Natural Law and Social Contract
1 א

Aristotle, The Politics

1:V

But is there any one thus intended by nature to be a slave, and for whom such a condition is expedient and right, or rather is not all slavery a violation of nature?

There is no difficulty in answering this question, on grounds both of reason and of fact. For that some should rule and others be ruled is a thing not only necessary, but expedient; from the hour of their birth, some are marked out for subjection, others for rule.

And there are many kinds both of rulers and subjects (and that rule is the better which is exercised over better subjects- for example, to rule over men is better than to rule over wild beasts; for the work is better which is executed by better workmen, and where one man rules and another is ruled, they may be said to have a work); for in all things which form a composite whole and which are made up of parts, whether continuous or discrete, a distinction between the ruling and the subject element comes to fight. Such a duality exists in living creatures, but not in them only; it originates in the constitution of the universe; even in things which have no life there is a ruling principle, as in a musical mode. But we are wandering from the subject. We will therefore restrict ourselves to the living creature, which, in the first place, consists of soul and body: and of these two, the one is by nature the ruler, and the other the subject. But then we must look for the intentions of nature in things which retain their nature, and not in things which are corrupted. And therefore we must study the man who is in the most perfect state both of body and soul, for in him we shall see the true relation of the two; although in bad or corrupted natures the body will often appear to rule over the soul, because they are in an evil and unnatural condition. At all events we may firstly observe in living creatures both a despotical and a constitutional rule; for the soul rules the body with a despotical rule, whereas the intellect rules the appetites with a constitutional and royal rule. And it is clear that the rule of the soul over the body, and of the mind and the rational element over the passionate, is natural and expedient; whereas the equality of the two or the rule of the inferior is always hurtful. The same holds good of animals in relation to men; for tame animals have a better nature than wild, and all tame animals are better off when they are ruled by man; for then they are preserved. Again, the male is by nature superior, and the female inferior; and the one rules, and the other is ruled; this principle, of necessity, extends to all mankind.

Where then there is such a difference as that between soul and body, or between men and animals (as in the case of those whose business is to use their body, and who can do nothing better), the lower sort are by nature slaves, and it is better for them as for all inferiors that they should be under the rule of a master. For he who can be, and therefore is, another's and he who participates in rational principle enough to apprehend, but not to have, such a principle, is a slave by nature. Whereas the lower animals cannot even apprehend a principle; they obey their instincts. And indeed the use made of slaves and of tame animals is not very different; for both with their bodies minister to the needs of life. Nature would like to distinguish between the bodies of freemen and slaves, making the one strong for servile labor, the other upright, and although useless for such services, useful for political life in the arts both of war and peace. But the opposite often happens- that some have the souls and others have the bodies of freemen. And doubtless if men differed from one another in the mere forms of their bodies as much as the statues of the Gods do from men, all would acknowledge that the inferior class should be slaves of the superior. And if this is true of the body, how much more just that a similar distinction should exist in the soul? but the beauty of the body is seen, whereas the beauty of the soul is not seen. It is clear, then, that some men are by nature free, and others slaves, and that for these latter slavery is both expedient and right.

2ב

אגרות הראי"ה א:פט

הרב אברהם יצחק קוק

ב"ה, כ"א מנ"א תרס"ד.

...ודע עוד, שהעבדות, כמו כל דרכי ד' הישרים, שצדיקים ילכו בם ופושעים יכשלו בם, לא הביאה מצד עצמה לעולם שום תקלה, כי עצם חוק העבדות הוא חק טבעי בבני אדם, ואין שום הבדל בין העבדות החוקית להעבדות "הטבעית", ואדרבא העבדות החקית שהיא על פי רשותה של תורה באה לתקן כמה תקלות, שהעבדות הטבעית היא צפויה אליהם. למשל, הרי המציאות של עניים ועשירים חלשים וגיבורים דבר מוכרח ונהוג הוא, אם כן אותם שקנו להם נכסים מרובים, שהם משתמשים בכוח המשפט לשכור עובדים עניים לעבודתם, הרי השכירים הללו גם להם עבדים בטבע, מצד ההכרח החברותי, והנה למשל העובדים במכרה-הפחמים, שהם נשכרים מרצונם, הרי הם עבדים לאדוניהם... הנה אם היו עבדים קנויים קניין כסף אז היה מצבם יותר טוב!... והעשיר שלבו אטום לועג לכל צדק ומוסר, ויותר נוח לו שבמנהרה יחסר אור ואויר, אף על פי שעל ידי זה יתקצרו חייהם של עשיריות אלפים אנשים, וייעשו חולים אנושים, רק שלא יוציא מכיסו עשיריות אלפים שקלים לכונן את המנהרה במצב יותר טוב, ואם לפעמים תפול מכרה, ויקברו חיים עובדיה, לא ישים על לב, כי ימצא עבדים אחרים נשכרים. מה שאין כן אם היו העבודות הללו נעשות על פי חוק עבדות חוקית, שהעבדים המה קנין כספו של אדוניהם...

