October 26th: Va’yera
THIS WEEK IN THE TORAH
Rabbi David E. Ostrich
Back in the Clarence Thomas Supreme Court Confirmation Hearings (1991), before the whole Anita Hill and Sexual Harassment controversy, the big issue challenging then-Judge Thomas was his belief in Natural Law. Trained in the Catholic faith and legal tradition, Judge Thomas learned about, believed in, and taught this approach to law. The concern by those opposed to his confirmation was that he would be judging based not on the Constitution and Laws of the United States, but on this other legal tradition, Natural Law. It seemed like a real challenge, but then people discovered what Natural Law is: the notion that some qualities of right or wrong spring from the very nature of existence—and not because a deity or ruler decrees them. Originally discussed by ancient Greek philosophers, it became a rather extensive conversation in both Rabbinic Judaism and in the developing Canonical Law tradition of Christianity. At the end of the day, it is not a rival legal tradition but an expansive discussion of what many would call common sense: you don’t need a decree or sacred text to know that stealing and murder are wrong, and that justice and compassion are right.
The Greek philosophers and the Christian Fathers were concerned with morality and the legitimacy of authority. What would happen if someone legally or religiously in-command gave an unjust order or judgment? Does the legality of the authority make the unjust just, or is there a sense of justice or morality above and beyond the authority of a human ruler or bishop?
The Rabbis also addressed this Natural Law, and their concern was in regard to the categories of universal morality and Jewish morality. Given that God has special rules for Jews—human beings who, by virtue of a covenant, are obligated for special behavior, what about the non-Jews? Are there any non-covenantal expectations for them? The Rabbis resolve this question by inventing/concocting a covenant with all humanity—one established between God and Noah after the Flood. Though not phrased in the Natural Law terminology of a non-authority-based sense of right and wrong, the Noachide Covenant was a Rabbinic invention to establish a basic set of principles and behaviors applicable to all human beings—everyone descended from those who survived the Flood.
As for the questions of the Greek philosophers and the Christian Fathers, the Rabbis had excellent guidance from the Torah—specifically the encounter this week between Abraham and God in re the fate of Sodom and Gomorrah.
In Genesis 18, God decides to discuss the Sodom and Gomorrah situation with Abraham. God’s reasoning is that: “Abraham is destined to be a great and populous nation and to bless all the nations of the earth” with his moral and religious message. God “singled him out so that he could instruct his descendants to keep the way of the Lord by doing what is just and right.”
Genesis 18.17-19) It is not so much that God wants to check with Abraham to see if the Divine Plan is okay. Rather, God wants the moral instructor of the world to understand the Divine way and the Divine actions so that he can explain them to everyone else.
However, when God does run the plan by Abraham, Abraham voices a challenge: “Will You sweep away the innocent along with the guilty? What if there should be fifty innocent within the city; will You then wipe out the place and not forgive it for the sake of the innocent fifty who are in it? Far be from You to do such a thing, to bring death upon the innocent as well as the guilty, so that innocent and guilty fare alike. Far be it from You! Shall not the Judge of all the earth deal justly?!” (Genesis 18.23-25) Despite this challenge, which some could consider impudent, God goes along with Abraham’s logic.
At this point, there are two ways to look at the story. If the Torah is written by (or dictated by) God, then we have God going along with this expectation—that God, being God, will not and cannot do something unjust. God is agreeing with the sense of right and wrong that is above even the Divine. One could even say that God is constituted so that God’s Will would never, ever want to do something unjust. If, on the other hand, the Torah is written by humans, then we have them writing that God goes along with this expectation of fairness and justice. Either way you approach the story, we have the Torah setting up the expectation that a sense of morality exists above any Divine capriciousness or whimsy. God only does justice! This is a way of stating what others call Natural Law.
While the Torah states this directly, the Rabbis enhance the lesson with an interesting Midrash on the previous passage—the one where Abraham is visited by God and two angels. As you may remember, Abraham invites the Divine visitors into his tent and offers them lunch. “He took curds and milk and the calf that had been prepared and set them before the visitors, and he waited on them under the tree as they ate.” (Genesis 18.8) The koshi (difficulty) is that Abraham appears to be serving a non-kosher meal, mixing dairy and meat products. The historical answer is that the laws of Kashrut were not yet given—Sinai being some 700 years in the future—AND that the particular institution of not mixing dairy and meat might have been a much later development. In other words, Abraham did not keep Kosher because Kashrut had not yet been invented. However, the Sages could not imagine the founder of Judaism not keeping Kosher. And, they found a needle to thread to support their intuition: notice the order of Abraham’s menu. The dairy is served first, and the calf is served second. If it takes a long time to prepare (slaughter, butcher, roast, etc.) the calf, it would mean a suitable interval between the two types of food. Of course, they reasoned, Abraham kept Kosher, and the Torah proves it. This is cute, but the profundity follows. Halachah, the Rabbis teach, is not just an arbitrary set of rules imposed by God on us. No, Halachah is naturally the way life should be lived; its principles and details emerge from the design of the natural world—making it a kind of Natural Law. Yes, God revealed and commanded it later, but a perceptive and spiritual person like Abraham should be able to derive every bit of Halachah from a careful observation of the created world. Abraham does not need the Revelation on Mount Sinai to know about Kashrut or any other part of Halachah; he knows it already because he is a keen and reverent observer of the created world.
Is there a morality that emanates from the Creation? Are there truths that are self-evident? According to the ancient Rabbis, and many Greek philosophers, and the Church Fathers, the answer is Yes. So, whether from revelation or tradition or a deep reading of reality, we should know how to behave justly and compassionately. We were created that way.