on the Sabbath and a positive commandment overriding a prohibition, and there are tensions within morality as well.

Practical decision-making, lex specialis, and postponing the discussion

The speaker clarifies that the lecture is focusing on the very possibility and naturalness of conflict, and not yet on the rules of decision, even though he acknowledges tools such as lex specialis, where a more specific norm overrides a general one, as in the relationship between “you shall not murder” and unique legal rules. He emphasizes that even a consistent decision always in favor of Jewish law does not eliminate the conflict itself, but rather presents the setting aside of one value in favor of another while paying a price. He concludes by promising to continue next time.

Okay, let’s begin. In the previous lecture we talked about the Ran’s Derashot, about the law of the king, and in that context I also touched on the surprise people usually show when they hear the conception the Ran presents. And I said that this surprise comes from a lack of awareness of a certain historical process that we’re already deep inside of, and we’ve forgotten where it came from—some kind of historical accident that we’re living inside, and we don’t even realize we’re inside an accident. And I said that the process really began with what the Ran describes: the law of the king versus the law of the court and the Sanhedrin, two parallel systems, each with its own legal framework operating by different rules. The Ran explained that the law of the king is basically similar to the kind of law found among the nations, and its purpose is to improve society, social justice, and things like that. And the role of Torah law is “the application of the divine matter”—that’s his definition—meaning, in our language, the resting of the Divine Presence. And therefore he says that it could be that in the legal systems of the nations we would find a more well-ordered system than in Torah law, because Torah law is trying to achieve additional goals—not only the moral goal, if even that, but also religious goals. And so very often it may happen that it won’t reach the most corrected result on the social-moral level, because it has other constraints, and therefore you need the law of the king to complete it, or to cover the gaps, to close the gaps that exist in ordinary Torah law. That’s the duality between the two systems.

At some point we lost the monarchy, meaning there was no king anymore. The authority of the king flowed into the Sanhedrin, and that’s why I said that the presidents of the Sanhedrin throughout the generations were descendants of the House of David. Even though there’s no real basis for that—why should the president of the Sanhedrin come from the House of David? And I think the obvious answer is that the presidents of the Sanhedrin functioned as kings when there was no king. And only as a result of that did a process take place, a drift of authority—basically all the powers of government became concentrated in the Sanhedrin, and the president of the Sanhedrin functioned as a kind of sole ruler responsible for all the branches of government: the judiciary, the executive, the legislature, everything converged there. And from there we became used to the idea that throughout the generations the Torah leader, the community rabbi, or the halakhic decisor of the region, or the court, were also responsible for the mundane life of the community.

And we’re so used to this that for us, for example, when a court lashes and punishes not according to the formal law, it’s obvious that this is the authority of the court, even though ostensibly the court is supposed to apply the law. That’s the meaning of a court in the simple sense—it’s a place where law is adjudicated. But no: a court lashes and punishes not according to the formal law. I argued that this is a remnant of the king’s authority, only today the court also functions as the secular ruler, and therefore it also has authority to punish outside the formal law. And by the way, there isn’t really a source brought for this—it’s one of those things that is treated as self-evident, without a source—and I assume that’s simply because it’s a leftover from the king’s authority.

And as a result, all kinds of questions that came up regarding the ordinary conduct of communities of human beings were directed to halakhic decisors and rabbis, and naturally they were also the ones who gave the answers to those questions. And then that entered the Shulchan Arukh. I gave an example from the rules governing community administration—how voting is managed in community institutions on questions that have nothing to do with Jewish law at all: tax collection, construction, whatever, all kinds of things like that, educational institutions, whatever a community needs in order to function. Those questions are directed to rabbis, and the rabbis determine how the community institutions should operate, even though this isn’t a halakhic question at all. To the point that it literally entered the Shulchan Arukh. And why? It’s a remnant of that same historical event that erased the monarchy and funneled all of the king’s powers into the court. And therefore, everything now enters Torah. Every question we struggle with and need to make a decision about—the solution is supposedly found in the Torah, that’s how it’s usually presented, and is given by halakhic decisors, because they’re the ones responsible for telling us what the Torah commands us in all kinds of matters. Both of those things, of course, are nonsense: the solutions are not found in the Torah, and the solutions do not need to be given by halakhic decisors in these questions.

And therefore I think that the surprise people express when they see the picture the Ran presents comes from this: what do you mean? How can two authorities, two legal systems, operate in parallel? Why should the king judge? What does that have to do with anything? We’ve never seen such a thing; in the Talmud there’s no proof for this, no evidence for it in the Talmudic text. But of course there’s no evidence for it in the Talmudic text, because the Talmud was written hundreds of years—many hundreds of years—after there was already no king in Israel. And therefore it was already written within a world in which everything is run by the court. I gave examples: the court is the Ministry of Transportation, right? So the court also executes people outside the formal law, the court makes enactments, the court does whatever is needed to manage life. But none of that is really how it’s supposed to be. We are so used to this way of looking at the conduct of the Sages and of Torah that it never occurs to us that this whole story is the result of an accident. It was never supposed to be this way. The original authorities and original functions belong to the king. They have nothing to do with the court. The Torah has nothing to say about them. This does not belong to Jewish law. Rather, the secular ruler is supposed to manage the secular aspect of life, and the Sanhedrin and the courts are supposed to manage religious life—to judge disputes between people in monetary law, matters of personal status, and so on, and to manage Torah life, meaning to establish enactments or things of that sort as well. Okay? Or to interpret the Torah. If someone asks a question in Jewish law, he goes to a halakhic decisor, not to the king. Okay?

But today we’re already very used to a hierarchy with one single point at the top of the pyramid, and that is Torah authority—the Sanhedrin, or the community rabbi, or something like that—which is not how it’s supposed to be. There are supposed to be two authorities at the top of the pyramid: a secular authority and a halakhic authority. Again, secular doesn’t mean that the people there are secular; it means that it manages ordinary life, and the rules by which it operates are rules drawn from common sense, not from the Torah. Just as the nations manage their lives according to common sense, not according to the Torah. And that’s fine, and the Torah expects them to act that way. Right? The Torah establishes that gentiles are supposed to set up courts and run a legal system—the commandment of laws. But the Torah does not say what that law code should contain, according to what laws they should conduct themselves. Nothing. It says nothing. Whatever they understand through common sense—that’s what they’re supposed to do. In that sense, that’s also our law of the king. Only for us it disappeared, and now suddenly it all became holy too. Meaning, once Rabbenu Tam, or the Rosh, or the Rashba, or whoever, determine how a community should conduct itself, it suddenly becomes Torah law and precedent. Halakhic decisors and commentators discuss it, and they examine what the Rosh said, what the Rashba said, what Rabbenu Tam said, and what the dispute is, and they discuss it as if it were a Torah topic. It hasn’t the slightest trace of Torah-ness. It has nothing to do with a Torah topic at all. They spoke about it simply because they were at the top of the pyramid, that’s all. Because there was nobody else to deal with it. That’s it.

And therefore there is no obstacle to not conducting ourselves that way. Even if the Shulchan Arukh brings these things as settled Jewish law, there is no obligation in the world to act that way. It’s simply baseless. Any community that chooses to conduct itself differently can do so. There’s no problem at all. So that’s what I described last time. Now I just want to complete one more aspect, and for that I want us to look for a moment at a passage in tractate Sanhedrin, page 5a.

