Topics in Halakhic Thought – Lecture 28

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[Rabbi Michael Abraham] I said that in those cases where he is acquitted under religious law, the king would come and deal with him, because there is a social or moral gap here, and that is the king’s role. And we lack nothing because of this, you can see it here. And we lack nothing because of this. Don’t think that because of that the system is somehow inferior, because whatever was lacking from the aforementioned repair—yes, the whole matter of damage to property—the king would complete. But we had a great advantage over them, over the gentiles, because insofar as they are just in themselves—that is, the law of the Torah, as the verse says, “And they shall judge the people with righteous judgment”—it follows that the divine flow will cleave to us. So the divine flow will cleave specifically to us and not to the gentiles; that is our advantage over them. Because we strive also for the religious goals and not only for the social-moral goals. Now, what I’m basically showing you is that the Ran is really describing the picture I described earlier. In a way that, I think, is very much—there is full correspondence, I think, between what I said and what he writes. And he draws from this the required conclusion, which is a logical conclusion, that indeed in certain places Jewish law will operate in a less moral way than other legal systems. That’s exactly—those are exactly the critiques I’m talking about in these conflicts between Jewish law and morality. Those are precisely the places where halakhic conduct is perceived as something less moral—and rightly so, it really is less moral. But not because it doesn’t care about morality; rather because it cares not only about morality but also about achieving religious goals. So I don’t need to explain why the separation of a priest’s wife from her husband is the most moral thing in the world, only we don’t understand it. No, it’s not moral. Correct. But the religious goals obligate me to do it anyway and to pay the required moral price, and there is such a price. Whoever denies that price is just throwing sand in our eyes. It seems to me that in this sense this is a much more correct answer, much more straightforward and much less twisted. You don’t need to start proving with signs and wonders that immoral acts are terribly moral. They aren’t! But what can you do—sometimes we have to pay a price. You perform surgery in order to heal a person, so you cause him pain. What can you do? Or chemotherapy for cancer patients—you cause him pain. True, but in order to heal him you need to hurt him. In order to achieve the religious goals, sometimes you have to pay a price in pain, in human suffering, a moral price. There’s nothing to be done, because that’s how the religious goals are achieved. I’ll bring you another source that basically says the same thing—this is the Maharal in Be’er HaGolah, second well, chapter 6. So he writes as follows: in chapter 2 of Bava Metzia, yes, “These are found items,” they said there that one need not return a lost item after the owner has despaired. Yes, if the owner has given up hope, you don’t need to return the lost item even if it has identifying marks and even if the owner can prove that he is the owner. Once he has despaired, you can take the lost item right before his astonished eyes, whistle happily to yourself, and walk home with his lost object. By the way, the Shulchan Arukh says that they compel this because of going beyond the letter of the law, but the core law is like this. And this matter seems, to people, far-fetched. What does “far-fetched” mean? Not moral. That a person should take what is not his, when he did not labor and did not toil, and rob another’s property. Why should a person take someone else’s property when we know that this is his property—there are identifying marks. He can prove it. It’s not that we didn’t find the owner; we know who the owner is. But because he despaired, I take it. So he says: what do you mean, you take property that he worked for and toiled for? He despaired because he thought he wouldn’t find it. And now here he found it, so why not return it to him? It’s his property. Morality says to return it. But Jewish law says no, you don’t have to return it. And that’s what the Maharal says: and this matter is not according to civic law—meaning according to morality—because civic law obligates one to return a lost item even after the owner has despaired of it. That’s what morality says. And the reason for this—why is it really so?—is that civic law obligates whatever is fitting to do for the repair of the world, even though reason does not obligate that thing, but that is what the repair of the world requires. The Maharal says that the purpose of civic law is to fix society. And social repair is achieved if you return the property to its owner even if he despaired. Even though reason—in a moment I’ll sharpen more what he means when he speaks about reason—but even though reason does not obligate this, because according to reason, after despair it’s mine, but the repair of the world—to restore morality, also repair of the world, yes—to return the lost object to its owner: he worked for it, he toiled for it, why take it? So he says as follows: therefore civic law sometimes has a stringency in some matter, even though according to reason and straight justice it should not have been necessary to do so. Yes, sometimes morality is stricter than Jewish law; what he calls reason and straight justice is Jewish law, and civic law is morality and social repair. So he says that civic law—and of course “law” here doesn’t mean religion, not religion in that sense, yes; “dat” means law, as in “the law was given in Shushan the capital”; in biblical language “dat” means law. So the laws of civility, the laws of morality, sometimes contain a stringency vis-à-vis reason and straight justice, vis-à-vis Jewish law. And therefore morality obligates you to do things that justice and reason—Jewish law—do not obligate you to do, such as returning a lost item after despair. And sometimes civic law is very lenient when that matter need not be done for the repair of the world, even though according to reason it is not fitting, but according to civic law it is. Meaning, sometimes morality is stricter than Jewish law, and sometimes morality is more lenient than Jewish law. There are no rules here—sometimes it’s this way, sometimes that way. Now he brings an example: thus according to civic law one must return a lost item after the owner has despaired, and this is a stringency. Yes, according to morality one has to return the lost item to its owner even after despair, and this is a stringency because Jewish law does not require it. And likewise the reverse: if one found silver vessels or gold vessels and announced them once and twice, and no one came to claim the lost item for a year or two, then he keeps it for himself and uses that vessel. The meaning is according to morality, because there is no social benefit after he announced it several times and waited a year or two or more; no one else will come. So what’s the point of just leaving the items there unused? At least let someone benefit from them. Therefore the logic of social repair and morality says: take it for yourself. And this is not according to the Torah, because if one found silver vessels or gold vessels and announced them many times and still no one came to claim them, they are forbidden to him forever; rather, they are left until Elijah