Q&A: Indirect Causation in Damages and Related Issues
Indirect Causation in Damages and Related Issues
Question
With God’s help, 4 Shevat
Hello and blessings, Rabbi Michael (and my friend A.),
Many thanks for the quick and clear reply, full of knowledge and good sense. Below is a quotation from your answer:
To Rabbi Y., a good week and Hello.
I will try to clarify my position a bit more, since in my understanding it does provide some kind of answer (more precisely: an explanation of why no answer is needed). The two points in your remarks are answered in the same way.
In my understanding, the Ran in his sermon is not speaking about absolute justice versus relative justice. You described things as though Jewish law operates according to absolute and supreme moral justice, and because it is hard to live that way on the practical level, the king is given authority to fill in the gaps (to plug loopholes). I really did not understand his words that way at all. In my view, Jewish law strives for religious values and not for moral values, and therefore sometimes its directives are opposed to morality (!). This is not deficient morality; rather, halakhic values simply are not in the moral domain.
For example, in my understanding, the requirement that the wife of a priest who was raped must separate from her husband, even though they love each other and want to remain together (and of course the harm to the children), is not supreme morality. It is a religious value (preserving the sanctity of the priesthood), and it overrides moral values (and family values). A parable for this is a debate about whether it is worth eating chocolate: Reuven says yes because it tastes good. Shimon says no because it is fattening. Who is right? Both are right: it is both tasty and fattening. So how do we decide whether to eat it or not? What is the disagreement? It is about what overrides what and what ranks higher on the scale of values: taste (pleasure) or health (weight gain). Even someone who supports eating chocolate does not deny that it is fattening; he just thinks the taste outweighs the health concern. The same applies here: even the halakhah that says a priest’s wife who was raped must be separated from her husband agrees that this is not moral (indeed anti-moral), but the religious value overrides the moral value. Just as when one operates on a sick person there is pain and suffering, but health overrides the prohibition against causing suffering.
In an article I once wrote, I brought proof of this from the laws of returning lost property. There we are told that there is no obligation to return a lost object if it came into one’s hand after the owner had despaired of recovering it. According to your approach, this would supposedly be the highest morality, but one must compromise because of practical life. But Jewish law says the opposite: there is a moral obligation to return a lost object even after the owner’s despair. There is no moral reason why his despair should exempt me from that. Does his despair create in me some connection to the object, which I did not work for and which does not belong to me? Rather, the religious law determines a fact: despair removes the property from its owner’s ownership. Morality says no, and the Sages also hold that this is morality (they do not say that the Torah’s morality is somehow higher; rather, this is not morality but halakhah).
Then someone referred me to a formulation that expresses this more sharply and clearly, found in Maharal’s Be’er HaGolah, second well (pp. 3132 in the Sifrei Maharal edition):
In chapter 2 of Bava Metzia (21b) they said there that one need not return a lost object after the owner’s despair. This matter seems far-fetched to people, that a person should take what is not his, though he did not labor or toil for it, and covet another’s money. And this is not according to civil law, for civil law obligates returning the lost object even after the owner has despaired of it.
The reason is that civil law obligates whatever is proper to do for the sake of social order, even if reason itself does not require that thing, but such is what social order demands. Therefore civil law is sometimes stringent in some matter, even though according to reason and straight justice it need not be done. And sometimes civil law is excessively lenient when that matter need not be done for the sake of social order, even though according to reason it would not be fitting, but according to civil law it is.
Therefore according to civil law one must return the lost object after the owner’s despair, and this is a stringency. And likewise conversely, if one found silver or gold vessels and announced them once or twice and no one claimed the lost property for a year or two, he keeps it for himself and uses that vessel, for there is no benefit to social order after he announced it several times and waited a year or two or more; no one will come anymore.
But this is not according to the Torah, for if one found silver or gold vessels and announced them many times, they remain forbidden to him forever. Rather they must lie until Elijah comes; he may never touch them. Thus they were very stringent.
And all this is because the words of the Sages are according to the Torah. For all words of Torah are measured by reason, and whatever is fitting according to reason is fitting to do. As the Torah said (Deuteronomy 4): “Observe and do them, for this is your wisdom…” And civil law does not set matters according to deep rational judgment and thought, whereas the Torah is entirely rational, and the Torah does not turn to mere convention.
In my understanding, this is also the Ran’s distinction between the norms of the nations and halakhah. The Ran does not say that two witnesses are required, or that one is exempt for indirect causation, because that is what supreme morality requires, but because on the religious plane, liability for damages requires an act by the damager (therefore this is specifically not a consequentialist matter, contrary to what you assumed). True, on the social and moral plane, if damage was caused one should obligate the one who caused it, and that is exactly what the king’s justice is for. That is the meaning of the laws of confining someone and of indirect causation in murder, where too a person causes murder with his own hands and is exempt only because he did it with his left hand or indirectly (the guilt is absolute in all those cases; it is only a change in the mode of action). The exemption is religious, but the king would punish even on the basis of one witness, etc.
From this you can understand that there is no obstacle to the Torah containing an instruction that conflicts with morality (not only non-moral but even anti-moral).
You asked what justice there is in exempting indirect causation or in exempting return of lost property after despair. I have no answer to that. This is a religious value and not a moral one, and I do not have inner religious intuitions that can explain it. Therefore what I am offering is not an explanation of the law itself but an explanation of why a moral explanation is not required and why it is probably hard to find a (religious) explanation for the law. Unlike morality, we usually do not have inner intuition for religious values, and therefore it is harder for us to understand them.
Note that my claim goes beyond the distinction between rational commandments and supra-rational commandments. In my sense, all commandments are supra-rational. Even “do not murder” and “do not steal” are not moral commands but religious ones. They come on top of moral obligations that exist even without a commandment (and the accusation against Cain, who murdered, proves it, since the Holy One, blessed be He, reproached him before there had even been a commandment). Much more could be said about this, but this is not the place.
All the best and goodbye,
I apologize in advance if what I write and quote will sound sharp. That is not my usual way. In this case I cannot manage to hold myself back. Forgive me.
I will not enter into a discussion of how to understand the sources the Rabbi referred to (the Ran’s sermons and Maharal). My understanding remains unchanged even after reading Maharal. Both of them were aiming at the same point that social order is the way to manage practical life, as opposed to the Torah’s absolute values, which derive from a supreme divine intellect and constitute for us (at least for now) a kind of utopia from a moral world ever higher and higher.
