Alan Jotkowitz
Book Review of Rabbi Aharon Lichtenstein, Values in Halakha: Six Case Studies, ed. Reuven Ziegler (Jerusalem: Maggid Books, 2023).
It is always a cause for celebration when a new book by Rabbi Aharon Lichtenstein appears, and this new book certainly does not disappoint. It is a collection of six essays broadly concerned with Jewish ethics. The first four were written while he was a research fellow at Yeshiva University’s Israel Rogosin Center for Ethics and Human Values in the 1960s, and the last two are English translations of two articles published in 1972 and 1980 respectively. These essays should be considered in the context of other essays he has written on similar topics, such as “Does Judaism Recognize an Ethic Independent of Halakhah?”[1] and “The Human and Social Factor in Halakhah.”[2]
Taken as a whole, these essays confirm that R. Lichtenstein’s most important contribution to Jewish thought is the relationship of halakhah to ethics, as this is a recurring theme in all of the essays. The variety of sources that R. Lichtenstein quotes, which can be appreciated by a quick look at the book’s bibliography, is awe-inspiring and a testament to his singular command of both the Torah and Western cannon. In the course of the book’s pages, we meet, for example: Irving Babbitt, Walter Bagehot, Herschel Baker, Jeremy Bentham, Nicolas Berdyaev, Napoleon, Dietrich Bonhoeffer,[3] Eugene Borowitz, John Bramhall, Richard Brandt, Emil Bruner, Martin Buber, and Douglas Bush.[4] The essays were written at a time when he was actively involved in both the Torah and academic worlds, having recently completed his doctorate in English Literature at Harvard. It is also interesting to note that he quotes and relates to the work of two leaders of Reform Judaism, Solomon Freehof and Eugene Borowitz, which would be unusual in today’s highly fragmented and divided Jewish world.
In a style which is unusual for R. Lichtenstein, he uses the responsa literature of the early Modern period as a starting point for the first three essays in the book, and begins the essays with biographies of their authors, Rema and Havvot Ya’ir. R. Lichtenstein rarely highlighted historical context in his shiurim, and I am not sure why he chose to do so here. Perhaps it is related to the mission of the Rogoson Institute or perhaps R. Lichtenstein himself wanted to emphasize that these issues had practical import and were not merely theoretical.
R. Lichtenstein himself nicely summarizes the interplay between ethics and halakhah, which is the main theme of the book:
As regards ethical theory, it can be said with equal justice that every man is–albeit not necessarily born–an absolutist or a relativist… Historically, the Jewish position on this question has been unmistakably clear, radical and unequivocal commitment to absolute truth and absolute values… How much more difficult, however, is the ethical challenge confronting the halakhist… The fissure that time inevitably creates between elements of the ideal halakhic system and the particular reality to which they initially related; special circumstances surrounding a specific case even when the overall scene has remained unchanged; the difficulty of employing a legal system–whose demands may, in the nature of things, often be minimal–as a general guide to ethical conduct the interplay of technical and substantive elements within Halakha–all severely task the ethical insight of the halakhist on the one hand and his intellectual capacity on the other.[5]
The first case in the book discusses one of Rema’s famous teshuvot, where he allowed the wedding of an orphan bride to take place on Shabbat (against the apparent rabbinic decree forbidding weddings on Shabbat) for fear that the wedding would be canceled and the girl would never get married. As R. Lichtenstein points out, there are two main thrusts to Rema’s lenient ruling against the conventional position. On the one hand, Rema maintains that, according to conventional halakhic methodology (based on a singular position of Rabbenu Tam), there is no rabbinic prohibition to marry on Shabbat in the case at hand. And even if one disagrees with Rabbenu Tam (as most Rishonim do), there are three possible reasons why the prohibition should be overridden in this case. First, there is the principle that the preservation of human dignity and the prevention of personal shame can override rabbinic prohibitions.[6] Second, Rema maintains, there is a license to violate certain laws in the interest of marital peace. Rema’s third basis for leniency is his assertion that there are instances where certain prohibitions can be set aside in order to fulfill the mitzvah of procreation.