comes—he may never touch them. So you see that they were very stringent. What is he saying? There is a leniency in morality and there is a stringency in morality and social repair vis-à-vis Jewish law. For example, if you found a lost item and took it after despair, then according to morality you have to return it to the owner if you know who the owner is, and according to Jewish law you are exempt from that—so here morality is stricter. But there is an opposite situation where morality is more lenient and Jewish law is stricter. When? If you find valuable utensils, gold and silver vessels, you announced them for a year or two, they have identifying marks, you announced them for a year or two and no one came to claim them. According to Jewish law, they are to remain until Elijah comes; you are forbidden to touch them. According to morality, if you tried to find the owner and couldn’t, then use them yourself, so that at least someone benefits from them. So here Jewish law is stricter than morality; Jewish law forbids you something that morality permits. And what is the idea behind this? Exactly what we saw in the Derashot HaRan, what I said earlier—that morality and Jewish law are two independent categories. Jewish law comes to achieve the religious values. That is what he calls justice and divine law, yes—the thing that is right in itself, not for the sake of social repair and morality, which are instrumental matters that you do so that society will be orderly; rather here it is truth in and of itself. And morality, as I said earlier, is instrumental—its concern is to repair society. And sometimes social repair is stricter than Jewish law, than religious repair, and sometimes it is more lenient. And therefore indeed there is—this is an indication that these two systems are independent systems, alien systems. Of course—and this is a good example—if you open the Shulchan Arukh you will see that it writes there, and this appears in the Talmud and is ruled likewise in Maimonides and in the Shulchan Arukh and all the decisors, that if you find a lost item and took it—if you took it before despair, you can never use it, you are obligated to look for the owner, and if not then it remains set aside. But if you took it after the owner despaired, then you may actually take it for yourself even if the owner comes and proves that this lost item is his. And regarding this the Rema writes in the Shulchan Arukh: a person is compelled to return the lost item after despair; one who does not return it, the sages are displeased with him and they compel him. There is a discussion about what happens if he is poor. It may be that someone who is poor may rely on the law and take it for himself, because this is only beyond the letter of the law. But one who is not poor and has no special need—and there are opinions that even one who is poor—they compel him to return it. What do you mean, they compel him? According to Jewish law I’m allowed to take it. What, the Shulchan Arukh writes that they compel me? Why compel me? The answer is because Jewish law indeed strives for the religious values, but morality is also important, and the king was really supposed to compel me to return the lost item to its owner even after despair, under the law of the king, under the law of social and moral repair. From the standpoint of Jewish law I can take it for myself; the king was supposed to compel me. What happens when there is no king? The authorities pass to the religious court. We spoke about this, and therefore the religious court imposes punishments not according to the formal law, and they compel on moral grounds, etc. Therefore, in a period when there is no king, the court also does his work. Only when it compels me to return the lost item after despair, that is not on the basis of Jewish law; it is on the basis of morality. From the standpoint of Jewish law I can take it for myself, only now the court is also wearing the king’s hat when there is no king, and therefore it compels me to return the lost item even after despair. There are, for example, examples of these things—for instance, the Talmud in the first chapter of Bava Batra, on pages 9 and 10, discusses there the law of the adjoining owner. The law of the adjoining owner—say two brothers are dividing their father’s inheritance, some field. Now one of them has a field of his own adjacent to their father’s field. So the Talmud says we obligate the brother to give that brother the half that is adjacent to his field, because it is more convenient to tend fields when they are next to one another. Now in principle the other brother could have said: according to the law we cast lots; I want that half and you will get the far half. But the Talmud says this is the trait of Sodom. By the law of the adjoining owner—”adjoining owner” means the owner of the boundary, the one on whose border the field lies—we give him the right to take that half for himself. Even though by strict law it does not belong to him; by strict law I can stand on my rights and toss a coin, draw lots. Yes, but morality says that nevertheless, if the two halves are equal—at least that’s what I mean—then morality says to give him the half adjacent to his field. Now here this enters Jewish law as: they compel regarding the trait of Sodom. But of course compelling regarding the trait of Sodom is a rabbinic law, not a Torah-level law. On the Torah level there is no trait of Sodom; on the Torah level I can insist on my right to draw lots. Sometimes the sages establish an enactment, a decree or an enactment, that inserts a moral principle into Jewish law—certainly when there is no king. As long as there was a king, maybe there was no need to do this because the king would see to it that you divide the field that way. But when there is no king, then the rabbinical court is actually supposed to deal with this too, with enforcing morality and not only enforcing Jewish law. And therefore it entered the Shulchan Arukh that they compel regarding—well, not the law of the kingdom but the law of the adjoining owner, yes, regarding the trait of Sodom. Therefore the sages enact the moral rules called the trait of Sodom and insert them into Jewish law, even though essentially they do not belong there. After all, if morality were part of Jewish law, there would be no need for a rabbinic enactment compelling regarding the trait of Sodom. We already knew before that this is not moral, and if Jewish law tells me to do what is moral then there is no need for an enactment of the sages. Why do we need an enactment of the sages? We need an enactment of the sages because without the enactment it really would not enter Jewish law. It would be a moral principle, but it would not be part of Jewish law. The sages on the rabbinic level decided to insert this moral law as a halakhic enactment, and now it is binding halakhically as well and not only morally—but only by force of the enactment of the sages. Meaning, this actually teaches that categorically morality does not belong to Jewish law unless the sages make an enactment and decide to insert it. Just as they can insert something otherwise permitted into Jewish law, then certainly they can also insert a moral principle into Jewish law. But they have to insert it there, because without their doing so, it does not belong there. It is a different category. Okay, this more or less completes the picture I have described up to this point. We’ll take a five-minute break, and then we’ll come back to talk a bit about conflicts. Thank you. Is everyone back? Is everyone with us?