Iggerot HaRaaya, vol.1, no.89

R. Kook

...You should know that slavery, as with all the moral, upstanding ways of God “in which the righteous walk and the evil stumble,” never in itself caused any fault or error. Slavery is a natural law amongst the human race. Indeed there is no difference between legal slavery and “natural” slavery. In fact, legal slavery is within the jurisdiction of Torah, and is legislated in order to control certain flaws, and this, because God anticipated the reality of “natural” slavery. Let me explain. The reality of life is that there is rich and poor, weak and strong. A person who has great wealth hires poor people - legally - in order to do his work. These employees are, in fact, “natural” slaves due to their socio-economic standing. For example, coal miners. These people go to work in the mines of their own free will, but they are in effect slaves to their employers... and maybe if they were actually owned by their employer, they would be better off!... The rich, with their stone hearts, scoff at all morals and ethics. They don’t care if the mines lack air and light, even if this shortens the life expectancy of their workers, whose numbers run into the tens of thousands, many of whom become critically ill. They certainly won’t engage in any extra expense to improve working conditions in the mines, and if a mineshaft collapses burying workers alive, they don’t care. Tomorrow they will find new workers to employ. If these people were owned by the master by legal slavery, he would have a financial interest to look after their lives and well-being, because they are his own assets...

3 ג

Abraham Lincoln, Fragment on Slavery

April 01, 1854

If A. can prove, however conclusively, that he may, of right, enslave B.—why may not B. snatch the same argument, and prove equally, that he may enslave A?—

You say A. is white, and B. is black. It is color, then; the lighter, having the right to enslave the darker? Take care. By this rule, you are to be slave to the first man you meet, with a fairer skin than your own.

You do not mean color exactly? You mean the whites are intellectually the superiors of the blacks, and, therefore have the right to enslave them? Take care again. By this rule, you are to be slave to the first man you meet, with an intellect superior to your own.

But, say you, it is a question of interest; and, if you can make it your interest; you have the right to enslave another. Very well. And if he can make it his interest, he has the right to enslave you.

4 ד

Lincoln, Speech on Peoria

"We hold these truths to be self evident: that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, DERIVING

THEIR JUST POWERS FROM THE CONSENT OF THE GOVERNED."

I have quoted so much at this time merely to show that according to our ancient faith, the just powers of governments are derived from the consent of the governed. Now the relation of masters and slaves is, PRO TANTO, a total violation of this principle. The master not only governs the slave without his consent; but he governs him by a set of rules altogether different from those which he prescribes for himself. Allow ALL the governed an equal voice in the government, and that, and that only is self government.

5 ה

The Social Contract and Discourses by Jean-Jacques Rousseau

CHAPTER IV

Slavery

Since no man has a natural authority over his fellow, and force creates no right, we must conclude that conventions form the basis of all legitimate authority among men.

If an individual, says Grotius, can alienate his liberty and make himself the slave of a master, why could not a whole people do the same and make itself subject to a king? There are in this passage plenty of ambiguous words which would need explaining; but let us confine ourselves to the word alienate. To alienate is to give or to sell. Now, a man who becomes the slave of another does not give himself; he sells himself, at the least for his subsistence: but for what does a people sell itself? A king is so far from furnishing his subjects with their subsistence that he gets his own only from them; and, according to Rabelais, kings do not live on nothing. Do subjects then give their persons on condition that the king takes their goods also? I fail to see what they have left to preserve.

6 ו

אמר רבי יוחנן אילמלא לא ניתנה תורה היינו למידין צניעות מחתול וגזל מנמלה ועריות מיונה דרך ארץ מתרנגול שמפייס ואחר כך בועל

If the Torah had not been given, we could learn modesty from a cat, not stealing from ants, fidelity from a pigeon and proper sexual relations from a rooster who appeases its partner before engaging in sexual relations.
7 ז

חזקוני בראשית פרשת נח פרק ז

וא"ת איך נענשו דור המבול מאחר שלא נצטוו על המצות. וי"ל יש כמה מצות שחייבים בני אדם לשמרן מכח סברת הדעת אעפ"י שלא נצטוו ולפיכך נענשו כמו קין שנענש על שפיכות דמים אעפ"י שלא נצטוה על כך או שמא על הגזל עצמו נצטוו.

