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Volume 9, No.1 Fall1990 ETHICS AS LAW, LAW AS RELIGION: REFLECTIONS ON THE PROBLEM OF LAW AND ETHICS IN JUDAISM Louis E. Newman Louis E. Newman is a professor at Carleton College. His recent work focuses on the hermeneutics of Jewish ethical discourse, such as "Woodchoppers and Respirators: The Problem of Interpretation in Contemporary Jewish Ethics," published in Modem Judaism (10:1) and The Problem ofInterpretation in Contemporary Jewish Ethics. 13 For some years now, scholars have been engaged in a lively debate concerning the relationship between law and ethics in Judaism.1 Numerous talmudic texts which appear to suggest that rabbinic authorities of the past in1See J. David Bleich, "Is There an Ethic Beyond Halakhah?" in ed. Norbert M. Samuelson, Studies in Jewish Philosophy (Lanham, MD, 1987), pp. 527-46; Eugene B. Borowitz, "The Authority of the Ethical Impulse in Halakhah," in ed. Samuelson, op. cit., pp. 489-505; Boaz Cohen, "Letter and Spirit in Jewish and Roman Law," in his Law and Tradition in Judaism (New York, 1969); Elliot N. Dorff, "The Interaction of Jewish Law with Morality," Judaism 26:455-66; Jose Faur, "Law and Justice in Rabbinic Jurisprudence," in ed. Gersion Appel, Morris Epstein and Hayim Leaf, Samuel K Mirsky Memorial Volume (New York, 1970); Simon Federbush, "AI hamusar v'hamishpat" [Hebrew], Ritzaron 6:525-32; Robert Gordis, "The Ethical Dimensions ofthe Halakhah," Conservative Judaism 26:70--74; Alexander Guttmann, "The Role of Equity in the History of the Halakhah," in his Studies in Rabbinic Judaism (New York, 1976); David Weiss Halivni, "Can a Religious Law be Immoral?" in ed. Arthur A. Chiel, Perspectives on Jews and Judaism: Essays in Honor of Wolfe Kelman (New York, 1978); Milton Konvitz, "Law and Morals: In the Hebrew Scriptures, Plato and Aristotle," Conservative Judaism 23:44-71; Eugene B. Korn, "Ethics and Jewish Law," Judaism 26:455-66; Leo Landman, "Law and Conscience: The Jewish View," Judaism 18:17-29; Jacob Lauterbach, "The Ethics of the Halakhah," in his Rabbinic Essays (Cincinnati, 1951); Aharon Lichtenstein, "Does Jewish Tradition Recognize an Ethic Independent of Halakha?" in ed. Marvin Fox, Modem Jewish Ethics (Columbus, 1975); Jacob J. Ross, "Morality and the Law," Tradition 10:5-16; Seymour Siegel, "Ethics and the Halakhah," Conservative Judaism 25:33-40; Moshe Silberg, "Law and Morals in Jewish Jurisprudence," Harvard Law Review 75:306--31; Shubert Spero, Morality, Halakha and the Jewish Tradition (New York, 1975), especially ch.6, "Morality and Halakhah." 14 SHOFAR deed recognized a distinction between law and ethics have occupied a central place in these debates. Much of this discussion accordingly turns on 1) how to understand certain key terms and the texts in which they appear, and 2) how to construe the difference between "law" and "ethics." Different answers to the question, "What is the relationship between law and ethics in Judaism ," then, rest on the ways in which scholars have addressed prior questions of both hermeneutics and conceptual definition. The thesis of this paper is that both the hermeneutical and conceptual dimensions of this issue have been muddled by those engaged in this debate. As a result, one finds that scholars invariably cite the same body of texts, but draw from them radically different conclusions about the relationship between law and ethics. Each claims simply to report what the tradition says on these matters, but none seems willing or able to explain why others, drawing on the very same evidence, have reached different positions. In order to clarify this confusing and, as yet, intractable problem, it will be necessary first to review briefly the sorts of evidence that playa central role in the debate about law and ethics, then to clarify the nature of the question itself, and finally to explain why the question cannot be answered, at least in the terms in which it has been framed by all those engaged in the debate. The Evidence The rabbinic sources that bear on the problem of law and ethics fall into two categories. First, there are texts which identify a type of moral behavior which is "extra-legal," that is, morally commendable, but (apparently) not legally required. Second, there are texts which suggest that in certain instances the...


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