Judaism and Natural Morality The twin topics of natural morality and natural law (lex naturalis), have a long and layered intellectual history. At the risk of simplifying a complex subject, we can safely say that philosophers and theologians since the Greeks, in considering the basis for morality and law, have explored the following set of questions: Can morality (that which is “right”) and even law (that which is required and even enforceable) be deduced without recourse to revelation? If so, can it be observed in the observable natural world? In our own moral intuition? Asked in Aristotelian terms, does humanity have an inherent nature or teleology that ought direct our behaviors? Furthermore, does a revelation-based religious system have any place human intuition? In a rather different vein, can our modern legal system be construed as an explication of natural law? What are the outlines of a practical code of morality that is rooted in natural law? Many quills have been broken in attempts to resolve this complex set of questions. From Aristotle’s ethical theory of the teleological nature of mankind, which postulates that humanity was created with an intrinsic nature and purpose, to the Gnostic and Christian lex naturalis traditions, to the social contract/natural law theories of Locke and America’s founding fathers, this cluster of questions has been the subject of intense debate among Western thinkers for well over two millennia.1 Interestingly, recent decades have witnessed considerable discussion as to where Judaism stands on the controversy.2 Marvin Fox3 has advanced the thesis that Judaism 1

As there is a voluminous literature on natural law and natural morality, a comprehensive overview is beyond the scope of this article. For an accessible overview of natural law theorists, see Alfonso GómezLobo, Morality and the Human Goods: An Introduction to Natural Law Ethics. In regard to natural law in particular (as opposed to natural morality), see Stanford Encyclopedia’s entry, “The Natural Law Tradition in Ethics,” available at http://plato.stanford.edu/entries/natural-law-ethics/#Aca. For a helpful collection of articles, see Jonathan A. Jacobs, Reason, Religion and Natural Law: From Plato to Spinoza. 2 See Jacob I. Dienstag, “Natural Law in Maimonidean Thought and Scholarship,” The Jewish Law Annual 6 (1987), 64-77; Saul Berman, “Lifnim Mishurat Hadin,” Journal of Jewish Studies 26 (1975) and 28 (1977); Eliot Dorff, “The Interaction of Jewish Law With Morality,” Judaism 26:4 (1977); Norman Lamm and Aaron Kirschenbaum, “Freedom and Constraint in the Jewish Judicial Process,” Cardozo Law Review, pgs. 105-120 (1979); Jonathan Jacobs, “Judaism and Natural Law,” The Heythrop Journal 50:6 (2009), 930-947; Eugene Korn, “Legal Floors and Moral Ceilings: A Jewish Understanding Of Law and Ethics,” Edah Journal 2:2 (2002); and Jose Faur, “Understanding the Covenant,” Tradition 9:4 (Spring 1968). 3 Marvin Fox, “Maimonides and Aquinas on Natural Law,” Dinei Yisrael 3 (1972), later published with some additions in his “Law of Ethics in Modern Jewish Philosophy: The Case of Moses Mendelsohn,” Proceedings of the American Academy for Jewish Research, Vol. 43 (1976), pp. 1-13.

emphatically denies the notion of natural morality, while R. J. David Bleich4 allows for an extremely limited notion of natural law. Yet others have advocated a more expansive approach, including R. Aharon Lichtenstein zz”l5, R. Yehuda Amital zz”l6, David Novak7 and others. Some, prominent among them R. Lichtenstein, have distinguished between pre-Sinai and post-Sinai, embracing natural law prior to the Revelation but pondering its relevance afterward. It is further possible to claim that Judaism endorses natural morality but not natural law (i.e. an ethical preference without a strict legal mandate), as well as to delineate a variety of sources for that morality, including the natural order as observed in nature8 and an intuitive sense of right versus wrong.9 A wide range of perspectives and possibilities thus emerges among contemporary scholars. I. Biblical Sources What is the basis for the various approaches? A number of biblical passages, particularly in Sefer Bereishit, seemingly presuppose lex naturalis. We will cite just a few examples. Perhaps the most commonly cited source is Abraham’s impassioned plea on behalf of the residents of Sodom: “Ha-shofet kol ha’arez lo ya’aseh mishpat” (Genesis 18:25)? R. Lichtenstein forcefully invokes Abraham’s moral argument: As Benjamin Whichcote, the seventeenth-century Cambridge Platoonist, pointed out, one cannot ask, “Shall, then, the judge of the whole earth not do justice?” unless one assumes the existence of an unlegislated justice to which, as it were, God Himself is bound; and which, one might add, man can at least apprehend sufficiently to ask the question. (Leaves of Faith, Vol. 2, pg. 34)10 An additional proof may be adduced from the incident of Kayin and Hevel, in which God holds Kayin responsible for killing his brother despite the fact that there was no explicit 4