“Rav said: one who wants to judge a case”—that is, a judge who wants to adjudicate—“and if he errs wants to be exempt,” meaning if he makes a mistake he wants not to have to pay money, “he should obtain permission from the house of the Exilarch.” And Shmuel also said: “He should obtain permission from the house of the Exilarch.” “It is obvious from here to there, and from there to there, and from here to there, it is effective, because here is the scepter and there is the lawgiver, as it was taught: ‘The scepter shall not depart from Judah’—these are the Exilarchs in Babylonia who rule Israel with a scepter; ‘nor the lawgiver from between his feet’—these are the descendants of Hillel who teach Torah publicly. From there to here, what?”

The Gemara says like this: someone who wants to judge has to request permission from the Exilarch. What’s the case? A Babylonian judge who wants to judge in Babylonia—obviously, he must receive permission from the Exilarch. A person who goes up from Babylonia to the Land of Israel also has to receive permission from the Exilarch. What about someone who comes from the Land of Israel to Babylonia? “From there to here, what?” Would permission from the Exilarch help him too, or not? Or perhaps does he need permission from the Exilarch at all, or does he receive permission from the court, from the president of the court in the Land of Israel?

Then the Gemara says: “Come and hear, for Rabbah bar bar Hannah judged a case and erred. He came before Rabbi Chiyya. He said to him: if they accepted you upon themselves, you need not pay; and if not, go pay.” Meaning, in principle you have to pay; the permission doesn’t help. “But didn’t Rabbah bar bar Hannah have permission?” Right? He had received permission. “Learn from this: from there to here it is not effective. Learn from this.” Fine. Meaning, permission from the Land of Israel does not help for judging in Babylonia.

The Gemara asks: “And is it not effective? But Rabbah bar Rav Huna, when he had a dispute with the house of the Exilarch, said: I did not receive permission from you. I received permission from my father and master, and my father and master from Rav, and Rav from Rabbi Chiyya, and Rabbi Chiyya from Rabbi.” Rabbah bar Rav Huna is saying to the Exilarch: I don’t need you. I get my authorization from the Land of Israel. Rabbi Chiyya was Rav’s uncle. Rav is first generation of the Babylonian amoraim; Rabbi Chiyya was Rav’s uncle and sat in court together with Rabbi, and Rav was there for a bit too. So he says: what are you to me? I have authorization from the Land of Israel, from the president of the Sanhedrin. There’s no authorization better than that. The Gemara answers: “He only used it to establish them in worldly matters.” Fine, the Gemara goes on discussing what that means—meaning, in worldly matters, not in permission to judge.

What’s the point here? There’s a kind of subtext standing behind this passage. What is “the scepter shall not depart from Judah, nor the lawgiver from between his feet”? We talked about this in the Hanukkah lecture: scepter and lawgiver. The scepter is the king, right? The rod of rulers, the staff of authority representing power. And the lawgiver is of course the Sages, the halakhic decisors, the judges. So when Jacob blesses Judah—“the scepter shall not depart from Judah, nor the lawgiver from between his feet”—what does that mean? Ostensibly, both the king and the judge will come from the tribe of Judah; both the scepter and the lawgiver. Right? But the Gemara says no. The Gemara says the scepter will be from Judah; the lawgiver is “from between his feet.” What does “from between his feet” mean? Empowered by him, deriving power from him. The lawgiver, the president of the Sanhedrin, does not have to be from the tribe of Judah, from the House of David. What he needs is to receive power—the judge needs to receive power—from the king, who is from the House of David. And then it turns out that the tribe of Judah in principle stands at the foundation of both the religious government and the secular government. The scepter is secular government, and the lawgiver is the religious government—the Sanhedrin and the king. But the lawgiver himself, in order to be able to judge, has to receive permission from the scepter—or from the king. Okay?

Now, this is like what I mentioned before—like by us, for example: if someone finishes a law degree, you know, even a doctorate in law, can he sit in court and judge? The answer is no. Not necessarily because he lacks knowledge, but because he hasn’t received authorization from the duly empowered governmental bodies that make him a judge. To become a judge with judicial authority, you need two things: you need certification that you are knowledgeable, a professional—that’s on the level of content—and you need authorization on the level of authority. The content certification you get at the university, or from the bar association if you like. The governmental authorization you get from the judicial appointments committee, basically through the power of the government and parliament. What does that mean? That there’s a difference between a judge and a professor of law. They may be equally expert in the legal field, but a professor of law can say whatever he wants until tomorrow—nobody has to obey him. He has no formal authority; he only has substantive authority, authority in the sense that he knows the law and understands it, he’s a professional. But he has no authority in the sense that people must listen to him. A judge has authority. Someone who doesn’t obey him is a lawbreaker; they’ll force him to obey the judge. To get to that point, it’s not enough to be knowledgeable; there are plenty of knowledgeable people. You have to receive authorization from the government in order to be empowered to serve as a judge. Professional training or professional recognition of your knowledge is not enough; you also need formal authorization.

That’s what happens אצלנו—here too. When someone wants to judge, first he needs semikhah, ordination: sage from sage, tracing back to Moses our teacher—that’s the process of ordination. Besides that, he has to receive permission from the Exilarch, which is the secular authority—the king, really. And “the scepter shall not depart from Judah, nor the lawgiver from between his feet,” says the Gemara: “‘The scepter shall not depart from Judah’—these are the Exilarchs in Babylonia who rule Israel with a scepter.” The king that the Jewish people had in that period sat in Babylonia. He was called the Exilarch. The Exilarch was the central secular authority of the entire Jewish people throughout the world, including the Land of Israel. In the Land of Israel in that period there was only a Sanhedrin, there was no king. And therefore there was only religious authority there and no secular authority. The secular powers flowed into the religious authority. So in the Land of Israel the president of the Sanhedrin was basically also a kind of miniature king with respect to the Land of Israel, like a community rabbi, and also the community rabbi—in other words, both the halakhic decisor, the president of the Sanhedrin, and both the religious and the secular authority.

But then at some point, after the destruction of the Second Temple, suddenly a new situation arose. Kingship returned to Israel—but it happened in Babylonia. Suddenly the Jewish people once again had a king, but that king sat in Babylonia. By the way, the Exilarch was also descended from the House of David. More than that: he came from the male line of the House of David. The president of the Sanhedrin came from the female line. Meaning, he was really the true king. Why? Because he really was a king. The president of the Sanhedrin only had borrowed powers in a place where there was no king.

Now what’s happening in the Gemara here is that the Gemara reflects a kind of confusion like the one I described before. Why? Because after monarchy ceased in the Land of Israel, we had grown accustomed over centuries to all authority being entrusted to the Sanhedrin, including secular authority. So now both the scepter and the lawgiver are the president of the Sanhedrin. Then the community in Babylonia develops—in the early centuries of the common era a community emerges in Babylonia. The community already existed earlier, but the rabbinic establishment and the government formed later. And this community suddenly already has a rabbinic establishment and also a king, a secular government that receives permission from the local monarchy there to govern the Jewish public autonomously. He was essentially considered the king of the Jews, and they also had judicial autonomy. Meaning, the Sages there also judged according to Jewish law; they simply ruled according to Jewish law. The Babylonians basically gave the Jews governmental and judicial autonomy. And then the status of the Exilarch became such that he suddenly became the king of the Jews throughout the world, not only in the Land of Israel. Their king was king of the Jews throughout the world, not only in Babylonia, because Babylonia was the center of world Jewry. Most Torah scholars lived there, and therefore most of the people lived there, and so their king was king of the Jews everywhere.

