Answer

I hope you are well.

If you saw the article in Middah Tovah (Parashat Noah, I believe), that is the main article. In Tzohar I don’t remember, but there is mention of Rabbi Shimon Shkop’s view in my articles in Tzohar on monetary law in the Kovno Ghetto, and in the article on Torah and science, and also in an article in Tzohar 14 on the universal and the particular. That’s what I remember.
As for your actual point, I dealt with this in Middah Tovah (also with Rabbi Kook’s view, and with R. Shimon Fisher in Beit Yishai, in two of his articles where he says similar things and doesn’t mention him). As I recall, Rabbi Kook investigates this, and his claim is that a Jew is a Noahide with an additional layer, not something entirely different. However, in Pri Etz Hadar he explains that Noahide obligations appear differently אצלנו.

In Rabbi Shimon Shkop’s view, it seems obvious that the foundation is shared, since the underlying reasoning is universal. Along these lines, the author of Hemdat Yisrael writes to prove that under Noahide law a person can incriminate himself, from Maimonides, who wrote this regarding the laws of the king; and his assumption is that the king’s law is identical with Noahide law.

And this can also be proven from several later authorities who wrote that whatever obligates Noahides also obligates a Jewish minor from the time he reaches understanding (which is the threshold for Noahides). I think I brought this in my article (to resolve the contradiction between the passage about “stumbling and disgrace” in Sanhedrin 56 and the passage about “a prohibition cannot take effect where another prohibition already exists” in Yevamot 33).

However, where the Torah itself removed us from the category of Noahides, then of course the law changes. And all this should be connected to the well-known discussion of Pri Devarim in the first two homilies (whether the Patriarchs left the category of Noahides only to be stricter, or also to be more lenient).

As for your question itself, I didn’t understand what you mean by whether this is included in the Torah or outside the Torah. There are no obligations outside the Torah (or outside God’s will). There are obligations outside halakhah, or outside the Torah-level laws of halakhah. Clearly God’s will includes both the theory of law and the Noahide obligations that also apply to us, but one could perhaps discuss whether they precede halakhah. However, the Sages incorporated them into halakhah, and Rabbi Shimon Shkop himself proves from the Torah itself, which commanded “you shall not steal” but did not write the property laws that determine what counts as theft and when there is a prohibition. And similarly there regarding liens. We see that the Torah itself assumes the theory of law at its foundation, and therefore of course it recognizes it.

And one can likewise discuss obligations of oaths that are not halakhic (such as a written oath, or an oath before the giving of the Torah). I believe I dealt with that there too (from Avnei Nezer, Yoreh De’ah sec. 306, Rabbi Yosef Migash, and Mishneh LaMelekh, Laws of Kings, which are cited there. I also inferred this from Maimonides regarding administering an oath to a minor).

All the best,
Michi

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Netanel:

My problem is this: Rabbi Kook, in Orot Yisrael, understands that Israel is a new creation and not a continuation and second level built on top of Noahide status.

And so too Kuntresei Shiurim (Bava Metzia sec. 13) wrote, and on that basis disagreed with the later authorities (Or Sameach, Minhat Hinukh, Nahalat Yitzhak) regarding the obligation of a minor or a blind person in the basic Noahide commandments, even though he is exempt from the laws of Israel.

On the other hand, Rabbi Kook wrote in various places that one can indeed return to the basic foundation:

Ein Ayah (Sabbath vol. 2 p. 6):

The virtue of natural decent conduct, purity of character, a pure inclination toward justice and uprightness as concretely sensed and felt, and hatred of wickedness and injustice in their obvious form—this is the heritage of every human being upon the face of the earth, and the whole Torah of the children of Noah consists of the foundations of natural morality… Therefore, who can ascend the mountain of God to become distinguished in the exalted and supreme morality desired according to the higher holiness symbolized by tefillin? Only one whose body is clean, for natural morality must already have been properly acquired by him, and not ruined by evil deeds and murky, evil traits, which are an abomination to the complete human being by virtue of his human form.

Since natural morality, bodily morality, has already been conquered before him, he must, as a Jew, upon whom the name of God is to be called, rise to a higher morality flowing from the depth of supreme holiness, which is revealed through the holiness and distinctiveness of Israel.