The second case R. Lichtenstein discusses is an analysis of a responsum of Havvot Ya’ir about whether a group of textile merchants can enforce an agreement amongst themselves to set aside the prohibition of hassagat gevul (unfair competition). Havvot Ya’ir attacks the arrangement on both legal and moral grounds. Legally, the agreement might be invalid due to either asmakhta, commitment grounded upon misconception, or davar shelo ba la-olam, the halakhah that nonexistent objects cannot be sold. Notwithstanding the halakhic weakness of those two arguments, he forbids it for moral reasons: “For undoubtedly, as a result of it being regarded by you as lawful, turmoil, strife, recrimination, and desecration of God’s name will increase manifold from what had been, until your homes will be filled with iniquity.”[7]
In a sense, the cases that R. Lichtenstein chose to discuss are easier to deal with because both cases relate primarily to rabbinic prohibitions.[8] The more difficult case is what happens when there is a clash between personal hardships and Torah prohibitions? While R. Lichtenstein does not address that here, he does deal with this issue in one of his other essays. Regarding abortion, R. Lichtenstein writes:
The question of abortion involves areas in which the halakhic details are not clearly fleshed out in the Talmud and Rishonim, and in addition the personal circumstances are often complex and perplexing. In such areas there is room and in my opinion an obligation for a measure of flexibility. A sensitive posek recognizes the gravity of the personal situation and the seriousness of the halakhic factors…He may reach for a different kind of equilibrium in assessing the views of his predecessors, sometimes allowing far-reaching positions to carry great weight and other times ignoring them completely. He might stretch the halakhic limits of leniency where serious domestic tragedy looms, or hold firm to the strict interpretation of the law, when as he reads the situation, the pressure for leniency stems from frivolous attitudes and reflects a debased moral compass.[9]
While R. Lichtenstein’s discussion is purely hypothetical, another prominent posek addressed the conflict head on using some of the methodologies suggested by R. Lichtenstein. In one of his responsa, Rav Ovadia Yosef was willing to be lenient even against the rulings of Shulhan Arukh if there was a pressing need. He was asked about a woman who, when she was younger, had been living together with a man, became pregnant, and had a late-term abortion. She subsequently became a ba’alat teshuvah, married a yeshiva student, and gave birth to a son. According to halakhah, since she was previously pregnant with a late term fetus, a pidyon habein should not be performed. Her husband, however, was not aware of her previous pregnancy. The question arose as to whether she was required to tell her husband in order to prevent him from the sin of berakhot le-vatalah at the pidyon habein. If she were to tell her husband about her past life, she was concerned that it would destroy shelom bayit and would cause great conflict between them, and might even lead to divorce. Notwithstanding the fact that Shulhan Arukh maintained that berakhah le-vatalah is a Torah prohibition, to protect the woman from embarrassment, R. Yosef ruled that the pidyon habein should be done with all the normal berakhot. Peace between husband and wife, he maintained, is the higher value, because “even God’s name can be erased for it.”[10]
R. Lichtenstein summarized the issue as follows:
To the posek, however, fidelity to Halakah may be not only difficult but agonizing. Inevitably, he is periodically confronted by situations in which Halakha comes into apparent conflict with human needs – not simply with shallow utilitarian desires, but with generally worthwhile needs. Under these circumstances, the process of decision can be soul searing. The sacrifices – and they can be enormous – which he may be ready and willing to make himself, he is morally, and psychologically, reluctant to exact from others. The price of decision becomes therefore – quite apart from the specific issue being decided – a moment of truth, an ethical and religious problem in its own right. Were the posek less committed to Halakha, less aware of his responsibility to the observance and preservation of divine law, there would be no problem…were he less sensitive to human need, there would, again, be no problem. It is the ethical and religious desire to be sensitive to both the halakhic and human dimension – or rather to be sensitive to their interaction – which produces a profoundly agonizing dilemma.[11]
My favorite page in the book is the last page of the article The Concept of Lifnim Mishurat Hadin.[12] For various reasons, R. Lichtenstein did not complete the essay, but he did leave an outline for the rest of the chapter. I am glad the editor included it in the volume, as it is a wonderful opportunity to see the thought process of a Torah giant and profound thinker. The outline fascinatingly extends the principle of lifnim mi-shurat ha-din to bein adam la-Makom and the role of the voluntary in the world of halakhah. R. Lichtenstein’s Torah shiurim are distinguished by their organization and clarity, and this outline allows one to see the same process in how he puts together his academic essays as well.