Now the Jews of the Land of Israel apparently were not willing to accept that, because they were used to authority being located with them: the president of the Sanhedrin functioned as both king and president of the Sanhedrin. Suddenly some king gets up out there in Babylonia, in the Diaspora, and a jurisdictional conflict begins. And that jurisdictional conflict is reflected here in the Gemara, when the Gemara asks: someone who wants to judge—from whom is he supposed to receive permission? From the president of the Sanhedrin or from the Exilarch? The Gemara says—and don’t forget, this is the Babylonian Talmud—that the authority he needs is from the Exilarch, not from the president of the Sanhedrin. A revolutionary statement. Because that statement is basically saying—and that’s why it brings the verse “the scepter shall not depart from Judah, nor the lawgiver from between his feet”—“the scepter from Judah” means these are the Exilarchs in Babylonia. Understand this: the king is now with us. That’s what the Gemara is saying here. Therefore even religious authority is received from the ordained, and the ordained exist only in the Land of Israel. Therefore the religious authorization to judge depends on ordination, and ordination is done only in the Land of Israel by the Sages of the Land of Israel. That concerns the professional fitness of the judge. But the governmental authority he has to receive from the government—from the king—the Babylonians now, in this passage, are claiming that he has to receive from the Exilarch, from us, not from the Land of Israel. The king is with us. Kingship has returned to Israel. Absurd as it sounds, kingship has returned to Israel, we have become independent, and the king sits in Babylonia, not in the Land of Israel at all. And in the Land of Israel there sits a Sanhedrin, which is the religious authority, but it had held secular authority too, and suddenly a higher secular authority arose—the king in Babylonia.

And then a jurisdictional struggle begins: who is the secular body that appoints judges in Israel? Not who grants them professional competence—that’s ordination from sage to sage in the Land of Israel—but who is the secular body that gives them the governmental authority to serve as judges? The Gemara says: the Exilarch. He is the king of our generation. And then they say: wait a second, what happens when people come from the Land of Israel to here, or from here to the Land of Israel? You can see the power struggle. Do we determine things for the people of the Land of Israel, or do the people of the Land of Israel determine things for us? According to the Gemara’s conclusion—and again I remind you, this is the Babylonian Talmud, so of course it reflects the Babylonian position—but what the Gemara says is that when the Exilarch gives authorization, and by the way that’s also how it is ruled in Jewish law, when the Exilarch gives authorization it is effective worldwide, including in the Land of Israel, because he is the king of all the Jews. When the president of the Sanhedrin gives authorization—and again I’m not talking about ordination, I’m talking about secular authorization, your appointment as a judge, not certification of your knowledge as a judge, which belongs only to the Land of Israel—but when the president of the Sanhedrin acts under his hat as king, his authority applies only in the Land of Israel. “From there to here it is not effective”—that’s what the Gemara says. Authorization given from the Land of Israel is not effective for judging in Babylonia, because with respect to Babylonia, we have a king here. And the king of Babylonia is also effective for the Land of Israel because he is king of all the Jews.

There still remained a remnant of secular rule in the Land of Israel in the hands of the president of the Sanhedrin, but his sovereignty was only over the people of the Land of Israel, that’s all. His authorization to judge is effective for judges who judge in the Land of Israel. And you can see that also later in the Gemara, where it says: “I did not receive permission from you; I received permission from my father and master, and my father and master from Rav.” Meaning, I received authorization from the people of the Land of Israel—who are you? So the Gemara says: “In worldly matters”—that’s irrelevant. That authorization doesn’t help you at all. In the end, you need to receive authorization from the Exilarch.

And you have to understand that this is really an intellectual revolution, because they were living this very dispute. That argument reflects the same confusion, the same mix-up, and the same historical accident I described before. The people had already been used for so long to there being no king that they took it as self-evident that all authority was in the hands of the president of the Sanhedrin—secular powers, religious powers, everything; the president of the Sanhedrin and there is none beside him. Suddenly a king arises in Babylonia. What was hard to digest wasn’t only that this authority was in Babylonia—that of course added to it—but first and foremost that such an authority existed at all. We had already been without a king for centuries. The president of the Sanhedrin was the king, the judge, everything. Suddenly someone appears, a secular government—sound familiar?—a secular government arises and says: wait, wait, wait, I’m the king. I’m supposed to run a system parallel to the system run by the Sanhedrin. And to make it even more bizarre, I’m sitting in Babylonia. Which is completely absurd: monarchy, sovereignty, Jewish independence returns—in exile, in Babylonia. That’s really disorienting.

So the Jews of the Land of Israel didn’t grasp it. How can such a thing be? Exactly like we today don’t grasp what the Ran writes. Because the Ran speaks about an ideal situation that existed in the early centuries. It disappeared; it’s been gone for thousands of years. The Jews of the Land of Israel were already centuries after this accident, and they too didn’t understand, in exactly the same way. They were no longer accustomed to thinking in terms of a dual authority structure. For them everything was with the president of the Sanhedrin. And therefore they engage there in a jurisdictional struggle with the Exilarch. In the end, the Babylonian Talmud decides: no, the Ran’s model is the right model. There is a secular government and a religious government. True, here our sins caused it, and exile, and so on, that the secular government re-emerged in Babylonia and not in the Land of Israel. Still, there is a dual-headed model of secular government and religious government. And anyone who wants to judge has to receive authorization from both. We have once again split apart those unified powers that had remained concentrated for centuries in the presidents of the Sanhedrin. Suddenly they were divided.

It took a few centuries until the Jewish concentration in Babylonia and their governmental autonomy came to an end, and then this whole story disappeared. And the center in the Land of Israel also no longer existed, and the whole story vanished. But in the last centuries we have in fact returned to the basic model the Ran describes in his Derashot, which we saw in the previous lecture—the dual model of secular government alongside religious government. And I think this Gemara reflects that very nicely: the jurisdictional struggle that results from the fact that we are so used to things being this way. And for us too today, a government has returned—the State of Israel, a secular government. In our case it is really secular—not only in the sense that it deals with mundane matters, but also in the sense that the people there are not committed to Torah and commandments—which of course is not part of the Ran’s model. But the fundamental claim, that a secular government has authority to act in a way that does not follow formal Torah law, is very well grounded in the Torah conception. And the fact that we think that’s not true, and go looking for explanations and so on—that’s all simply because we are trapped inside the historical accident that has accompanied us for so many years.

And in principle, obviously, the State of Israel can manage matters as it sees fit, and it is not subject to Jewish law. It is not subject to Jewish law. And it can punish outside the formal law, it can establish different monetary laws—not because the Sages approve it, but because the king can do all these things. And “king” means secular government, not specifically a king from the House of David anointed with the anointing oil. Rather, a secular government—that is its authority. Today that government is democratic rather than monarchical, but it is still the secular government. And alongside it there ought to be an authority—if there were a Sanhedrin here and so on—there ought to be a Torah-halakhic authority alongside it, not in its place. Two different things.