 

• Commandments of Re’iyah (Hoshen Mishpat sec. 1):

It may be said that by Torah law we are obligated in every place and at every time to judge with upright justice according to reasoned judgment; only the Sages saw that the matter of Israel would not be perfected except through Torah law, and therefore they gave us authority as their agents in common cases… It may be said that when a law in the Torah is doubtful to us, one should judge according to fairness, and it may be that this itself is from the Torah.

• Responsa Orah Mishpat (Hoshen Mishpat sec. 4) — an oath over a trivial amount:

And nowadays, when matters of Torah law are inoperative by Torah law because we are mere laymen, according to most decisors, it may still be said that laws of fairness apply by Torah law by virtue of the Noahide laws of justice, for we are no worse than they are.

Responsa Da’at Kohen (sec. 148 p. 270) — in a case where a convert has a biological father, who according to halakhah is not his father with respect to the obligation of honoring one’s father:

Since by nature he is indeed his son, one should not behave against accepted decency, even though the relationship is not recognized by Torah law… because it is something reasonable from the standpoint of natural disposition, it is not proper to uproot this because of the Torah.

That is: even though Israel is a new creature from the giving of the Torah onward, as he says in Orot Yisrael—and consequently there is divine morality rather than human morality—still, in certain cases as above he sends us back to human morality, to the Noahide level.

So it seems to me that the difference is this: is human morality (Noahide) something that exists, with the extra commandments added on top of it (and this is Rabbi Shimon Shkop’s approach, that the theory of law is not a Torah command but a social convention),

or perhaps Israel is a new creation, and therefore one must create a substitute for the Noahide foundation by building a divine morality—as Rabbi Kook says in Ein Ayah—but nevertheless he does still return us to the Noahide foundation as above—why?

I find Rabbi Kook hard to understand—unless we say that there are, as it were, three levels: human morality (Noahide), divine morality (parallel to Noahide law, like the king’s law), and the commandments of Judaism.

Thank you,

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Rabbi:

Hello Netanel.
1. As best I remember, his conclusion there is different—really the opposite: fundamentally, Israel is not a new creature but a second level. But once the Noahides sinned, the situation changed de facto. Am I not right? If so, then the question does not arise in the first place, because the ideal Noahide level is our first level. Their current level is distorted, and therefore there is a difference between it and our level one.
2. Clearly Israel is not inferior to Noahides even if it is a new creature. In the absence of different guidance, obviously we revert to Noahide law because it is the foundational infrastructure. Only when something new was introduced are Noahide laws set aside. Does anyone actually disagree with this (Rabbi Gustman)? In his opinion, what are we supposed to do when we have no other instruction and also won’t follow Noahide law?
3. I didn’t understand your suggestion. What is this divine morality that parallels Noahide morality but is not identical with it? Where does it come from? Are our natural intuitions really different from theirs? To my mind that contradicts reality. In any case, as I wrote above, there is no need for this.

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Netanel:

A. These are Rabbi Kook’s words in Orot Yisrael:

Rabbi Abraham Isaac Kook (Orot Yisrael, pp. 155–156):

It would appear that originally the matter was arranged so that the human form would be perfected in its totality, and as an addition and superiority the glorious spirit of holiness would be revealed upon the special nation.

But things became corrupted, and the human spirit sank so deeply in general, that the secular could no longer serve as a basis for the holy unless it would spoil it; therefore the Egyptian exile had to come as an iron furnace, refining the human side in Israel, until it became a new creature, and its secular form was completely blurred. Thus there began a nation all at once through the human seed, whose form from head to heel was wholly Israelite—Jacob and Israel.

According to what he says here, at first there were two levels, but after the giving of the Torah there is a break between us and the Noahides,

as in the words of the Midrash (Yalkut Shimoni, Habakkuk, sec. 563):

A parable of one who went out to the threshing floor with his dog and his donkey. He loaded five se’ah on the donkey and two se’ah on the dog, and the dog was panting. So he removed the two from it and placed them on the donkey.

So too, even the seven commandments commanded to the children of Noah—since they could not uphold them, He arose, removed them from them, and gave them to Israel.

