How Does Law Relate to Morals? by Rav B. Horovitz

Law is defined as body of rules binding on the members of a community, either by statute or by consent.  Morality from the Greek "mos, more," meaning "customs and habits" is defined as that which concerns the distinction between right and wrong in relations to actions, conditions and character, or as that which is concerned with vice and virtue. 

The Source 
Law is described as heteronomy; it is imposed form without.  Austin defines it as that which is made by legislature, decided upon by law-courts, by the state or by G-d. 

Morality is based on autonomy, which comes from within, the conscience and the character.  Therefore Institutional Law, which comes from outside, is often contrasted with Moral Law. 

The 'image of G-d' (Genesis 1:26) refers to the conscience which guides all men to follow morality.  In the history of Israel and the nations described in the Bible, they were often punished for transgressions, the wrongness of which was not revealed to them, for they should have followed their conscience.  This applies to the Deluge, the Tower of Babel, Sodom and Gommora, Amalek, Canaanites, the nations of Tyre, Assyria and Babylon, who were punished for crimes against human conscience.  Morality is, in a sense, the source of law, the source of knowing good from evil. 

Rabbinic legislation frequently draws upon moral reasoning as a source of law: "How do you know your blood (life) is worth more than that of your fellow man?"  Enactments were introduced 'to avoid hostility', 'on account of paths of peace', 'to improve society', or 'to safeguard women's rights'. 

On the other hand there were successive Revelations of laws to Adam (Genesis 2:16-17), Noah (Genesis 9:1-7), Abraham (Genesis 17:9-14) and the people Israel (Exodus 12 until the end Deuteronomy).  This is the Torah from G-d, revealed as 'the economy'. 

Both are necessary, for morality by itself is liable to perversion.  The conscience is easily led astray by emotions, and is clouded by the evil inclination. 

Therefore it its essential to have the Law. 

Michah (6:8) included all the Divine precepts under three headings: 
"It has been told to you, O man what is good, and what G-d asks from you: to do justice, to love kindness, and to walk humbly with your G-d".  These two phrases have been explained as follows: "It has been told you O man" -  by your inner conscience; "What G-d asks from you" refers to the laws given by Divine Revelation.  The Torah lies deep in the soul of Man.  G-d Who has given us a pattern of live, has placed in the soul of man, at least potentially, an understanding of that pattern.  "I have placed my Torah in their midst and I will write it upon their hearts"  (Jeremiah 31:32).  It is written on our hearts, and it is given into our midst, just as it is revealed to us from outside. 

"The word of the Torah is very near to you, in your mouth and in your heart so that you may do it" (Deut 30:12). 

Is there not a contradiction between the concept of virtue as moral autonomy and the heteronomy of a G-d-given law? 

The answer is in the Ethics of the Fathers, "You should make your will to be like the will of G-d".  You have to do it because G-d commanded you to do it, but you should try to bring yourself to the level where you so much identify with and understand the will of G-d, that you also do it out of your own free will. 

"My son, if your heart is wise, My heart also rejoices" (Proverbs 23:16).  This teaches us the harmony between the heteronomy of the Torah and the conscience of man.  G-d has given us the law which is inside ourselves.  Therefore "when you reach that wisdom then you fulfill My desire".  This identity between the will of man, his moral autonomy, expressed in his conscience, and the will of G-d, which is heteronomy expressed in the Torah, should be the aim of our lives. 

A person may be in a situation such that he does not feel like praying, so he says, G-d asks me to pray.  This experience brings him into a mood in which he wants, and is happy, to pray.  A person does not want to give charity, but G-d says he should make a habit of it until he brings himself to the level where he will want to give. 

It is written in Exodus, Chapter 23: "If you meet the animal of your enemy going astray you should return it to him.  If you see the ass of one whom you hate lying under its burden, you should hasten to his aid".  In Deutoronomy, Chapter 22 it says: "You should return your brother's animal and help your brother's animal which has fallen".  Why does it say in the earlier passage
 of the Torah "your enemy", and in the last book of the Torah "your brother"?  Why is there such a large separation between the two otherwise similar passages?  When beginning observance of precepts, you may not want to help your enemy, so the Torah says you have to help him.  Through
 frequent deeds of this nature and continuing right throughout the Torah and all the precepts, you will reach the level when your enemy will become like your brother and you will want to help him.  The Torah says: "Take on as a commandment even if it is difficult for you, and in the end, it will train you in doing kindness until your enemies become your brothers." 