J. David Bleich, “Judaism and Natural Law,” The Jewish Law Annual 7 (1988), 5-42. Aharon Lichtenstein, “Does Judaism Recognize an Ethic Independent of Halakha?,” Modern Jewish Ethics (1975, Ohio State University Press); reprinted in Leaves of Faith, Vol 2. 6 Yehuda Amital, Jewish Values in a Changing World, Chap. 2, pps. 19-43. 7 Natural Law in Judaism (1988, Cambridge University Press). 8 See Eruvin 100b, cited below. 9 See Meshech Chochma, cited below. 10 R. Meir Twersky, however, argues vigorously on the basis of a comment of Rashi that no proof can be brought from the incident of Abraham and Sodom in support of natural morality. See “Natural Law,” available at: http://torahweb.org/torah/2002/parsha/rtwe_vayera.html. See here for a response. 5

command proscribing murder.11 Moreover, the guilt of the generation of the flood seems to be rooted in natural morality. As Ramban (Bereishit 6:2) explicitly argues in connection with the generation of the flood, “However, the verse does not mention the prohibition in regard to them explicitly, and the punishment was only decreed against them for theft, because it is an intelligible subject [that] does not require the Torah.” Hizkuni (Bereishit 7:21 s.v. ve-khol) similarly inquires as to why the Noahides were punished in the Flood without advance notice. He proposes two resolutions: Rather we may answer that there are a number of commandments that humanity must observe based on the force of logic, even though [humans] were not commanded in them; and they were therefore punished. Or perhaps they were commanded upon theft. Hizkuni’s first (and preferred) answer clearly articulates a robust formulation of natural morality, at least with regard to the Noahides. II. Noahide Laws Another crucial discussion concerning the place of natural morality centers on the conceptual basis for the seven Noahide Laws. The Talmud (Sanhedrin 56b) derives the seven commandments from various verses in Parshat Noah. It is not clear, however, whether these derivations are to be taken literally or are mere asmachta’ot (allusions). Furthermore, the Talmud nowhere indicates that God explicitly conveyed these commandments to Noah and future generations. What are we to make of this apparent omission? In his introductory essay to the Babylonian Talmud, R. Nissim Gaon answers: Any commandments that depend on logic and inclination of the heart, all mankind and their progeny are obligated in them for all generations, from the day that God created mankind… And even though some of these commandments are derived from verses, they are not all derived from tradition. For the obligation of 11

See Yonatan Grossman, “Religious Sin, Ethical Sin and the Punishment of Exile,” available at: http://etzion.org.il/vbm/english/parsha.59/01bereis.htm.

recognizing God’s existence, obeying His commands, and worshipping Him are self-understood, and murder and theft are prohibited by way of logic… R. Nissim Gaon, then, powerfully anchors the Noahide Laws in natural morality.12 R. Bleich, on the other hand, has argued against associating the Noahide Laws with natural morality on the basis of a passage in Maimonides’ Mishneh Torah (Laws of Kings 8:11): Anyone who accepts the seven commandments and is cautious in their observance is considered one of the pious among the nations of the world and merits a share in the World to Come. This applies only when he accepts them and fulfills them because the Holy One, blessed be He, commanded them in the Torah and informed us through Moses our teacher that Noah's descendants had been previously commanded to fulfill them. However, if he fulfills them out of intellectual conviction, he is not a resident alien, nor of the pious among the gentiles [nor] [but] of their wise men.13 As alluded to in the brackets, there are two texts of this halakha’s concluding phrase: Version 1 – “However, if he fulfills them out of intellectual conviction, he is not a resident alien, nor of the pious among the gentiles, nor of their wise men [ve-lo mei-hakhameihem].”

