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date: 28 February 2020

(p. 303) Topics in Jewish Morals (p. 304)

Diversity in Belief, Relative Unity in Action

After reading the multiple Jewish approaches to ethics in Part I, readers may have concluded that Judaism is so fractious that it is incoherent, that it has so many voices approaching issues in so many different ways that nothing can safely be called “Judaism’s view on x” or “the Jewish view of x.” This is indeed true. As was indicated in the Introduction to this volume, “Why Study Jewish Ethics?” Louis Newman has definitively demonstrated that at most one can speak of “a Jewish approach” to a given topic and then demonstrate how what one is describing has pathways back to Jewish sources and can therefore be called “Jewish” with some warrant.1 Thus Judaism is not a happy home for those who like things neat and certain. Jews instead must cultivate great tolerance for debate and diversity while simultaneously maintaining a strong attachment to the Jewish tradition and the Jewish people despite—and some would say, precisely because of!—such disagreements.

That said, when we turn now to specific moral topics, readers will find that there is remarkable coherence among Jews about a host of issues. It is true that Jews cannot be pinned down to only one view on most matters, but that fact does not prevent our authors here from identifying the predominant streams of thought among Jews and then noting that some Jews think differently.

In many ways, this wide diversity of thought yet comparatively harmonious agreement on action has ancient roots in the Jewish tradition. “The interpretation is not the crucial thing, but the action,” says Rabbi Shimon ben Gamliel in the first chapter of a popular tractate of the Mishnah, Avot (Ethics of the (p. 306) Fathers).2 Jews, of course, disagree among themselves also about what is the appropriate action—virtually every page of the Talmud records such debates. In the end, though, the Rabbis had to come to some decision about what the law would be so that Jews would know what to do. In contrast, biblical and rabbinic Judaism does not insist that adherents affirm a specific list of beliefs. Thus methodologies and beliefs could be multiple and varied as long as Jews did what God wanted of them.

This stance, of course, differs from that of Christianity, which defines itself through creeds of belief. Judaism certainly has beliefs, and its core beliefs could be defined relatively easily. Even so, all the medieval attempts to articulate an official list of beliefs, created largely in response to the creedal assertions of Christianity and Islam, suffered from a distinctly Jewish fate—they were debated! Louis Jacobs, a British twentieth-century Conservative rabbi and scholar, examines each of the beliefs on Maimonides’ list of thirteen and demonstrates that every one of them had multiple interpretations among later rabbis and Jewish thinkers. Even something as central to Judaism as the assertion in the Shema, the central Jewish prayer, that God is one (Deut. 6:4) is interpreted by Jewish thinkers in thirty different ways, according to Jacobs’s count.3 When it comes to action, however, with all the feisty debates and with continual evolving customs and practices, by and large one can describe what the Jewish tradition commands us to do with regard to specific issues, and one can also describe the extent to which Jews follow what that tradition bids them do. Hence readers of Part II will probably find more coherence and unity than they might have expected from the diverse approaches described in Part I.

Applying an Ancient Tradition to Modern Settings

One problem that will appear in virtually every chapter in Part II is that of applying an ancient tradition like Judaism to modern circumstances. Modern technology—including contraceptive devices and, conversely, techniques to assist reproduction; surgeries, medicines, and machines as well as public health measures that enable us to live longer; new modes of communication and transportation—have significantly transformed our world and our capacities for changing it.

These developments immediately raise three methodological problems. First, why would one look to an ancient tradition for moral guidance in the first place? This issue requires the kind of meta-ethical discussions seen in Part I, particularly of the sort that have taken place in the last century and up to today, when Jews have the freedom to affirm their Jewish identity or ignore it, and they also have the freedom to choose how they will be Jewish, if they choose to be Jewish at all. (p. 307)

Second, assuming that one has one or more reasons to be committed to the Jewish tradition, how can one reasonably apply that tradition to modern circumstances? In most cases, a simple reading of an ancient text—or even many of them—will not do because the question either did not exist in the past or existed in settings so substantially different from our own that it makes little sense to expect sound guidance from any use of ancient texts. After all, if our ancestors could not even have anticipated a world in which business transactions are made worldwide in seconds, how can what they wrote guide us in such transactions now? And what does it mean for sexual ethics if people now attend graduate school in large numbers and therefore postpone marriage to their late twenties or thirties? After all, the Mishnah, which says that a man should marry by age eighteen4 to a woman who was probably a year or two younger, presumed that people were earning their own living by that time, that life expectancy was considerably shorter than it is today, and that no effective forms of birth control existed.

