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Law and Morality

In the Bible

In the Pentateuch, legal and moral norms are not distinguished by any definitional criteria. The manner of presentation of both is via revelation – moral norms are not presented as wisdom but rather as prophetic revelation. Thus the two remain indistinguishable as to authority. The basis of adherence to the system as a whole is the fact that it constitutes divine command. Even in the form of presentation, no distinction is made between the two types. The apodictic form, for example, is used both for the prohibition on murder (Ex. 20:13) and the command to love one's neighbor (Lev. 19:18). On the critical issue of enforcement, no textual distinction exists on which to base enforced and nonenforced forms or between humanly enforced and divinely enforced ones. The premise of the pentateuchal code is that no propounded norm of human behavior is either optional or lacking in enforcement. Indeed the sanction system is one in which human punishment and divine retribution function as equal components of a single scheme.

This single corpus of legal-moral behavioral norms was distinct from ancient Near-Eastern legal-moral systems in a number of significant respects. First, the very unity of morality and law in the Pentateuch created a new basis of authority for the behavioral precepts of Hebrew civilization. Secondly, in the Torah individualistic morality gave way to national morality which was addressed to the people of Israel as a corporate moral entity. Thus the national entity was made party to the maintenance of the mandated standards of behavior and could be held responsible for the breach of such norms by individual citizens. Thirdly, despite the exclusivity of the covenantal relationship between God and the Jewish people, God's role in the enforcement of legal-moral behavioral norms is clearly pictured as universal. Thus Cain, the generation of the flood, Sodom, the seven Canaanite nations, and others, are all pictured as subjects of divine retribution for illegal-immoral behavior though they were not parties to the covenant.

In the prophetic literature, no new realm of purely moral concern was created. The breaches of social morality which play such a prominent part in the prophetic critique of the Jewish people were all premised on the identical legal-moral behavioral norms. The "immorality" of the people was in reality their "illegal" behavior. The major shift which distinguishes the literary prophets from their predecessors was that the notion of corporate legal-moral responsibility was given a vital new component. In the Pentateuch, national doom was threatened for cultic sins in particular and for neglect of the divine commandments in general. The prophets introduced the notion that the most decisive factor in the corporate fate of the nation was that aspect of mandated legal-moral behavioral norms which encompassed social relations. Thus when Amos threatens national doom and exile, he speaks of the sins of the normal life context, of social, economic, and political behavior, but maintains complete silence with regard to the sin of idolatry. In Isaiah and Micah too, the threat of national destruction is created by social corruption – the violation of the legal-ethical behavioral norms of everyday life. Failure to observe the divine command results in the corporate punishment of the nation whether the sin is cultic or legal-moral in nature.

The Talmudic Period

There was not yet any development of a specific moral order as distinct from the legal system in the talmudic period. However, it is already clearly recognized in tannaitic literature that legal sanctions could not enforce every form of behavior which was morally desirable. Indeed the Mishnah and Tosefta make occasional references to situations where, despite justification, one party lacks any legal recourse against the other and "… he has nothing but resentment [taromet] against him" (e.g., BM 4:6, 6:1; Tosef., Git. 3:1; BM 4:22). This recognition of a gap between sanctionable behavior and behavior which though desirable is not enforceable produced three types of relationships between the two realms: morality as a direct source of law; morality as a source of private, higher standards of legal liability; and morality in legal form.

MORALITY AS A DIRECT SOURCE OF LAW

The tannaitic period was particularly rich in social legislation motivated by the desire to expand the scope of enforcement to encompass as broad as possible a range of morally desirable behavior. Two terms in particular were often used to indicate the presence of a moral interest as the basis for tannaitic legislation:

(1) "In the interest of peace" (mi-penei darkhei shalom). This term is a composite, indicating that the legislative purpose of the statute is the prevention of communal conflict which would result from some immoral practice not otherwise limited by law. The specific forms of immoral behavior viewed by the tannaim as likely to produce communal conflict included unequal distribution of religious honors, threat to the good reputation of a group or an individual, taking by force where property rights are uncertain, unearned benefit from the labor or initiative of another, and the exclusion of groups from societal privileges and responsibilities. In all of these instances, the methods used to avoid the conflict were either to legalize a status quo which was both orderly and fair, or to extend legal rights to situations or persons otherwise excluded (e.g. Git. 5:8–9; Tosef., Pe'ah 3:1; Ḥul. 10:13; Git. 5 (3):4–5).