The essay Pursuit of Self Interest contains R. Lichtenstein’s most extensive discussion of the theological and philosophical implications of the famous disagreement between Ben Petora and Rabbi Akiva on whether one can save one’s own life at the expense of another’s (Bava Metzia 62a). It is here that R. Akiva introduces the principle of hayekha kodmin, “your life takes precedence,” and that therefore one is not required to give up one’s own life for the sake of another. R. Lichtenstein contends that in certain instances, such as the case R. Akiva was discussing, self-interest can be wholly untainted, and Ben Petora’s position is one of supreme heroism, despite normative halakhah following R. Akiva. He relates this to the general question of the halakhah’s relationship to self-interest and how far this principle extends, discussing how R. Akiva’s principle of self-interest might apply to communal and public policy issues.[13]
I would like to conclude with three brief points. First, the question needs to be asked whether the book is still relevant. The majority of the book was written sixty years ago. R. Lichtenstein himself addressed the issue in an introduction to a prior printing of one of the chapters (which was reprinted in this volume as well):
Were the issues still significantly relevant? Had not some been the subjects of thorough monographs? Might not some of the material appear dated, once familiar allusions now anachronistic, on the one hand, and the failure to relate to more recent expressions of the Zeitgeist all too evident, on the other? With respect to this particular essay, for instance, hadn’t the role of classical humanism in relation to Torah Judaism, as ally or adversary, receded substantially during the past generation?[14]
I believe the answer to R. Lichtenstein’s questions is a resounding “yes.” The issues discussed in the book, particularly the relationship between Torah, ethics, and morality, are perhaps even more relevant than when R. Lichtenstein first wrote these essays, due to political, sociological, and cultural changes which have occurred in the Dati-Le’umi and Modern Orthodox worlds. There seems to be less of an interest in intensive engagement with Western liberal thought in general and Torah u-Madda in particular.
Second, while these essays are important contributions to Jewish thought and will be studied for many years, anyone who has had any contact with R. Lichtenstein will know that they are not his primary legacy or contribution to the Jewish corpus. Far more important are the shiurim he gave in Yeshivat Har Etzion and Yeshiva University and the thousands of students he produced in over fifty years of teaching Torah.
And finally, for this reader, there was an element of sadness in reading these magnificent essays. Alas, in our impoverished generation there is no gadol alive whom we can even imagine writing a book like this. In these divisive and confusing times, we are sorely missing R. Lichtenstein’s moral and ethical guidance and clarity steeped in the Torah he loved. Notwithstanding our loss, the publication of this book does a great service to his memory and can help guide and teach an orphaned generation.
[1] Aharon Lichtenstein, Leaves of Faith Vol. 2 (Jersey City: Ktav, 2004), 33-56.
[2] Aharon Lichtenstein, Leaves of Faith Vol. 1 (Jersey City: Ktav, 2003), 159-188.
[3] A Protestant theologian killed by the Nazis for resisting the regime, and one of R. Lichtenstein’s personal heroes. I remember R. Lichtenstein giving me a biography of him and suggesting I read his work.
[4] R. Lichtenstein’s PhD advisor at Harvard. For a moving account of their relationship see:
[5] Aharon Lichtenstein, Values in Halakha (Jerusalem: Maggid, 2023), 134-5.
[6] See Berakhot 19b.
[7] Responsa Havvot Ya’ir 163.
[8] The Biblical prohibition of hassagat gevul refers to the literal moving of land boundaries. The application to business competition is rabbinic in nature.
[9] Aharon Lichtenstein, “Abortion: A Halakhic Perspective,” in Leaves of Faith Vol. 2 (Jersey City, NJ: Ktav, 2004), 251.
[10] Responsa Yabi’a Omer Vol. 8, Yoreh Deah 32.
[11] Aharon Lichtenstein, Values in Halakha (Jerusalem: Maggid, 2023), 3-4.
[12] Ibid., 275.
[13] Ibid., 191-199.
[14] Ibid., xii.
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