Law as a Gift of Love

Headshot of Elliot Dorff
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Headshot of Elliot Dorff
Rabbi Elliot Dorff, PhD

Sol & Anne Distinguished Professor in Philosophy, Ziegler School of Rabbinic Studies
University Rector, American Jewish University

Rabbi Elliot Dorff, PhD is AJU’s Rector and Sol & Anne Dorff Distinguished Service Professor in Philosophy. He is Chair of the Conservative Movement's Committee on Jewish Law and Standards and served on the editorial committee of Etz Hayim, the new Torah commentary for the Conservative Movement. He has chaired four scholarly organizations: the Academy of Jewish Philosophy, the Jewish Law Association, the Society of Jewish Ethics, and the Academy of Judaic, Christian, and Islamic Studies. He was elected Honorary President of the Jewish Law Association for the term of 2012-2016.  In Spring 1993, he served on the Ethics Committee of Hillary Rodham Clinton's Health Care Task Force. In March 1997 and May 1999, he testified on behalf of the Jewish tradition on the subjects of human cloning and stem cell research before the President's National Bioethics Advisory Commission. In 1999 and 2000 he was part of the Surgeon General’s commission to draft a Call to Action for Responsible Sexual Behavior; and from 2000 to 2002 he served on the National Human Resources Protections Advisory Commission, charged with reviewing and revising the federal guidelines for protecting human subjects in research projects. Rabbi Dorff is also a member of an advisory committee for the Smithsonian Museum of Natural History on the social, ethical, and religious implications of their exhibits. He is also a member of the Ethics Advisory Committee for the state of California on stem cell research.

He has been an officer of the FaithTrust Institute, a national organization that produces seminars and educational materials to help people avoid or extricate themselves from domestic violence.  For eight years he was also been a member of the Board of Directors of the Jewish Federation Council of Los Angeles, chairing its committee on serving the vulnerable.  In Los Angeles, he is a Past President of Jewish Family Services and a member of the Ethics committee at U.C.L.A. Medical Center. He serves as Co-Chair of the Priest-Rabbi Dialogue of the Los Angeles Archdiocese and the Board of Rabbis of Southern California.  

posted on February 21, 2009
Torah Reading
Haftarah Reading
Maftir Reading

We have just been at Sinai. Amid thunder and lightning God has revealed the Decalogue, which includes some major theological and moral principles by which one should live.

By contrast, this week's Torah portion includes many detailed "mishpatim," judicial rulings. We hear about slaves and homicide, personal injuries and property damage, bailments and theft, the bride-price and sacrifices to other gods, ill treatment of strangers, widows, orphans, and the poor, giving testimony in court -- indeed, a whole potpourri of subjects. This is not the world of establishing fundamental relationships with God and the broad principles that should govern them; it is rather the world of the nitty-gritty rules necessary to make society run well.

In the Mekhilta, one of the earliest rabbinic commentaries, though, the Rabbis note that this week's Torah reading begins, "And these are the judicial rulings that you shall set before them." The "and," according to the Rabbis, means that just as the Decalogue was revealed at Sinai to the People Israel with the full authority of God, so too all of the specific rulings that appear in this week's portion were so revealed. This means that God's authority is as much behind the prohibition of cursing one's parents (Exodus 21:17) as it is in the Decalogue's demand to honor them; it is as much behind the rules about accidental homicide (Exodus 21:13) and assault (Exodus 21:18-25) as it is behind the Decalogue's prohibition of murder; and it is as much behind this week's rules about property damage and bailments, as it is behind the Decalogue's prohibition of theft. The many laws in this week's portion may seem almost prosaic compared to the majestic and magisterial principles of the Decalogue, but God's authority undergirds this week's laws no less.

This conviction has had an immense effect on our tradition. It has meant that as Jews we are to understand what God wants of us in legal terms. Authority does not rest in our individual conscience as it does for most Protestant denominations; it is not found in the decrees of a specific person or group of persons, as it is, for example, for Catholics; and it is not a function of the rule of the majority, as it is for democratic cultures such as that of the United States. For Judaism, instead, authority rests in the laws, and we are to use legal methods to apply them to new situations and generations.

Indeed, as the Rabbis understood the Torah, God may be the creator of the law and its ultimate judge and enforcer, but after the Torah had been given, determining the substance of its rules was now out of God's hands. "The law is not in heaven" (Deuteronomy 30:12), the Rabbis remind a heavenly Voice that attempts to intrude on their decision-making, and God laughs in acquiescence and agreement (Bava Mezia 59b). Authority, then, rests not in individual conscience, a person or group of persons, or even God, but rather in the law itself and in its authorized, human interpreters. That bespeaks a remarkable sense of trust in the law as a source for human direction.

Using law to determine what is right and wrong, required, forbidden, or optional has some distinct advantages and disadvantages when compared to other possible methods of making such decisions. On the minus side, employing legal methods can, and sometimes does, make people legalistic in their approach to laws, where they become too concerned with the details of the law to see its underlying goals. Sometimes that can even undermine their ability to achieve the purposes of the law altogether. Law can also freeze practices much too firmly such that needed changes are not made. For those who value autonomy, the legal method removes the authority to choose from the individual person and places it in the hands of those empowered to interpret the law - in the case of Jewish law, the rabbis of each generation.