Third, the philosopher Immanuel Kant pointed out in the late eighteenth century that “can implies ought.” That is, if one cannot do x, then no moral questions about doing x arise, for doing x never happens. If one can do x, though, then one does have to ask whether one should do x, for there are all kinds of things that one can do that one should not do. One can, for example, abuse drugs or alcohol, but one should not. One can spend all day on the internet, but one should not. One can eat a half gallon of ice cream every night, but one should not. So the mere fact that we can stay wired to each other every moment of every day does not mean that we should, and the fact that we can sustain a person’s bodily functions almost interminably does not mean that we should. Thus the new abilities that we now have, most of which were intended for very good purposes, raise moral problems that our grandparents and in some cases even our parents never faced. This capability exacerbates the difficulty of deriving moral guidance from a tradition that presumed much less human capacity to adjust the world to our purposes.

All these factors, though, also vastly increase our need to derive moral guidance from the ancient traditions that can provide it. For if we do not look to those reservoirs of experience and values, where should we turn to decide what to do? We may know from science much more than our ancestors did about how the world works, and we may be able to manipulate it in far more ways than they ever imagined, but, as David Hume and Kant pointed out, one cannot derive “ought” statements from “is” statements. That is, science can and should be called on to help us understand the implications of our various options, but those outcomes will not in and of themselves determine what we should do. For that kind of decision, we need a lens through which to look at the world, a viewpoint that describes who we are as individuals and as communities, what the goals of life should be, and what values we should strive to incorporate into our lives. We need, in other words, a way of defining what we mean by good in the first place, including the goals we are trying to achieve. Of course, the views we adopt might be totally of our own making, but then they lack the experience and wisdom of the ages. At the same time, we need to exercise judgment in using ancient traditions to guide us morally in the modern (p. 308) world, for our views and values need to evolve as our knowledge increases and our circumstances change. The one thing that is clearly not wise is to make moral decisions simply by citing chapter and verse from some ancient source written in a vastly different world, and ascribing to that old source absolute authority for this novel circumstance it could not conceive.

The Essays in Part II

Because we are keenly aware of these issues, we, the editors, deliberately chose as the authors of the essays in Part II men and women with very different connections to Judaism. They include people who describe themselves variously as Orthodox, Conservative, Reconstructionist, Reform, and secular. The biographies at the beginning of this volume indicate the authors’ wide range of academic and Jewish backgrounds. What they share is deep knowledge of their subject matter and a willingness to describe not only how they interpret Judaism’s import for the topic, but what other serious Jews have written about it from other viewpoints.

The topics in this section include a wide selection of moral issues, but they inevitably do not include everything that we, the editors, or our readers may have wanted. Space limitations forced us to make some choices about what to include. As in Part I, though, each essay offers Suggestions for Further Reading, covering related topics.

Beginning with medical ethics, Elliot Dorff discusses issues at the beginning of life. He first describes Judaism’s fundamental convictions that affect its views of medical matters. He then discusses Jewish views about preventing pregnancy through contraception and abortion, and, conversely, assisting those with infertility problems. He also uses this analysis to discuss embryonic stem cell research and genetic testing.

Daniel Sinclair discusses issues at the end of life. After describing how the Jewish tradition views the stages of the end of life and how the categories it uses are interpreted differently by Orthodox and Conservative rabbis, he then discusses the degree to which patients have autonomy to decide what treatments they will accept or reject, including the question of withholding medications, machines, and artificial nutrition and hydration and even the question of killing a terminally ill patient in order to save a viable life. He closes with a description of the new law in Israel that governs treatment of patients at the end of life.

Aaron Mackler discusses the distribution of health care, an issue that has become particularly urgent and controversial in recent years. Because the median age in most English-speaking countries has risen, more people need more extensive medical care. This is happening, though, just as people have come to expect new but often expensive interventions. As a result of these and other factors, health (p. 309) care costs have risen dramatically. Mackler discusses the Jewish principles that might guide the discussion of who gets what in medical care, and who pays for it.

Laurie Zoloth explores one of the most important new frontiers in medicine—the new genetics. She addresses the issues of identity and free will that genetics raises in new ways, and she uses the case of a woman with one of “the breast cancer genes” as an example of how genetic testing poses excruciating new questions. Aside from the practical questions of what to do when faced with such a diagnosis, does this and the other Ashkenazi Jewish genetic diseases serve as a basis for “discrimination, stigmatization, and marginalization” of Jews generally? Should Jews be thought of as a “sick” people? For Jews, of course, such discussion of eugenics has a painful past both in the United States and in Nazi Germany. This is complicated yet further by the fact that in some cases, as with the breast cancer genes, the presence of one of these genes does not guarantee that the woman will have cancer but only adds to the probability of that happening. What, then, if anything, should be done with such a diagnosis? Will financial considerations lead to the decision that it is simply futile to care for such people because they are going to die anyway, that we cannot afford to do so? Furthermore, the availability of prenatal testing for genetic diseases could easily create expectations that families with a history of a particular genetic disease be tested for it, and if they bear a child with the disease, they may be seen as morally delinquent to both the child and society. Zoloth brings Jewish concepts and values to bear on these questions.