As for the essence of the matter I simply cannot understand how it is possible to survive in a world of faith of the kind the Rabbi described here! In my poor understanding and feeling, this is a dead Torah, the exact opposite of a Torah of life.
Who wants to live by values and laws that are the opposite of his healthy natural conscience? On the contrary: my faith is rooted deeply within my soul, and from it and only from it comes the conscience and the only moral compass by which I want to live. “In the image of God He created him”; “He pitched a tent in man.” Even if at this moment I do not understand what lies behind a Torah law and it seems to contradict natural morality I will not separate what belongs together and cast the Torah into a corner. Rather, I will try to clarify how the Torah’s laws deepen and elevate external natural morality to still higher moral realms that we have not yet reached with the simple human measuring tools we possess.
God forbid, but it seems to me that the Rabbi’s view creates an enormous desecration of God’s name. A god like that (intentionally with a lowercase g…) who commands us to behave immorally, and more than that anti-morally (in the Rabbi’s words) is cruel. Who wants to believe in such a god? It reminds me of the story about Rabbi Kook’s mother speaking with Christian pilgrims: when the Rabbi immigrated to the Land, there were Christian pilgrims on the ship, and they asked his mother why she was traveling to the Land, and she answered that it is the Holy Land. Then the Rebbetzin asked them, “And why are you traveling there?” and they answered, “Because our god is buried there.” She replied, “That is why there is a dead god there, whereas for us there is the living God.” [Further below, in one of the quotations from Rabbi Yaakov Ariel, there is the statement that an approach which sees a contradiction between God’s Torah and morality stems from Christian influence…]
Let me emphasize again that I am not speaking about those cases that the Torah permitted or did not prohibit. In such cases one can certainly accept that they were permitted only in pressing circumstances, because of overpowering desire and the like, and not as supreme moral standards. Moreover, the words of Torah are poor in one place and rich in another; therefore even if the Torah did not explicitly prohibit a certain act (for example, the whole issue of copyright in Jewish law according to some views) it still subjects us to mega-rules of higher morality such as “And you shall do what is right and good” and “Love your neighbor as yourself” and the like, as binding ethical norms, generation by generation and circumstance by circumstance; person by person and circumstance by circumstance. Not everything that is permitted is desirable. The discussion here concerns laws that are obligatory according to the Torah.
To support what I wrote above from the sources, nothing compares to Maimonides’ golden language, who in my humble opinion wrote explicitly (at the end of the laws of slaves) in accordance with my understanding: “Cruelty and brazenness are found only among idol-worshipping gentiles. But the descendants of our father Abraham, namely Israel, upon whom the Holy One, blessed be He, bestowed the goodness of the Torah and commanded them righteous statutes and ordinances they are compassionate toward all. And so too regarding the attributes of the Holy One, blessed be He, which He commanded us to emulate, it says: ‘His mercies are upon all His works.’ And whoever shows mercy will be shown mercy, as it says: ‘He will grant you mercy, have mercy on you, and multiply you.'” And similarly in the laws of the Sabbath, chapter 2, law 3: “Thus you learn that the laws of the Torah are not vengeance in the world, but mercy, kindness, and peace in the world.” [“The laws of the Torah” means all of them, including the obligation to divorce a priest’s wife who was raped, or the prohibition against saving a gentile on the Sabbath.]
After these [difficult] thoughts (I admit and confess), I merited to find complete articles by Rabbi Yaakov Ariel on precisely these topics. Thank God, I had directed my mind to his great view! They are in his book Halakhah in Our Time, pp. 378435.
I will not prolong things with quotations from there. I will leave that to the honest reader, who should fulfill: “Let us bring a book and see.”
Just a little nevertheless
The first article (“Morality and Jewish Faith,” ibid., pp. 378382) opens with these words: “Morality and faith in God are one concept (emphasis in the original Y.S.). Faith in God requires recognizing God as the source of goodness: ‘Just as He is merciful, so you should be merciful’… On the other hand, morality is the key to faith. ‘Love your neighbor as yourself’ this is a great principle in the Torah, even for commandments between man and God… The moral conscience within us is proof of God’s existence, of the divine source of morality. Morality cannot be an evolutionary human creation, since evolution is built on the struggle for existence and on ‘might makes right.’ The source of morality is the image of God within man. But there are those who try to separate what belongs together, to tear morality away from faith… who in a demagogic way try to present believers as supposedly immoral (there is Christian influence seeping in here…).”
The second article (“Law and Natural Morality,” ibid., pp. 383423) is a vast collection of medieval and later authorities from which one can glean their approach on our issue. The overwhelming majority stand with the approach Rabbi Ariel presented above. In the first footnote there it says (among other things): “Judaism is unjustly attacked on the issue of morality from various directions: Christianity and its heirs in Western culture and modern humanism from Spinoza until today attacked us by claiming that Judaism is supposedly a religion without morality (Yeshayahu Leibowitz specifically adopted this assumption and claimed that Judaism is indeed a halakhic religion and not a moral one…). At the same time there is an attack from within on the halakhic system, that it is supposedly detached from moral foundations in humanity and in Judaism (according to the attackers, Judaism draws its moral foundations Precisely from universality…). This began with Ahad Ha’am and is continued even by thinkers, including some who see themselves as observant of the commandments…”
The third article (“The Morality of War in the Torah,” ibid., pp. 424435) deals with the morally complex aspects of conducting and waging war according to the Torah. There too Rabbi Ariel shows that the rules of halakhah in war, and war itself, do not contradict human moral values. “Halakhah does not come to suppress, Heaven forbid, moral feeling; on the contrary, it comes to cultivate and refine it.”
Again I ask Your Honor for forgiveness and pardon for the forcefulness of my words. It comes from the groaning of my heart, crying out over the fracture of the daughter of my people. How the mighty have fallen those girded with the sword and bow of Torah, yet at the same time weakening our hold on it and our walking in its path by making it unfit for our moral lives. The words of the living God, living waters, are exchanged for broken cisterns that can hold no water.
All the best,
Answer
Greetings.
First, there was nothing sharp here at all. We are arguing in the way of Torah.
Second, I have long known Rabbi Ariel’s article on this subject in Tzohar, and I do not agree with it at all. In my eyes it is completely unfounded.