(2) "For the benefit of society" (mi-penei tikkun ha-olam). This tannaitic term is also a composite, reflecting the presence of a moral interest being translated into an enforceable legal norm. The Mishnah (Git. 4:3–5:3) contains an entire codex of such statutes. The unique character of the situations governed "for the benefit of society" is that the moral interest involved, while produced by an existing or incipient legal relationship, affects primarily persons outside the relationship itself. The legislation affecting that relationship is thus primarily designed to have general communal benefit. Some of the moral interests dealt with in this type of legislation are the prevention of *bastardy and of abandoned wives (see *Agunah), the deterrence of *theft and of non-punishable injurious behavior, the encouragement of lending and of returning lost property, the encouragement of care for *orphans and destitute children, and the encouragement of public service in the area of law and medicine (e.g., Git. 4:2–5:3; 9:4; Tosef., Ter. 1:12–13; Git. 4(3):5–7; 8(6):9).

The amoraim did not themselves use darkhei shalom or tikkun ha-olam as bases for further translation of morality into law. However, their awareness that in tannaitic legislation morality was being used as a source of law is clearly indicated through their use of the notion of the prevention of hostility (mi-shum eivah) as a legislative end. While no legislation in tannaitic literature is described as having been designed to prevent hostility, the amoraim often ascribe that very purpose to tannaitic legislation. Thus tannaitic legislation giving a *husband the right to his wife's earnings is viewed by the amoraim as motivated by the desire to prevent ill-feeling or hostility (eivah) between them (Ket. 58b). The source of the ill-feeling would be the inequality resulting from the husband's being obliged to support his wife without being entitled to ownership of whatever she earns. This recognition that legislation based on the tendency of ill-feeling to undermine an existing relationship was an attempt to cure legislatively the underlying inequality led the amoraim to limit the application of the statute to those situations where its motivating moral interest was relevant. Thus where the marital relationship is in any case about to be terminated, ill-feeling may be a matter of indifference (BM 12b), and further, where the relationship must be terminated by law, ill-feelings between the parties may actually be functional (Yev. 90b) and therefore the law designed to prevent such hostility is inapplicable.

The role of morality as a source of law continued into the legal work of the amoraim themselves, although it shifted from the realm of legislation to that of juridical interpretation. Two standards of moral behavior, one positive and one negative, predominate in this amoraic process:

(1) "And thou shalt do that which is right and good" (Deut. 6:18; ve-asita ha-yashar ve-ha-tov). Two amoraic laws are based on this verse:

(a) Property taken by a creditor in payment of a debt may be redeemed at any time (i.e., absence of injury to the creditor; BM 35a; see *Execution, Civil); and

(b) Right of an abutting property owner to first purchase is preserved despite sale of the property (i.e., absence of injury to the original owner; BM 108a; see *Maẓranut). In both casesdoing the "right and good" involves the restoration of a legal right which a person had lost through no fault of his own.

(2) "Her ways are ways of pleasantness" (Prov. 3:17; dark-hei no'am). The fact that "pleasantness" was viewed as a basic characteristic of biblical law dictated to the amoraim the rejection of any juridical interpretation which could lead to the establishment of a law that could cause either the loss of personal dignity or injury to a marital relationship (e.g., Suk. 32b; Yev. 15a). The principle, however, operated in a negative fashion only, to preclude any particular juridical alternative which contravened the moral qualities of "pleasantness" (see also *Takkanot).

MORALITY AS A SOURCE OF PRIVATE, HIGHER STANDARDS OF LEGAL LIABILITY.