By the way, from this one can understand, for example, that when cases are judged in the civil courts, this whole problem of going to gentile courts, on which so much ink has been spilled—how can one litigate in the secular courts of the State of Israel? People talk about foreign courts in Syria and this and that. If you understand it as the legal system of the king, you don’t need any explanations or excuses. The king can establish whatever laws he wants. Not to violate Torah prohibitions and permissions, of course—not to decree that people must eat pork—but to establish monetary law, to punish outside the formal law, criminal law as it is called—there is no problem. He is not subject to Torah law. Deliberately not. Not because he is secular, but because, as the Ran says, that is his function. The court will carry out Torah law. The king’s function is to correct the distortions that would arise if we conducted ourselves only according to Jewish law and the court. So the king, by definition, is not subject to Torah law. Therefore there is no need to search for excuses—where yes, where no, what about foreign courts, what about not foreign courts, and all sorts of things of that kind. These are simply anachronistic conceptions. They are conceptions that became fixed in us over the last thousands of years, but they have no basis. In the original model it wasn’t supposed to be like this at all.

Okay, that’s on the conceptual level. Exactly how the powers are divided, and where the courts of Jewish law would be and where the courts of the king would be, what each would adjudicate and what each would adjudicate—that of course is a further set of models that need to be worked out in detail. But in broad terms, the very fact that there is a dual-headed government here is obvious. That is the basic system that always existed. We are simply stuck inside this historical accident, and somehow we have made peace with it, and it now even seems self-evident to us. Okay, that’s it on that. That’s the end of coffee number two. I’ve finished the matter of the historical description and its connection to the question of authority. We talked about the sealing of the Talmud, about the casuistic nature of the Talmud, and all that within a kind of historical view of the transmission of Torah, of authority, of the dual authority structure we’ve just seen, and so on.

What I want to do now is draw conclusions from these words of the Ran that we saw—conclusions that relate to content. Meaning, not to the different governing authorities and the relationship between them, but to the legal content that exists in these two systems and to the principled significance of this dual structure. For the sake of illustration, I want to discuss Jewish law and morality. After all, we saw in the Ran that the Ran claims that a government conducted according to Jewish law, or a legal system conducted according to Jewish law, will in some cases be less moral than the legal systems of gentiles. I mentioned the example that if you have a machine that is both a washing machine and a dryer, then it will wash less well and dry less well, or it will be very expensive. But there is always some trade-off. Or a kosher restaurant will always be less tasty than a non-kosher restaurant. Less than or equal, but never better. And so on. Why? When you want to achieve more goals, then obviously each goal will be achieved less well, because the other goals can limit you and prevent you from fully achieving the first goal. So if you have a system that wants to achieve not only moral goals but also religious goals, then sometimes the religious goals will force us not to act in the optimal way for achieving the moral goals. Therefore the moral structure within a halakhic legal system can be less complete than the moral structure of a foreign, secular, or gentile legal system. That’s what the Ran claimed.

What does that really mean? It seems to me that it means something much more fundamental that relates to the relationship between Jewish law and morality—not only between two legal institutions or legal systems. I’m now asking about the content: Jewish law, which is adjudicated in the courts, and morality or social order, over which the king and his system are responsible. What is the relationship between those two? And that takes us into the question of Jewish law and morality. But I want to discuss it more broadly.

I’ll begin with the question of Jewish law and morality. There are various dilemmas that accompany halakhic thinking whenever there is a clash between a halakhic directive and moral principles. For example: killing Amalekite infants; violating the Sabbath to save the life of a gentile; discrimination against women, say, in divorce or personal status; or the wife of a kohen who was raped—then we require her to separate from her husband. Even though she already went through one trauma, she wants to stay with her husband, they have children, they love each other and the children, they want to stay together. Jewish law requires them to separate. Even though she was raped and it’s not her fault at all. If she were the wife of an ordinary Israelite and she was raped, she would not have to separate, but the wife of a kohen, even if she was raped, must separate. So that is apparently immoral. Meaning, there are halakhic directives that contradict moral principles. Not very many, but they exist. There are quite a few. How do we relate to that? How can it be that Jewish law gives us immoral instructions? Seemingly, Jewish law ought to be the most perfect morality possible. So here you can already see how it connects to what the Ran writes, because the Ran explains why not. But before I return to the Ran, let’s lay out the different possibilities.

When we come to discuss a conflict and tension like this between Jewish law and morality, we can present three fundamental conceptions. One conception says that Jewish law is perfect morality. And if it seems to you that there is a contradiction between Jewish law and morality, you are simply mistaken in your moral analysis. Since if Jewish law says otherwise, clearly the moral directive is what Jewish law says. That is one conception.

A second conception says—this is also an identification of morality with Jewish law, but the reverse identification—that if morality, if it’s clear to you that morality says something, then that is probably what Jewish law says too. And therefore there are all kinds of voices, mainly liberal ones, who claim that Jewish law cannot possibly say such-and-such, because it isn’t moral. Now these are opposite conceptions, but in a certain sense they rest on the same conceptual foundation. That foundation identifies Jewish law and morality. One says there is no morality, there is only Jewish law; the other says there is no Jewish law, there is only morality. But both of them identify Jewish law with morality.

But there is a third possibility, and this is what I think emerges from the Ran’s words, and this is what I’m aiming at here: these are two parallel systems and they are foreign to one another. Jewish law has no obligation to morality, and morality has no obligation to Jewish law. Rather, these are two foreign categories, each operating by different principles, and it is no wonder that they lead to different results, and therefore conflicts may emerge between them.

So let’s apply that, say, to killing an Amalekite infant. Regarding killing an Amalekite infant, some will say: this is the highest morality. It seems immoral to you? That’s because you’re crooked, influenced by Western culture and all the antisemites. But if you were attached to the spirit of traditional Israel, you would understand that the highest morality is to kill Amalekite infants while they are still small. That is the most moral thing possible, because that is what Jewish law says. That is one conception. The second conception says: impossible. It is obviously immoral, therefore clearly Jewish law does not say that. So they come and say: no, Amalekites means fighters, I don’t know, not infants, because it’s immoral. Jewish law cannot possibly say that. A third conception, which I propose, says: Jewish law says to kill an Amalekite infant; morality says it is forbidden to kill an Amalekite infant; and I am in conflict. That’s all. That’s a conception. The fact that it ends in conflict does not mean it isn’t a conception. More than that: not only is it a conception, it is a coherent conception. It is not a conception containing a contradiction. It is entirely coherent.

And what I really want to argue is the following: all the problems of Torah and morality stem from the mistaken assumption that morality, that Torah, or Jewish law, is an expression of moral principles. That is not true. The purpose of Jewish law, as the Ran says, is “the application of the divine matter.” These are religious goals. And morality has moral goals. And when I tell the wife of a kohen who was raped to separate from her husband, it is not because that is the moral command. It is blatantly immoral to say that. But there are vital religious consequences for which reason I nevertheless tell her to do it. Not because it is moral—it is not moral. But there are religious consequences because of which I need to do it. Therefore that directive is given even though it is not moral. I am not reconciling Jewish law with morality; on the contrary, I am claiming that these are two foreign and independent categories, and there is no need to reconcile them with one another.