With Barry Leff’s article, we turn to Jewish business ethics. Leff notes that Jews have developed three primary approaches to how the Jewish tradition should be applied to modern circumstances. He identifies several fundamental principles of Jewish business ethics and then applies them to various common issues in business ethics: fraud, anticompetitive behavior, theft (including theft of intellectual property), deception, kickbacks, and contract negotiation and interpretation. He then discusses more briefly a number of concrete examples where Jewish sources have much to tell us about how to conduct business morally.

Danya Ruttenberg addresses Jewish sexual ethics. She discusses extramarital sex and marriage, consent, and pleasure in contrast to the duty of both partners to satisfy each other sexually, the traditional requirement that a couple refrain from sexual relations during the woman’s menstrual period, masturbation, procreation, same-sex relationships, and gender identity and sexuality—all from her unique vantage point as both a Conservative rabbi and a feminist. As a Conservative rabbi, she is committed to the Jewish tradition and aware that it has changed in the past and must be adjusted to respond to new scientific findings about sexual orientation and sexual practices as well as new social conditions and moral sensitivities. As a feminist, she probes that tradition for its biases against women, homosexuals, and transgender people.

Arthur Waskow discusses Jewish environmental ethics. Most essays in this volume base themselves primarily on Jewish law, for it is in that form that much of Jewish moral thinking has taken place. Waskow brings Jewish law into his exposition of Jewish environmental ethics, but he focuses on another source for Jewish (p. 310) ethics—namely, Jewish lore (aggadah), the stories in the Bible and Rabbinic literature that shape the Jewish frame of mind. Using three primary biblical stories—the Garden of Eden, the Flood, and the Plagues with which God afflicts the Egyptians—Waskow describes what a Jewish approach to the environment entails in carrying out the biblical mandate “to work it and to preserve it” (Gen. 2:15).

Aaron Gross focuses on one subset of Jewish environmental ethics—namely, Jewish animal ethics. He first identifies the central concept in this area of Jewish ethics, tza’ar ba’alei hayyim, the ban on causing undue pain to animals, and he describes the varying justifications for that ban. Some of them focus on how compassion for animals will benefit human beings, including human moral character, and others assert the inherent value of animals in and of themselves. He also discusses how the prohibition against causing animals pain is balanced in Jewish sources by human need. This balance affects not only our use of animals, but also Jewish rules regarding eating their flesh, with a persistent minority urging vegetarianism. He then turns to two responsibilities that humans have to animals according to the Jewish tradition—to preserve compassion toward them and to guard them from abuse produced by economic motives. In general, as Gross demonstrates, Jews are required to provide animals with both a good life and a good death. This requirement, in Gross’s view, argues against many modern factory farming methods.

Alyssa Gray describes a Jewish ethic of speech. American law, in particular, has very few limitations about what one can say to or about another without incurring legal sanctions for libel, slander, or endangering others. That is because of the First Amendment’s guarantee of free speech, which, especially in recent U.S. Supreme Court decisions, has been expanded immensely. Jewish law is much more detailed and demanding in defining what people are not supposed to say. The list includes foul language, slander, and lies, as one might expect, but also oppressive speech, gossip, and even true but negative speech about others when the hearer had no practical need to know such things. On the other hand, Judaism also defines categories of speech that are holy, including vigorous debate of Jewish law, blessings, and plans for raising funds for charitable purposes. Jewish law also commands reproof of others and other forms of speech that are deemed beneficial for society, and it defines exactly when and how to engage in such speech.

The political situations in the United States and Israel raise such different questions for Jews that we have included two chapters on political ethics, one for each of those contexts. Jill Jacobs examines Jewish political ethics as it has emerged in the American setting. Unlike virtually all the places where Jews have lived throughout history, American Jews are full-fledged citizens, and some have taken leadership roles in both local and national politics, to say nothing of the professions, academia, and business. Jacobs describes four different approaches that Jews have taken to respond to this new reality: “(1) Jews should participate in American politics in service of Jewish self-interest; (2) Political participation replaces religion; (3) The United States is a step in the march toward messianic redemption; and (4) Jews should involve themselves in American politics, as Jews, for the betterment of all.” (p. 311) She describes each of these positions, quotes some representative spokespersons for each, and shows how each has influenced Jewish political ethics in America. She then illustrates how varying Jewish prayers for the nation articulate each of these approaches.

