Q&A: On Stringencies in Jewish Law and Obeying the Law
On Stringencies in Jewish Law and Obeying the Law
Question
Rabbi Michael Abraham,
Hello!
My name is A., and I am a law student.
I was advised to contact you regarding a seminar paper I am writing.
In very brief: the phenomenon of adopting stringencies reflects a high religious level, in that the individual is willing to take difficulty upon himself even though he is not obligated to do so (whether within the law itself or beyond the letter of the law), in order to draw closer to his Creator.
From this it is understandable why the phenomenon of stringency is so common and widespread in religious cultures.
I would like to add a discussion of such a phenomenon in secular state law. The one adopting the stringency could be the legislator, who, of two legislative options, chooses the stricter one,
or the law-abiding citizen who chooses to observe the law in a stricter sense.
Is there any discussion of this in the philosophy of law?
My line of thought began with the rationales for obeying the law consent theory, social contract, etc. My thought as to why there would not be a tendency toward stringency, at least on the part of the individual who complies, is this: since this is a relationship among equal members of the state (the principle of the rule of law) and not between a person and a higher entity, as in a system of religious law, then the relationship does not generate motivation to go beyond, but rather to uphold what was agreed upon. On a second level, there is no motivation to draw close to the legislator, to some higher entity that imposed the laws, since the legislator’s authority was granted by the people, and in fact the people are the sovereign. (Of course, the issue of extremism for reasons of mental disorders and the like is completely outside the scope of the discussion.)
As for stringency on the part of the legislator? I assume practical, purposive considerations are involved, but again, above the state legislator stands the people; would he try to shape norms in a stricter way so that they come closer to the will of his voters?…
All of these are my own explanations, and I am trying to find some hint of them in the literature. I would also be glad to hear your opinion on the matter!
Thank you in advance,
Answer
The topic requires some thought, and I will write a few thoughts that occurred to me.
At first glance, it seems to me that the law is perceived as a binding minimum standard—something for which it is justified to impose a sanction on someone who violates it. Therefore moral norms that do not justify a sanction are not included within it (this was the debate surrounding the “do not stand idly by your neighbor’s blood” law). From this it follows that there is no reason at all to be stricter in legal contexts, unlike in Jewish law.
Beyond that, the law is based on a covenant among the citizens, and if someone is stricter than the binding minimum (for example, pays more taxes), he is a sucker, since other citizens will not do so. By contrast, in Jewish law, stringency is directed toward the Holy One, blessed be He, and is not contingent on others also being stringent.
Beyond that, stringency in the legal sphere has no significant consequences (even if you pay a bit more tax, it is negligible in the state’s treasury). But in the spiritual-halakhic sphere, every stringency has significance for you yourself.
The basis for stringency in a halakhic doubt is the concern that perhaps you are violating a prohibition (for example, if there is a piece of meat before you and it is doubtful whether it is pork or beef. There is always a concern that you may have eaten pork, and so there is logic in being stringent). But in law, what binds is the minimal interpretation, and there is no concern that you are violating a prohibition.
Moreover, the obligation to be stringent in a doubt (at the Torah level) is itself a halakhic obligation and is not voluntary. In law there is no such obligation. On the contrary, one who is stringent in Jewish law where there is no obligation to be stringent is regarded as a fool who performs unnecessary acts. The distinction between foolish stringencies and worthwhile stringencies is a complex topic.