Legality vs. Morality (Rosh Hashanah 5784)

Written by Rabbi Elliott Karstadt — 17 September 2023

One of the things about being a member of a rabbinic couple (being married to a student rabbi) is there is always someone with whom to talk about Torah at home. We talk about Torah in the morning; we talk about Torah in the afternoon; we talk about Torah over the Shabbat dinner table. Sometimes we talk about Torah too much. Very occasionally, something magical happens and I learn something that gives me the opportunity to teach Torah b’shem omrah – to pass on my wife’s wisdom in a Rosh Hashanah sermon. In this case, a teaching about Abraham, Sarah, Hagar and Ishmael.

A quick reminder of the story we read this morning. Before the chapter that we read this morning, Sarah, suffering from infertility, has taken in a reproductive slave, Hagar, to give birth to the baby that she could not. The result is Abraham’s older son, Ishmael. Taking on Hagar in this way was something sanctioned in ancient societies, by documents such as Hammurabi’s Code (which was written around 1750 BCE). This code also sanctioned Sarah’s later behaviour of putting upon Hagar the mark of a slave, of lowering her status and bullying her to the extent that she even at one point runs away, only to be persuaded back when an angel assures her that her son will be a great nation.

And according to another ancient Babylonian legal code, the Code of Lipit-Ishtar, if a wife bears children for her husband, and her husband also has children by a slave, but the father grants freedom to the slave and her children, then those children do not inherit alongside those of the wife. So, historians suggest that when Sarah eventually has her own son, and orders Hagar and Ishmael’s expulsion, she was simply adhering to a cultural norm, enshrined in law. And it is perhaps unsurprising that Abraham would also accept it.

Medieval Spanish commentator Ibn Ezra points out: ‘Many have wondered how Abraham could possibly have expelled his own son, especially sending him and his mother in the wilderness empty-handed. Where was his generosity? But the real wonder is about the people who ask this question. Abraham did exactly what the Holy One commanded him to do. Had he given Hagar money without Sarah’s approval he would not have been following God’s orders.’

So, the thing I learned was that the historical evidence places Sarah and Abraham entirely within their rights to treat Hagar in the way they do.

‘I am entirely within my rights.’

‘It’s a free country.’

‘There’s no law against it.’

How often do we hear – how often do we use – these kind of phrases to justify our actions? How often in modern society do we refer to the law or to our legal rights to lend warrant to our behaviour? And indeed a conception of rights is at the root of modern politics and modern society.

In her famous essay ‘Human Personality’, the philosopher and activist Simone Weil challenges the idea of rights that has sat at the foundation of European politics and society since the French Revolution. Because rights, so easily given when it is convenient, can be taken away when inconvenient, and the vulnerable person or the vulnerable minority are plunged again into uncertainty and fear. Weil asks, what is it that stops someone from putting out another person’s eyes, if she is able to do it, wants to do it, and is allowed to do it?

Despite her Jewish origins, Weil’s answer is one born of the prevailing French Catholicism in which she was immersed, but was never quite able to penetrate her way into, because as a Jew she was always ultimately an outsider in that society. Her answer is that we have something, ‘at the bottom of the heart of every human being’ – a soul that ‘goes on indomitably expecting, in the teeth of all experience of crimes committed, suffered, and witnessed, that good and not evil will be done’ to the human being in which it is contained. ‘It is this above all that is sacred in every human being.’

‘The good is the only source of the sacred. There is nothing sacred except the good and what pertains to it.’ Justice, for Weil, is the pursuit of the good, not simply the observation and respecting of individual rights.

So, as soon as Hagar was conceived of as a person with rights, she could be subsumed into the laws and customs of her time. As soon as she had rights, those rights could be taken away.

The law gives with one hand, and takes away with another.

How often over the last twenty years has the UK government threatened to repeal Human Rights legislation, because it is getting in the way of them doing whatever they want – because it protects minorities from abuse – because it places upon the government moral imperatives that are not supposed to be convenient but are supposed to protect the vulnerable. And periodically, the government continues to issue the threat that we will be pulled out of international agreements like the Convention of Human Rights.