[Speaker D] I was a little late at the beginning because I had no internet, I was on the road, I couldn’t connect.

[Rabbi Michael Abraham] Good. Okay, now what basically remains for us is to talk about the—still, about the practical problems, not the theoretical ones. Meaning, we won’t solve too many practical problems here, but to come down more to the plane of conflict rather than contradiction. Meaning, what is basically, in brief, the proposal that I’m making? That a problem of Jewish law and morality is not a problem of contradiction but a problem of conflict. Meaning, the usual approaches that see this as a contradiction basically say: it cannot be that Jewish law is not moral, there is a contradiction here. Jewish law cannot say to kill Amalek and on the other hand “You shall not murder,” that there is a prohibition of murder. So some resolution is needed; we have to explain that killing Amalek is not murder, that it is morally okay or something like that. I want to suggest that no. Killing Amalek is not morally okay, but it is necessary for religious goals, and therefore there is no theoretical problem, no contradiction in the existence of two such values within the same system—the system of Torah as a whole, because both Jewish law and morality are two subsystems within the Torah’s obligation. So there is no problem here with contradiction as such. Of course, however, that does not mean there is nothing more to do, because in the end, in the end, one still has to decide how to act. I have a conflict; now the question is okay, so what do I do in practice? Now here there is some tendency to think that the problem—those who see this as a contradiction will usually tell you: yes, but there is no conflict here. There is only contradiction here. There is no conflict here. Why? What? Because obviously if the Torah says to kill Amalek then one must kill Amalek. Meaning, on the practical level, even if I see there is a clash here between the religious value and the moral value, clearly the religious value prevails. And that is the commitment to Jewish law. So precisely from the perspective of those who see this as a contradiction, they usually do not see it as a conflict. But I do not see it as a contradiction; I do see it as a conflict. I see it as a conflict because I am committed both to Jewish law and to morality. And on the principled level there is no necessity to say that when there is such a clash, Jewish law always prevails. Just think about it on the logical level—how would you justify the superiority of Jewish law? You would say that Jewish law obligates following Jewish law against morality, but the question is: who said we obey Jewish law in this case? This rule itself cannot belong to Jewish law. When Jewish law is in collision with another value, then the rule that tells me what to do cannot itself be part of Jewish law. Because I am now speaking about the question of whether to obey Jewish law. And note that I keep repeating and emphasizing what I already said, that obedience to morality is a religious value just like obedience to Jewish law. And it is also an expectation of the Holy One, blessed be He, from us. Both are the will of God. This is not a question of God’s will being supreme over other things. Both are God’s will. Therefore, a priori, it is not correct to assume that Jewish law always prevails. And therefore, although there is no contradiction here, there certainly is a real conflict. It is such a real conflict that I also do not accept this view that the halakhic side will always prevail over the moral side. No. I am in a conflict, where there are two values and one has to decide it the way conflicts are decided in different areas.

[Speaker C] Maybe the Holy One, blessed be He, created for us a rule and an exception?

[Rabbi Michael Abraham] Fine, and if He created the rule, all the better—I would like to see it. But when there is a conflict, after all—

[Speaker C] He set a rule that it is forbidden to kill, but it is permitted to kill an Amalekite. Why—why can’t that work?