True, the question arises: when there is a conflict, what should one do? How should one decide it? What should one do in practice? Good question. But that is a practical question about how to resolve conflicts. On the conceptual level there is no logical obstacle to being in conflict. When you are committed to two systems that say different things, you can be committed to both and be in conflict. There is no conceptual problem with that at all. That is basically my claim, and it seems to me that this is the deeper meaning of the Ran’s words. What the Ran says—the distinction he draws between king and the government of the Sanhedrin, or between “the application of the divine matter” and social order and justice—that distinction is not only institutional, that this is handled by the Sanhedrin and that by the king. It is a distinction between the two systems in what they are trying to achieve. Jewish law is trying to achieve the application of the divine matter, and morality is trying to achieve justice and social order, the good. These are two entirely different goals, unrelated to one another. Therefore there is no reason, no need, and it is also incorrect to reconcile Jewish law with morality. When there is a conflict between Jewish law and morality, that only means that the religious goal requires from us a moral transgression. Just as when I perform surgery on a patient I can hurt him—but there’s no choice; in order to heal him I have to hurt him. Does that mean that hurting him is a good thing? No. Hurting him is a bad thing. But healing him is more important, and that overrides the prohibition against causing him pain. Here the Torah says: when the wife of a kohen was raped, the religious value says they must separate. Morality says it is forbidden to separate them. The religious value overrides the moral value; it is not identified with it, and does not eliminate it. It’s not that morality doesn’t say that—morality does say that—but the religious value overrides it. That’s all.

And by the way, I want to argue more than that: it is not always true that the religious value overrides the moral value. It is a conflict. Not every solution to it goes in favor of the religious side. Okay, we’ll stop here for five minutes to refresh ourselves, and then continue.

Okay, good, let’s continue. So, in order to sharpen the meaning of these things a bit more, let’s try to understand how a normative system is built at all. When I want to ask myself what gives validity to any normative system—for example, let’s say the laws of the Torah or the laws of the Sages, okay? Let’s say rabbinic laws—what gives them validity? As is well known, this is a dispute between Maimonides and Nachmanides. Maimonides claims that we derive it from “do not turn aside.” Nachmanides claims that “do not turn aside” gives them validity only to interpret the Torah, but rabbinic enactments—new legislation—that does not come from “do not turn aside” but from something else, which he does not spell out. An interesting question: what is that something else?

What is really behind this? Maimonides is basically saying: if you say there is a system of rabbinic laws, there must be some source that gives it validity. Say the rabbis tell me not to eat chicken cooked with milk. Why should I obey them? I can also tell you to do all kinds of things. Why should I obey them? There has to be some source that is not them which gives them validity. Right? What is the source—that they themselves said I need to obey them? That won’t help, right? Meaning, there cannot be a law that says one must obey laws. That is not relevant. What gives validity to the normative system has to be something more fundamental than it, something outside of it. Okay?

So one can find a verse from God, and the obligation to obey the divine command is what gives validity to the Torah-level system of laws, and so on. In other words, every normative system needs some principle—we’ll call it, for the sake of discussion, a value principle—which is what gives it its validity or its value, what turns it into a binding value. Okay? And that principle is always a principle located outside the system. Because there cannot be a moral principle instructing us that we must be moral. There’s no such thing. Just as there cannot be something written in the Torah saying that one must keep all the commandments. Although, by the way, there are verses like that: “You shall keep all My commandments and do them,” and so on. And Maimonides, in the fourth root, indeed speaks about this. What is that? What is a commandment to keep commandments? He seemingly sees it as a kind of duplication. The commandments were already stated, so why do we need another command telling us to keep the commandments? But there is a much harder question here. It is not only a question of duplication, but how can there be a commandment that tells us to keep commandments? If I don’t keep commandments, then this commandment too I won’t keep, right?

Like people say, the model the Gemara gives for why we are obligated to Jewish law is the model of an oath. Familiar with that? The Gemara in several places says: “already sworn and standing from Mount Sinai.” The claim is that we swore at Mount Sinai to keep the commandments: “I have sworn and I will fulfill, to keep Your righteous ordinances.” Okay? By the way, I know of no source that the Jewish people swore anything at Mount Sinai. Certainly not in the Torah, and in my opinion not in the midrashim either. Where is it written that there was some ceremony of oath at Mount Sinai? There was “we will do and we will hear,” there was covenant-making, a contract—but not an oath. Why is it an oath? The model is the model of an oath. The Gemara takes that model so seriously that it discusses it according to the criteria of “an oath does not take effect upon an oath.” Therefore, for example, if someone vows not to keep a commandment, that works, but if someone swears not to keep a commandment, that does not work, because a vow can take effect upon an oath but an oath does not take effect upon an oath. In other words, they take this model very seriously, as if there really had been an oath at Mount Sinai.

Now, as far as I understand, there wasn’t. This is a fiction. A legal fiction, or a meta-legal fiction, as is also common in legal thought to speak of fictions. I don’t know, like the social contract. Why are we obligated to obey the law or to conduct ourselves according to the rules of morality? Because we all signed a social contract; every human being as such signed a social contract. Does anyone here remember a ceremony like that which he participated in? I don’t. There was never such a signing, neither by us nor by our ancestors. So what is it? It’s a fiction. A fiction saying that every person as such is as if he were signed onto the contract. That is the model by which we interpret people’s obligation to the society they live in—as if there were some contract among all the members of that society, a mutual contract among them. It’s a model, not that this was really a historical event that happened. Okay? I think that in the same way—by the way, this is used a lot, even in court rulings. Judges invoke the social contract, and there are practical consequences whether something is based on the social contract or on something else, even though everyone knows there never actually was a social contract. Historically there wasn’t. But we view people as though they are implicitly signatories to a social contract, not that they really once signed such a thing.

Anyway, for our purposes, this oath is basically a principle saying that we must keep the Torah because we swore. So the Mishneh LaMelekh on the laws of kings asks that this is circular. Since the obligation to keep oaths is part of Jewish law, how can it be that we are sworn to keep Jewish law? Someone who does not keep Jewish law also won’t keep the oath, because the obligation to keep oaths is part of Jewish law.

To this, the Avnei Nezer in Yoreh De’ah, section 306, answers—he discusses there an oath in writing. What is the validity of a written oath? As is known, the later authorities dispute this. He brings there some responsum of the Ri Migash, and he interprets it himself, and he says that basically with an oath, beyond the Torah law, there is also reason. If you swore, you must keep it. Therefore we also see that people swore before the Torah was given—Abraham and Abimelech swore to one another, Eliezer and Abraham, right? An oath while holding an object is learned from Eliezer—I won’t mention here which object he held. But that’s where we learn it from. That was an oath.

So what is the basis of such an oath, when the Torah had not yet been given and had not yet told us that we are obligated to keep oaths? It is an obligation based on reason, a moral obligation. If you swear, you keep what you swore. So says the Ri Migash: if I swear in writing, then there is no verbal declaration. A declaration is an utterance by mouth. A vow or oath must be uttered orally in order to be valid. If I swore in writing, there was no verbal declaration, so it is not valid. So the prohibition of “he shall not profane his word” and “according to whatever comes out of his mouth he shall do” do not apply to a written oath. But that does not mean there is no obligation to keep it. Why? There is a moral obligation to keep it, not a halakhic one. Just as there was between Eliezer and Abraham, or between Abraham and Abimelech. If you swear, that obligates you—not because of the command of the Torah. The command of the Torah adds some further halakhic layer. But there is an obligation to keep oaths even apart from what the Torah says.