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Numerous authors have considered the relationship between the Noahide laws and natural morality. Most prominent among them is David Novak, who strongly advocates for a position along the lines of R. Nissim Gaon. For more sources, in addition to the sources cited in the previous footnote, see Nahum Rakover, “The Noahide Universal Law,” available at: http://www.lif.ac.il/index.php?option=com_content&view=article&id=349&Itemid=1145; Jonathan Jacobs, “Judaism and Natural Law,” The Heywart Journal (2009), pps. 930-947; David VanDrunen, Divine Covenants and Moral Order: A Biblical Theology of Natural Law. By contrast, in her recent book What’s Divine About Divine Law? Early Perspectives, Christine Hayes forcefully rebuts Novak’s natural law reading of the Noahide Laws. Hayes’ analysis, however, is limited to rabbinic texts, particularly the relevant passages in Tractate Sanhedrin, and addresses neither the biblical text nor biblical commentary. 13 The source for Maimonides’ ruling is not entirely clear. Kesef Mishnah (ad loc.) asserts “that our rabbi says this on the basis of his own logic.” Maimonides himself in a responsum (148, Blau Edition) refers to a berayta of Rabbi Eliezer, but the reference is unclear, and some (see R. Hirsch Hayot cited in the Sefer haLikkutim of the Frankel edition of Mishneh Torah) suggest that the reference is simply inaccurate and that the midrash does not exist.

Version 2 – However, if he fulfills them out of intellectual conviction, he is not a resident alien, nor of the pious among the gentiles, but of their wise men [ela meihakhameihem].”14 Clearly, there is a world of a difference between these two versions. According to the former, one who accepts the seven commandments out of intellectual conviction earns no approbation, while according to the second version he remains a wise gentile, albeit not a hasid. According to either text, however, it is clear that one who accepts the seven commands based on divine revelation is superior to he who accepts these obligations due to conviction alone. Thus Maimonides either outright denies the association between natural morality and the Noahide Laws or he at least downplays that connection.15 III. Talmudic Evidence In addition to the biblical evidence as well as Noahide Law discussion, we encounter a remarkable and seemingly far-reaching Talmudic source in Eruvin (100b): Rabbi Yohanan said: Had the Torah not been given, we would have learned modesty from the cat, [aversion to] theft from the ant, chastity from the dove, and [conjugal] manners from fowl. At first glance this passage seems to offer a ringing endorsement of natural morality, specifically the sort that can be derived by observation of nature. Indeed, R. Lichtenstein16 suggests precisely this. Two possible responses, however, are in order: first, the Torah has been given and therefore renders irrelevant any personal judgment; and second, that this passage at best forwards a theory of natural morality but not binding law.17 14

It should be stressed that although the classic printed texts of the Rambam follow the first version, the preponderance of manuscript evidence points toward the “ela mei-hakhameihem” reading. See Sefer haMaftei’ah, Shinuyei Nusha’ot ad loc. 15 For a presentation of the position that the Noahide Laws constitute far more than natural morality, see chapter four of R. Gidon Rothstein’s We’re Missing the Point: What's Wrong with the Orthodox Jewish Community and How to Fix it. 16 Ibid., pgs. 33-34. 17 It should be noted additionally that the Talmud does not recommend that we learn violence from the shark. This, then, gives rise to a basic problem: how are we to know which actions to mimic and which to abjure? Apparently, the Gemara requires an important qualification: the characteristics outlined in the

IV. Medieval and Modern Sources A number of medieval thinkers directly address our subject. In his Jewish Values in a Changing World (19-20) R. Yehuda Amital points to the classic passage in Shemonah Perakim in which Maimonides’ argues that one should ideally desire to fulfill rational commandments (mitzvot sikhliyot), whereas one should strive to overcome his desire with regard to commandments that are only known through revelation (mitzvot shimiyot). Implicit in Maimonides’ position regarding mitzvot sikhliyot is the notion that one’s inner compass should be correlated with God’s will, which inclines toward the direction of natural morality.18 In a noteworthy development, in his philosophical classic Sefer Ha’ikarim (1:7), the fifteenth-century theologian R. Yosef Albo is the first Jewish thinker19 to explicitly invoke the terminology of natural morality, distinguishing between three categories of law: dat tiv’it, dat nimusit, and dat Elokit. The former is essentially synonymous with natural morality: The intent of natural law is to distance crookedness and bring close straightness, in order to distance people from theft, burglary and murder, in order that society shall exist among people and everyone will be saved from the grasp of a perpetrator of crookedness...