[Rabbi Michael Abraham] Where does that exception come from? But do you have such a rule? Where does it come from? Where is it written?

[Speaker C] I didn’t see that it’s written.

[Rabbi Michael Abraham] If the Holy One, blessed be He, had given me such a rule, everything would be fine. He didn’t give it to me. So I am in conflict. I do have a conflict, because I have no rule to decide it; I have to decide. What do I do? And also in the dilemma that—you know, I mentioned this I think—the dilemma of Jean-Paul Sartre’s student during the Holocaust, in Paris during the Holocaust, who was caring for his elderly mother who was sickly and needed his help. He was the only one there. Now he wanted to flee France and join the Free French army to fight against the Nazis. On the other hand, he couldn’t leave his mother. He went to consult Sartre, to ask him: there is a collision between values—the fight against evil and helping his elderly mother. Which value prevails over the other? Okay, so in that context, if I had a rule that fighting evil prevails over anything else, then there would be no problem, there would be no conflict. The conflict arises because I have no deciding rule; I have two values, and now the question is what do I do when they clash? The same thing applies in the clash between Jewish law and morality. You see that such clashes can also exist within morality itself. There it has nothing to do with Jewish law; that was a dilemma within the moral world itself, between two moral values. Similarly, there are clashes between two religious values, a positive commandment and a prohibition, where Jewish law also tells me the rule—that a positive commandment overrides a prohibition, okay? So clashes do not exist only between Jewish law and morality; such clashes can exist between two moral values, between two halakhic values, and also between Jewish law and morality. And now the question is: but what do we do with such a conflict? So I want to sharpen the question further. There are two kinds of—I will distinguish here between two kinds of clashes between Jewish law and morality, really clashes between values in general, but for now between Jewish law and morality. One clash is an essential clash, and the second clash is accidental. What do I mean? An essential clash is, for example, like killing Amalek, or the wife of a priest who was raped, or things of that sort. Why? Because every time you kill an Amalekite infant you are basically violating a moral prohibition. It is not just some accidental clash. For example, what is a non-essential clash? Saving life and the Sabbath. That is an accidental clash. Why? I can observe the Sabbath… I can observe the Sabbath all my life and not endanger any lives. I can save every life I encounter in my life without ever violating the Sabbath. It can happen that there is a case where I need to do something to save a life on the Sabbath that involves violating the Sabbath, so the clash is an accidental clash. Circumstances happened by chance and they put me into conflict. There is no contradiction or no essential clash between the value of Sabbath observance and the value of preserving life, the value of life. The clash is an accidental clash. A case happens in which it clashes, but there is no clash between the values themselves. In killing Amalek, it is a clash between the values themselves. Killing an Amalekite infant is by definition something immoral. It’s not that by chance in this situation it comes out immoral. No. It is essentially immoral. It is a clash that always occurs; it is not only in a certain case, not in specific circumstances. That is what I call an essential clash. Why is this important for our purposes? Because in an essential clash, then it is fairly clear that Jewish law is what prevails. That is where the intuition comes from. Why? Because when Jewish law tells me—when Jewish law tells me that a priest’s wife who was raped must separate from her husband, then it gave that command while understanding that there is also a moral problem here, and nevertheless it told me to do it. Now there is no situation in which I could do this if I preferred the moral rule over the halakhic rule, right? So in no situation would I be able to fulfill this halakhic command. So why was it said? If it was said and the clash is essential, then apparently Jewish law prevails. Why does it prevail? Because the Holy One, blessed be He, who wrote this command also took into account that there is a moral problem in it, and told me: nevertheless, this is what I want you to do. So He told me that the halakhic command prevails over the moral command. But in an accidental clash like saving life and the Sabbath, in such an accidental clash that consideration does not apply. You can’t say that the Holy One, blessed be He, told me to observe the Sabbath and therefore clearly He also took into account that it might harm life. Not true. He may have told me to observe the Sabbath only in those places where it does not harm life. And where it does harm life, then no—because the clash is not essential but accidental, so there are cases where there is a clash and cases where there isn’t. And then, when the law is written in the Torah, it may be speaking only about cases where there is no clash. I don’t know. Therefore the question of conflict is an open question in clashes of this type. In essential clashes it is not so. Because in essential clashes, there it is clear that whenever I fulfill value A, I violate value B. So if the Torah said to do A, I cannot explain: well, it said to do A only in such situations and not in others. Every situation in which I do A violates value B. Therefore, in such cases, if the Torah said to do A, it also told me that this overrides value B. For example, for example, killing an Amalekite infant. In killing an Amalekite infant there is always a clash when you kill him, between that act and the value of life or morality. Always. You cannot kill an Amalekite infant without that, because an Amalekite infant is never guilty. Or a priest’s wife who was raped—every time you tell them to separate there is a moral problem