Friday, August 03, 2007

judging the morals of G-d's law - R' Lamm's response to Feldman (II)

Comments yesterday as well as a private e-mail focused on a passage of R’ Lamm’s article that gave me pause as I read it, but upon further reflection I did not find it as objectionable as others apparently have. Here is the passage (italics added by me):

Surely you [Feldman], as a distinguished academic lawyer, must have come across instances in which a precedent that was once valid has, in the course of time, proved morally objectionable, as a result of which it was amended, so that the law remains “on the books” as a juridical foundation, while it becomes effectively inoperative through legal analysis and moral argument. Why, then, can you not be as generous to Jewish law, and appreciate that certain biblical laws are unenforceable in practical terms, because all legal systems — including Jewish law — do not simply dump their axiomatic bases but develop them. Why not admire scholars of Jewish law who use various legal technicalities to preserve the text of the original law in its essence, and yet make sure that appropriate changes would be made in accordance with new moral sensitivities?
What does R’ Lamm mean by suggesting that our approach to Torah law be guided by “moral argument” – who are we to judge G-d’s law, and who are we to dismiss that law by using technical loopholes to circumvent it if it meets our moral disapproval?

I believe R' Lamm's approach is borrowed from a theme R' Wurtzberger z"l developed in his book on Jewish ethics (who in turn I think presents it as being R' Ahron Soloveitchik's chiddush) where he sets down how the Rambam views "m'shum eivah" as a philosophical imperitive to love all creatures, not just a pragmatic end. You may not be comfortable with R' Lamm's formulation, but examples of the approach abound, from Talmudic times - "Rav mangid a'man d'mekadesh b'biya" is a moral expression of dissatisfaction with a legally sanctioned heter - to our own times, where institutions like pre-nup agreements seek to restore equity where the letter of the law clearly favors the husband. When R’ Chaim Brisker allowed eating on Yom Kippur for the sick and declared that he is not lenient with respect to Yom Kippur, he is strict regarding the law of preserving life, that is as much a moral argument as a halachic statement. The “moral argument” which motivates these implementations is not rooted in a selfish judgmental approach to G-d’s law, but is rooted in an appreciation of the moral spirit and value system of the law itself. The law values Shabbos, but the law also values human life; the law values Yom Kippur, but the law respects the needs of the sick – the means to balance these axioms needs to be found in the technical details of the law itself. What might appear as a technical loophole is merely the application of the letter of the law to satisfy the spirit of the law itself. We have no right to judge G-d's law, but that we have a right to use our judgment to insure we meet its demands in spirit and in letter.


  1. Much depends on what R. Lamm could have expected of his audience, or audiences. An audience not tuned into the balancing of halachic factors could easily conclude that he was writing off what he called "morally objectionable".

  2. He could have made a similar point without this line, so I'm not sure why he chose to stake out a position on this issue. Part of the reason I referred to R' Lamm's article is that aside from answering Feldman he says things that at least make you think a bit, whether you agree with him or disagree.

  3. Dovid Shlomo3:44 PM

    I don't mean to be facetious, but Rabbi Lamm's use of the pasuk in tehillim as a proof text causes me to apuse as to where exactly we should draw this moral line, considering that HASHEM has mercy on ALL His works.

    Are we to be Mechallel Shabbat to save a beloved pet? A plant? . . .

    Not that I'm comparing the value of a human life to the above, but once we get into the touchy feely business of morality and using that pasuk in tehillim, where do we draw that moral line?

    Based on Rabbi Lamm's criteria, why shouldn't we violate the Sabbath in order to save the life of a pet?

  4. Dovid Shlomo,
    R' Lamm did not quote that pasuk - I am suggesting he followed such an approach, which is based on the Rambam's view. Rather than formulate "m'shum eivah" as a purely pragmatic aim of avoiding conflict, the Rambam (10:12 of Hil Melachim) uses the rationale of "tov Hashem lakol" and "deracheha darkei noam" to explain our obligation to treat non-Jews as our equals when it comes to dispensing charity. Note as well that the Rambam does not formulate the issur of helping deliver a non-Jewish baby as assur m'dinei Shabbos - see shu"t Chasam Sofer Choshen Mishpat #194 - which would seem to suggest that refulah for a non-Jew is not prohibited per se on Shabbos. I would suggest that perhaps this fits the Rambam l'shitaso, but I am merely speculating.

  5. Anonymous1:38 PM

    i Find your rayah from rav assuring what the torah motired a funny rayah because here you are trying to matir an Issur dioraysah