Talmud are to be derived first and foremost from human reason and only secondarily from observing the animal kingdom. Perhaps, then, it is not so much that these qualities inhere in nature, so much as our observation of those ethical behaviors can remind us of that which we otherwise know to be proper. 18 At first glance, Maimonides’ view in Shemonah Perakim contradicts his aforementioned ruling in the Laws of Kings concerning the resident alien. A number of resolutions, however, may be offered: a) The Noahide Laws may differ from the 613 commandments, which is the primary focus in the passage in Shmoneh Perakim; b) Maimonides’ comments concerning the seven mizvot do not necessarily deny any significance to natural morality, only that one should ideally fulfill the seven laws out of a sense of commandedness, not mere conviction. This would parallel the Talmud’s ruling that “greater is the one who performs a commandment out of obligation than one who performs a commandment not out of obligation” (Kiddushin 31a and parallels). If so, The Laws of Kings does not contradict the notion that one’s inner convictions should ideally match those of the Torah. 19 See David Novak, “Natural Law in Judaism,” pg. 17 footnote 37, in Natural Law: A Jewish, Christian, and Muslim Trialogue.

Approaching the modern period, in three passages in his biblical commentary Meshekh Hokhma, R. Meir Simha of Dvinsk formulates a robust view of natural morality.20 In his commentary to Devarim 30:11-14, R. Meir Simha asserts that man is naturally able to recognize the existence of God and independently arrive at all seven Noahide commandments (implying agreement with R. Nissim Gaon in regard to the identity between the Noahide Laws and natural morality), “love thy neighbor like thyself,” and many other mizvot. The only reason some people fail to reach this conclusion is that desire and imagination distract them from these natural conclusions.21 This is the meaning of Ben Azai’s assertion that “Zeh sefer toldot ha’adam,” “This is the book of the generations of mankind” (Bereishit 5:1) constitutes the most important verse in the Torah (Yerushalmi Nedarim 9:4 and parallels): humanity itself is the source of philosophical and ethical knowledge. According to R. Meir Simha, this is the meaning of the notion that God created mankind be-zelem Elokim la-da’at tov va-ra: we are born with an innate ability to discern right from wrong.22 Elsewhere (Shemot 24:12), R. Meir Simha considers the phrase “ve-ha-Torah ve-hamizvah asher katavti le-horotam,” “and the Torah and commandment that I wrote to teach them.” Rejecting the face interpretation that “asher katavti” refers to the Torah itself, R. Meir Simha invokes the previously-cited passage in Eruvin concerning deriving ethics from the animals, suggesting that God metaphorically inscribed His commands into the very fabric of creation, which is “written” in the Torah that God created. 20

See Yitzhak Blau, “Ethics in the Thought of R. Meir Simha,” http://vbmtorah.org/archive/modern/23modern.htm. 21 Although R. Meir Simha’s tone is far more muted, this formulation evokes the later position of R. Elhanan Wasserman at the beginning of Kovez Ma’amarim, who discusses Maimonides’ ruling that even a kofer be-shogeg, an accidental heretic loses a share in the world to come or, in the classic formulation of R. Hayim Soloveitchik, “Nebach An Apikorus is Oichet an Apikorus," “a well-intentioned heretic is still a heretic.” On its face, Maimonides’ position seems to maintain that one’s intentions do not determine whether or not he is a heretic; heresy is simply a function of false beliefs. R. Elhanan, however, asserts that Maimonides’ logic is in fact that there is no such thing as an unintending apikores. God’s existence is so blatantly obvious to one who is paying attention, that the only plausible explanation for one’s decision to deny the principles of faith is to willfully blind himself to reality due to the sway of his desire to enjoy the pleasures of this world. Needless to say, R. Elhanan’s interpretation has been challenged by traditional and academic scholars alike. 22 It is significant, however, that while certainly positing a robust view of natural morality, nowhere in this passage does R. Meir Simha make a claim for natural law; he merely is advocating natural ethics or morality. It is further clear that man is intended to derive this moral sense by reflecting on the order in creation, not by looking inward to his better angels.