there. It’s not an accidental clash; it is an essential clash. So which side prevails? When there is a clash, okay, now who prevails? So to kill an Amalekite infant or “You shall not murder”? So not to kill an Amalekite infant. Or you know what—even to stone a Sabbath desecrator with witnesses and prior warning, but there is “You shall not murder,” it is forbidden to kill. And this is an essential clash: every time I kill him I am killing a person. So fine, it is essential, and therefore here it is clear that I derive the result from the Torah. But now the question is how do I derive a result from the Torah? I have two conflicting values. Which one prevails over the other? The answer to this is the principle that our cousins the jurists call lex specialis, the priority of the specific. What does that mean? Take, for example… the killing of a Sabbath desecrator. There is the command of “You shall not murder,” and there is a command to kill Sabbath desecrators—if there are witnesses and warning and all the conditions are met, there is a command to kill the Sabbath desecrator. Which command prevails? Always the specific command. Why? Because let’s think: if the prevailing command were the command of “You shall not murder”—a very similar consideration to what I made earlier—if the prevailing command were “You shall not murder,” then the command to kill a Sabbath desecrator would be emptied of content. Right? When would I be supposed to fulfill it? Every time I kill him I violate “You shall not murder.” So if “You shall not murder” prevails over the duty to kill the Sabbath desecrator, then there would actually be no situation in which I would be supposed to fulfill the command to kill the Sabbath desecrator. So why does the Torah write it? But the Torah does indeed write to kill him. We must conclude that killing the Sabbath desecrator prevails over the prohibition of “You shall not murder.” And then there is no problem why the Torah wrote “You shall not murder.” It wrote the prohibition of “You shall not murder” for cases where we are not talking about a Sabbath desecrator. The clash is essential on one side, not on the other. Not every observance of “You shall not murder” involves failure to fulfill the duty to kill Sabbath desecrators. But every fulfillment of the duty to kill Sabbath desecrators involves the prohibition of “You shall not murder.” Therefore, killing Sabbath desecrators is the more specific duty, and “You shall not murder” is the broader duty, and the specific always prevails over the broader. A legal rule, a logical rule, this is entirely clear. Therefore killing an Amalekite infant or killing a Sabbath desecrator—these are all specific commands vis-à-vis the general “You shall not murder,” and therefore they always prevail over it. All this concerns essential clashes. Because there I derive the decision from the Torah itself. Lex specialis is an interpretive consideration regarding the Torah itself. But in those cases where the clash is accidental and not essential, in such a situation the question of who prevails remains open. There are sages who claim that great is human dignity, for it overrides a prohibition in the Torah—at least in passive non-action, rabbinic prohibitions, it doesn’t matter—but human dignity, which is some kind of moral value, overrides a halakhic value. Once they established that, then of course human dignity itself became a halakhic value, but before they established it, when they came to discuss this law, they discussed it as a value conflict, a conflict between a value and Jewish law. And here I need to explain a little more the depth of the problem. First of all I want to define the concept of value. What is a value? There is an article by Yeshayahu Leibowitz at the end of his collection of essays called Faith, History, and Values. The last essay there in the book deals with disconnecting a terminally ill girl from life-support machines. This was a case in the United States in the seventies, eighties I think, that sparked a stormy public controversy. A girl already unconscious, with no chance of waking up, just waiting for death. She was connected to machines. Her parents asked—she herself of course didn’t know—her parents apparently asked to disconnect her from the machines. And there was a huge argument in the United States; it reached the court. I think the court ultimately forbade it, but there was a huge debate in the United States. In the meantime the situations have changed a lot; the world has moved much more in the direction of permitting such things. But then there was some kind of taboo. So he wrote an article about it, and he argued that under no circumstances—Leibowitz argued—may one permit disconnecting them from the machines. And the reason, he said, was the following: what is basically the rationale behind the opinion that permits disconnecting them from the machines? The rationale is that human life is really a means and not an end. Life has value if you can do various things with it. But someone who cannot do anything with her life, who is unconscious, already terminally ill, waiting for death—then life is worth nothing, so you can take it. That means such a consideration basically assumes within it that human life is a means and not an end. But the meaning of the statement that human life has value is that human life is an end, not a means. And more generally, a value is by definition—a value is by definition always an end and not a means. You cannot ask why human life has value. The answer is: just because. Because it is a value. When you ask about something else why it has value—not driving recklessly on the road, say—it is because that endangers the value of human life. Values are the things by means of which I explain derived principles. But when I ask what explains the value itself, there is no explanation. There is no way to explain a value. You cannot rationalize it. It is a value, that’s it. Now here I need to sharpen this. The “that’s it” that I’m saying here—there are two kinds of “that’s it.” There is a “that’s it” that is arbitrary: that’s it because I felt like it. I drew lots, I felt like deciding