And with this, says the Avnei Nezer, the Mishneh LaMelekh’s question is resolved. The Mishneh LaMelekh asked: what is the point of making us swear at Mount Sinai to keep the Torah, when the obligation to keep oaths is part of the very Torah we are trying to ground here? The answer is: the oath we swore at Mount Sinai to keep the Torah is not an oath of “according to whatever comes out of his mouth he shall do.” It is not a halakhic oath. It is a legal-moral oath. The oath that obligates by force of reason, not by force of command. And that does not depend on the Torah; it already existed before the Torah. Therefore there is a point in making the Jewish people swear that they would keep the Torah, because the obligation to keep that oath is an obligation grounded in reason, not in Torah.

Right, I said that this is why in the age of the Patriarchs, before the giving of the Torah, we see people administering and taking oaths, because there is a logical principle saying that if you swore, you must keep it. By the way, there is a Maimonides in the laws of hiring. Maimonides says that one does not administer an oath to a minor because he does not know the punishment of an oath. Right? Suppose in court a minor received something to watch, okay? Something happened to the object, and I want to administer to him the custodian’s oath. Maimonides says: one does not administer an oath to a minor. Why? Because he does not know the punishment of an oath. The whole point of an oath is that it is meant to deter you. You know there is a severe punishment if you swear falsely, and therefore it makes sense to administer an oath to get the truth out of you, because you are afraid to lie under oath. But someone who does not know the punishment of an oath will not be afraid, so there is no point in administering an oath to him; you’re just making him swear for nothing.

This Maimonides is puzzling. Because he is basically saying that the minor does not know the punishment of an oath—implying that there is a punishment on him, he just does not know it. If I were Maimonides, I would say: one does not administer an oath to a minor because there is no punishment of an oath upon him, not because he doesn’t know. A minor has no punishment; he is not obligated in the commandments. What does “because he does not know the punishment of an oath” mean? There is no punishment of an oath upon him. What do we see? That there is. A minor does have punishment for an oath; perhaps he is just not mature enough, not understanding enough, to understand that punishment awaits him. But in principle there is punishment for an oath even on a minor. How can that be? A minor is exempt from commandments. As I said before, of course we are not talking about punishment by the court, but punishment by Heaven. So there is an obligation to keep oaths independent of the Torah. Not because of Jewish law—an obligation of reason. And obligations of reason also bind minors, not only adults. An obligation of reason addresses anyone who understands it. Torah obligations address adults. Obligations whose basis is reason address anyone who understands the reasoning, whether minor or adult. Obligations whose basis is reason bind minors completely just as they bind adults. A five-year-old child, if he understands, is bound by them just like an adult. All exemptions for minors apply only to commandments rooted in the command of the Torah, not in reason.

In any case, returning to our point: every legal system needs some more fundamental principle, external to it, which is what gives it its value or its validity. That is a value principle. Now there are two kinds of value principles: a sweeping value principle and a particular value principle. The terms are mine, but I use them because it’s easier to speak that way, so we’ll have a term for each idea.

What is a particular value principle? A particular value principle means, for example, someone wants to check whether he wants to be obligated to the Torah, whether he agrees to be obligated to the Torah. So he examines each commandment, each norm written in the Torah, and goes through them one by one in a particular way. If they all seem reasonable to him—meaning logical, moral, and so on—then he accepts them; if not, then not. Here we are dealing with a particular examination. By contrast, there is a sweeping value principle. What is a sweeping value principle? It is to accept the system without a particular examination.

Now what is the idea here? Look: there are two midrashim of the Sages about the giving of the Torah, and it seems to me their purpose is to reflect the difference between these two value principles. It says in tractate Shabbat that when Rava would study, he would bite his fingers and actually draw blood from them, so distracted was he while thinking through the passage. Then some heretic meets him and says: “Impulsive people, who put your mouths before your ears. You put your mouths before your ears.” You said to the Holy One, blessed be He, “we will do and we will hear” before hearing what it was about. What is he really saying to Rava? You should have done a particular examination before agreeing. First hear what it’s about. What does Rava say, or what does the Jewish people say? No—we do a sweeping examination, not a particular one. We accepted the Torah in blank. We are not interested in what is written in it. We are committed to it by virtue of the fact that the Holy One commanded it to us.

Where is the second midrash that says this more clearly? The famous midrash that the Holy One went around to all the nations and wanted to give them the Torah. Then the midrash says: He met the Ishmaelites, they asked Him what is written in it, and He said “do not commit adultery.” That doesn’t suit us. What is that? A particular examination, right? They go through what is written in the Torah as a condition for their commitment to the Torah. They are unwilling to give sweeping commitment; they want a particular examination, and in the particular examination it doesn’t pass, it doesn’t suit them. Others He tells: “do not murder.” That doesn’t suit us either, so they also do not accept the Torah. Until in the end He comes to the Jewish people, and what do they say? “We will do and we will hear.” What is that? “Impulsive people”—first hear what it is about, what kind of thing is “we will do and we will hear”? No. We’re signing a blank check. We are not doing a particular examination of the system; we commit ourselves to it as is, without checking—a pig in a poke.

What is the idea behind that? The idea behind that is trust in the giver of the Torah. If I trust the Holy One, blessed be He, why do I need to examine all the commands He gives me? I trust that if He commanded it, whether I understand it or not, it is probably the right thing to do. And since that is so, I accept the Torah upon myself by force of a sweeping value principle, not a particular value principle.

The nations were willing to accept the Torah if it would pass a particular test. They would go over all the commandments; if everything looked fine to them, then yes, and if not then not. But the Jewish people accepted it by force of a sweeping value principle—commitment to the Holy One. And once that is so, there is no need to examine the details. For example, I go to a doctor and the doctor prescribes a medicine for me. Did I check him to see whether the medicine works or doesn’t work? Usually I do not check him; I don’t understand medicine. Why? Because I trust the doctor—his professionalism and his intentions, that he does not want to harm me and that he knows what he is talking about. If I trust him, then I will take the medicine even without checking. Does that seem irrational behavior? Not at all. It is completely rational behavior. Someone who is not a doctor goes to a professional and relies on what the professional tells him. That is called a sweeping value principle. To accept on the basis of a particular value principle means that every medicine he prescribes, I go and investigate it online, ask people, study medicine, until I become convinced that this medicine works. Until then I won’t take it. That means I do not trust the person who prescribed the medicine. So why am I taking the medicine? Not because he prescribed it, but because it is the right thing to do. I am not accepting it because of the authority of the doctor, but because I simply checked and this really is what works, so I take what works. By contrast, the other person who takes the medicine takes the medicine by force of trust in the doctor. True, as a result he also thinks that this is what will help, but the basis is trust in the doctor.

The same with the Holy One. We can accept the commandments because we identify with each and every one of them. That is what the nations wanted to do, but they did not identify with them and therefore they did not accept them. We accepted. But since I trust that if the Holy One commanded it, then that is what ought to be done and that is what is right to do, I accept the whole system upon myself on the basis of a sweeping value principle. Of course, trust in the Holy One also means that each and every one of His commands is probably also right. I assume that, because that is the meaning of trust in the Holy One. But I do not need to examine each commandment in order to verify it. It is enough for me to assume that I trust the giver of the Torah.