As for the matter itself, in my humble opinion your words are based on a mistake or misunderstanding. A God who commands something anti-moral is not cruel. It is like the fact that in order to heal, one sometimes has to undergo a painful operation. How is it permitted to cause pain? In order to attain another value that overrides the value of not causing pain. So too in the case of anti-moral commandments: in order to attain some religious value, one sometimes has to harm a moral value. This is a conflict between values, and when one decides in favor of one of them, that does not mean one is insensitive to the other. Every conflict requires a practical decision.
The only disagreement between us, if I understand correctly, is whether there are values outside the moral realm (what I called “religious values”). If there are such values, then all your arguments collapse. After all, in a conflict between two opposing moral values, you would not say that the Holy One, blessed be He, could not command us to violate value A, because it is obvious to you that in His eyes value B outweighs and overrides it. So if there are values from another realm not morality but a spiritual-religious realm then the same thing should be said about a conflict between them and a moral value. Therefore the only remaining question in our debate is whether such values really exist.
Regarding that, my claim is that anyone who denies the fact that such values exist is simply denying the facts, or really imposing his a priori assumptions on them. In my understanding this is not really arguable (though many do argue it, to my surprise, including Rabbi Kook as far as I understand his approach). The proof is not from anti-moral commandments but Precisely from non-moral commandments. For example, the prohibition on eating pork is not meant to achieve a moral goal (and anyone who claims it is should explain. One can always claim that at the root of every command there is some moral goal without explaining. That is just an empty and implausible definition, which merely calls religious values moral values a change of name and nothing more). The same goes for the prohibition on eating forbidden fat, ritual impurity and purity, and the like. All of these are meant to achieve other values, not moral values, what I call religious values (to attain holiness). This is what the Ran (there) and the Kuzari call “the application of the divine matter.” (By the way, this is why it is clear that the Ran in his sermons means exactly what I wrote here, and not as you say.) If so, this is a different kind of goal: not a moral value but a religious one. He himself distinguishes between them with a very sharp knife, and this is not merely a quantitative distinction as you suggest. These prohibitions and commandments are intended to establish and strengthen the eternal dimension in majesty, if you like. It has nothing to do with morality and justice between people, etc.
Now my claim is that the exemption for damage caused indirectly also belongs to this category, and not to the category of social order, morality, and the norms of the nations. Therefore your question falls away from the outset. From the standpoint of social order, indeed one ought to impose liability for it, but from the standpoint of religious aims (which are the only thing halakhah deals with), one should not. And that is exactly Maharal’s point about returning lost property (there is no higher moral benefit at all in exempting return after despair. Those are just words. My claim was that this stems from the fact that after despair there is no religious obligation to return it, only a moral one. And that is exactly what the Sages say when they obligate return even after despair though the law in principle exempts). Reason does not require it, morality does (and in the case of gold vessels picked up before despair, reason requires it and morality does not).
In the end, the Mishnah has not moved from its place. And no quotations in the world, and no hanging onto lofty trees (only to be strangled by them 🙂 ), will move it unless an explanation is brought and the difficulties are answered, or until the day breathes and the shadows flee.
With the honor due to Torah,
Discussion on Answer
Indeed. As I already wrote, our dispute is over whether values of a different type (religious values) have validity beyond moral values. I have no idea why this is so upsetting to you; to me it is a simple fact and not a particularly novel one. For some reason you prefer to call instructions that we do not understand (such as preserving the sanctity of the priesthood) moral instructions that our moral consciousness simply cannot grasp, whereas I think it is far more reasonable and straightforward to view them as instructions whose purpose is religious and not moral. But in the end this is just semantics. Both you and I agree that there are instructions that do not fit the morality as we understand it (whether non-moral or anti-moral). What practical difference does it make what we call them?
In my view this is like someone who sees the halakhic ruling in a case of danger to life versus Sabbath desecration and insists on saying that performing the prohibited labor in such a case is the true observance of the Sabbath. I prefer to say that it is Sabbath desecration, but that it is overridden by saving life. And similarly regarding impurity overridden for the public: one can insist that this is the true purity (bringing communal offerings in impurity), whereas I prefer to say that this is impurity that is overridden. Certainly that is correct according to the opinion that impurity is merely overridden; according to the view that it is permitted outright one could say otherwise, but that is not our topic.
Do not forget that our discussion began around exemption for indirect causation in damages. You have no explanation for that, and I suggest that there is a religious rather than a moral tendency here. You insist that there must be a moral tendency in the background, even though neither of us sees that, and in fact we see exactly the opposite. What is the idea? Why this insistence? To me it is really bizarre. It is clutching at the horns of the altar that keeps failing again and again.
As for the sources from Maimonides and in general, just a few comments:
1. Maimonides contradicts himself in several places between the Guide and the Mishneh Torah (such as the reasons for sacrifices versus the end of the laws of Me’ilah). So there is room to think that he wrote those things for the perplexed, for whom he thought such reasons would be more understandable. But one cannot necessarily infer from this his true opinion.
2. In any case, even if this is his true opinion, the reasons he writes do not persuade me at all, and in my opinion they do not persuade you either (and probably not him either). Important point: would you be willing to achieve the purpose that is supposedly the reason for the commandment in some other way and thereby fulfill your obligation? For example, if an easier method of slaughter were found (causing less suffering), would you permit eating without kosher slaughter? I assume not. But if so, then you yourself do not take Maimonides’ stated reason for slaughter seriously. If in our view that really were the reason for the commandment, we should act accordingly.
[Of course one can say you would not do so because of doubt, but in my opinion that is not a sufficient explanation. If this is the reason for the commandment, then the law itself instructs us to act by the new method and not by kosher slaughter. If so, the doubt cuts both ways, because if you continue slaughtering in the usual way you are also doing something wrong. So why would you not take account of the reason you found and slaughter by the new method?]
And in general, if this is the reason for the commandment of slaughter, it seems to me you should prohibit meat consumption today for everyone. The suffering animals undergo today during raising and transport to slaughter completely eclipses the suffering caused by invalid slaughter.
3. Most of these explanations were said about one commandment or another, and there are no general statements there that all the commandments are aimed specifically at morality rather than religious purposes.
4. I too brought quotations from Maharal and the Ran. For me quotations are not important because I am looking for logic and reason rather than statements by some authority, but I do not understand why your quotations are preferable.