this way, and that’s that. Of course that is not what we are talking about here. If you decided on health and I decided otherwise, what claim could you have against me? Clearly here we are talking about a value you are willing to fight for, something you think is right, obligatory, valid. The “that’s it” means that it does not require justification, not that there is no justification and it is arbitrary. It does not require justification; it is something self-evident. Anything that you justify, you use principles more self-evident than it in order to explain it. When you reach principles that are the most self-evident by nature, you will naturally not be able to explain them on the basis of other principles, right? When I ask you about them why they are correct, you will answer me: that’s it. Because it is obvious that this is correct. And there must be such principles, because every explanation rests on more self-evident principles, and if you explain those it is on the basis of principles even more self-evident; in the end there will be some set of principles that you cannot explain. After all, you won’t continue this to infinity. Therefore, at the base of the ethical system there is always a set of principles for which we have no explanation. That is what in our language is called values. Values are that set of fundamental principles for which we have no explanation—and no explanation is needed—because they are self-evident. They are so true that there is nothing truer than them that could explain them. Okay? Therefore, once you make that consideration about disconnecting from machines when the girl is terminally ill or unconscious and so on, you have basically said that in your view human life is not a value. Because it is a means to live, to do all sorts of things with your life. And then you say: once I can no longer do all sorts of things with my life, then life has lost its value and therefore it can be taken. Meaning, you assume that life is a means and not an end, or life is a means and not a value. But if human life is a value, and “You shall not murder” reflects that value of human life, then you cannot qualify it. You cannot rationalize it. You cannot say that if this woman, this girl, is in a coma and has no chance of waking up and cannot do anything with her life, then her life is worth nothing. How do you know? There is no reason by means of which I measure the value of life. There is no more fundamental standard by which I measure the value of life. Life has value, period, in and of itself. Therefore it makes no difference what you do with that life and whether it serves you for this or doesn’t serve you for that. Life is not supposed to serve you for something; life is a value. That is the claim. And what matters for our purposes is the definition of value as such. And what he is basically saying is that the concept of value means a principle that is correct in and of itself and does not serve anything outside itself. Any principle that serves another principle—the serving principle will not be the value; the principle being served will be the value. It will explain what I just said, but what I am saying now is not a value, because it is a means to something else. Now, when I want to decide a dilemma between two values, or a conflict between two values, what am I really supposed to do? I am basically supposed to build what is called a hierarchy of values. What is a hierarchy of values? To take the set of values I have—say I have ten values—and place them one above the other on some sort of scale in order to determine their order of importance. Once I have built my hierarchy of values, now I have a tool to decide conflicts. If two of my values clash, I am in conflict, I go to my scale, look which of the two values is higher on the scale, and that one overrides the other value. The scale reflects the measurement of the importance of the values relative to one another. And when I decide, now I can ask: but how does one build a hierarchy of values? After all, in order to place all the values on a scale, I need some measure with which I measure all the values. Each value gets a certain number of units, yes, in terms of that measure—meters, kilograms, seconds, whatever, something, some measure. Each value gets a certain quantity of that measure, and whichever has the larger quantity is higher on the scale of values. It is the superior, more important value, right? That is how we are supposed to build a hierarchy of values. But the problem is that there is no such scale. There is no measure by which one can build values, build a hierarchy of values. Because what is the measure? When I want, for example, to measure the value of human life versus Sabbath observance, how do I know which is stronger? Which is higher on the scale? How do I build the scale at all? What, what is the measure by which I can check the value of human life and the value of Sabbath observance, and then see which is higher on the scale? What is that measure? There isn’t one. There is no such measure. If both Sabbath observance and human life came to serve something, then that thing they come to serve would be the measure by which I could assess them according to the question of what service, how much service, they provide to my value. But if values do not serve anything outside the value, then that means there cannot be a measure that assesses them, and certainly not a common measure for two different values, or for several different values. There is no measure for a single value, and certainly not a common measure for two different values. But if there is no common measure, then how does one build a hierarchy of values? Now I want to explain to you just how difficult this question is. This question is called in analytic philosophy, in analytic ethics, the incommensurability of values. Incommensurable means lacking a common measure—common measure, yes, that is incommensurable: there is no common measure for them, yes, they have no common measure. Let’s look, for example, at the question: what is there more of in the world, kindness in people or water in the ocean? What is the connection?

