The following was delivered before Congregation Ahavas Achim B'nai Jacob and David in West Orange, NJ, at the end of the second day of Succot 5770/2009 between Minchah and Ma’ariv, in the wake of the arrest in the summer of 2009 of Orthodox rabbis for tax fraud. Due to the importance of the topics discussed, we asked Rabbi Smilowitz to publish his remarks in Kol Torah, to which he graciously extended his permission. Rabbi Smilowitz addresses improper thought patterns that might lead Orthodox Jews to behaving inappropriately towards the society at large.
2. Ethical Requirements Beyond Halachah
Two more ideas that have infiltrated the Orthodox world that may have the unintended result of unethical behavior towards the non-Jew will be presented in this section. The second of the three ideas on which I am focusing is that we are not obligated to do anything that is not an explicit Halachah; if it isn't said clearly by the Halachah, I don't have to do it. The result of this idea is that people are comfortable violating today’s ethical norms that are not prohibited by classical Halachic sources. An example would be intellectual property. Since downloading an album or movie from the internet without paying does not technically violate stealing, and there is no unequivocal source in Halachah that prohibits it, we can do it, even though it is viewed by modern society as unethical. There are no ethics or morality beyond the stated laws of the Halachah. Many unethical acts can be justified by an Orthodox Jew who subscribes to this approach.
In response to this idea I note what my Rosh Yeshiva Rav Yehuda Amital wrote in his book Jewish Values in a Changing World. In a chapter called "Natural Morality," Rav Amital argued that Judaism does in fact require moral and upright behavior even beyond explicit laws. One of his proofs revolves around a law that forbids Jews from marrying Mo’avim and Amonim. What is the reason for the law? The Torah itself states the reason: because these nations didn't greet us with food and water when we passed by their territory on the way from the wilderness into Israel. The Torah clearly views it as an ethical and moral expectation that the strong will help the weak, and if you have water and someone needs it, that you offer it to him. How could the Torah have expected Amon and Mo’av to behave this way? Is it one of the seven laws of No’ach – the laws that all non-Jews are obligated in – to extend food to the needy? It is not, yet the Torah expects that Amon and Mo’av should have known to offer us food and water, and they are punished for not having done so. Since the law isn't the source of this expectation, the Torah must make demands of us that go beyond the law.
A simple thought experiment will demonstrate this as well. Before God gave the Torah, is there any demand that people behave ethically? Indeed, God does demand ethics and morality because all societies have ethical and moral standards. So at the moment when God gives the Jews the Torah, is His intention to release the Jews from ethical obligations? On the contrary, the Torah is given to increase our obligations – LeHachmir – not to remove obligations – LeHakeil. Thus, any ethical demands that would have been true even without the Torah still hold after the Torah was given.
This is not a novel idea, as Ramban develops this concept when commenting on the verse, "You shall do the right and the good in the eyes of God." Ramban claims that this verse creates an obligation to do the right thing even when the Torah doesn't explicitly mention it.
Now you may notice that there seems to be a flaw in this approach. How am I supposed to know what's right and good? What if what seems right to one person seems wrong to another? Anthropologists can pretty much find anything that is reviled in one society and revered in another. There are societies that think murder is good, such as communities that kill unwanted babies. There are societies in which stealing is an accepted norm. If so, how am I supposed to know what is objectively right and good if it's not in the Torah? Whose standard am I supposed to use?
Although this question is a difficult one, Yeshiva University philosopher Rav Walter Wurzburger responds to it well. He points out that if we examine Ramban’s interpretation mentioned earlier on the verse "Do the right and the good in the eyes of God," we will notice that Ramban not only teaches that we have an obligation to go beyond the Torah's explicit norms to do the right and good, but Ramban also informs us of the method by which we decide what is right and what is good. We cannot derive this distinction simply from raw human feeling. Rather, we must develop it by looking at the specific examples the Torah offers of good behavior. The Torah teaches us not to curse the deaf, not to steal, and not to disrespect our elders. By considering the multitude of examples of good behavior that are explicit in the Torah, our minds abstract an overarching principle that includes all of examples. Based on this principle, we conclude how to act in situations that aren't explicitly addressed in the Torah. Educators refer to this mental process as induction, the process in which one considers a large number of examples and extrapolates from them an overarching principle. Thus, we do have an intuitive sense of right and wrong, one that is sharpened by the Torah's laws, and we are expected to act on that intuition even when the Halachah is silent. This requirement should influence whether as Orthodox Jews we download media from the internet that aren't royalty-free.
It should also impact paying taxes. Even if someone can point to a Gemara that indicates that he does not have to pay taxes under certain circumstances, he would still have to because paying taxes is the right thing to do. There is a passage in the Gemara that discusses whether the prohibition of stealing applies to non-Jews. We happen to hold that it does apply and that Halachah does prohibit us to steal from anyone. However, I heard from a very authoritative source – an important judge in a rabbinical court in Tel Aviv – that even if the conclusion had been that the Halachah does not prohibit stealing from a non-Jew, it would still be prohibited, because it's unethical, and that's how he would rule if such a case would come before him because Jews are required to be ethical just like the rest of society.
Therefore, this is the second idea that needs to be emphasized in Orthodox education if we are to avoid an ethical crisis, that is, that Halachah is not a ceiling; it's a floor. We are obligated to go above and beyond the explicit laws because Halachah includes ethical behavior as well.
There are two other Halachic sources that might obligate ethical behavior, but I believe neither is as powerful as the basic obligation that stems from the requirement to be moral and ethical. One of them is Dina DeMalchuta Dina – that the law of the land is the law for the Halachic Jew. While this ruling may be a Halachic source for the requirement to pay taxes, it may be limited in scope and does not cover all the categories of ethical behavior. For instance, some interpret it as a requirement merely to pay the government for the right to live there, but it does not extend to all areas of interpersonal behavior, such as returning a lost object. Furthermore, as a Halachic category, it is open to various interpretations.