5. Even if all these quotations said what you claim, for me such quotations still do not have decisive authority. This is thought, not halakhah. If I am convinced, I will accept it; if not, then not.
With God’s help, 6 Adar I
I do not understand the master’s speech. I am unable to understand what is not understood. Of course the fault lies only with me. I will try to sharpen the points again.
“In the end this is just semantics”?!
The whole thrust of my previous email was to show that in my view, if we work hard at this important discipline of the reasons for the commandments which has been neglected and fallen into disrepair for hundreds of years [as Rabbi Kook of blessed memory wrote at the beginning of the essay “Dewdrops of Lights” in Ma’amarei HaRe’ayah. Apparently under the influence of exile, which caused Torah and its commandments to be separated from life. Whereas the redeeming Torah, the Torah of the Land of Israel, is entirely aimed at reconnecting them and creating a Torah of life] we will be able to produce supreme moral insights by whose light the human species will be uplifted. This stands against the Rabbi’s approach, which severs the worlds from one another and abandons the field of morality to fleeting human insights that change every other day; and the Torah has no discourse in that field, its role being merely to make us supernal holy beings through a system of heavenly commands that do not illuminate, and are not even meant to illuminate, our human lives. [To put it in exaggerated humorous terms, paraphrasing Nachmanides’ famous words: “You shall be holy” do not be a scoundrel with the Torah’s permission. Rabbi Michael Abraham: be a scoundrel by the Torah’s command. For holiness can stand in contradiction to morality and override it. Even if that holiness is a higher value than morality, the lived human experience is one of deciding a contradiction, not of elevation.]
That same Maimonides at the end of the laws of substitution gives us an excellent example of our dispute.
“It seems to me that this is the meaning of the verse, ‘Both it and its substitute shall be holy'” Maimonides seeks a reason for the law in the laws of sacred things that if a person consecrated an animal to God and then regretted it and wants to replace it with another animal even a better one the Torah penalizes him so that both become holy. In this way the Torah suppresses his good intention. Why?
According to the Rabbi’s approach, the question does not even begin (as he already wrote in his first email). Morality is one thing and holiness another (all the more so in matters of sacred things…). Morally, there would definitely be room to encourage such a replacement [and even if we argue simply that there is no route for taking an animal that has been consecrated and returning it to ordinary status it is still not clear why both should become holy; it would have been enough to say that the first remains holy and the second remains ordinary], but we are not dealing with morality here but with holiness. Therefore our task is not to penetrate the Torah’s reasoning and try to understand it certainly not with moral tools and standards.
Maimonides does not think so. He continues and says: “…The Torah penetrated to the depths of human thought and its evil inclination…” [quotation omitted here because already cited above].
So far this is Maimonides’ moral-value explanation for a law among the Torah’s laws, and in sacred matters no less!
But Maimonides does not stop there and adds a general principle about all the Torah’s laws: “And all these things are in order to subdue his inclination and correct his dispositions, and most of the Torah’s laws are nothing but far-reaching counsel from the great Counselor, to correct dispositions and straighten all actions…”
Is there not an enormous practical difference between the two approaches? Whether I observe the law of “Both it and its substitute shall be holy” as a divine command from the world of holiness, without learning from it any good guidance for my actual human life or whether I derive a lesson from the Torah’s purpose in such-and-such a law for my practical human life. The difference is heaven and earth [literally…]!
Sabbath desecration for danger to life or impurity permitted for the public although there are two different perspectives on how to define them, let us stay close to our case and not pile on topics that are themselves not simple and connect them to us by a thin thread.
Indeed, it all began with indirect causation in damages. The fact that it is hard for my view to explain the moral message emerging from this law does not exempt us from trying. Unfortunately, the Rabbi’s solution seems to me merely an escape from the force of the issue. And therefore it does not advance us not in understanding the Torah itself, and certainly not in our lives and uprightness.
Responses to the comments:
1. I assume the Rabbi meant that at the end of the laws of Me’ilah Maimonides defines: “…And the statutes are the commandments whose reason is not known. The Sages said: I have decreed statutes for you and you have no right to question them, and a person’s inclination resists them and the nations challenge them… And all the sacrifices are included among the statutes.” This implies that sacrifices have no reason. Yet in the Guide Maimonides finds reasons for sacrifices. Well, it does not take a carpenter or a carpenter’s son to solve this. Maimonides himself, in that very passage I quoted above at the end of the laws of substitution, addresses this directly (!) and answers: “Although all the statutes of the Torah are decrees, as we explained at the end of Me’ilah, it is fitting to contemplate them, and whatever reason you can give for them, give a reason; for the early sages said that King Solomon understood most of the reasons for all the statutes of the Torah.” End of Me’ilah all are decrees; Guide for the Perplexed it is fitting to give reasons.
2. There is an abyssal difference between deriving law from the reason of a verse and the reasons for commandments. The law does not follow Rabbi Shimon. That means we do not derive the law from the reason of the verse and determine halakhah accordingly. Halakhah is determined from within itself, by internal Torah processes of the study hall. Once the halakhah is determined, no reason in the world uproots it. Just as not finding a reason would not, Heaven forbid, uproot it. So why seek reasons? In my humble opinion, for two purposes: (a) as their name indicates, not the body of the food but the taste it creates in the mouth. The body of the laws are royal decrees, but what taste do we feel in the mouth in life when we observe them properly? Those are the reasons for the commandments. With the taste, I connect better to the essence [a good taste gives much more desire to eat the food]. (b) The reason this time in the sense of rationale teaches me how to behave in entirely different life situations that are not connected to the halakhic reality of observing this or that commandment, but from the rationale of the commandment one can derive how to behave in those situations as well.
God’s word stands forever. Within it there are endless meanings. Depth within depth. Maimonides’ reasons for many commandments revolve around uprooting pagan belief from the world and moving all humanity to monotheism. And indeed in his time, when Greek culture still ruled and polytheism was an “enlightened” belief, Maimonides’ strenuous and immense work was useful. It is cheap wisdom to look backward from our day and belittle his enterprise. On the other hand, the reduced relevance of his reasons today requires us to return and labor no less hard than he did in order to draw additional reasons from the depth of God’s words, reasons that will break a path against dominant Western culture with all its “enlightenment,” and once again show the whole world how God’s word leads to moral and value-based insights beyond those humanity reaches, or refines them of all their dross.