[Speaker C] What is the connection between those two?

[Rabbi Michael Abraham] There is no connection. I am asking which there is more of. What kind of answer is that?

[Speaker C] It’s not a question with an answer.

[Speaker B] It’s simply nonsense.

[Speaker C] It’s not a question with an answer, it’s nonsense, right?

[Rabbi Michael Abraham] The question has no meaning. And likewise the famous question: what is the difference between a rabbit? Between? What is the difference between a rabbit? That it has two ears each longer than the other by the same amount. Meaning, this—yes, nonsense talk. Meaning, this question, it’s not that I don’t know how to answer it—there is no answer to it. The question is not intelligible. Why? Because kindness in people and water in the ocean—there is no common unit of measurement by which I can measure both and then see which I have more of. Right? That is the problem of incommensurability. These are two magnitudes for which I have no common measure that can assess them both, and therefore I cannot place them on a common scale and determine which is more and which is less. Now, if the relation between values is like the relation between kindness and water in the ocean, then that means values too cannot be placed on a scale because there is no common measure. But notice carefully: that means that even the Holy One, blessed be He, Himself cannot tell me which of them prevails. If the Holy One, blessed be He, were revealed to me and said to me, “Know, my dear prophet, there is more water in the ocean than kindness in people,” would that be fine? Would I now know the answer because the Holy One, blessed be He, revealed it to me? No.

[Speaker C] What’s the connection?

[Rabbi Michael Abraham] No, because it’s not that I don’t know the answer—there is no answer. When there is no answer, even the Holy One, blessed be He, cannot reveal it to me. The Holy One, blessed be He, can reveal an answer to me when there is an answer and I am not wise enough to know what it is, so the Holy One, blessed be He, who is very wise, comes and tells me what the answer is. But in questions like these, which are nonsense and have no answer at all, then the Holy One, blessed be He, is not supposed—not able—to come and tell me and reveal to me what the answer is, because there is none. So if so, the question becomes deeper. Then you cannot build a hierarchy of values even if you look for it in the Torah. There isn’t one. There is no way to build a hierarchy of values logically. So how do we decide conflicts?

[Speaker C] Wait, that’s not true regarding all values. For example, Sabbath and life—you can build some sort of scale. How? Like the Talmud does, so that one may keep many Sabbaths, if I remember the explanation correctly.

[Rabbi Michael Abraham] You already know this material; I assume you heard it from me. The point is this.

[Speaker C] From another source, but it’s the same Talmudic passage.

[Rabbi Michael Abraham] Legitimate. That’s very good, I’m glad people remember. There are places where you really can get around the difficulty. For example, the Talmud in tractate Yoma discusses the question of saving a life on the Sabbath. And one of the opinions brought there is that of Rabbi Shimon ben Menasya, who says: Desecrate one Sabbath for him so that he may keep many Sabbaths. What does that mean? On the face of it, what he’s really saying is that the value of life is not an independent value. Life is a means for keeping the Sabbath. And so what he is basically saying is that you are allowed to desecrate the Sabbath in order to save a person’s life not because his life has value, but because after you save him he will keep many Sabbaths. In other words, this is a view in which life is a means for fulfilling commandments, for keeping the Sabbath, apparently. On the other hand, the Talmud says there, “and live by them,” with a different rationale given by Shmuel: “and live by them, and not die by them.” There, apparently, it says the opposite. All the commandments are not worth it if this threatens life. Aside from the three severe ones, yes? But if fulfilling the commandments threatens your existence, your life, then fulfilling the commandments is set aside. Which is apparently exactly the opposite. That is a statement saying that the value of life is a value in itself; it is not a means for fulfilling commandments. If anything, maybe the other way around: fulfilling commandments is a means to live properly, but life is a value in itself. Now, among the halakhic decisors, as you’ll see, they bring both of these rationales together. In the Bi’ur Halakhah on section 329 you can see it, and elsewhere, he cites in the name of Meiri both of these rationales, and they have practical differences as well. Now if these two rationales contradict each other, how can one rule in accordance with both? And my answer is that they do not contradict. Because we did not understand the first rationale correctly. “Desecrate one Sabbath for him so that he may keep many Sabbaths” does not mean that life is a means for keeping the Sabbath, for fulfilling commandments. Rather, what does it mean? Simply this: if the dilemma were life versus keeping the Sabbath, then we’d be stuck with the problem of incommensurability. Because we have no common measure with which we can compare the value of life and the value of keeping the Sabbath, and then see which outweighs which. The Talmud says: let me give you a brilliant trick. I’ll bypass the need to find a common measure. How? After all, if you save his life, then he will keep many Sabbaths, right? Factually. So now let’s do the calculation. I have two possibilities before me. One possibility is to desecrate this Sabbath now, save his life, and by doing so gain many future Sabbath observances. Let’s count how much I gain if I choose that option. I gained his life, let’s say its value is X. And I gained many Sabbath observances; the value of each Sabbath observance is Y. Okay? The value of life is X. I have no way of knowing which is greater, X or Y. So what do I say? If I desecrate the Sabbath now and save the life, what gain have I produced here? X plus N minus 1 times Y. Right? I gained the life, that’s X, plus the N Sabbaths he still has left to live, minus one, because this one that I desecrated now—this Sabbath I lost—but I gained the N Sabbaths he still has left to observe, so N minus 1 Sabbath observances plus the value of life. If I do not desecrate the Sabbath now, zero. I didn’t desecrate the Sabbath, I didn’t gain Sabbaths, I didn’t gain life. Now X plus N minus 1 times Y is greater than zero for every positive X and Y. And N, yes, N is a natural number too. X and Y positive, and N a natural number. Right? So notice what we have concluded here: there is no need to decide whether X is greater than Y or less than Y in order to resolve this conflict. I managed to bypass the need to establish a scale of values between the value of life and keeping the Sabbath. There is no need to determine whether X is greater than Y or Y greater than X, because life also gives me lots of… if I gain life as well, then certainly, certainly that is preferable. But it is not preferable because the value of life overrides the value of the Sabbath. No, there is no statement here that the value of life overrides the value of the Sabbath. Rather, I simply gain more Sabbaths. Even if you look only at Sabbath-values, you can resolve the conflict without entering into a comparison between the value of the Sabbath and the value of life.