There are occasions which arise in any legal system where, despite the existence of a law prohibiting certain action, the hands of the court are tied because of evidentiary or procedural principles. The absence of enforcement in such instances, while producing an inequity in that particular case, could only be remedied by the abandonment of a principle which on balance is of value to the legal system. In the attempt to minimize such injustice, the tannaim, and subsequently the amoraim also, attempted to use the threat of divine retribution as a means of inducing the wrongdoer to remedy the injury of his own free choice, rejecting the exemption which the system allows him (see *Divine Punishment). It was in this specific context that the rabbis often asserted that while the defendant was "exempt by human law, he is liable by divine law" (ḥayyav be-dinei shamayim; e.g., BK 6:4. An entire codex of such situations where "his case is passed on for divine judgment" is found in Tosef., BK 6:16–17). A similar case of moral pressure being brought to bear to emphasize the need for voluntary rectification where the judiciary is unable to act is reflected in the phrase "the sages are greatly pleased with him" (ru'aḥ ḥakhamin noḥah heimenno; e.g., Shev. 10:9. For the reverse formulation, see BB 8:5). The moral pressure for this type of behavior led the amoraim to use similar formulations to urge self-judgment even in cases where the initial liability itself was in doubt (BM 37a; see *Extraordinary Remedies). In such cases the amoraim suggest that a man assume liability upon himself if "he wishes to fulfill his duty in the sight of heaven."

Two uniquely amoraic devices supplement the above as moral means of urging an individual to accept higher standards of civil liability where he has indeed been the cause of injury to another. Both are literary legal fictions in that they attempt to explain tannaitic statements or actions which in reality might have been based on completely different reasons.

(a) Pious behavior (middat ḥasidut). Each time that the amora Rav Ḥisda suggests that a particular tannaitic statement constituted a suggestion of especially righteous behavior it is part of an attempt to resolve an inner contradiction in a Mishnah (e.g., BM 52b; Shab. 120a; Ḥul. 130b). While the Talmud on one occasion rejects R. ḥisda's suggestion for some alternative resolution (Shab. 120a), the device itself, and its frequent acceptance by the amoraim, gives recognition to their use of moral persuasion to encourage private adoption of the highest possible standards of civil liability. Indeed R. Ḥisda may well have been pointing out a more general phenomenon, that of recording dissenting opinions in the Mishnah in order that such higher standards remain as a personal option.

(b) Beyond the limit of the law (li-fenim mi-shurat hadin). This device too, emerging from the school of Rav, is used consistently to resolve the disparity between existing law and the behavior of some earlier scholar (e.g., BK 99b; BM 30b; Ket. 97a; Ber. 45b). While it may be the case that in each instance the scholar behaved in full accord with the law of his own time, the exemption from liability not yet having become applicable, the significance of the amoraic suggestion lies in its openness to the acceptance and desirability of such private assumption of higher standards of legal liability. Indeed, by eradicating the time difference between the existing law and earlier behavior, the amoraim in effect maintain the viability of the entire history of legal development as a source of rules devised to produce the result most morally desirable in any particular case. While in their talmudic usage none of these devices leads to enforceable law, many rishonim and aharonim insist on the partial or total enforceability of a good number of the laws denominated as dinei shamayim, middat ḥasidut, and li-fenim mi-shurat ha-din (e.g., Rema ḤM 12:2; PDRS: 132–153, 151). Thus, while formal legislation was basically absent and no admission would be made that juridical interpretation really involved the creation of new law, such reinterpretations to create higher standards of enforceability were in fact part of the continuity of the process of the use of morality as a source of new law. In this way the use of morality to create private, higher standards of liability has often led to the eventual adoption of those new standards as law for everyone.

MORALITY IN LEGAL FORM

The impact of morality on Jewish law has been felt in a third way, as a result of rabbinic formulation of moral principles in legal form. The unwillingness of the rabbinic mind to accept seriously any substantial gap between the two realms is evidenced by the gradual assimilation into the realm of law, of forms of behavior which were not initially enforceable but were formulated in the terminology of illegal behavior. The two prime categories in this pattern are where immoral behavior is compared to illegal action and where the seriousness of the behavior is indicated by a disproportionate penalty.