3. Already in the previous email I emphasized in bold the sentences in Maimonides and Nachmanides proving otherwise. This is a general tendency in all the Torah’s commandments, including the statutes. The only dispute between them is whether even the details of each commandment teach morality, or only the commandment as a whole. See there.
4. Again I addressed this in previous emails, that in my understanding this is not what the Ran and Maharal themselves mean. See there. True, one can argue about that, but in my humble opinion one cannot argue about the approach of Maimonides and Nachmanides on this matter. Besides that, the greatness of my two authorities is on every scale greater than that of yours, and therefore I would rather align myself with them. Moreover, the Rabbi himself noted parenthetically in one of the previous emails that Rabbi Kook also believed this way [and the matter is indeed very sharp and clear in Orot HaKodesh III, “Holy Morality,” and elsewhere]. For me, Rabbi Kook is the greatest teacher and learner of Israel’s faith in the generation of redemption.
The fact that earlier sources do not “move” the Rabbi, and only logic and reason do that itself is a fact that lies within a very deep disagreement between us. I must say that it pains me and saddens me deeply. No less than to say that, according to my faith, it requires repentance and soul-searching.
5. As above [regarding the last line and a half].
Of course the Rabbi is invited to respond, but it seems to me that we have exhausted the issue and our disagreement. And the righteous shall live by his faith.
All the best,
To Rabbi Y., greetings.
Indeed, I also feel that we have exhausted the matter. Nevertheless, from your words I understand that there are points in my position that were not understood, and on the other hand I also understood that I had indeed understood your position well from the start. So I will make a few brief comments.
Even if your aim was to show that hard work would lead us to uncover moral pearls, I did not see that this succeeds, so we still have not moved beyond mere declaration. Therefore in my opinion there is no practical difference between our approaches either. In order to show a practical difference, you have to show me two things: (a) a moral principle that you learn from examining the reasons for the commandments and that I would not already accept from moral considerations that precede halakhah; (b) that this really emerges from the reasons for the commandment and not from your own reasoning (see below). As long as you have not done that, these are just declarations. A person thinks this is how things ought to be that supreme moral principles should emerge from the reasons for the commandments and deludes himself into thinking that this is what is actually happening (this is cognitive dissonance in psychology). But in my opinion it does not happen. You write that again and again one sees from the reasons for the commandments that the Torah has a higher morality than the “enlightenment” of the West. And I, in my poverty, do not discern this at all, certainly not “again and again.”
Let me note, of course, that I myself do not accept the existence of “higher moral insights.” Moral insights are familiar and known to every person, and to the best of my understanding the Torah also assumes this (and I brought proofs for that).
I have to repeat what I wrote: there is no villainy by command of the Torah here, but in my view sometimes fulfilling its commands requires violating moral principles. Even the principle that danger to life overrides the Sabbath could, of course, be phrased as: be a scoundrel (desecrate the Sabbath) with morality’s permission (the value of life). I prefer the formulation: sometimes its fulfillment is its negation (of morality).
Maimonides’ words about substitution are an excellent example (in general, I am in favor of dealing with examples rather than general declarations). I disagree here from beginning to end:
1. Maimonides’ consideration that there is concern one may exchange for a worse animal is not a moral explanation but a religious one.
2. That explanation does not hold water, because one can easily think of better mechanisms to prevent exchange for a worse animal. For example, let the Great Court appoint a supervisor over me so that I do not exchange it for something inferior.
3. In particular, his explanation is difficult in light of the rule of later authorities that Torah law does not make decrees and fences and in Atvan DeOraita he brought the prohibitions of seeing leaven and seclusion as exceptions according to some medieval authorities, and the exception proves the rule.
4. In my understanding, a much more plausible explanation though not in the moral realm is that once there is a holy animal, its holiness cannot simply be removed (intrinsic sanctity does not just lapse). The inability to exchange it is the result of a metaphysical state, not a moral principle or any other such principle. This is strengthened by the Talmudic discussion of whether if one acted unlawfully the act takes effect, which speaks exactly to this point. You hinted at such a direction in your words, but your objection to it why the second animal also becomes holy is no objection at all. That is a penalty for someone who tries to reduce holiness and thinks holiness lies in human hands (like sacrilege). Beyond that, one can say that this rule comes to intensify our attitude toward holiness, so that we do not think it is in our power. All of these explanations are, in my opinion, much better than Maimonides’.
Notice that neither of the two criteria I proposed above is met here: (a) you did not show that a higher morality emerges here, because the idea that one must not lower the value of what is given to the Holy One, blessed be He, is straightforward and does not require examining the reasons for commandments to learn it. (b) you did not show that this moral principle emerges from examining the reasons for the commandments. On the contrary, it seems impossible to derive it from the reason for the commandment. So where does it come from? From reason. And that is exactly what I said: moral principles come from reason and not from the commandments or examining their reasons. As I said, as long as those two criteria are not met, this is declaration and wishful thinking, not proof of your approach.
This discussion is an excellent example of where a mistaken mode of thought can lead one that assumes that behind the commandments there must be moral reasons. It leads to weak and unconvincing explanations that are forcibly imposed on the commandment, even though they are not really connected to the commandment itself and do not emerge from it.
And indeed, I also do not agree with Maimonides’ conclusion that all the Torah’s words are aimed at improving character and society. It simply does not stand the test of the facts (see below, where I question whether Maimonides himself believed this, given what he says at the end of the laws of Me’ilah).
Responses to the comments:
1. I am surprised. Is there really proof here that if one studies hard one succeeds in producing the pearls in question? As we have seen, not at all. That is exactly why I said that when you cannot give a reason, do not force one. It comes out wrong and unconvincing. See also below in point 2.
2. There is a major mistake here. If principle X is the reason for law Y, there should have to be a correspondence between them. If the Holy One, blessed be He, really commanded Y because of X, mismatches should not appear even in the details. Therefore if the reason does not really explain the law, then it is just a homiletic flourish. Such a reason may perhaps create a taste in the mouth or produce this or that psychological feeling (a sense of connection to observing the commandment), but it is not the reason for the law. In any case, it is not right to draw any moral conclusions from it. And if you do draw conclusions, they are not conclusions derived from the commandment but only from your own reasoning. Incidentally, in my view that is exactly why there is no sense in engaging in this field at all, because even the psychological benefits are not there. If I am not convinced that this is the reason for the law, why would such a “reason” cause me to connect to it better? Am I a fool, or practicing autosuggestion? Astonishing!
