5754 - #10

In explaining the story of Yehuda and Tamar, Rambam, Moreh Nevuchim 3:49 states the following:

Before the giving of the Torah sexual intercourse with a harlot was regarded in the same way as sexual intercourse with one's wife is regarded after the giving of the Torah. I mean to say that it was a permitted act that did not by any means arouse repugnance. The payment of the hire that was agreed upon to a harlot was in that time something similar to the payment now of a wife's dowry when she is divorced, I mean that it was one of the rights of the woman with regard to which the man had to discharge his obligation. (Translation by S. Pines)

With these words (echoed, somewhat, in Mishneh Torah, Hilchot Ishut 1:4; see also Maggid Mishna), Rambam challenges us to consider the entire issue of morality.

There are other approaches, based on Bereishit Rabbah 85:8, that perceive Yehuda as being directed by the Divine and, therefore, there is no challenge to morality's consistency. See, for example, Or HaChaim, Bereishit 49:3,9. Rambam's view, however, is shared by many other commentaries. Rabbi Shimshon Raphael Hirsch, Bereishit 38:1 seems to apply a developmental approach to this issue, a method used by Rambam himself in presenting reasons for many mitzvot. Morality is absolute but man, through time, had to be educated to abide by the ultimate standard. While harlotry is objectively unacceptable, in Yehuda's time it was not yet formally forbidden as that generation was not on the appropriate level. The problem with this approach, though, is that it does not fit into the language of Rambam.

Yalkut Me'am Lo'ez, Bereishit 38:16 answers, directly: there is no problem for morality is solely defined by the Torah command. It is the very statement of mitzvah that yields morality, not an underlying value we perceive to generate the mitzvah. These concerns, even regarding temporality and absoluteness are irrelevant; these perceived moral attitudes only place parameters on the Torah standard. Znut (promiscuity) and ishut (marriage) are distinguished only because the Torah so defines - and when the Torah does not so define, there is no distinction. It is the Torah statement of prohibition and permission itself, not the value of the inherent act, that is the guide to the moral reaction and the fact that this command could have changed provides no reason for concern.

Many authorities, however, argue for the significance of a moral attitude underlying the command. See Rabbi Aharon Lichtenstein, "Does Jewish tradition recognize an ethic independent of Halacha?", Encounter pp. 76-100 (as well as other works in that book) and Rabbi Shubert Spero, Morality, Halakha and the Jewish Tradition. Ta'amei hamitzvot, in fact, can only have validity if there is a standard and/or purpose by which to explain the Torah. While the limitations placed on this investigation gives strength to the position of the Me'am Lo'ez, the fact that this analysis is undertaken challenges it. To many commentators, the moral response, ultimately, is to the inherent act not simply the reality of command. So how does harlotry with its strong ethical reaction switch between black and white? With Yaacov's marrying of two sisters or erecting of bamot, we may be satisfied with an explanation that he lived before Sinai (notwithstanding the midrashic statement that the Avot followed Torah). In those cases, we lack a strong internal ethical response and are more willing to accept the parameters of command. The lack of moral reaction is perceived as declaring there not to be an inherent problem with the act. The allowance or prohibition is perceived as arising from other factors; thus a distinction of before Sinai and after is more plausible. With harlotry and its strong internal moral responses however, we believe that the moral statement goes beyond the parameters of mitzvah to indicate a judgement of the inherent act. How could that be different pre- and post-Sinai?

How are we so sure, though, that our reaction to harlotry is so independent of the halachic process? It may be that our ethical response is simply a development of thousands of years of Torah. Yet, not all mitzvot have developed this moral emotion. Ultimately therein lies our question. What is the nature, meaning and purpose of that internal response within us that we term our moral reaction? Rambam, Shemona Perakim, chapter 6 distinguishes between two types of mitzvot: those that are to elicit emotional reactions and are explainable in our mind; and those that lack both these qualities. While Rambam only creates these two categories, in reality, he is defining four: those that have heart and mind; those that have only heart (i.e. elicit a moral reaction but are not fully explainable); those that have only mind (i.e. for which we can explain but lack a reaction); and those lacking both. Rambam sees no reason to describe four categories because the two intermediate ones are simply part of the chukim (although we may wonder what these different types of chukim represent). Until heart and mind come together we do not fully understand. It is only those mitzvot where a gestalt of understanding is achieved, for our mind and our hearts unite in the moral reaction, that Rambam would declare to be mitzvot sichliyot. It is these mitzvot that are our key to an understanding of morality, beyond the command, through a connection with the inherent act. In all other cases, we ultimately rely upon the command as the force of morality and, perhaps, this reflects other concerns in the determination of prohibition/permission. With this we can also understand why Rambam gives reasons for chukim yet this in no way challenges their inherent nature as beyond us.

This does not offer a full solution to the dilemma presented us from Rambam, especially as it relates to our understanding of sexuality, love and marriage. However, this does provide some opening parameters to our view of the nature of morality. While harlotry does elicit strong reactions, as with many of the sexual prohibitions, even if there is some intellectual reasons presented, the mind and the heart do not fully connect and thus we must be careful of our analysis beyond the command. To determine a Jewish morality connected to the act's inherent value, it must touch the moral gestalt of heart and mind.

Rabbi Benjamin Hecht

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