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Reconceptualizing the Role of Morality in Halacha Based on the Lichtenstein–Borowitz Debate

admin|Wednesday, March 22, 2017

Within the past two years, the Jewish world has mourned the passing of two of the most influential Jewish theologians of our generation: Rabbi Aharon Lichtenstein, the Rosh Yeshiva of Yeshivat Har Etzion and a leading student and son-in-law of R. Joseph B. Soloveitchik, and Rabbi Eugene Borowitz, a longtime faculty member at the Hebrew Union College and one of the most influential scholars in the American Reform Movement.

    Then as now, there were few contexts in which a Reform and an Orthodox theologian would have engaged in substantive religious dialogue. Yet Borowitz and Lichtenstein’s work intersected in one of the most prominent issues in modern Jewish thought: what is the role of ethics within halachic discourse? Lichtenstein addressed this topic in his 1975 essay, “Does Jewish Law Recognize an Ethic Independent of Halachah?”1 Borowitz subsequently critiqued Lichtenstein’s position in his essay, “The Authority of the Ethical Impulse in ‘Halacha’,’”2 and offered his own view of the role of ethics within halacha and contemporary Jewish life. The relationship between Jewish ethics and Jewish law has been the subject of much analysis within the field of philosophy of halacha, and Lichtenstein and Borowitz’s essays are neither the most analytically rigorous nor the most incisive studies on this topic. Moreover, they consider only in passing the relevant scholarship in both general moral philosophy and general legal theory. Their essays are noteworthy first and foremost because they represent the dominant modern Orthodox and Reform positions on this issue. In this article we will also argue that, for all the shortcomings in their analysis, Lichtenstein and Borowitz each offer critical insights that are absent in other writings on this topic. Taken together, these insights point the way toward a more coherent account of the function that ethics serves within halachic discourse. [End Page 44] A CRITICAL ASSESSMENT OF LICHTENSTEIN AND BOROWITZ’S POSITIONS Lichtenstein’s main thesis is that supererogatory behavior in Judaism, as represented by the term lifnim mi-shurat ha-din (roughly, “beyond the letter of the law”3), “though different from Halachah, is nevertheless of a piece with it and in its own way fully imperative.”4 He notes that this position echoes a similar stance within Anglo-American legal theory, argued most prominently by Lon Fuller (and later Ronald Dworkin), who saw ethics as essential to providing a basis for the validity of any legal system. However, Lichtenstein is aware that this position generates an obvious question: “if lifnim mishurat hadin is indeed obligatory as an integral aspect of Halachah, in what sense is it supralegal? More specifically ... what distinguishes its compulsory elements from din [law] proper?”5 In response, he articulates some of the fundamental differences between the dynamics of legal and ethical reasoning: Din consists of a body of statutes, ultimately rooted in fundamental values, but which at the moment of decision confronts the individual as a set of rules. It is of course highly differentiated, numerous variables making the relevant rule very much a function of the situation. Yet the basic mode is that of formulating and defining directives to be followed in a class of cases – it is precisely the quality of generality that constitutes a rule – and applying them to situations marked by the proper cluster of features ... Metaphors that speak of laws as controlling or governing a case are therefore perfectly accurate. Lifnim mishurat hadin, by contrast, is the sphere of contextual morality. Its basis for decision is paradoxically both more general and more specific. The formalist is guided by a principle or a rule governing a category of cases defined by n numbers of characteristics .... The contextualist, by contrast, will have nothing to do with middle-distance guidelines. He is directed, in theory at least, only by the most universal and the most local of factors – by a minimal number, perhaps as few as one or two, of ultimate values, on the one hand; and by the unique contours of the situation at hand, on the other. Guided by his polestar(s), the contextualist employs his moral sense (to use...
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