Ethics Independent of Halakhah? (Aharon Lichtenstein)

aharon Lichte

From Modern Jewish Ethics, edited by Marvin Fox, and since re-printed, here are the main ligaments to Aharon Lichtenstein’s famous question cum essay, “Does Jewish Tradition Recognize An Ethic Independent of Halakah?” I have re-arranged the parts out of sequence to make better sense of the answer, which I would phrase as a qualified: yes, there is definitely an ethic independent of halakahah, but it depends upon what you mean.

–What do we mean by Halakhah (JEWISH LAW) in relation to Din (defined by Lichtenstein as a body of positive statutes qua set of rules) (p.78)

–In the classical sources halahkah is din. Neither enjoy the status of an umbrella terms. They are not comprehensive in scope (cf.66).

–The principle that one should (!!) stop before the line of the letter of the law (lifnim mi-shurat ha-din) is obligatory, not optional (pp.70-4). What this means is that one should bend in the case of a moral collision. Even when one holds the upper legal hand in a practical suit, one should stop short of standing on one’s right before the “law” (din) in order to be flexible, even giving in relation to the other. That is what it means to be “ethical.” (Note: lifnim mi-shurat ha-din is often mistranslated by people who should know better as “beyond the law,” which only serves mangle the Hebrew and obfuscate the principle.) (The argument is posed with Nachmanides and against Maimonides.)

–No community can stand on positive legal statutes and rules alone. “Supralegal conduct is the cement of human society” (p.76). “Righteousness” technically understood as rule following has to be complemented by the “good,” understood in terms of “purpose” and “direction,” not “prescribed acfs” (p.79).

–In this respect, one can say that “Halakhah” recognizes a “good” that is independent of din, a good that is independent of “halakhot.”. But by the end of the essay it is clear that we are no longer are talking about Halakhah (p.82). The terms have been switched around.

Regarding arguments about halakhah and ethics, my own sense is that the modern orthodox drove Jewish philosophy into the weeds. The status of halakhah and questions about that status are unique to them. In contrast, for liberal thinkers the umbrella term is Torah, a more capacious term than Halakhah, which is too associated with positive law. The orthodox found and still find themselves stuck in it having once set up halakhah as some Jewish unum necessarium (p.82). What’s radical about Lichtenstein’s approach lies in the attempt to re-arrange by re-defining the conceptual furniture. Shifting the argument from halakhah to din, what the solution more than suggests is that Halakhah is not (!!) the relevant term.

That seems to be Lichtenstein’s direction, particularly given the concluding statement, “Does the tradition recognize an ethic independent of Halakkha? You define your terms and take your choice” (p.83). That idiom is strange, coming from Lichtenstein, who was a native English language user. Perhaps he meant, “take your chance.”

The more elegant solution is one with fewer moving parts. For example, one might  follow Lichtenstein and “choose” to equate “halakhah” and “din” (as happens in the Bavli) as positive law. One can then conclude that Judaism or Torah recognizes or even generates an ethic that is both rooted in and independent of halakhah/din/positive law. The relation between ethics and halakhah/din/positive law would be recognized as one that is subject to tension, conflict, and splitting. It would require one to say that Judaism is a “religion” of Torah, not Halakhah. This allows one to say that there is more to Torah than “law,” that Halakah is not the be end and end all of Judaism.

One notes here that Solomon Schechter refused to translate Torah as “law” or “nomos.” My guess would be that such a “choice” would cut too sharply against the ideological grain for too many orthodox thinkers and their students because for them Halakhah has the transcendent status of a meta-value that transcends its status as positive law. But once Halakhah enjoys that status, then ethics is subsumed under law. Is Soloveitchik to blame for any of this? At any rate, this is an orthodox conceptual muddle, not a Jewish one per se. In Israel, the muddle is more morally dangerous and politically fraught than in the United States –hence the urgency of Lichtenstein’s question.

About zjb

Zachary Braiterman is Professor of Religion in the Department of Religion at Syracuse University. His specialization is modern Jewish thought and philosophical aesthetics.
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