Weil perhaps goes too far when she wants to throw out the baby with the bathwater – when she wants to say that rights in general are the wrong way in which to organise our world and determine how we should live and act.

But, in order for rights to be meaningful, they have to be understood not as legal trump cards, not as weapons we can hurl at each other in our disputes, but rather as moral imperatives. We have to see the rights of the other as inviolable obligations that are placed upon us, rather than obstacles to which we can find a loophole or work-around.

Legality and morality are not the same things. While we might be able to find legal routes for everything and anything we want to do, that does not mean that we have ethics and morality on our side.

Today in Israel, the government is attempting to overhaul the judiciary, not through a coup d’etat, but through perfectly legal means – this does not mean that it is right.

And this is something that we can learn in our personal lives as well. How often do we find work-arounds to avoid breaking the law, when we know that we are nevertheless breaking some moral code or ethical law?

Most recently, the tension between legality and morality was brought to the fore in our community by the Covid Pandemic. There were a number of times in the last three years at which we were permitted by law to do all kinds of things. But we as a community chose not to do them because of a greater principle of care for one another. And many of us in our personal lives made choices based not on what was allowed by law, but what we in good conscience felt was the right thing to do.

As a Jewish people, we are told, in the central chapter of the Torah (which we will read next week as part of Yom Kippur): k’doshim tihyu ki kadosh ani Adonai Elohechem – ‘Holy shall you be, for I the Eternal your God am holy’ (Leviticus 19:2).

The Medieval commentator Nachmanides tells us that we need that commandment k’doshim tihyu, because it would in fact be possible to follow every letter of God’s law without being holy. As he puts it, it would be possible to be a naval birshut haTorah – ‘a scoundrel with the permission of the Torah’. We need to be commanded to be holy because living by the law is not sufficient.

And the Rabbis of the Talmud and Midrash understood this when they blatantly and unashamedly revised and modified the laws set out in the Torah. No longer would the rebellious child be stoned; much rarer became instances in which capital punishment would in fact be enacted; ‘an eye for an eye’ now became understood as demanding monetary compensation. By revising these laws, the Rabbis were making an important statement about the primacy of moral values over and above mechanical legal considerations.

Last night, Rabbi Josh taught us about those times in the Talmud in which the rabbis’ answer to a legal question is to say: pok hazi mai ama davar – Go out and see what the people are doing. Equally powerful are those times in which one rabbi or another appeal to their svara – their inner consideration of the question. By appealing to their svara, their inner moral reasoning, the rabbis are able to take radical steps away from the traditional legal answers that may have caused real people to be left in impossible situations.

A classic example of this use of svara is the case of the fourth-century sage Rava, who sees the suffering of an agunah – a bound woman whose husband has gone away and may never come back, and who uses his own moral reasoning to ensure that she is no longer bound.

And the tradition bequeathed to us by the rabbis was one that was constantly open to such reinterpretation. It is only certain groups among the Jewish people who have since resolved to suspend and conserve the specific rulings of the rabbis in aspic. In many ways, we as Progressive Jews are the true inheritors of the Talmudic tradition, continuing to use our own moral and ethical compass to help us navigate the sometimes treacherous rocks of our halachic tradition, using our svara and finding ways to elevate the moral, the ethical, the right thing to do rather than simply following the outdated and sometimes inappropriate legal rulings of the past.

As we celebrate this new Year, and as we are invited to reflect on the world in which we live, and our place within it, let us consider what it means not only to live within the law of the land, but to live within the law of our hearts – the moral law which exists both inside and beyond us – the moral law which calls upon us to concern ourselves with, as in the words of Hans Jonas we heard in our study passage this morning, ‘that spiritual account … kept by the unified memory of things’. May we no longer be satisfied by the answer: ‘I am within my rights’ or ‘There’s no law against it’. May we strive to live a life that seeks to transcend mere social expectation and legal requirements; a life of moral ambition. May that be what defines our year 5784.

Shabbat Shalom and Shanah Tovah