8 ח

Rav Kook, Shmonah Kevatzim 75

Yir’at Shamayim—fear of heaven—may not supplant the natural sense of morality of a person, for in that case it is not a pure Yir’at Shamayim. The signpost for a pure Yir’at Shamayim is when the natural sense of morality (המוסר הטבעי) that is extant in the straightforward nature of man is improved and elevated by it more than it would have been without it. But if one were to imagine a kind of Yir’at Shamayim that without its input, life would tend to do well and bring to fruition things that benefit the community and the individual, and furthermore, under its influence less of those things would come to fruition, such a Yir’at Shamayim is wrong.

9 ט

Rav Kook (Shemonah Kevatzim (1:463)

The people who rely solely on their commonsense - because they are not learned - actually have an advantage in many respects over those who are learned. That is because their natural understanding and sense of decency has not become corrupted by errors that result from scholarship and or by the exhaustion and emotional frustrations that result from the burden of study. Nevertheless the unlearned masses obviously need the guidance of the scholars to know the particulars of the halacha. On the other hand, the scholars need to adopt and utilize as much is possible of the unadulterated commonsense of the unlearned masses – whether it is the approach to life or recognizing the natural moral values. This will result in the continued proper development of their understanding. This approach is even for tzadikim and even for those wicked people who retain a natural part which provides them with the potential to build on their natural power and purity to the same degree as the righteous at their highest level. The same can be said in regards to the nations in their relationship with each other – in particular non-Jew and Jews.

10 י

Netziv(Approbation to Ahavas Chesed): ….It says in Yevamos (79a): There are three inherent characteristics of the Jewish people – they are merciful, shy and they do acts of kindness to others. … Nevertheless there are explicit commands in the Torah to do acts of kindness such as Vayikra (25:35): You shall support your brother who has become poor, Shemos (22:24): Do not lend money with interest. The reason for this is to teach us that besides being obligated to do acts of kindness because we are human beings we have an addition obligation from the Torah – just as we have for all the mitzvos which we wouldn’t know from commonsense. The consequences of having both an inherent commonsense obligation as being part of mankind as well as an explicit command in the Torah is illustrated by the obligation to honor parents. The Torah command teaches that even though there is a command from commonsense that all of mankind is obligated to keep and receives reward for do it, nevertheless G‑d has in addition explicitly commanded us to do it as an aspect of the Torah (Shemos 20:11)… As a Torah mitzva honoring parents is a statute which must be done simply because it was commanded and not because it makes sense. For example if a non‑Jew fathers a child with a Jewish woman, than according to the Torah that child has a mother but no father. Therefore there is a greater obligation of honoring the mother than the father because the honor of the mother is dictated by not only commonsense but also from the Torah. …There are also consequences for lending money to a needy person. Even though it is clearly a commonsense obligation but it is also governed by Torah law. In this case the obligation from commonsense is inconsistent with the obligation of the Torah. The contradiction occurs in regard to charging interest. For example, in the case of a person whose life depends upon lending money with reasonable interest. From the commonsense point of view he still performs a great mitzva of lending money – even with interest – to sustain another person who desperately needs the loan. However the Torah specifically prohibits charging interest. Therefore according to the Torah a Jew would not be able to lend the money and thus he is prohibited from doing the kindness to the other person as well as sustaining himself. [This was explained in Harchev Davar - Bereishis 48:19 – concerning the Tabernacle at Shiloh…]

11 יא

Rav Yaakov Kaminetsky, Emet Le-Yaakov

According to the Halacha, Avraham was not obligated to risk his life to save his nephew Lot…. Avraham risked his life because the Patriarchs were yeshorim (upright) [Avoda Zara 25a]. That means that their actions were not governed only by the strict letter of Torah law - but by straight thinking. G‑d made man inherently yashar (upright). According to uprightness, there was an obligation to try and save Lot… Avraham felt responsible for Lot’s welfare because Lot’s father had died in a furnace because of his belief in the G‑d of Avraham. Therefore, according to uprightness (menshlikeit) Avraham had to organize his men and pursue after Lot’s captors. In truth the lives of the Patriarchs - which was before the giving of the Torah - was based on the attribute uprightness. This is the meaning of the expression [Vayikra Rabbah 9:3] that derech eretz (civility) preceded the Torah… Therefore, this civility and menshlikeit can be expected even from non‑Jews. Even though they weren’t given all the mitzvos, but everyone can live in accordance with the inherent uprightness - if he wants.

12 יב

Natural Law, Rav Mayer Twersky

When Hakadosh Baruch Hu (God) informs Avraham Avinu of the impending destruction of S'dom and its four neighboring cities, Avraham Avinu asks that they be spared in the merit of nine righteous individuals per city. [Hakadosh Baruch Hu would join with each group of nine to comprise a quorum]. But Avraham Avinu does not simply pray. In a remarkable display of love for his fellow man and intimacy with Hakadosh Baruch Hu, Avraham Avinu actually challenges Hakadosh Baruch Hu. "Will the judge of the entire Earth not do justice?" (1).