This applies even to the statues which cannot be understood easily but also have an ethical purpose.  They also do no pose a contradiction between autonomy and the economy. 

The Torah discipline becomes a self-discipline, and what was at first a commandment ultimately becomes part of one's character.  It is also true that good characteristics lead to fulfillment of commandments.  The more moral qualities one has, the more precepts he wants to do: 

Sow a deed, reap a habit, 
Sow a habit, reap a character, 
Sow a character, reap a destiny. 

The Sphere 
What is the relationship between law and morality, from the point of view of their sphere? "Law should concern itself only with the prevention of harm to others" (John Stuart Mill); whereas morality pertains to the private life of the individual, such as personal ethics, suicide, sexual behavior with mutual consent. 

There are controversies now concerning the spheres of law and morality: some say that a distinction must be made between public and private morality; others maintain that some aspects of morality should also come under the realm of public laws, for society is composed of people who share certain moral values. 

"Unless a deliberate attempt is to be made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law's business.  To say this is not to condone or encourage private immorality" (Wolfenden Hart). 

"Societies disintegrate from within more frequently than they are broken up by external pressures.  There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code, as it does to preserve its government and other essential institutions".  (Lord Devlin) 

Judaism teaches the perfection and unity of life based on one G-d.  It makes no distinction between private public life.  Society is composed of individuals. Therefore it is a mistake to think that anything the individual does is purely private. It is bound in one way or another to affect other people. 

Furthermore, according to the Torah, the private individual is subject to law.  The distinction is made by certain thinkers between law and morality that sin is that which affects only the individual, while crime affects the community.  The Bible regards every sin as also being a crime.  "Justice belong to G-d", He is the One Who sanctions the law on earth.  If the individual's actions, whether private or public, are proven by testimony, it is possible to judge them in a court of law.  If not, true judgment is left to G-d. 

The law of the Torah (like nature) abhors a vacuum.  The Ten Commandments begin with "I am the L-rd your G-d", a matter of belief, a private matter, they continue with laws governing speech and action, individual and public, and end with the commandment not to covet that which belongs to another, a matter concerning others but committed in secret.  We see their the totality of Laws expressed in the Decalogue.  All spheres of life, adultery even if with consent, sexual perversions, come under the sphere of Jewish law. 

"You shall make known to them the way in which they shall go and the deeds which they shall do" (Exodus 18:20).  The Sages interpret that "the deed that they shall do" refers to the deed beyond the strict law, just as we are to act ethically beyond one's rights.  The Rabbinic concept is termed 'to go within the line of the law'.  What does this mean?  A person who has had damages inflicted upon him is certainly permitted by the law to claim damages.  However, if the damager is poor, then the damaged person should have compassion and not make a claim. 

The law is like a circle and therefore going beyond the law is describes as going according to the spirit of the law, within the circle.  Even if one fulfills the law externally on may miss the internal spirit which is to fulfill justice.  Therefore one should go inside the core of the law, the spirit of the law, in order to fulfill the true dictates of justice.  But the distinction between the law itself and the concept of 'within the line of the law' is that the latter is left up to the conscience and has to be judged subjectively, according to the circumstances. 

"You should be holy" (Leviticus 19:20).  The Torah has commanded us to refrain from forbidden foods and has permitted meat and wine.  A person who has base desires could still be immoral, could still become a glutton and a drunkard.  Therefore it says at the conclusion of all the prohibitions that one should be holy.  A person will thus guard himself from eating like a glutton in a despicable manner.  In relation to our fellow man we are told that it is wrong to steal and lie.  Then the Torah says "you should do that which is the right and good" (Deut 6:18) so that we should go beyond the letter of the law in our relations with our fellow man. 

The Talmud relates that Rabba bar Bar Hana asked porters to transportbarrels of wine from one place to another.  They broke them on the way and wine was lost.  He took their coats as a pledge.  They complained to Rav that they could not pay him as they had no money.  Rav said to Rabba bar Bar Hana, "Give them back their coats".  Said Rabba bar Bar Hana, "Is that the law?" Answered Rav, This is indeed the law for it is written: "You shall go in the ways of the good."  (Proverbs 2:20)" He gave them back their coats. They came back to Rav and complained that they were hungry and Rabba bar Bar Hana had not paid them wages.  Rav then told him to pay them.  He asked "Is that the law?"  Said Rav, "Yes, for it is said 'you must keep to the paths of the righteous' (ibid.).:  The code of Law stipulates that if you cause someone a loss of wine or any other article, you must pay.  How could Rav tell him otherwise?  The law however is that one must go further than the law and a person as saintly and learned as Rabba bar Bar Hana had to apply compassion. 

