Volume 14 Number 56
Produced: Fri Jul 29 12:34:24 1994
Subjects Discussed In This Issue:
Cheating
[Meylekh Viswanath ]
Halacha and Morality (2)
[Eli Turkel, Mordechai Torczyner]
Lying, Cheating, Ethics and Hallacha
[Sam Juni]
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From: Meylekh Viswanath <PVISWANA@...>
Date: Wed, 27 Jul 1994 20:13:03 EST5EDT
Subject: Re: Cheating
Irwin Haut says on this subject:
> To any residual doubters I need only remind you of the rule that a
> convert, although in legal theory a new born-child, is obligated to
> honor his non-Jewish parents, lest it be concluded that our law was
> lest just and respectful that that of non-Jews. See Shulchan Aruch,
> Yoreh Deah, 241:9, where the Mehaber, on the basis of B.T. Yevamot
> 22a, rules:
> "It is prohibited for a convert to curse his pagan father, or
> to strike him; and he should not shame him, so that it may not be
> said that he exited (or left) from an exalted state of holiness, and
> enetered a lesser state of holiness,..."
> It follows therefrom, as inexorably as day follows night, that
> matters of this type which are prohibited by secular law, are a fortiori
> prohibited under Jewish law, and any assertion to the contrary will not
> withstand reasoned analysis. Enough said on this topic?
I have two problems with the above explanation. The first one is re the
gemore. Is there a prohibition for a non-jew to curse his father? This
is not one of the 7 mitsves bnei noyekh. However, unless there is some
such prohibition, why would one have to say of a convert that he "left
from an exalted state of holiness to a lesser state" simply because he
does not, now, have to honor his biological parent?
(Doesn't the gemore elsewhere have another application of this principle
that is not subject to my query? i.e that a convert is forbidden to
marry his also-converted biological sister although they are now
'ke-koton domi' i.e. like new-born children and hence unrelated, because
then it could be said that the convert(s) moved from a higher level of
kedusha to a lower level.)
To ask my second question, I will assume that there is indeed some
prohibition for a non-jew to curse his parents. Thus, the convert, who
would have been prohibited to curse his father before conversion, cannot
be allowed to curse his father after conversion, because of the
principle given by the mekhaber.
This would apply to our case of a jew cheating-- if non-jews were
forbidden to cheat. But there has been no evidence presented that
non-jews are forbidden to cheat (without stealing, which _is_
forbidden). If that were indeed so, then one could use the principle
cited to infer that jews are also forbidden to cheat. But how do we
know that non-jews may not cheat?
Irwin seeks to avoid this question by using the fact that secular law
prohibits the non-jew from cheating. This can only be used to infer
that secular law prohibits the jew from cheating (of course, not by
application of the mekhaber's principle, but rather because the secular
law does not distinguish between jew and non-jew). We cannot use the
fact that secular law prohibits the non-jew from cheating to apply the
mekhaber's principle. I don't see how the _secular_ law prohibition on
the non-jew would qualify a jew's cheating as being on a lower level of
_kedusha_ relative to a non-jew.
Unless one reinterprets the principle, here, essentially in terms of
maaris ayin.
(One may reinterpret Sam Juni as suggesting this in a later posting. I
believe the poshet pshat (simple meaning) of his argument to be invalid
because of the use of the word 'kedusha' in the mekhaber's dictum:
>In his posting of 7/20/94, Rabbi Irwin Haut presents a category of
>Hallacha which I find intriguing. Rabbi Haut, as I read it, refers to a
>string of activities (a convert striking his gentile father, stealing
>from a supermarket, cheating on exams) which may not be prohibited
>by
>Hallacha (for the sake of argument), but which are prohibited by local
>secular law (and I presume are ethically contraindicated). The
>principle Rabbi Haut mentions is worded as "so that it may not be said"
>that Jewish law is less just than non-Jewish law.
>
>There is a built-in issue of levels of prohibition in this line of
>ruling. It is implied that the derivation of the prohibition is based
>on what "people" will say rather than on a-priori Hallachic
>consideration re these acts which are unethical.)
Alternatively, one may apply the law of 'dina de-malkhuta dina,' i.e
that the secular law also applies on a (quasi) religious level to jews
under certain conditions. However, I am sure that this explanation will
satisfy no one.
On another point, I don't remember if anybody on mj suggested the
application of the posuk (verse) 'tirkhak me dvar ra' in mishpatim.
This was suggested to me in shul when I was discussing this question in
shul. However, I investigated this, and it would seem from the
meforshim that I saw in the mikraot gedolot that this is basically a
rule that is being applied to judges.
