“For Cohen, Maimonides explained ceremonial law not simply as an accommodation to historical circumstances, but as an educational method to spread true monotheism and to uproot idolatry. It is not so much Maimonides’ apparent historicism but the universalist element of his explanation of the law that forms the thrust of the argument in the Guide. This element is identified by Cohen in Maimonides’ rational ethics: the institution of the law is to replace polytheism and myths and thus create the preconditions for true human morality.”
Jacob Fortinsky: This notion of fundamental and instrumental laws is similar to another one of Maimonides’s dichotomies: the distinction between true beliefs and necessary beliefs. True beliefs are those that are beliefs about God’s true being and perfection; necessary beliefs are those that conduct and organize society to allow people to develop the former. The Noachide laws are an example of what Cohen, referencing Maimonides, calls “strictly moral,” (122). The law, according to Cohen, must recognize such a distinction because otherwise it “cannot allow any exception in its application to all the details of human life,” (347). In other words, for halakhah to truly “embrace the whole of life,” (346), as it does, it must have amoral elements and not strictly pertain to the moral law. However, unlike Maimonides, Cohen conceives of this moral law to be universal and “identical” to natural law (353).
Some say that this is what Rabbi Abbahu said that Rabbi Yoḥanan said: With regard to all prohibitions against deriving benefit in the Torah, one is flogged for violating them only if he derives benefit from the prohibited item in the usual manner. The Gemara asks: To exclude what case did Rabbi Yoḥanan say this? Rav Shimi bar Ashi said: To exclude a case where one placed the fat of an ox that is stoned on his wound to help it heal. He teaches that, although one generally may not derive benefit from forbidden fats, in this case he is exempt because these fats are not normally used for medicinal purposes. And all the more so one who eats raw fat is exempt, as this is certainly not an ordinary way to benefit from fat.
From what we said in the previous section, it emerges that when the Torah failed to forbid the consumption of forbidden foods in an unusual manner, this is not because the Torah only cares about deriving normal benefit from such foods. Rather, the Torah does not forbid it because people would, in any event, refrain from eating in this manner. Therefore, if someone finds a clever way to nourish themselves with forbidden foods in the permitted way of consuming them in an unusual manner is a
scoundrel operating within the boundaries of the law, as the Ramban writes about the verse “You shall be holy”…As another example, if someone separates out tithes from their produce and throws them away so that they will never reach the kohen or the levi [for whom they are intended], he has only failed to fulfill the positive commandment of giving these things to the kohen, whereas his produce has still been freed from the prohibition of tevel, the consumption of untithed produced punished by death at the hands of heaven. Is not such a person outrageously wicked? The whole reason that the Torah forbids tevel with the death penalty and only attaches positive force to the commandment to give the tithes to the kohen is because the Torah knows how people think: if tevel is forbidden on pain of death by heaven, then people
will take tithes and then why wouldn’t the person give the tithes that were separated to the kohen? There is no denying that the whole essence of the prohibition on tevel flows from the Torah’s desire to strengthen the tribe that serves God [i.e. the tribe of Levi]…It is sufficient to have a positive commandment—without any penalty of death—to require people to give the tithes to the chosen tribe. But it is obvious that one who intentionally sets up a regime of tithing that avoids giving the tithes to the
kohen is worse than one who does not separate them at all. He has found a subterfuge for avoiding the underlying idea and purpose intended by the blessed Commander…
Moreover, understand that if one eats things that are disgusting and reviling, even if the Torah has not forbidden them, he is more abominable that one who violates an explicit biblical prohibition. If one violates anything agreed upon as abominable by enlightened people—even if it is not explicitly forbidden by the Torah—he is worse than one who violates the laws of the Torah. For example, the Torah says that
it is forbidden for a man to wear women’s clothing, whereas the act of walking naked in public is not explicitly forbidden anywhere in the Torah, rather it is a standard norm for all intelligent people. Adam and Hava, immediately after the sin, felt great humiliation walking around naked like wild animals and they were embarrassed and sewed fig leaves to make clothing out of them in order to cover up their private parts. Now let me ask you: Consider a man who wakes up in the middle of the night, lying naked in his bed, to find his house ablaze such that he needs to run out in order to save his life. If the only thing available to cover up his nudity is a woman’s dress, what should he do? Is it better for him to go out naked in public, since there is no specific prohibition against this, rather than wear a woman’s dress, which would violate a prohibition?...To me it is obvious that to go out naked is a much greater
transgression…because this is a transgression that all intelligent people agree on. And one who violates it can no longer be classified among those created in the image of God.