(1) "As if …" (ke-illu). The term ke-illu, in its legal usage (like na'asah ke), usually introduces a legal fiction (BM 34a; Yev. 13:3). In its usage in the process of grading the moral significance of behavior it creates fictional analogies to legal or illegal behavior. Thus a person who conducts himself with humility is as one who offers all the sacrifices (Sot. 5b), while one who honors an evil person is as one who worships idols (Tosef., Av. Zar. 6(7):16). In tannaitic usage, this device is used almost exclusively to encourage behavior which is not legally mandatory (except where it is used in exegesis in the form, "Scripture considers him as if …"; e.g., Sanh. 4:5). In such instances, the weight of the divine legal prohibition is used to bolster moral pronouncements which otherwise lack any authority. The fact that amoraim began to extend this comparative device to add the weight of divine law to the authority of rabbinic law (e.g., Ber. 35a) introduced the possibility that the first half of the formula was not merely unenforceable moral teaching, but was itself legally binding in its own right. It was then only a short step to the frequent conclusions of rishonim that behavior which is compared to illegal action must itself be illicit (e.g., Sot. 3:4; cf. Yad, Talmud Torah 1:13).

(2) Disproportionate penalty, such as "liable to the death penalty" (ḥayyav mitah). While the Bible lays down the penalty of death at the hands of the court for a variety of crimes, the tannaim had already begun using the ascription of the death penalty to crimes for which clearly no court would prescribe such punishment. This exaggerated penalty was an effective way of communicating rabbinic feelings about the enormity of misbehavior. The amoraim made extensive use of this device to indicate their indignation at immoral behavior. Thus, in a passage which makes manifestly clear that it is aimed at emphasis rather than true legal liability, the Talmud says, "A mourner who does not let his hair grow long and does not rend his clothes is liable to death" (MK 24a). Similarly the rabbis asserted that, "Any scholar upon whose garment a [grease] stain is found is liable to death" (Shab. 114a). Again, however, the very use of legal terminology in formulating the moral position led to the conclusion that the behavior so described was indeed legally prohibited, and it was therefore often considered as this by the rishonim (cf. instances in Sanh. 58b, 59a, and codes). Thus in the constant growth of the scope of the law the morality of one generation frequently became the law of the next.

BIBLIOGRAPHY:

H.B. Fassel, Tugend-und Rechtslehre… des Talmuds… (1848, 18622); M. Bloch, Die Ethik in der Halacha (1886); S. Schaffer, Das Recht und seine Stellung zur Moral nach talmudischer Sitten-und Rechtslehre (1889); M. Lazarus, Die Ethik des Judentums, 2 vols. (1904–11); I.S. Zuri, Mishpat ha-Talmud, 1 (1921), 86f.; S. Federbusch, Ha-Musar ve-ha-Mishpat be-Yisrael (1947); S. Pines, Musar ha-Mikra ve-ha-Talmud (1948); J.Z. Lauterbach, Rabbinic Essays (1951), 259–96; ET, 1 (19513), 228–30, 334f.; 7 (1956), 382–96; E. Rackman, in: Judaism, 1 (1952), 158–63; Y. Kaufmann, The Religion of Israel (1960), 122–211, 291–340; M. Silberg, Kakh Darko shel Talmud (1961); M. Elon, in: De'ot, 20 (1962), 62–67; Z.J. Melzer, in: Mazkeret… le-Zekher… ha-Rav Herzog (1962), 310–5; B. Cohen, in: Jewish and Roman Law, 1 (1966), 65–121; 2 (1966), 768–70; E. Urbach, ḤazalPirkei Emunot ve-De'ot (1969), 254–347. ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:125–71, 219f.; 3:1323, 1464; idem, Jewish Law (1994), 1:141–89, 247f.; 4:1581, 1739; idem, Jewish Law (Cases and Materials) (1999), 35–57; "Does Jewish Tradition Recognize an Ethic Independent of Halakha?" in: Jewish Law and Legal Theory (1993), 155–81; I. Englard, "The Interaction of Morality and Jewish Law," in: ibid., 189–99; Sh. Albeck, Yesodot Dinei Mamonot ba-Talmud (1994), 13–34; Y. Habba, "Ettikah shel Nihul Hitdayyenut ba-Mishpat ha-Ivri," in: Mishpatim, 25:333–76; I.Warhaftig, Ha-Ḥithayyevut (2001), 409–19.