Choshen Mishpat, Gift of the Jews

EnglishThis essay explores the moral importance of the conflict between Halakhah and temporal civil law. It was presented as a sermon to the Book Shemot, on the 28th of Tevet 5766 (28th of January ’06).

True Freedom of Conscience -by Rabbi Arie Folger

Halakhah is frequently at odds – in monetary matters – with applied Western law, such as, for example regarding the permissibility of charging interest on loans, the permissibility of charging certain fines, the validity of speculative contracts, the definition of unfair competition and more. However, the respective national constitutions are clear, the judicial power belongs to the civil courts and they need to take the instructions of the legislative branch into account. Many of us feel uneasy about the disagreement Halakhah has with the national secular legislative reality, and as a result, the Halakhah is either forgotten, or willfully ignored.

The tension between Halakhah and Western law evokes in us memories of accusations of double standards and disloyalty to our respective countries of citizenship or residence. Hence, many choose ignorance over knowledge, breech over observance. The major question is then: have we served the greater good of general society by adopting the single yardstick of law and ethics which our host society provides us with?

The spiritualization of religion, which I mention here repeatedly, is the result of the separation of church and state, now common in the West. This separation has indeed curtailed the power of the kehillah, but has also brought us protection from some other religions, which have, in the past, tried to conquer the Jews from their Judaism. As Jews, as a minority, we need and thus attest to the necessity of freedom of conscience. The question we are thus seeking to address is: does the curtailing of religion to the private, spiritual sphere necessarily follow from freedom of conscience, or not?

One of the earlier proponents of freedom of conscience and separation of church and state was the Jewish-born philosopher Baruch Spinoza. For him, it was ludicrous that the state could demand mental obedience in theological beliefs. Reason alone, not law, could dictate spiritual beliefs. So great was Spinoza’s dislike of dogma, that in one sweep, he accused all representatives of religions of spreading superstition and of basing their power to do so on fear.1 Spinoza presented himself as a believer, not a believer like you and I, but in his way, he projected himself as a believer… in … something. His religion, if we can call it that, was wholly spiritual. It had no role to play in the public square and didn’t even require – nor did it allow for – lasting rituals.

Recognizing Spinoza’s admission of belief in G’d and his concurrent dislike for ritual ordinances, Spinoza becomes a good case of an author who can show us how far the excessive spiritualization of religion can go. In his Theologico-Political Treatise, he develops to the fullest the synthesis of his opinions on this matter. Chapter nineteenth’s title says it all: “It is shown that the right over matters spiritual lies wholly with the sovereign, and that the outward forms of religion [i.e. religious services, ritual ordinances] should be in accordance with the public peace, if we would obey G’d alright.” This sweeping statement is acceptable to no minority religion. In fact, understanding that any religion can, at any given time, be somewhere in the minority, Spinoza’s statement becomes unacceptable to any and all religions. What Spinoza put forward is a new religion, nobody else’s religion. But the kind of freedom of religion which Spinoza proposed, the kind of freedom of conscience which he advocated, bases itself on the supremacy of the state, on the same principle which leads to a dislike of the tension between Halakhah and secular law. Well, this very supremacy is a kind of totalitarianism. In Spinoza’s quest for freedom, he has advocated the discrimination of all. Seen in this light, we can perhaps understand that, in the greater scheme of things, Spinoza’s excommunication and its support by both Jewish and civil authorities of those days makes sense. Excommunication may be distasteful to us, but Spinoza’s ideas were none the less wrong for society.

Are you unconvinced? Let us apply Spinoza’s thinking to the parshiyot we are currently reading in batei kenesset everywhere:

Considering the realities of the ancient world, Par’oh‘s reaction, being faced with a rapidly growing Israelite population is understandable, after all, Egypt had had a tumultuous history at that time, and a new revolution was all that he needed. So, in the interest of stability, Par’oh seeks ways to maintain the current law and order. Being the sovereign of Egypt, and given the fact that, since Yosef‘s reforms, the Egyptian population was anyway bonded to the ruler, Par’oh could legitimately claim the right to extend the royal privilege to the Jews, as well. With our ancestors’ increasing refusal to integrate fully in Egyptian society, and the growing feeling that revolution is in the wings, his reactions become understandable, and even justifiable … by Spinoza’s standards. The decree to kill all the boys for a certain period may seem excessive to our modern minds, but this must not have been so unusual by the ethical standards of antiquity.

Par’oh demands obedience, and by Spinoza’s standards, he has the right to so demand. What justification is there then, to stir up as much trouble as Moshe did? What, G’d Himself would condone such behaviour?! By Spinoza’s standards, such would be unthinkable!

Truly, if not for the fact that G’d’s Torah negates Spinoza’s ideas, הַרֵי אָנוּ וּבָנֵינוּ וּבְנֵי בָנֵינוּ מְשֻׁעֲבָּדִים הָיִינוּ לְפַרְעֹה בְּמִצְרָיִם – “we and our children and our children’s children would still have been enslaved to Pharao in Egypt.” As a matter of fact, this conclusion is so unacceptable, that that author couldn’t accept it, either. Yet it follows from granting temporal systems of law sovereignty over religion, ethics and morality.

The absurdity of declaring the law of the land ipso facto correct and grant the sovereign supremacy over religion is obvious. For practical reasons, the law of the land dominates, it is the basis which the society we have chosen uses as an ultimate refuge. But it is not beyond reproach and should not preclude the existence of an independent alternative system.

Fast forward to today’s society. The undue spiritualization of religion isn’t the realization of religions’ true natures, but the deprivation of the religious rights of all. And the suppression of alternative ethical systems, of which Shul’han ‘Arukh ‘Hoshen Mishpat is a prime example, is but the paranoid desire of those who fear limits imposed on a state’s ability to legislate anything and everything it wants while disregarding ethical thinking.

Who wants our governments to become so powerful, that we cannot challenge them when they stray from the path of ethics, equity, honesty, fairness, justice? Far from being a threat to the integrity of law and to the sovereignty of states, the existence of Halakhic civil law as a system which takes secular law into account but doesn’t accept it hook, sink and barrel, is a gift which we can bequeath society. By living the values of Halakhah, by knowing it and critically compare the humanly decreed secular law with it, Halakhah can make us a force which prevents the tyranny of the majority over the minority. Halakhah’s independence can also be our contribution to guarantee that society doesn’t allow the injustices which come from the mindless application of the law of the land, the so-called travesty of justice, a tendency engendered by too high a regard for those fragile, man-made codices.

דְּרָכֶיהָ דַרְכֵי נֹעַם; וְכָל נְתִיבוֹתֶיהָ שָׁלוֹם.2

Her paths are paths of pleasantness and all her ways peace.

כִּי-בִי, יִרְבּוּ יָמֶיךָ; וְיוֹסִיפוּ לְּךָ, שְׁנוֹת חַיִּים3

For with Me [says G”d] will your days become numerous and shall the years of your life be increased

Suggested reading, all by Rabbi Professor Aaron Levine:

  • Moral Issues of the Marketplace in Jewish Law
  • Case Studies in Jewish Business Ethics
  • Free Enterprise and Jewish Law


1Theologico-Political Treatise, ¶9 of the introduction.
2Proverbs 3:17
4Ibid. 9:11

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