(More material added on May 30th.)
There is a famous story in the gemara (Shabbos 31a) about three prospective converts who each came to Shammai saying that they want to convert but only if he meets some absurd condition. In all three cases, Shammai turns them away, they go to Hillel, who accepts them, they convert and they drop their requirement. The gemara describes the second one as follows:
Again it happened that a non-Jew came before Shammai and said to him, “Make me a proselyte, on condition that you teach me the whole Torah while I stand on one foot.” Thereupon he pushed him away with the builder’s ammah-stick which was in his hand. When he went before Hillel, he said to him, “What you hate, do not do to your peer: that is the whole Torah, the rest is the commentary. Go and learn it.”
There is much to be said about the story. For example, the prospective convert uses the idiom “while I stand on one leg”, rather than saying “summarize”. And Hillel’s reply is to establish the whole Torah on one leg, on one principle. Perhaps Shammai’s response is that Torah is about the measures and sizes, and can’t be explained without all the details of the halakhah. That the Torah is about the legal structure that Hashem and the Jewish people build in a redemptive partnership (to describe it in terminology from Ish haHalakhah).
But the point that hit me this morning that motivated this post was something else.
Is there a natural morality, an innate sense of right and wrong? Somehow all of humanity labels theft and murder as evil. Everyone has a yeitzer hatov calling him to good and yeitzer hara pulling the other way. And yet, a tinoq shenishba, a child raised in a home devoid of Torah values, is judged more leniently because of that experience. We do not assume it’s innate in him as well.
Rav Soloveitchik notes on a number of occasions that every mitzvah in the Torah has an element of choq, of incomprehensible law followed purely because G-d said so — the opposite of a natural morality. For example, without the revelation of halakhah, would we know whether the concept of murder should or shouldn’t include abortion? What about euthanasia? At what point is a person already dead? Do you endanger many to save one life? Halakhah gives us the tools to make determinations that innate morality is not equipped to answer.
However, in other cases the halakhah is simply to do what’s right. “Be holy, for I Am holy”, which the Ramban famously explains as a prohibition against being “disgusting with [what would otherwise be] the permission of the Torah”. How does one define menuval, someone who is disgusting? “veAsisa hatov vehayashar — And you shall do the good and the straight.” It is presumed we have an innate definition of holiness, good, and rectitude that the Torah is commanding us to follow that extends beyond the other, more legally styled, mitzvos.
So, we are outright commanded to be moral in ways beyond those spelled out in legal terms. We must be holy, we must be tov veyashar. How are we to know what these mean? The case for a Natural Morality seems impeccable.
Natural morality is based on empathy. “What you hate, do not do to your peer.” In a somewhat flawed way, it drives the Notzri Golden Rule, as well as the Hindu concept of Karma. (The Golden Rule, by the way, would require my giving away all I own to the next person I meet, wait hand on foot on others, etc… Taken at its word, the creed is un-livable.) I know something is wrong because I wouldn’t like it — and I am aware of another’s pain when I do it to them.
Morality from empathy is limited, as we pointed out above. Even though there exists a simple underlying morality, it is being applied to a complex world. Results are often surprising and counterintuitive. And so, Hashem gave us a book and a process to help explicate the problem. Rather than trying to deduce behavior through that complex mapping of effects and side-effects, on impacts of things we can’t fully understand like our minds and souls, Hashem gives us a law, a set of applications. The relationship between halakhah and natural morality is that between quantum mechanics and endocrinology. It is theoretically possible to deduce endocrinology by studying the problem in terms of subatomic particles and the four basic forces. In practice, no one is up to the task, and an attempt to do is bound to occasionally lead to mistakes that are the direct opposite of reality. It is easier and more reliable to treat a diabetic by studying endocrinology directly.
However, even though it is limited, such natural morality is indispensible. In cases where the letter of all the specifically phrased halakhos permit, we may find that it allows disgusting, unholy, evil or perverted behaviors as we naturally understand the terms. These too are prohibited.
Particularly in the realm of interpersonal mitzvos, these must arise often. When exploring man’s relationship with Hashem, it is extremely difficult if possible to picture “what would we hateful to me” if I were (so to speak) in His Situation. However, when deciding whether or not someone should get paid, such analysis are actually tractable.
The Sho’eil uMeishiv 1:44 prohibits copyright violations on these grounds. Beyond simply “the law of the land is [Torah] law”, the obligation to observe local civil law (when not designed for persecuting Jews), he argues that any moral right defined by general society must be observed halachically. Once society recognizes intellectual property, it has halachic significance. I would argue that this too resides in the obligation to “do the good and the upright”.
I think the same must be kept in mind when looking at cases in the many English popularizations of the laws of finance and business. They give cases, often for the purpose of showing the non-intuitive result. However, I am not sure lenient non-intuitive results are real. How is getting away with not having to pay something you would expect on the gut level to pay qualify as “tov veyashar“?
Empathy gives general guidelines, but no tools for navigating the gray areas and the questions that involve conflicting values and priorities. Therefore one needs commentary to explain further. And that commentary one must “go and learn”. It goes beyond the innate. But it also doesn’t neglect the innate.