Author’s note: After concluding this talk, I was approached by a congregant who told me that a friend of his in a prominent Yeshivah argued that Dina DeMalchuta Dina applies only when there is a king who controls the land, and not to a democracy (editor’s note – this argument does not constitute normative Halachic thought, as explained in an essay on Dina DeMalchuta Dina archived at www.koltorah.org).
The second source is Chilul Hashem, the prohibition to desecrate God's name. This is a very powerful and encompassing principle that many people strive to integrate into their lives. People have died to sanctify God's name, and they go to great lengths to avoid desecrating it by giving non-Jews cause to criticize our religion. At the same time, Chilul Hashem alone may not be the strongest foundation for ethical behavior. Some might argue that if they can get away with unethical behavior without anyone finding out, there is no Chilul Hashem. An interesting story happened to me when I was teaching the prohibition of stealing to a Halachah class about five years ago. To give my students some easy background to the laws of stealing, I asked them to read the Kitzur Shulchan Aruch’s summary of these laws at home. The next day one of my students complained to me about one of the laws. The Kitzur Shulchan Aruch states that while Halachah prohibits stealing from non-Jews, it does not require paying back loans taken from non-Jews. He concludes that Jews still must pay back loans to non-Jews because if they don't, it would be a terrible Chilul Hashem. Nevertheless he exempts one from payback in a situation in which no one finds out about the loan. For example, if the lender dies and the inheritors of his estate are not aware of the loan, one would not be required by Halachah to pay them back. If the lender were a Jew, the children would inherit the money the borrower owed and he would be required to pay them. I hinted to my students that even though the Kitzur Shulchan Aruch does seem to exempt borrowers from paying back loans to non-Jews in certain circumstances, we wouldn’t be allowed to act this way because it's unethical (the actual words I used were, "If any of you ever do anything like that I'll punch you in the nose"). Interestingly, a few weeks later, I read in the news that the Kitzur Shulchan Aruch had just been translated into Russian, and the Russian government was considering banning the book because of a number of statements in it discriminating against non-Jews. I don't tell this story to criticize Rav Ganzfried, the author of the Kitzur Shulchan Aruch, God forbid. I merely want to illustrate the limitations of Chilul Hashem as a foundation for ethics. In this case, the willingness to allow for a loophole in ethics because of the limitations of Chilul Hashem may have ironically inadvertently generated its own Chilul Hashem. Therefore, I find the verse that requires us to do the "right and the good" a far more stable foundation for Jewish ethics than Dina DeMalchuta Dina or Chilul Hashem.
3. Teaching the World
The final idea, an idea that negatively influences ethical behavior yet seems to have seeped into Orthodox thinking, is the idea that we don't really have anything to teach the world anymore. This idea is symbolized by the Teivat No’ach (Noah's Ark) analogy. There are Orthodox Jews who claim that we must live as if we are on the Teivat No’ach. They profess that the world is pretty much finished, it has no redeeming qualities, and its judgment day will come; in the meantime, we should focus on Torah and Mitvot only to save ourselves. I remember speaking to a friend of mine who had studied in a certain Yeshiva and stated that he agreed with the Teivat No’ach approach. It seems to be a common way of thinking in certain Orthodox circles. Torah and Mitzvot are there for our personal salvation, but there's not much that they can do in way of educating and elevating the world at large. I believe that such an attitude weakens the importance of acting ethically toward non-Jews, and if there is an ethical crisis, this idea is likely to be part of the problem.
There is a lot to say about this attitude, but I will simply cite the verse in the Torah that rejects this cynical view. The Torah in the fourth chapter of Devarim advises us to keep its laws, among other reasons, because "it is your wisdom and understanding in the eyes of the nations, who will hear these laws and remark, 'What a wise and understanding people this great nation is'" (Devarim 4:6). There are multiple interpretations of this verse, but one (albeit strained in the commentators and seemingly not the plain meaning) is that one purpose of the Halachah is to attract other nations to the wisdom of our ways. Of course, if we perform Halachah in a way that looks ugly in the eyes of the nations, this goal of the Torah cannot be accomplished. We should care about the face of Halachah that we present to onlookers and not live in a secret society whose hidden wisdom is available only to insiders. As Rav Hirsch comments on this Pasuk, proper Torah living is like living a campaign. We should be living our lives as if it were a campaign, in ways that cause others to be impressed, so that the Torah can teach the world at large proper living and action. As long as we maintain this attitude, we are more likely to be careful to treat those around us with high moral and ethical standards.
These are the three ideas that Jewish educators need to tackle. We should be teaching that non-Jews are people created as equally as Jews in the image of God, that the Halachah is a floor, not a ceiling, so we should strive to go beyond its minimal requirements, and that we aim to teach the world how to live wisely and uprightly through our own model of behavior.
Since I started with Succot, I will conclude with Succot. I mentioned the law that a stolen Lulav is invalid for Mitzvat Lulav. The Gemara explains this law with a parable of a king who goes through a tool booth and instructs his servant to pay the toll. The servant asks, “But doesn't all the toll money just go back to you?” The king responds that that's true, but he wants all the people to see that he also pays the toll so that they will learn from him not to try to evade their requirement to pay the toll. In the same manner, God rejects a stolen Lulav or stolen Korban even though everything belongs to Him anyway because he wants people to learn from Him not to steal. We should emulate God by being models of ethical behavior so that the world will learn from us how to be upright, moral, and good people.