Why is this distinction important? Because here is the punchline. What happens if I am committed to two different normative systems? There is no conceptual obstacle to that, right? I can be committed to morality, and to state law, and to Jewish law, and to the rules of the basketball association, and the chess federation, and the bar association, and the rest of the gangs of robbers. Fine. I can be committed to all of those systems together. A person can find himself committed to many normative systems.

Now what happens when there is a contradiction between an instruction of one system and an instruction of another system? Let’s do the accounting. Suppose I have two normative systems, A and B. System A gives me an instruction to do X. System B gives me an instruction to do not-X, or not to do X. Okay? Can such a state of affairs exist? My answer is: it depends. If I accepted both systems upon myself by force of a particular value principle, such a situation cannot arise. Because then I examined all the principles included in system A, and when I accepted it, it was because I identified with each and every principle within it. And the same with system B. But if system A says to do X and system B says to do not-X, then I could not have accepted one of the two systems upon myself, because either I identify with X or I identify with not-X. Meaning, if the two conflicting systems are accepted by me following a particular examination, then a contradiction cannot arise—or I missed something in the examination.

When can a contradiction arise? Only if at least one of the two systems is accepted by me by force of a sweeping value principle. For example, if I accepted the Torah upon myself—let’s go straight to the point—if I accepted the Torah by force of a sweeping value principle, and the Torah tells me to kill an Amalekite infant. Now I also accepted moral principles upon myself, and those moral principles tell me not to kill an Amalekite infant because it is immoral. Is it possible that I would find myself in such a conflict? The answer is of course yes. Why? Only because I accepted the Torah by force of a sweeping value principle. The nations could not have found themselves in such a situation, because if they had accepted the Torah, it would have been on the basis of a particular examination of everything it says, every single thing. When they reached the commandment to kill an Amalekite infant, they would have said: wait a second, this is unacceptable to me; I do not accept the Torah upon myself. Right? Because they examine every single principle. Therefore someone who accepts both systems by force of particular value principles can never find himself in conflict. The possibility of a conflictual situation arising exists only in a case where at least one of the two systems I accepted by force of a sweeping value principle and not a particular one. Are you with me? Clear?

I have a few questions about what you said earlier. According to that explanation, that the oath at Mount Sinai brings the Jewish people to accept halakhic obligation, doesn’t that mean that from a source that is moral you arrived at halakhic obligation? Isn’t there then some hierarchy between the systems? Aren’t you putting morality above Torah when you say that? No. And I’m not necessarily saying that the oath belongs to morality. There is some principle that one must keep oaths—call it whatever you want, wherever it comes from. I’m not getting now into the question of whether that is a moral principle or not. For example, oaths to do something not to someone else, not toward someone else, but just an oath that I’ll do something—I’m also obligated to keep it. I’m speaking now without the Torah, just from reason. So I’m saying: suppose yes, doesn’t it belong to some other system—reason, something? It doesn’t seem like a moral principle; it doesn’t hurt anyone or help anyone. But I’m asking: doesn’t it belong to some set of something? Not necessarily morality. Some set. Maybe yes, maybe. Or there is a set, or it’s a set with one principle. Why do I care how big the set is? But there is some such principle by force of which I accept the matter upon myself. Then the second question arises: where does that principle itself come from? I mean, because you can ask that question again and again and again until you get to something that is self-evident. Or you stop at some point where there is something self-evident that doesn’t require an earlier foundation in order to ground it. Maybe I’ll comment on that in a moment, okay? Let me just finish the description.

What I really want to say is that to be in conflict between Jewish law and morality—that can arise only among the religiously strict. Only among those who accept the Torah without discrimination, without checking each and every detail. Full trust. Fanatics. Only fanatics can be in conflict. That’s a bit contrary to our initial intuition. Those liberals who accept the Torah only on a moral basis are never in conflict. Because what is not moral is not binding; they have no problem. They are not in conflict. They simply do not accept it. In other words, conflict between Jewish law and morality belongs to the religiously strict, not to the liberals. Right, I’m using labels here loosely, but the first group too will reach that same situation. They look, after all, at some contradiction with morality and say, okay, this isn’t moral. Right. So they’re not religiously strict? They have no conflict. They just don’t create a conflict, that’s all. But I—I am in conflict, because I am committed to Jewish law and also committed to morality.

So what do you call the first group? That’s my question. What do you mean, what do I call them? Someone who accepts the Torah on the basis of a particular value principle can never be in conflict. Someone who observes from the Torah only those things that fit his morality obviously can never be in conflict. I’m asking about someone who defines morality by means of Torah—what are they called? He obviously also will not be in conflict. Right, I’m asking what they are called. Because it sounds to me like “religiously strict” is a word that includes both of those, both the… No. I’m saying only a religiously strict person can be in conflict; I did not say every religiously strict person will be in conflict. If there is a conflict, it can only be for a religiously strict person. I did not say every religiously strict person will be in conflict. In other words, a liberal cannot be in conflict—that’s what I want to say. A religiously strict person can be in conflict and can also not be in conflict, depending on how he understands the relationship between the systems. Okay?

So that is basically the claim. And now what does it mean? Why is there no logical contradiction here? Why is this an acceptable state? The answer is very simple. The example I always use in this context—and I’m already a little tired of hearing it myself, maybe some of you have heard it too—is the chocolate example. Right? There’s an argument between two people: one says you should eat chocolate because it’s tasty, the other says you shouldn’t eat chocolate because it’s fattening. Who is right? Depends what matters more to him. Both are right. It’s both tasty and fattening. Still, on the practical level I have a dilemma: to eat or not to eat. That’s what I call a conflict, as distinct from a contradiction. In other words, to be committed to two normative systems—there is nothing contradictory about that. It is a coherent state. True, in such a state I can run into conflicts, where it will be difficult for me to decide how to act in practice. But that is a difficulty, not a contradiction. Meaning, there is no conceptual problem in such a state arising. Such a state does not indicate that you are not really committed to Jewish law, or to morality, or to whatever you want. I am fully committed to both, just as with chocolate I am fully committed to health and fully committed to pleasure. And now I am in conflict, because I have something which on the one hand harms health, and on the other hand gives me pleasure. Fine, so one has to think about what to do in such a case, if anything. But the fact that I am in conflict does not mean I am not loyal to one of the sides, or that loyalty to one of the sides does not allow one to be in conflict. Exactly the opposite. A conflict can arise only because I am truly loyal to both sides. If I were not loyal to them, there would be no conflict. That is very simple, but many people at first glance think the opposite. But it’s not the opposite. Being in conflicts is an indication that you are truly loyal to the system.

People often say: someone who is in conflict—well, then he’s not really religious, not seriously religious. That’s nonsense. On the contrary, if he is in conflict, that means he is really religious. Because otherwise he would not have a conflict. So my claim is that a clash between Jewish law and morality contains no conceptual problem at all. It is like health versus pleasure in chocolate.

Let’s return for a second to the wife of a kohen who was raped, or to the Amalekite infant. What I am basically saying is that on the halakhic level one must kill the Amalekite infant, and on the moral level one must not kill the Amalekite infant. Is there a contradiction here? No contradiction at all. There is a conflict about what to do on the practical plane. But this is not a contradiction. There is no obstacle to finding oneself in such a state. This state does not indicate that I am not loyal to Jewish law or not loyal to morality. On the contrary, it results from my being loyal to both sides. The same with the wife of a kohen who was raped, the same with anything in the world.