[Speaker C] That’s true, and according to the view of “and live by them,”

[Rabbi Michael Abraham] According to the view of “and live by them,” he argues that there is no value at all to commandments in a place where it threatens life, so there is no dilemma.

[Speaker C] Meaning there isn’t—he does create a scale.

[Rabbi Michael Abraham] No, there is no conflict. It’s fully permitted; it’s not merely overridden. There is no commandment. He loses nothing. If you eat pork in order to save your life, you lost nothing. You did not violate a prohibition. That’s what people always say to those who don’t want to fast on Yom Kippur even though they are sick: they tell them, your commandment is to eat, not that you are merely allowed to eat. Your commandment is to eat. Your commandment is not to fast. If you fast now, you will not be fulfilling a commandment; you will be a transgressor if you fast now. Okay, our time is running short. In principle I’ll just say—so I’ll do this in two sentences—what about places where there is a conflict and I have no way to get around it, unlike in the case of Sabbath and life? Those are the real conflicts. Accidental conflicts and not essential ones, and I have no way to get around them. I’m stuck with the problem of incommensurability with no way out. In such a situation, I can’t explain it now—there’s no time for that—but first of all, everyone knows that we constantly make decisions in such dilemmas. Even that student of Sartre’s, in the end, did make a decision. I don’t know what it was, by the way, but he made a decision. We have some sort of sense that tells us one value is more important than another. And the existence of this sense is an indication that there is a common scale for all values. There is a common scale. The measure of goodness in them. The measure of goodness in them. And how do you know what the measure of goodness is? Feeling. You have some kind of sense, like a sense of smell, that says: the good in this is greater than the good in that, therefore if there is a clash I will do this and not that. I don’t have anything more intelligent to say about deciding conflicts if they are not essential but accidental, and if I have no way of getting around them the way the Talmud did with Sabbath and life. You simply activate your sense of smell. But what I want to say is that this is also true of conflicts between Jewish law and morality. And Jewish law does not always prevail. When the conflicts are essential, Jewish law always prevails. When the conflicts are accidental, Jewish law does not always prevail. Sometimes morality prevails. And there are examples of this. First and foremost, yes, the Talmudic passage about a transgression for its own higher sake. “A transgression for its own higher sake is greater than a commandment not for its own sake.” There are situations where you do something that by all opinions is a transgression, and yet people expect you to do it. There is no halakhic permission. But the circumstances are so catastrophic that people expect you to do it. This is of course an example of the halakhic value sometimes being set aside before a fundamental moral value, an important moral value. So what I just want to conclude by saying is that in conflicts of this kind, the feeling that Jewish law is always what prevails is incorrect. I am committed to both sides; that’s why I’m in a conflict. And in a conflict, like any conflict, you have to think and reach a conclusion as to which value is more important. Sometimes it will be morality, sometimes it will be Jewish law. Not always. And there are quite a few halakhic rulings by decisors that you can see where they preferred a moral value over a halakhic value. But we no longer have time to get into that. We’ll stop here. If anyone still wants to ask, comment, or even just say something in general about the series, then gladly.

[Speaker C] Thank you very much for the semester. Thank you very much. Is there something in Elul that the Rabbi is giving? During the Elul program?

[Rabbi Michael Abraham] Yes, there is, yes. In the bulletin. It will appear on the website.

[Speaker C] I’m giving—

[Rabbi Michael Abraham] Three Talmud classes in a row, like every year. I’m giving the yeshiva-style class, where three ramim give classes in sequence, in order. And one additional class I’ll give on another topic; I don’t even remember what the topic was. It will appear on the institute’s website. Okay, thank you. More power to you, thank you very much. More power to you. Okay.

[Speaker C] There’s a class—I’m giving three Talmud classes in a row, like every year. I’m giving the yeshiva-style class, where three ramim give classes in sequence in order. And one additional class I’ll give on another topic; I don’t even remember what the topic was. It will appear on the institute’s website. Okay, thank you.

[Speaker D] More power to you, thank you very much.

[Speaker C] More power to you, and have a pleasant vacation.

[Rabbi Michael Abraham] To you as well, good luck on the exams to whoever has them. Goodbye.

[Speaker D] Thank you very much,

[Speaker C] Thank you very much.