In Reuven Hammer’s essay the focus shifts to Israel. Because the modern State of Israel is the first Jewish state in close to two thousand years, it presents a whole new gamut of moral issues that Jews have not had to confront for centuries. Some of these concern the ethics of war, with which, unfortunately, Israel has had a plethora of experience. Asa Kasher addresses those issues in a later chapter of this volume. Hammer instead looks at the following issues: Who is a Jew to qualify for immediate citizenship under Israel’s Law of Return? Who may be married or buried as a Jew? How can Israel be both a Jewish state and a democratic state open to both Jews and non-Jews? What authority, if any, should classical Jewish law have in the Jewish state in contrast to laws legislated by the Knesset (the Israeli Parliament) and precedents used by judges (based largely on British Common Law together with decisions of Israeli courts from 1948 on)? How should Israel respond to the Palestinians claiming to be refugees driven from their lands in 1948, and what should it do with the large Arab population living in the West Bank that Israel conquered in the 1967 war? Can it remain a Jewish state and also a democracy if it retains the West Bank and then, in the not-too-distant future, the majority of the population is no longer Jewish?

Laurie Levenson explores Jewish criminal justice. She first discusses the rationales that make punishment moral and not just an exercise of sovereign power. She then addresses capital punishment, decreed for thirty-six different offenses in the Torah but made virtually inoperative by the Rabbis. She then turns to what makes a defendant criminally liable, describing the conceptions of causation, joint offenders, criminal intent, and defenses in Jewish law, and, with that foundation, she asks whether there is anything like a victimless crime in Jewish law. Finally, she points out the lessons that Western criminal justice today can learn from both the content and the processes of Jewish criminal law.

Asa Kasher addresses the situation in which all of the usual laws of society are obliterated—namely, war. Author of the Code of Ethics of the Israeli Defense Forces, he first describes what ancient and medieval Jewish sources tell us about the ethics of going to war (jus ad bellum) and of waging war (jus in bello)—especially Deuteronomy 20–21 and Maimonides’ code of Jewish law, the Mishneh Torah. Recognizing that until the founding of the modern State of Israel, Jews fought in armies governed by non-Jewish rulers, he then examines a nineteenth-century book intended to instruct Jews about how to act in military service. The overriding principle in that book as well as the few other Jewish treatments of the ethics of war during the last two thousand years, though, was “the law of the land is the law,” and that law was determined by the non-Jewish ruler. What happens, though, when Jews determine the law of the land? Kasher examines some Jewish writings published just before and after the establishment of the State of Israel that anticipate this issue. He then discusses the doctrine of “purity of arms” that has shaped (p. 312) Israeli military ethics, the role of the military rabbinate, the Code of Ethics that now governs Israel’s military actions, the ethics of fighting terrorism, and the ethics of seeking peace.

As was indicated in the Introduction to this volume, the specific topics included here in Part II surely do not exhaust the field of Jewish ethics. We can assure readers, however, that this volume gives them a good sense of some of the most prominent topics discussed in the field as well as the methodological tools for understanding the varying ways in which Jews gain guidance from their tradition with regard to both long-standing and completely new moral issues.

Notes

(1.) Louis E. Newman, “Woodchoppers and Respirators: The Problem of Interpretation in Contemporary Jewish Ethics, Modern Judaism 10:2 (February 1990), 17–42. Reprinted in Elliot N. Dorff and Louis E. Newman, Contemporary Jewish Ethics and Morality: A Reader (New York: Oxford University Press, 1995), 140–60.

(2.) M. Avot 1:17.

(3.) Louis Jacobs, Principles of the Jewish Faith (New York: Basic Books, 1964; republished, Northvale, NJ: Jason Aronson, 1988), ch. 3.

(4.) M. Avot 5:21.

Notes:

(1.) Louis E. Newman, “Woodchoppers and Respirators: The Problem of Interpretation in Contemporary Jewish Ethics, Modern Judaism 10:2 (February 1990), 17–42. Reprinted in Elliot N. Dorff and Louis E. Newman, Contemporary Jewish Ethics and Morality: A Reader (New York: Oxford University Press, 1995), 140–60.

(2.) M. Avot 1:17.

(3.) Louis Jacobs, Principles of the Jewish Faith (New York: Basic Books, 1964; republished, Northvale, NJ: Jason Aronson, 1988), ch. 3.

(46.) My thanks to both Jonathan Crane and my colleague John Kelsay for feedback on previous drafts of this chapter, as well as to spirited discussions with Jon Schofer over the last decade in which he taught me much about the multifaceted nature of Jewish ethics.