And therefore all those who try to identify one side with the other—to identify morality with Jewish law or Jewish law with morality—are in fact not in conflict. Because there are not two systems they are committed to; there is only one system. Okay, why can’t I say that I am committed to Jewish law more than to morality? What? Why can’t I say that I am committed to Jewish law more than to morality? You can. And then you would resolve the conflict by saying that Jewish law always overrides morality. Fine. And still you are in conflict, and that is your decision. It does not mean you are not in conflict. Someone who is not in conflict means it is fully permitted, not overridden. There is no second side to the dilemma, no price. That doesn’t mean I won’t always decide in favor of Jewish law. By the way, I think one does not always decide in favor of Jewish law. But even someone who always decides in favor of Jewish law does not thereby cease to be in conflict. It means he pays the moral price because he thinks the halakhic principle overrides the moral principle. That is an override. Okay? It is a conflict.

Rabbi, in the chocolate example, on the side that it is fattening, it’s not that he is forbidden to eat it, only that it is not recommended to eat it. And on the side that it is tasty, he’s also not obligated to eat it. It’s recommended because it’s tasty. Here, in our case, the differences between morality and Jewish law are that Jewish law says it’s forbidden and morality says it’s permitted. You’re taking it too far. You’re taking it too far. I brought an analogy. It doesn’t matter. Your distinction isn’t relevant. The analogy is meant to say: let’s suppose for the sake of discussion that someone is obligated to eat everything that gives him pleasure. Obligated—a normative principle. For him, that’s his system. And he is also normatively obligated not to eat anything fattening. Both are obligations, not recommendations. Is that an impossible situation? Completely possible. He is obligated both to this and to that. True, practically he will be in conflict. Fine. That changes nothing. It’s just an analogy.

The point I really want to make is that what stands behind the Ran’s words is this conception I’ve just laid out. Jewish law is meant to achieve religious goals, not moral goals. And morality is of course meant to achieve moral outcomes. Since that is so, it is even to be expected that there will sometimes be contradictory outcomes from Jewish law and morality. There is no conceptual problem with that. Because religious goals sometimes require payment in moral currency—or vice versa.

Rabbi, but in so many places the Torah itself says that it is the good—also in the midrashim: “I have set before you life and good, death and evil.” The question is whether this is moral good or religious good. That’s it—“good” is usually on the moral plane. Religious good is usually more “the proper” than “the good.” But let me sharpen it further. I am speaking here about Jewish law, not about Torah. Morality is part of Torah, but not part of Jewish law. It says “and you shall do what is upright and good”; that is a verse in the Torah. And it is a command to behave morally. But it is not part of Jewish law—no enumerator of the commandments counts it. My claim is a distinction between morality and Jewish law, not between morality and Torah. Torah has two sides: it has a moral side and a halakhic side.

Now you can also understand why, in my opinion, it is not always Jewish law that overrides morality. Both originate in the Torah and in God’s will. They are just two different categories of the will of the Holy One. And sometimes from this category I have to do X, and from that category I have to do not-X. Because the religious value requires it, and the moral value requires the opposite. The general category says—the general word without entering particulars—and here you have a particular statement telling you to kill the Amalekite infant. No, no—I didn’t say how one decides. You are already proposing solutions for how to resolve the conflict. I am discussing the question whether there is a conflict. What you are saying is what jurists call lex specialis: the more specific principle overrides the broader principle. The narrower and more specific a principle is, the higher its status.

For example, there is a prohibition against murder in Jewish law, but there is also an obligation to execute Sabbath desecrators. Seemingly a conflict—so do you kill a Sabbath desecrator or not? On the one hand there is the prohibition “do not murder,” and on the other hand there is an obligation to kill him. More than that: the prohibition “do not murder” is more severe than the positive commandment to kill a Sabbath desecrator. “Do not murder” is one of the sins for which one must die rather than transgress, and still it is obvious to everyone that one must execute Sabbath desecrators when the conditions are met, of course. Why? Simple. It’s lex specialis. When the principle “do not murder” is a broad principle, and the obligation to execute Sabbath desecrators concerns a certain specific person, then the specific principle prevails. What is the logic behind that? If you say the prohibition against murder prevails, then the obligation to execute Sabbath desecrators will never be realized in any case, because every time you try to realize it, it will run into the prohibition against murder. So why would the Torah write that one must execute Sabbath desecrators? But if you prefer the norm of executing Sabbath desecrators and say it overrides the prohibition of “do not murder,” then the prohibition of “do not murder” does not lose its meaning. There is a prohibition against murder so long as the person has not desecrated the Sabbath. Therefore both verses in the Torah remain relevant; there is no need to explain why one of them was written. Therefore it is obvious that the more specific instruction should be preferred. That is what is called lex specialis.

So yes, what I said was that in situations where the Rabbi says he would rule דווקא—specifically—in accordance with morality and not with Jewish law, then if morality and Jewish law both draw from the Torah, as the Rabbi says, then use lex specialis and go with morality. So again I’ll answer you what I answered before: what you are proposing is a way to resolve the conflict. I haven’t gotten to that yet. I’m talking only about the very existence of a conflict. There is a conflict. Even between “do not murder” and Sabbath desecration there is a conflict. We resolve it with lex specialis. That belongs to the next level already. Assuming there is a conflict—how do we resolve it? Fine, that is another question. I am talking about the very existence of the conflict, and I want to argue that the existence of a conflict is natural and called for, and there is no contradiction in it. It creates a difficulty on the practical plane—what to do in practice. Fine. But there is no conceptual problem in it. On the contrary, it is exactly what one should expect.

I’ll say more than that: even within morality itself there are conflicts—leave Jewish law aside—or within Jewish law itself. Saving life on the Sabbath, or a positive commandment overriding a prohibition—what is that? These are principles talking about collision, about conflict between halakhic principles. Two halakhic principles, on both sides. And there are principles for how to resolve that conflict, but these are conflicts that exist within the halakhic world itself, not against another system. So why shouldn’t there be conflict between morality and Jewish law? Even within Jewish law itself there are conflicts, and also within morality itself there are conflicts, so there are also conflicts between Jewish law and morality. What’s the problem?

Notice that according to this, there is no need to look for excuses, no need to look for explanations for why killing an Amalekite infant or separating the wife of a kohen who was raped from her husband is the most moral act in the world, or how it can be that the Torah commands something immoral. There is no problem in it commanding something immoral; that requires no excuses. It commands that thing because it brings important spiritual results. The moral price is known, and the Torah said that one has to take it. There is nothing to be done, just as one has to hurt a person when doing surgery.

But according to this, that brings me back again to the distinction between the three groups of people. They also have conflicts within the system. After all, they identify Jewish law and morality, and then they see two halakhic or moral principles and say there’s a conflict. So no, it’s not that they have no conflicts. I said they have no conflicts between Jewish law and morality, but they do have internal halakhic conflicts, fine. So apart from the understanding of the system, in practice the outcome really comes out the same. Everyone will get to situations where there are certain conflicts, and they’ll resolve them in different ways, but they’ll find some method for resolving them. That’s the only difference. Between the implications of where the decision will be or how the decision is made—of course there are implications.

Okay, it seems to me we’ll stop here at this stage and continue next time. Thank you very much. Thank you very much.