As for my relation to earlier sources, I will again examine my path, and if I conclude that I was mistaken I will repent. For now I do not see where I erred. The fact that a great figure like Maimonides offers arguments this weak only strengthens my view that dealing with the reasons for the commandments is an unnecessary mistake, and searching for moral reasons for them usually yields mere clever sermons. I doubt whether Maimonides himself really believed all this (given his words at the end of the laws of Me’ilah), and perhaps he wrote it as a response for the perplexed (as he himself writes in his commentary to the Mishnah on Rosh Hashanah regarding Saadia Gaon). I must say that those perplexed people really would have to be unserious if such things count as an answer for them.
With blessings,
With God’s help, 8 Adar I
Hello and blessings, Rabbi Michael,
Our discussion is over, though not finished. From beginning to end I do not accept the Rabbi’s words.
I see that a deep disagreement yawns between us. We will have to agree to disagree.
And that is perfectly fine. “The righteous shall live by his faith” the main thing is that faith gives life to its possessor, and that those possessors are founded in righteousness.
We will part as friends who aspire, each in his own way, to make the name of Heaven beloved in the world, and to bring Israel closer to their Father in Heaven!
All the best,
With God’s help, 7 Shevat
Many greetings,
Thank you for the more detailed explanation. It definitely helped me understand the Rabbi’s position (in the sense of: I understand quickly when people explain to me slowly…).
At the same time, my total disagreement with what was said has become even sharper.
I do not see how the parable of surgery causing pain advances us at all. Obviously there are conflicts between values all around us, and we are required to decide between them according to different standards, each person according to his faith, opinion, feeling, and so on.
It is also obvious that our standards as believing Jews are the laws of the Torah. They, and only they, decide for us how to behave in every situation, and how to decide every conflict in our lives, whatever it may be.
Our disagreement, as I understand it, is whether the Torah (following its Giver) can obligate us in practice to behave in a blatantly immoral way in the name of some other value, or whether the Torah’s command itself is the supreme moral value to which we must rise.
My claim is that the Torah is meant to refine our personality and behavior in the most practical and realistic way, to penetrate into our lives and straighten them out. The problem is that human understanding is not always at the proper and lofty level needed to absorb the Torah’s moral message in this or that circumstance. Human morality is not perfected, but evolves from generation to generation. The Torah is the aspiration and peak of universal morality. Little by little we advance toward it. Consequently, when a human moral value clashes with a Torah value, this means that humanity has not yet straightened itself into the final correct moral perspective and still needs further refinement and clarification.
The Rabbi’s words that no one can convince him that divorcing a woman who was raped from her priest-husband is a moral command certainly fit our poor conception of morality. What can one do if we have not yet refined ourselves enough to connect to our inner pure world, which sees the desecration of priestly sanctity as more immoral than the need to break up a Jewish home in order to preserve it? And the same applies to not saving a gentile on the Sabbath in relation to the sanctity of the Sabbath. I am not offering a deep and detailed explanation here of the immoral act involved in desecrating priesthood or the Sabbath, but the gates of depth and explanation here have not been locked…
As for the Rabbi’s proof from non-moral commands, such as the prohibition on eating pork, which “is not meant to achieve a moral goal (and anyone who says it is should explain. One can always claim that every command is grounded in a moral purpose without explaining. That is just an empty and implausible definition, calling religious values moral values. A mere relabeling),” in his words. It is well known (and surely I am not telling the Rabbi, with his breadth of knowledge and understanding, anything new) what the Great Eagle wrote at the end of the laws of substitution, which in my humble opinion says exactly that same supposedly “empty and implausible definition” that the Rabbi attacks. [Hopefully Maimonides’ greatness is not in doubt in the eyes of either side. Otherwise there is no common basis for discussion at all.]
Maimonides writes there: “Although all the statutes of the Torah are decrees, as we explained at the end of Me’ilah, it is fitting to contemplate them, and whatever reason you can give for them, give a reason. The early sages said that King Solomon understood most of the reasons for all the statutes of the Torah. It seems to me that with regard to what Scripture says, ‘Both it and its substitute shall be holy,’ this is like what it says, ‘And if the one who sanctified it redeems his house, he shall add a fifth of your valuation money to it.’ The Torah penetrated to the depths of human thought and its evil inclination. Human nature tends to increase its possessions and spare its money, and although a person vowed and sanctified something, it is possible that he regretted it and changed his mind and would redeem it for less than its value. Therefore the Torah said that if he redeems it for himself, he must add a fifth. Likewise, if he sanctified an animal with intrinsic sanctity, perhaps he will regret it, and since he cannot redeem it, he will exchange it for one inferior to it. And if you allow him to exchange the bad for the good, he will exchange the good for the bad and say, ‘It is good.’ Therefore Scripture blocked the way before him so he would not exchange it, and fined him if he did exchange it by saying, ‘Both it and its substitute shall be holy.’ And all these things are in order to subdue his inclination and correct his dispositions, and most of the Torah’s laws are nothing but far-reaching counsel from the great Counselor, to correct dispositions and straighten all actions, as it says: ‘Have I not written for you excellent things of counsels and knowledge, to make you know the certainty of the words of truth…?’ End of the laws of substitution, with God’s help.”
As is known, in Maimonides “dispositions” means character traits.
