Halakhah and Virtue Ethics
In 1967 Phillippa Foote raised a thought experiment philosophers call the Runaway Trolly Problem. Here is how wikipedia describes it:
There is a runaway trolley barreling down the railway tracks. Ahead, on the tracks, there are five people tied up and unable to move. The trolley is headed straight for them. You are standing some distance off in the train yard, next to a lever. If you pull this lever, the trolley will switch to a different set of tracks. However, you notice that there is one person on the side track. You have two options: (1) Do nothing, and the trolley kills the five people on the main track. (2) Pull the lever, diverting the trolley onto the side track where it will kill one person. Which is the correct choice?
Rav Aharon Rakeffet-Rothkoff tells a horrifying real life parallel from the first Lebanon War. The IDF cleared out a building, and sent some soldiers in to make sure it was entirely empty. The few soldiers make it to the top of the building, radio back that all is clear. The commanding officer then sends in dozens of soldiers to use the building as a base of attack. The enemy was waiting for just this moment and implode the building. The commanding office now has a choice: he could save the few soldiers at the top of the heap, but in the time it takes to do so, the far greater number of soldiers underneath would die. On the other hand, he could bulldoze away the few, and thereby be able to save far many — but by literally killing some of his men. He turns to you, the rabbi on the scene. What do you advise?
These kind of questions differentiate the three biggest families of ethical theories:
Consequentialism proposes that the moral choice is the one that gets the best consequences possible. In the case of the runaway trolley (the Lebanon story is just too painful to think about), it would choose actively killing one person over standing by and letting five people die.
The problem with this approach to ethics is that it would advise stealing from the rich to feed the poor, as what the rich lose by taking their money is far outweighed by providing the poor some much-needed food. A many of us would not accept as ethical. (Unless, perhaps, we were convinced the wealth was ill-gotten.)
The other common general approach is Deontology — the idea that ethics is based on right behaviors. If the consequentialist is looking to minimize the number of victims, the deontologist wants to minimize the number of criminals.
A third and distant runner up is Virtue Ethics, that ethical choice is the one that fosters virtue. Here, we are trying to minimize the human capacity to commit crime. Because both Deontology and Virtue Ethics look at ethics from the perspective of the person committing the act, the resulting decisions are often the same. For example, both would advise against pulling the switch on the Runaway Trolley, and both would be against stealing from the rich to support the poor.
The textbook case in halakhah that of Sheva ben Bikhri (Shemuel II ch 20). Sheva ben Bichri rebelled against King David. Yoav led David’s army to besiege the city where he was hiding. Some women in the city convinced their peers to save the rest of the city by killing the rebel and turn over his body to the army — thus ending the siege.
From it, the gemara (Sanhedrin 72b, Y-mi Terumos 8:4) concludes that if attackers come to a caravan and demand that a particular person be turned in to them or all will be killed, you may. According to Reish Laqish, only if he is deserving of death according to halakhah, as in the case of Sheva ben Bichri. According to R’ Yochanan, as long as the attackers name any particular individual. But if they do not specify a person, forcing the people in the caravan to choose, you do not.
This defies pragmatic reasoning. After all, by not choosing whom to turn over, everyone gets killed, including whomever would have been turned in.
Apparently, the halakhah is deontological; it cares more about not taking part in someone else’s murder more than how many people die. Within that, Rav Yochanan and Reish Laqish argue over how much of a hand in a person’s death warrants choosing one’s own death rather than being involved. Reish Laqish does not allow any participation, barring the named person deserving death anyway. The Rambam (Yesodei haTorah 5:5) holds like Reish Laqish. Rav Yochanan holds that choosing a victim is a problem, but being forced to play a part in someone else’s murder scheme without making any decisions of one’s own is permissible.
The Rama uses this idea to explain why it is permitted to abort a fetus when leaving the child alone they would both die. (See also Rashi on Sanhedrin ad loc. ) A non-viable child is like one the attackers already singled out for death..