At first glance this discussion simply amplifies the more extended treatment we saw in Meshekh Hokhma to Devarim. However, we can identify two apparent differences between these two texts. First, whereas the first passage in no way suggests that natural morality is legally binding, the second implies that natural law is mandated, as R. Meir Simha is interpreting the phrase “ve-ha-Torah ve-ha-mizvah asher katavti le-horotam.” Second, the latter passage sees the source of that morality not as human intuition but rather aspects of the natural world, such as animal behaviors. Thus the two passages complement one another, yielding a robust and layered theory of both natural morality and natural law. R. Meir Simha alludes to the notion of natural morality in a third context (Shemot 20:7), suggesting the innovative idea that although the Talmud (Sanhedrin 58b) asserts that gentiles generally are not punished unless there is a warning, that is unnecessary with respect to vain and false oaths, whose prohibitions are in his view rationally evident. This seems to align with R. Meir Simha’s analysis as presented in Devarim, although the application to azhara may lend a more normative status to natural morality than that passage might suggest on its own. In this context it is worth noting the classic position of R. Moshe Shmuel Glasner (1856– 1924), who in the introduction to his commentary to Hullin, Dor Revi’i, proposes that cannibalism, which is subject to only a rabbinic prohibition on the view of Rosh and other halakhic decisors, overrides the prohibition against eating non-kosher food.23 Finally, R. Abraham Kook advocates in favor of natural morality. To take just one of numerous examples: Fear of heaven such that, without its effect on the living, people would [otherwise] be more inclined to doing good and realizing that which is beneficial 23

For more on R. Glasner, see David Glasner, “Rabbi Moshe Shmuel Glasner, the Dor Revi’i,” Tradition 32:1 (Fall 1997), pp. 40-57; ibid., “The Saga of Publishing the Works of Rabbi Moshe Shmuel Glasner,” Seforim Blog, http://seforim.blogspot.com/2008/02/saga-of-publishing-works-of-rabbi-moshe.html;Yaakov Elman, “From the Pages of Tradition: Rabbi Moses Samuel Glasner: The Oral Law,” Tradition 25:3 (Spring 1991), pgs. 63-69. In regard to this comment in particular, R. Yehuda Amital would regularly cite the view of R. Glasner; cf. Jewish Values in a Changing World, pps. 40-41. See also Amnon Bazak, “Hameto’av Be’einei ha-Umot ha-Nei’orot ke-Gorem Hilkhati be-Mishnat Ba’al Dor Revi’i,” Sefer Yeshurun (5759), pp. 231-241.

to both the individual and the community, and because of its effect this active force diminishes – such fear of heaven is unfit. (Orot ha-Kodesh III, Rosh Davar, 11)24 Rav Kook, then, insists that a commitment to Torah and mizvot ought not undermine but in fact deepen one’s awareness of and commitment to that innate sense of right and wrong. V. Post-Sinai

There remains the question as to the status of natural morality after the revelation at Sinai.25 As R. Lichtenstein (ibid.) has dealt comprehensively with this subject, I will not repeat his discussion here. I would merely add a few points: a) It would appear likely that R. Soloveitchik would have adopted a skeptical stance toward natural law, at least post-Sinai. Indeed, the entire thrust of his opaque and brilliant The Halakhic Mind is that a legitimate comprehensive accounting of the Judaic philosophy can only be drawn from the wellsprings of halakha. b) Along similar lines, R. Asher Weiss, in an important programmatic piece entitled “Rezon ha-Torah” (Minhat Asher Devarim, pp. 356-362), argues in favor of a notion of God’s will that goes beyond the strict letter of the law. At the same time, even after citing R. Nissim Gaon’s introduction, R. Weiss rejects the view that we can deduce such values on the basis of our own moral intuitions. c) Despite the positions of R. Soloveitchik and R. Weiss, it would appear on its face that many of the sources cited above endorse the standing of natural morality postSinai. Certainly Rabbis Albo, Meir Simha (whose comments appear in Meshekh 24

See also Orot ha-Kodesh, Rosh Davar 3:27; Orot ha-Kodesh 3:318. For a brief discussion, see Yehudah Mirsky, Mystic in a Time of Revolution, pps. 109-110. Marc Shapiro has discussed this on a series of blog posts entitled “New Writings From Rav Kook,” available at the Seforim Blog. R. Yuval Sherlow addresses Rav Kook’s view at: http://shut.moreshet.co.il/shut2.asp?id=18608. See also Yitzhak Blau, “The Implications of a Jewish Virtue Ethic,” The Torah u-Madda Journal 9 (2000), pp. 34-6. 25 This question has also received attention in Christian discussions concerning the topic. Perhaps most famously, Aquinas grapples with the tension between natural law and revelation in his theological treatise Summa Theologica, sections 91 and 94.

Hokhma near the end of Sefer Devarim), Kook, and Amital all formulate their perspectives following the Revelation, and this would appear to be the face reading of R. Nissim Gaon as well.