This is really the basis for Maimonides’ broad enterprise in part III of the Guide for the Perplexed the reasons for the commandments. According to the Rabbi’s approach, why did Maimonides see fit to waste his precious time searching for reasons for all the commandments (including even the “statutes”), if the entire system of Torah commandments is a religious system whose role is simply to sanctify a person by the very act of observing them?! It is precisely against this approach that Maimonides argues there in chapter 26 (the words fit entirely with the quotation from the laws of substitution above): “Just as speculative theologians among the adherents of the Law disagreed whether His acts, may He be exalted, follow wisdom or mere will without aiming at any purpose at all, so this very same disagreement has arisen regarding the commandments He has given us. Some do not seek any reason for them at all and say that the laws all follow mere will. Others say that every command and prohibition follows wisdom and aims at some useful end, and that all the commandments have a cause and were commanded because of some benefit. The view of all of us the masses and the elite alike is that they all have a cause, though we are ignorant of the cause of some of them and do not know the manner of wisdom in them. The verses of the Torah make this clear: ‘righteous statutes and ordinances’; ‘the judgments of the Lord are true, righteous altogether.’ And those which are called statutes such as sha’atnez, meat and milk, and the scapegoat about which the Sages, may their memory be blessed, wrote and said, ‘Things I have decreed for you and you have no right to question them, and the Satan prosecutes regarding them and the nations of the world challenge them’ the wise multitude do not believe that these are matters with no cause at all and no purpose sought in them, for that would lead to vain actions (as we have mentioned). Rather, the wise multitude believe that they have a cause that is, at any rate a useful purpose though it is hidden from us, whether because our minds are too short or our wisdom deficient. All the commandments, then, have in their view a cause meaning that for each command or prohibition there is some useful end, some of whose benefit has become clear to us, as in the prohibition of murder and theft, and some whose benefit has not become clear, such as the prohibition of orlah and forbidden vineyard mixtures. Those whose benefit is obvious to the masses are called ordinances, and those whose benefit is not obvious are called statutes. Hence they always say: ‘For it is not an empty thing’; and ‘if it is empty, it is from you’ meaning that the giving of these commandments is not an empty thing devoid of useful purpose, and if any commandment seems so to you, the deficiency lies in your understanding. You already know the famous teaching among us that Solomon knew the reasons for all the commandments except the red heifer. They also said that God concealed the reasons for the commandments so that people would not treat them lightly, as happened to Solomon with the three commandments whose rationale was disclosed. This principle underlies all their statements, and the scriptural texts point to it.
But I have found a statement of the Sages in Bereishit Rabbah that at first glance suggests that some commandments have no cause at all other than the fact that they are commanded, with no other intended purpose and no resultant benefit. It is their saying there: ‘What difference does it make to the Holy One, blessed be He, whether one slaughters from the throat or from the back of the neck? Rather, the commandments were given only to refine people through them, as it says: “The word of the Lord is refined.”‘ And although this saying is most astonishing and no parallel to it is found in their words, I have an interpretation of it you shall hear it now so that we do not depart from the general tenor of all their words and do not separate from the accepted principle, namely that all the commandments seek some useful end in reality, for ‘it is not an empty thing,’ and ‘I did not say to the seed of Jacob: seek Me in vain; I the Lord speak righteousness, declare upright things.’ What anyone of sound mind must believe in this matter is what I shall explain. The commandment as a whole necessarily has a cause and was commanded because of some benefit, but its details are what may be said to exist for the sake of the command alone. An example is the killing of animals for good food, whose utility is obvious, as we shall explain. But that it be by slaughter and not by stabbing, and by cutting the gullet and windpipe in a specific place these and similar details are to refine people through them. This is made clear by their example of slaughtering from the throat or from the back of the neck. I mentioned this example because their wording was ‘from the throat’ versus ‘from the back of the neck.’ But the truth is that when necessity required the eating of animals, the Torah aimed at the easiest death together with ease of action for striking the neck is only possible with a sword or the like, whereas slaughtering can be done with anything; and in order to choose an easy death they required a sharp knife.
What truly deserves to serve as an example regarding details is sacrifice. The command to offer sacrifices has a great and evident benefit (as I shall explain), but that one sacrifice be a lamb and another a ram, and that their number be a specific number it is impossible to assign any reason at all to such details. Anyone who troubles himself to give a reason for any of these particulars seems to me to be engaging in prolonged madness; he does not remove difficulty but only adds difficulties. And one who imagines that these have a cause is as far from the truth as one who imagines that the commandment as a whole has no benefit at all…
Since this is so, I see fit to divide the 613 commandments into many categories, each category including many commandments of one type or closely related in subject, and I shall tell you the reason for each category and show you its unquestionable and indisputable benefit; then I shall return to each commandment individually among those included in that category and explain its reason, so that very few commandments will remain whose reasons have not become clear to me to this day. So too some details of commandments and some of their conditions have become clear to me insofar as reasons may be given for them. You will hear all this later on.”
Nachmanides, in his commentary to the Torah (Deuteronomy 22:6), went even further than Maimonides and held that even all the details of the commandments are aimed at the moral side of the person and elevate him! He writes: “If a bird’s nest chances before you this command too is explained by the prohibition ‘You shall not slaughter it and its young in one day’ (Leviticus 22:28). For the reason in both is that we should not have a cruel heart and fail to show mercy, or that Scripture should not permit us to act destructively and uproot a species, even though it permits slaughtering that species. Thus one who kills the mother and the young in one day, or takes them when they have freedom to fly, is as if he were cutting off that species.
And the Rabbi wrote in the Guide for the Perplexed (III:48) that the reason for sending away the mother bird and the reason for not slaughtering an animal and its young in one day is to warn us not to slaughter the young before the eyes of the mother, for animals have great anguish over this, and there is no difference between human anguish and animal anguish for their offspring, for a mother’s love and compassion for the offspring of her womb do not arise from reason and speech but from the faculty of imagination found in animals as it is in man. If so, the essence of the prohibition of ‘it and its young’ is really only ‘its young and it,’ but all is a distancing measure. More correct, however, is that it is so that we should not become cruel. The Rabbi said: Do not object to me from the saying of the Sages (Berakhot 33b), ‘Your mercies extend to the bird’s nest,’ because this reflects one of two opinions the opinion of those who hold that the commandments have no reason other than the Creator’s will, whereas we uphold the second opinion, that every commandment has a reason. Another difficulty for him was what he found in Bereishit Rabbah (44:1): ‘What difference does it make to the Holy One, blessed be He, whether one slaughters from the throat or from the back of the neck? The commandments were given only to refine people through them,’ as it says, ‘The word of God is refined.’