But Rabbi Kook writes in several places that there are indeed cases of returning to human Noahide morality, which indicates that there is a human morality and a divine morality, as he wrote in Ein Ayah, and the divine morality is like the king’s law of Ran, which serves as a correction and balancing-out for the irregularities in Torah law—Ran’s Derashot (the eleventh homily): “It is possible that in some of the legal systems and laws of the nations mentioned above there may be something closer to the correction of political order than what is found in some of the laws of the Torah. And we lack nothing in this, because whatever is lacking in that correction is completed by the king.”

But according to Rabbi Shimon Shkop, there is no need for that. In his view, the ‘theory of law’ does not serve as a ‘correction,’ because there is no ‘problem’ in the Torah with universal human morality, since we are composed of it.

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Rabbi:
In my opinion there is some conflation here.
What he calls “divine morality” is the Torah’s commandments (I disagree with him on this issue on several levels, but here I am speaking according to his own approach). Beneath that lies natural morality, which is shared by us and the Noahides.
As I asked: can it really be imagined that where the Torah says nothing, we would not be obligated to act according to the Noahide commandments? Then what would we do?
You should remember that their seven commandments are indeed proper and valid (that is what the Holy One, blessed be He, demanded of them). They became corrupted only because they did not keep them. So even according to Rabbi Kook, their observance of the seven commandments is the correct observance on level one (the universal level).
I don’t understand how one could say otherwise even without contradictions and difficulties.

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Netanel:

There is a certain difficulty here in Rabbi Kook: in his words in Orot Yisrael he speaks of the idea that from the giving of the Torah onward there is Israel with a divine morality. That is, they were commanded anew (also) in the seven Noahide commandments—and consequently a Noahide’s fulfillment of those commandments is essentially different from an Israelite’s fulfillment of the parallel ones (Rabbi Yisrael Ze’ev Gustman noted this).

And nevertheless Rabbi Kook argues that the basic foundation is found among us as well, in that when there is no pure halakhic solution, we turn to the human morality of the Noahides (honoring one’s father and mother for a convert, and the like, as in the quotations I brought).
So even according to him—in the absence of a Torah command we must turn to the human foundation.

If so, then according to him too there is some basic natural-human element to which one can return in the absence of a halakhic solution.

But here the point needs sharpening as above—the return to basic morality when there is no halakhic solution is in the nature of a “correction,” as in Ran’s Derashot, and not something ideal from the outset, as for Rabbi Shimon Shkop.
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Rabbi:

I simply do not understand what you are writing.
I am asking for the third time: according to Rabbi Gustman, what is a Jew supposed to do in the absence of a command in a moral question? Ask a prophet? Practice divination and soothsaying? What is he supposed to do?

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Netanel:

That is indeed a sharp question against this approach—but as we saw, Rabbi Kook would say to go with natural morality.
Rabbi Gustman writes in the course of his discussion, based on Maimonides’ commentary to the Mishnah, Hullin:

“The children of Noah were specifically commanded through their own prophets, and Israel was specifically commanded through Moses our teacher. And had they not been commanded through Moses our teacher, Israel would not be warned concerning the seven Noahide commandments, because Israel left the category of Noahides. Maimonides proved this from the statement that 613 commandments were said at Sinai; for if we say that the seven commandments had already been commanded earlier, then seven would be missing from the count of 613.”

There is no doubt that Rabbi Gustman is absolute about this, and therefore in his words he disagrees with most of the later authorities about the obligation of a minor and a blind person, as mentioned above.
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Rabbi:

Natural morality is the seven Noahide commandments (in Maimonides’ language: “they are matters toward which reason inclines,” and Rabbi Kook also identifies the two).
With Rabbi Gustman, the matter is very strange. First, the seven Noahide commandments in our reckoning are not seven at all but many more. Second, Maimonides’ proof and his words in the commentary to the Mishnah are not related to our issue, because he is speaking about commandments that were commanded earlier, not about natural morality. Why in the world would morality be nullified at Mount Sinai?! Rabbi Gustman apparently disconnects the seven commandments from morality, and that is strange. In any case, with Rabbi Kook it is certainly not so, and therefore the contradiction in his words does not exist.

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Netanel:

Agreed.
Rabbi Gustman does not mention ‘natural morality,’ but relates to the seven commandments, even though they are based on intellect and “reason inclines toward them,” in Maimonides’ language.
Rabbi Kook broadens the basis of the seven commandments into natural morality, but even according to him the Noahides’ seven commandments are not essentially identical to our parallel ones.

Thank you for the discussion,
Shabbat shalom