This is probably a consequence of the conflict between personalized Divine Providence and free will. Does Abe’s actions determine Ben’s fate, or does Ben’s life run exactly as per Hashem’s Will?
In order for a consequentialist approach to make sense, we would have to say that whether or not Abe succeeds in stealing from Ben depends on Abe’s choices. Which is why Abe has to decide whether or not to inflict that on Ben. And there is a famous Ohr haChaim cited to show that to some extent that’s true. He says that the brothers threw Yoseif into a pit rather than kill him outright to give “room” for Divine Justice to save him if their decision was unjust. Implying that had they just killed him, he could have died despite Providence. The Rambam also discusses a sliding scale relating how much Providence a person receives to the quality of their knowledge of G-d (Moreh 3:18).
But most rishonim believe that every event in a person’s life is the product of Providence. And contemporary Jewish thought (as elaborated by both the Baal Shem Tov and the Gra) goes further and suggests this is true even of events that do not touch people’s lives. But this notion of Providence creates a disconnect between my choice of action and its impact on others. I must do what I must do; it’s Hashem’s job to script how that changes others’ lives, whether I succeed or fail, unintended consequences, etc…
Therefore I cannot judge an act by its consequences on others, I instead judge it by how the act impacts me — whether because of a deontological notion of rules or a the self-reinforcing ways of expressing or violating virtues.
Hillel famously told the conversion candidate, “That which you loathe, do not do to others. That is the entire Torah. Now go and study!” One obviously can’t figure out on their own the laws of separation on Shabbos from the simple value of not doing to others of things things you wouldn’t like. There is a lot of “Go and study.”
The vast majority of halakhah is like this. We are not given a set of laws, we are given an Oral Torah, a process for decision-making. The debates of the tannaim, of the amoraim, the understandings of the Rif, the Rambam, the Rosh, the Tur, the Beis Yoseif, the Shulchan Arukh and Rama, Shach, Taz, Rabbi Aqiva Eiger, Chida… down through the ages draw a complex picture. A set of conflicting tendencies more than a definitive law. This is why we study the gemara rather than the Rif’s selection of its conclusions.
The Torah’s nature is inherently dialectic; there is the value in the study of the dialog that leads to the rulings, the conclusions are not definitive statements that stand on their own. We are invited to consider nuance and alternative. To submerge ourselves into the process. The Maharal objected to the Shulchan Arukh’s codification of the law because it took the masses away from that discussion, from trying to understand the why behind the ruling. But once the page of Shulchan Arukh itself became a discussion, the objecting voices ceased.
This speaks to halakhah having more of a Value Ethical basis than Deontology. We aren’t asked to become rule-following beings. We are asked to internalize the reason and motive of the laws. Clarity of the directives are less important than illustration and internalization of the underlying virtue.
We find this in Shaarei Yosher as well. What is a text about how to decide dilemmas in halakhah, cases where it is unclear how to apply the law has an introduction that is a discussion of virtue — “that it be the greatest of our desires to benefit others”. And then he proceeds to analyze conflicts in virtues — holiness and commitment to the other vs. “chayekha qodmin — your life comes first”, that in the case of only have enough water in the desert to save one, you are supposed to place yourself first, and when it comes to disbursing tzedaqah “aniyei irekha qodmin — the poor of your own city come first.” As Rabbi Binyamin Hecht puts it, the obligation to feed the poor doesn’t mean that until every child on the planet has food on their plate I should be putting my money there rather than ever buying my child a toy.
Values conflict. Or, as R JB Soloveitchik would put it, we need to engage in the dialectic between these conflicting values; and halakhah gives us the tools to do so. Once the Torah was given to man, “lo bashamayim hi — it is not in the heavens” to be decided by miracles or angelic voices. Part of the redemptive power of halakhah is our grappling with the issues of its underlying values, so that we do not obey a deontological ethic, but internalize a values one.