This principle laid down by the Rabbi, that the commandments have reasons, is very clear: each one has a reason, benefit, and improvement for man, aside from the reward from the One who commanded them, may He be blessed. The Sages already said (Sanhedrin 21b): ‘Why were the reasons of the Torah not revealed…’; and they expounded (Pesachim 119a): ‘And for him who covers ancient things’ this refers to one who reveals things concealed by the Ancient of Days; and what are they? The reasons of the Torah. They also expounded concerning the red heifer (Numbers Rabbah 19:3-4) that Solomon said, ‘I attained all things, but I investigated and inquired into the section of the red heifer; I said, I will be wise, but it is far from me’ (Ecclesiastes 7:23). And Rabbi Yose son of Rabbi Hanina said: The Holy One, blessed be He, said to Moses, ‘To you I reveal the reason for the red heifer, but to others it is a statute,’ as it is written (Zechariah 14:6): ‘On that day there shall not be light, precious things, and congealed things’ written as ‘they shall congeal’: things hidden from you in this world will in the future be visible, like this blind man who sees, as it is written (Isaiah 42:16): ‘I will lead the blind by a way they did not know,’ and it is written: ‘These are the things I have done and not forsaken them’ for I have already done them for Rabbi Akiva. Thus they explained that what prevents us from knowing the reasons of the Torah is only blindness in our intellect, and that the reason for even the most severe of them was already revealed to the wise of Israel; and there are many such statements in their words, and in the Torah and Scripture many passages indicate this, as the Rabbi mentioned.
But as for those aggadot that troubled the Rabbi, in my opinion they have a different meaning. They wanted to say that the benefit of the commandments is not for the Holy One, may He be exalted, Himself; rather, the benefit is in the person himself to prevent harm to him, bad belief, ugly traits, or to remember the miracles and wonders of the Creator, may He be blessed, and to know God. That is what ‘to refine them’ means: that they should be like refined silver, for one who refines silver does not do so without purpose but to remove all dross from it; so too the commandments are to remove every bad belief from our hearts, teach us truth, and cause us always to remember Him.
This very wording of the aggadah is also mentioned in Yelammedenu (Tanhuma, Shemini 8) in the section ‘This is the animal’: ‘What difference does it make to the Holy One, blessed be He, whether one slaughters an animal and eats it or stabs it and eats it? Do you benefit Him or harm Him at all? Or what difference does it make to Him whether one eats pure animals or impure ones? If you are wise, you are wise for yourself. The commandments were given only to refine people, as it says: “The words of the Lord are pure words,” and “Every word of God is refined.” Why? So that it may protect you.’ Here it is explicit that they meant only that the benefit is not to Him, may He be exalted, as if He needed the light of the menorah, or the food of the sacrifices, or the smell of the incense, as might seem from the plain sense. Even the remembrance of His wonders, which He commanded us to observe in memory of the Exodus and Creation, is not for His benefit, but so that we know the truth and thereby merit to be worthy of His protection, for our honoring Him and recounting His wonders are considered by Him as nothing and vanity.
And they brought proof from slaughtering from the throat or the back of the neck to say that all the commandments are for us and not for the Holy One, blessed be He. For it is impossible to say regarding slaughter that it is of any benefit or honor to the Creator, may He be blessed, if done at the throat rather than the back of the neck or by stabbing; rather, they are for us, to guide us in the paths of mercy even at the moment of slaughter. And they brought another proof: what difference does it make to Him whether one eats pure animals the permitted foods or impure ones, the forbidden foods, about which the Torah says (Leviticus 11:28), ‘They are impure for you,’ hinting that this is in order that we be pure of soul, wise, and understanding of truth. Their phrase ‘If you are wise, you are wise for yourself’ teaches that practical commandments such as slaughtering from the throat are to teach us good traits, and commandments restricting kinds of things are to refine our souls, as the Torah says (ibid. 20:25): ‘You shall not make yourselves detestable by beast or bird or anything that creeps on the ground, which I have set apart for you to hold impure.’ Thus all of them are solely for our benefit. This is like what Elihu said (Job 35:6): ‘If you sin, what do you do against Him? And if your transgressions are multiplied, what do you do to Him?’ and (verse 7): ‘Or what does He receive from your hand?’ This is an agreed principle throughout the words of our Rabbis.
And they asked in the Jerusalem Talmud, Nedarim (9:1), whether one opens a discussion for a person based on the honor of Heaven regarding matters between him and Heaven, and they answered this question: What is meant by the honor of Heaven? For example: a sukkah that I do not make, a lulav that I do not take, tefillin that I do not put on and that is the honor of Heaven? It implies that the benefit is for the person himself, as in: ‘If you are righteous, what do you give Him? Or what does He take from your hand? If you sin, what do you do to Him? And if your transgressions are multiplied, what do you do to Him?’ Thus they explained that even the lulav, sukkah, and tefillin, which He commanded to be ‘a sign on your hand’ and ‘a memorial between your eyes’ that the Lord brought you out of Egypt with a strong hand, are not for the honor of the Lord, may He be blessed, but to have mercy on our souls. They even arranged for us in the Yom Kippur prayer: ‘You distinguished man from the beginning and recognized him to stand before You, for who can say to You: What are You doing? And if he is righteous, what does he give You?’ Likewise the Torah says (above 10:13), ‘for your good,’ as I explained there (verse 12), and also: ‘The Lord commanded us to observe all these statutes, to fear the Lord our God, for our good always’ (above 6:24). The meaning of all of them is for our good, not His, may He be blessed and exalted; rather, all we were commanded is so that His creatures should be refined and purified, with no dross of evil thoughts or ugly traits.
Similarly, what they said (Berakhot 33b), that one who says concerning the bird’s nest, ‘Your mercies extend [even there],’ is mistaken because he turns the attributes of the Holy One, blessed be He, into mercies whereas they are only decrees, means to say that God did not pity the bird’s nest nor did His mercy extend to an animal and its young in order to prevent us from using them for our needs for if that were so, He would have forbidden slaughter. Rather, the reason for the prohibition is to teach us the trait of mercy and that we not become cruel. For cruelty spreads in the human soul, as is well known with butchers who slaughter large oxen and donkeys they are men of blood, slaughterers of men, exceedingly cruel. Therefore they said (Kiddushin 82a): ‘The best of butchers is a partner of Amalek.’ Thus these commandments regarding animals and birds are not acts of mercy toward them, but decrees upon us to guide us and teach us good character traits.”
The Rabbi ended his last email with the words: “The Mishnah has not moved from its place. And no quotations in the world, and no hanging onto lofty trees (only to be strangled by them 🙂 ), will move it,” but perhaps nevertheless the sources I brought and their explanations will fulfill the second half of his statement: “unless an explanation is brought and the difficulties are answered, or until the day breathes and the shadows flee” [especially the very end of that last phrase…].
The reason I did not respond until now was because of much investigation and study of the issue. I reached many and varied sources far beyond what is copied here.
I hope, with God’s help, to add much more of this kind later.
A happy new month!