Another example: According to the Rambam, the ban on consuming human flesh only violates a positive commandment [as opposed to a violation of a negative commandment, which is more serious], and according to the Rashba, it is biblically permitted to consume human flesh [and this is only forbidden on rabbinic authority]. Tell me: If a person deathly ill has a choice between eating non-kosher meat or
human flesh, which should he eat? Would we possibly say that he should eat human flesh because it is not biblically forbidden despite the fact that it is forbidden by all basic norms of human society—indeed, anyone who eats human flesh or feeds it to someone else is considered beyond the pale of civilization—rather than eat meat forbidden by the Torah?! Would anyone entertain for a moment the notion that we,
the chosen people, a wise and understanding nation would violate such a basic norm in order to avoid a biblical prohibition? Impossible!...I say that anything that is revolting to enlightened Gentiles is forbidden to us, not just because of hilul hashem, but because of the command to be holy. Anything the violates the norms of enlightened human beings cannot be permitted to us, a holy nation; can there be
anything forbidden for them but permitted to us? The Torah says that the nations are supposed to say: “What a great nation, with such just laws and statutes!” But if they are on a higher level than we in their laws and norms, they will say about us: “What a foolish and disgusting nation!”…Therefore, in my opinion, we must try to stop those butchers who eat and sell the fetuses found in the wombs of slaughtered animals [which are permissible according to rabbinic law], for this sort of meat is universally
reviled and is forbidden on pain of imprisonment in every country…we must always be on a higher level than the other nations in our norms and our ethics, never lower...
What emerges from this is that anything reviled by human society in general, even if it is not explicitly forbidden by the Torah, is forbidden to us even more than explicit biblical prohibitions. And not just because of concerns of hilul hashem alone, but because that which is forbidden to Gentiles cannot be permitted to us…Anyone resistant to this point denigrates the honor of the Torah and leads others to say
that we are a stupid and disgusting people instead of a wise and understanding one.
393
…The fear of God possessed by Avraham—the only one to be called faithful (ma’amin)—is unlike the fear of God of any other personality in Bereishit, and the distinction only becomes manifest in the context of the Akedah. This fear is identical to love, and indeed Avraham is the only Biblical character described as “a lover of God.” When he defends the people of S’dom, Avraham advances claims based
on justice and law and mercy—all human categories—and based on them, he “dares” to argue with God. However, when his faith was put to the test—he is silenced, even though he could have advanced very strong arguments, not just based on justice, but based on truth itself: “He could have said, ‘Yesterday you told me that Yitzhak will be your genealogical line, and now you tell me to slaughter him?’ And yet he said nothing.” Avraham’s silence demonstrates that his faith is not a conditional faith and is not limited by the limitations of human morality.
The God of Abraham, therefore, takes two very different forms in the book of Genesis: a God who demands total surrender to His command [the God Abraham encounters at the akedah] and a God who invites independent moral critique and judgment [the God Abraham encounters at Sodom]. These two paradigms have informed religious life as well as interpretation and exegesis throughout Jewish history. For many teachers from the time of the Talmud to the modern period, including Yeshayahu Leibowitz and my own teacher, Rabbi Joseph B. Soloveitchik, the akedah, the binding of Isaac, was the dominant paradigm of religious life and thought. For them, the survival and continuity of the tradition require the unconditional surrender and loyalty that the akedah represents. To be claimed by God, I must be willing to sacrifice my intellect and intuition, to give up everything I know and cherish as a human being, in deference and obedience to the word of God.
Contemporary critiques of those who appeal to moral considerations in questions of religious practice and change often invoke an akedah mode of reasoning, arguing (or implicitly presupposing) that religious life would lose all credibility if submission and surrender were any less than total. The belief that "if you change anything, everything will collapse" owes its logic and conviction to the silence of Abraham in the binding of Isaac story.