On the other hand, there are many benefits to deciding moral issues -- or, put theologically, to discerning what God wants of us -- through legal methods. For one, the law defines the scope of our moral duties. To take a simple example, it may seem obvious that one has a moral duty to return a lost object, but exactly how far does that duty go? If you announce the find and nobody comes forward to claim it, do you need to take it home and store it? Do you need to advertise it in the newspaper? If it is an animal, do you need to feed it? If so, at whose expense? What if you are allergic to this kind of animal in the first place? You, after all, innocently were in the wrong place at the wrong time, and so when and where does your obligation cease? It is precisely this kind of specificity that the Jewish legal structure provides -- in this case, in the second chapter of Bava Mezia in the Mishnah and in its talmudic expansion. Without this kind of legal definition of our moral responsibilities, including their extent and limits, moral norms would be absolute and insatiable, making it impossible to fulfill them while still having a life.

Second, if everyone decides on one's own, there are no barriers against totally outrageous decisions; each person's sovereignty is often tantamount to each person's foolishness. The legal method, in contrast, requires rabbis to justify their decisions in terms of the precedents and methods of the law before the public who can read such justifications and argue with them. Rabbis and, indeed, the whole community may be wrong, of course, but at least this way we each provide a check for each other's poor judgments and outright errors.

Third, if everyone decides matters on one's own, there is little chance to form shared, communal norms. If those who know the law are entrusted to interpret and apply it, however, there can be a sense of community standards. Judges, of course, may differ with one another, but historically the Jewish tradition has devised methods - as has every living legal system - to determine which of several conflicting judicial opinions will be recognized as the law. Sometimes different communities follow different rulings, so that there is no universal Jewish practice, but at least portions of the Jewish people can be united into a group through their common practices shaped by the law.

Fourth, the law acts to counter fads, for it takes some doing to change the received precedent. This is the opposite side of the point made earlier against the use of legal methods -- namely, that sometimes the law does not change rapidly enough. That is true. The converse, however, is also true - namely, that moral rules should not be subject to instantaneous change. If moral rules are not simply going to condone whatever we want to do now, if they are indeed going to be normative, they must have some staying power. The legal method of handling moral issues, when used properly, provides for change, but by insisting that changes be justified legally, it also protects us from changing standards too hastily. In so doing, it preserves not only the normativity of norms, but also their - and the community's - continuity.

Finally, while treating moral issues in legal terms entails the risk of legalism, it also provides the opportunity for love. Children who grow up in households with no rules do not experience the lack of norms as love; they see it - correctly - as apathy on the part of the parents. Laying down rules - reasonable ones, of course, and reasonably enforced - is no less than one important way in which parents express love for their children. Christian sources wrongly ignore this when they depict the Jewish commitment to law as a preference of law over love. Quite the contrary, the law is the very vehicle of God's love, as the paragraph before the Shema in the siddur, the traditional prayerbook, indicates: "With everlasting love You have loved the House of Israel, You have taught us Torah and commandments, statutes and judicial rulings."

As good as the law is, though, it is not, and cannot be, sufficient. Judaism put more trust in the law than perhaps any other religion or culture. Even American ideology, which also manifests a much larger degree of trust in law than the thought and practice of most other groups, finds it reprehensible, if not impossible, to legislate morality. Jewish law had no such qualms. Most of the norms that contemporary Americans would consider the realm of the moral as distinct from the legal, Jewish law has no difficulty putting into law -- even to the point of defining how much charity one must give and in what manner (see Maimonides, Mishneh Torah, Laws of Gifts to the Poor, Chapter 10) and how often a man must offer to have conjugal relations with his wife (Mishnah Ketubbot 5:6).

And yet even Jewish tradition uses other resources to teach us how to be moral and to motivate us to be so. These include stories, proverbs, theological tenets, history, and study. Furthermore, the Jewish tradition asserts that there is a realm of moral norms beyond the letter of the law. The Mishnah thus maintains that to say that what is mine is mine and what is your is yours, while legally just and even a fulfillment of the commandment of loving your neighbor as yourself (Leviticus 19:18), is "the trait of Sodom" (M. Avot 5:10), and, according to the Talmud, we force Jews not to act that way (B. Eruvin 49a; Ketubbot 103a; Bava Batra 59a, 168a). Indeed, in the Talmud Rabbi Rabbi Yohanan asserts that the Second Temple was destroyed because Jews then only adhered to the law and did not fulfill their duties beyond the letter of the law (B. Bava Mezia 30b). The law may define a good deal of what we mean by the moral, and it may articulate even what we understand God to want of us in our own day, but there are still moral norms beyond its scope that we must recognize and uphold.

Although we must recognize the limits of the law and the need to do the moral thing even beyond its demands, we must also understand and appreciate the important contributions law makes to our moral sensitivity and our knowledge of God's will. We read the laws of this week's Torah reading, then, with the awe of Sinai and the authority that that setting invokes as well as the gratitude appropriate to God for the divine gift of these laws of love.

Shabbat Shalom.