The Manner of Application 
This distinction is defined as follows: Law is that which is to be enforced by courts according to sanctions attached to penalty (Hans Kelsen), unlike morality which is right behavior which cannot be enforced. 

However, there are Biblical laws which are not capable of being settled in the courts, and for which there is no direct enforceable penalty, but they are subject only to heavenly punishment.  There are also many laws in the Torah to which no penalty is attached: transgressions which do not involve action, do not have any penalty at the hands of man, neither any expressed penalty from Heaven.  In civil law there are cases where a person is guilty to Heaven but cannot be punished by a human court.  Four example, he who has stolen but does not know from whom.  He should pay both according to "The Laws of Heaven."  If a person has not made acquisition, but has made a verbal agreement which he did not keep, then he is liable to admonition declared by the courts that "The One who punished the Generation of the Flood. The people at the Tower of Babel and Sodom and Gomorrah, He will punish him who does not keep to his word." 

There are many instances of this distinction between laws enforced by the courts and morality which cannot be enforced by the courts, but are still conveyed to the public through declarations of the judges and through education. 

The Attitude 
Law adopts the aspect of social convenience whereas the moral attitude views life from the aspect of virtue and the inner conscience of man.  Law deals with contracts and rights, morality with duties.  Law is there to protect the oppressed, morality is there to protect the oppressor... from his own evil nature.  The legal attitude has produced the economic man who follows utility, but the moral attitude has produced the moral man who follows intrinsic virtue. 

Jewish law is pervaded by the moral attitude.  Duties are given priority over rights.  For example, the Talmudic emphasis is not to say that the creditor has the right to the money owed to him but that the debtor has the obligation and mitzvah to repay his benefactor, even if the creditor does not claim the money.  Similarly, a person must be more careful not to cause damage than to become damaged.  Rabbi Akiva said: you shall love your neighbor as yourself, is a great principle in the Torah".  In civil law of the Torah, emphasis is on love of one's fellow man duties towards him.  Most other legal systems are pervaded by the concept of the rights and claims of individual upon others. 

The Value Relationship 
The basis of law is morality.  The law presupposes that the people should have a feeling of gratitude.  G-d asks us to remember that He is the One Who brought us out from Egypt, that He created us so that we may observe His Torah.  Gratitude produces the motivation to observe the Law. 

Secondly, the fulfillment of law should be preceded by morality.  The Sages say: moral behavior (Derech Eretz) must come before the fulfillment of the commandments of the Torah; that is why the first book of the Pentateuch deals primarily with the morals to be learned form the lives of the patriarchs, "the deeds of the forefathers are a sight to the children how they should live".  This is also why the Ethics of the Fathers was given its name - because ethics are the "fathers" of the fulfillment of the Torah Law.  "The ways of the Lord are upright.  The righteous will walk forward (progress) in them, but the wicked will stumble in them" (Hosea 16:10).  Those who do not prepare themselves morally and keep the outer aspects of the Law, abuses it.  "Moral qualities are essential preparations for the Mitzvoth".  (R.C. Vital)  "Let my teaching drop down like rainfall". (Deut. 32:2)  If there are weeds in the ground and rain falls, not only will the beautiful flowers grow, but also the weeds.  The same applies to character.  The study of the fulfillment of Torah-law produces growth of the total personality, so it is essential to weed out evil characteristics form one's personality, otherwise they will grow. 

Thirdly, morality is necessary to perfect man's life in addition to his observance of the law.  "Know G-d in all you ways" (Proverbs 3:6) - you must not only know Him while you are studying the Torah or fulfilling the Mitzvoth, or praying - your worldly behavior should be pervaded by the purpose of knowing G-d, of becoming a better person. 

Fourthly, the purpose of law is morality.  "The word of the L-rd is purified" (Psalms 18:31).  The Torah was given for the purpose of purification of character.  The Rabbis declared that G-d wished to bring purification to Israel.  Therefore He gave us a large Torah-law.  With so many details, each of which can assist in our moral purification. 

The law and morality of the Torah become unified: the basis and prior condition for the Torah-law is morality; the purpose of the Torah is morality; morality complements the law of the Torah; and the whole of the Torah is permeated with moral principles.  If man follows the direction of the laws of the Torah he will reach the highest level of morality.