Primo facie, Avraham Avinu is measuring Hakadosh Baruch Hu's actions against a natural, independent standard of justice. If Hakadosh Baruch Hu's actions define and establish the standards of justice, it is logically impossible to question Him or His actions. Thus, Avraham Avinu's challenge seems to indicate the existence of an absolute, natural law, binding even Hakadosh Baruch Hu.

In truth, however, careful study of Avraham Avinu's entire prayer belies this interpretive inference. Rashi (2) explains that AvrahamAvinu limits his prayer/challenge; he grants that a minimum of nine righteous individuals is necessary to save each city. Why, for example, did Avraham Avinu not request that the merit of even five righteous individuals should not suffice? Rashi answers that Avraham Avinu was guided by the precedent of the deluge. In that generation, the merit of Noach, his three sons and their spouses was insufficient to save the world. Accordingly, Avraham Avinu knew that minimally nine righteous individuals (together withHakadosh Baruch Hu) would be necessary to save each city.

Upon re-examination, equipped with Rashi's insight, we are now able to correctly understand Avraham Avinu's challenge to Hakadosh Baruch Hu. In effect, he was saying, "will you, Hakadosh Baruch Hu, not be true to Your own standard of justice?" According to the divine standard of justice which You established, eight righteous individuals do not suffice. But, Hakadosh Baruch Hu, doesn't Your divine system recognize ten as a microcosm, representing an entire community? [This is the underlying philosophy of a minyan.] Accordingly, do not Your standards dictate that each city be spared in the merit of nine righteous individuals per city?

In fact, Judaism does not recognize a natural moral independent of Hakadosh Baruch Hu. Hakadosh Baruch Hu is the source of all morality. Rambam opens his magnum opus by declaring that the fundamental principle which underlies all others and the pillar of all wisdom is knowing of the existence of Hakadosh Baruch Hu, Creator of heaven and Earth (3). Rav Soloveitchik zt"l commented that Rambam clearly indicates that all wisdom depends upon knowledge of Hakadosh Baruch Hu; i.e., there is no ethical or moral knowledge independent of Him.

The famous Talmudic passage in mesechet Eruvin which states that if the Torah had not been given, we would have learned modesty from cats, to abstain from theft from ants, etc. should be understood in light of our discussion hitherto. These examples would have been normative because Hakadosh Baruch Hu created cats and ants and instilled these virtuous traits within them. Nature is a source of morality because - and only because - Hakadosh Baruch Hu encoded elements of His moral code within nature.

Similarly, the great medieval Jewish philosophers - Rav Sa'adya Gaon and Rabeinu Bachya inter alia - who speak of "rational" commandments and concepts which our reason mandates should be understood in this vein. Reason is an instrument for discovering truth because - and only because - our reason is God-given and, when correctly applied, divinely directed.

In truth, this epistemological principle is highly intuitive. Hakadosh Baruch Hu is the source of everything. How can one imagine anything - morality or otherwise - existing or operating independently?

______

  1. Braishis (18:25)
  2. ibid. (18:32)
  3. Rambam Hilchos Yesodei HaTorah (1:1)
  4. Eruvin 100b
13 יג

Rabbi Aharon Lichtenstein, Is There an Ethic Independent of Halacha?

All discussion of theodicy is predicated upon it. As Benjamin Whichcote, the

seventeenth century Cambridge Platonist, 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.

14יד

ר"ן מסכת נדרים דף כח עמוד א

וכתבו בתוספות דדוקא במלכי עובדי כוכבים אמר דדינא דמלכותא דינא מפני שהארץ שלו ויכול לומר להם אם לא תעשו מצותי אגרש אתכם מן הארץ אבל במלכי ישראל לא לפי שא"י כל ישראל שותפין בה.

Ran Nedarim 28a

The Tosafists wrote that it is only in regard to gentile kings that [Shmuel] said “the law of the kingdom is the law,” for the land belongs to him, and he can say to them, “if you do not perform my bidding I shall drive you from the land.” However, in regard to Jewish kings, this is not the case, since all Jews are partners in [the ownership of the land].”

15טו

רשב"ם מסכת בבא בתרא דף נד עמוד ב

כל מסים וארנוניות ומנהגות של משפטי מלכים שרגילים להנהיג במלכותם דינא הוא שכל בני המלכות מקבלים עליהם מרצונם חוקי המלך ומשפטיו והלכך דין גמור הוא ואין למחזיק בממון חבירו ע"פ חוק המלך הנהוג בעיר משום גזל.

Rashbam Bava Batra 54b

All taxes, rules and practices of the rules of the kings that they typically utilize in the the governance of their kingdom are binding, for all members of the kingdom accept upon themselves willingly the rules of the king and his edicts. Therefore it is a full-fledged law and one who takes the money of his friend on the basis of the king’s law is not in violation of theft.