Yet, Abraham, in pleading for Sodom, felt that God was not beyond his own understanding of moral argument and persuasion. This other paradigm, therefore, says: "Bring your moral intuitions, your subjective sense of dignity and justice into your understanding of the reality of God." Not only does it not threaten or undermine religious consciousness, but it is actually necessary for recognizing the validity and applicability of the divine command.
כהן ששוכב ערום והוא באהל עם המת ולא ידע אין להגיד לו אלא יקראו לו סתם שיצא כדי שילביש עצמו תחלה אבל) אם כבר הגידו לו אסור להמתין עד שילביש עצמו ודוקא אם הוא באהל המת שהוא טומאה דאורייתא אבל אם הוא בבית הפרס או ארץ העמים שהיא טומאה דרבנן ילביש עצמו תחלה דגדול כבוד הבריות (ת"ה סימן רפ"ה)
If a kohen is sleeping naked and is unaware that there is a corpse in the house, one should not tell him but call to him to come out so that he will get dressed first. But if they told him, he may not wait to get dressed. This is only true, however, in the case of biblical tum’ah, but if it is a case of
rabbinic tum’ah, he may get dressed first because of the magnitude of the value of human dignity.
אמר רבי לעזר כיני מתניתא על גבי כסא שלו ע"ג תיבה שלו. שמעון בן שטח הוה עסיק בהדא כיתנא אמרין ליה תלמידוי ר' ארפי מינך ואנן זבנין לך חדא חמר ולית את לעי סוגין. ואזלון זבנון ליה חדא חמר מחד סירקאי ותלי ביה חדא מרגלי. אתון לגביה אמרין ליה מן כדון לית את צריך לעי תובן. אמר לון למה אמרין ליה זבנינן לך חד חמר מחד סירקיי ותלי ביה חדא מרגלי. אמר לון וידע בה מרה אמרין ליה לא א"ל לון איזל חזר. לא כן אמר רב הונא ביבי בר גוזלון בשם רב התיבון קומי רבי אפילו כמאן דמר גזילו של עכו"ם אסור כל עמא מודיי שאבידתו מותרת. מה אתון סברין שמעון בן שטח ברברין הוה. בעי הוה שמעון בן שטח משמע בריך אלההון דיהודאי מאגר כל הדין עלמא.
Rabbi Shimon ben Shetah worked in linen. His students said to him, “Our master, will will buy you a donkey. That way you can leave this business and you will not have to work so hard.”
They went and bought a donkey from a Sarki [a nomadic tribe], and there was a pearl hanging from it.
They came to him and said said, “You don’t need to work anymore.” He said to them “Why?” They said to him, “We bought you a donkey from a Sarki, and there was a pearl hanging from it.”He said to them, “Did he know that it was there?”
They said to him, “No.” He said to them, “Go give it back!”
But didn’t Rav Huna Bibi son of Gozlon (!) say in the name of Rav Hativon before Rabbi, “Even according the opinion that the theft from a pagan is prohibited,
everyone agrees it is permitted to keep his lost objects”?
Do you think Rabbi Shimon ben Shetah was a barbarian?! Rabbi Shimon ben Shetah wanted to hear “Blessed is the God of the Jews” more than all the
wealth in the world.
If, however, we equate Halakhah with the din, if we mean that everything can be looked up, every moral dilemma resolved by reference to code or canon, the notion is both palpably naןve and patently false. . . . Which of us has not, at times, been made painfully aware of the ethical paucity of his legal resources? Who has not found that fulfillment of explicit halakhic duty could fall well short of exhausting clearly felt moral responsibility?
R. Bleich: "Despite the nomenclature employed in describing this norm, viz., “lifnim mi-shurat ha-din — beyond the boundary of the law,” adherence to the standard denoted thereby is prescribed as normative and binding and hence endowed with the essential attributes of Halakhah.... [This] proof-text certainly establishes beyond a reasonable doubt that failure to adhere to a standard of lifnim mi-shurat ha-din is a culpable offense — and the punishment meted out at one point in Jewish national history was the destruction of Jerusalem. No less! “Ain onshin ela im ken mazhirin — There can be no punishment other than upon admonition” is not only a fundamental principle of Jewish law, but is the expression of an elemental principle of justice. Accordingly... that lifnim mi-shurat ha-din is mandated as a normative and binding standard of conduct, must be conceded by all."