Meylekh Viswanath
P.V. Viswanath, Rutgers University
Graduate School of Management, 92 New St, Newark NJ 07102
Tel: (201) 648-5899 Fax: (201) 648-1459 email: <pviswana@...>
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From: Eli Turkel <turkel@...>
Date: Thu, 28 Jul 1994 09:21:39 -0400
Subject: Halacha and Morality
Rabbi Bechhofer says
>> I agree with Dr. Juni about his point that there is a morality separate
>> from Halacha, and even beyond that which is called lifnim meeshuras
>> hadin (beyond the letter of the law) and even beyond the Ramban's
>> definition of Kedoshim Teeheyu, i.e., to abstain from that which is
>> technically permitted.
Whether there exists a morality beyond halakha is controversial. Rav
Lichtenstein has an article where he discusses the connection between
"Ve-asita ha-tov ve-hashar" i.e. lifnim meshurat hadin (beyond the
letter of the law) and a morality beyond Halakhah. On the other side
Chazon Ish seems to deny the possibility of anything beyond halakhah.
He gives the example of a teacher giving lessons in a courtyard which
creates a noise disturbance. If he is a talmud teacher it is
permissible while if he is a secular teacher it is not. He claims that
based on an outside morality one would not distinguish between these
cases as a secular teacher is also teaching a profession which is
important.
The Chazon Ish seems to be consistently against any concept outside
of Halakhah. The Shach claims that "Dina Demalchita Dina" applies to any
monetary matters that are not discussed in Halakhah. Chazon Ish claims
that there is no such thing.
It is well known that one should avoid pork because it is
prohibited and not say that one doesn't like the taste of pork. Chazon
Ish implies that the same applies to morality. Morality is defined by
what is within Halakhah. If something is permitted on all levels, i.e.
even by lifnim meeshuras hadin and Kedoshim Teeheyu and one still
refuses to do that action based on ethical grounds it appears as if that
person is doing all his ebehavior based on some external ethical
standard and not based on the Torah. The idea of the mussar movement was
to stress many ethical concepts within halakhah not to find concepts
beyond halakhah.
<turkel@...>
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From: Mordechai Torczyner <torczynr@...>
Date: Wed, 27 Jul 1994 19:47:25 -0400
Subject: Re: Halacha and Morality
The Gemara I referred to yesterday about returning the aveidah
of a goy is on Sanhedrin 76b, my apologies for the confusion.
As for Yosef Bechofer's mention of the Chillul Hashem issue,
this is an obvious halachic consideration. However, that has little or
nothing to do with morality. In fact, Chillul Hashem is involved in that
we fear that the goy will see that we don't return the aveidah, and
think that we are a nation of thieves; however, it seems that in the
ikar din we could steal the object. My point is not to say that we
should not return aveidot of goyim, only to show the danger of confusing
morality with halachah (See Rashi on that Gemara).
Mordechai Torczyner
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From: Sam Juni <JUNI@...>
Date: Tue, 26 Jul 1994 15:56:13 -0400
Subject: Lying, Cheating, Ethics and Hallacha
Let me begin by asking posters to cool it. I see no reason to divert
a discussion from a logical analysis to screaming perjoratives (e.g.,
"rasha", etc.). Let me also add that self-righteousness, as a point of
departure for postings, are unseemly.
I also sense a disagreement in the tenor of the discussion vis a vis
the intent of the convesational internet list. Posters are not assumed
to be Torah authorities. I feel posters should not be stifled from
sharing their own impressions, conclusions, and recollections, even when
these involve Hallachic implications. The idea of a conversational
system is that ideas are bounced around. If one has faith in the system,
ideas tend to self correct. Regardless, censorship at that level is
inappropriate.
The discussion here, as I see it, is what specific limits Hallacha
has on deception, etc. This is not the linguistic equivalent of "Torah
allowing immoral behavior" or "sanctioning deception in the name of
Torah," etc. The issue is whether Hallacha prohibits certain unethical
acts specifically, not whether such behavior is ethicallly acceptable
according to Hallacha. I find it curious that this foundation, stressed
clearly in some of the "noxious" posts, are being ignored by some.
I have had the chance to review some of the citations referenced in the
posts in this discussion. Here are my comments (in no particular
sequence):
1. The primary point of G'neivas Da'as according to the review in
Encyclopedia Talmudit (6: 226) is not to incur a feeling of
"maczik lo tova" (being beholden) on the part of another person.
Deception, as such, is exluded from this construct. Mark Steiner
is correct in his note (7/21/94) that actual behavior by the
"beholder" to return a favor (undeservedly) to the deceiver
is not mentioned as a requirement in the Encyclopedia.
2. Igros Moshe (7, Choshen Mishpat, 2:30) discusses cheating on
Regents Exams and the obtaining of diplomas through cheating on
tests. He uses the concept of G'neivas Da'as in the responsum in
a manner which suggests a differing view than the one explicit in
the citations of the Encyclopedia. Ideas mentioned include: a)
that all people (society?) are fooled by the undeserved diploma.
His discussion goes beyond the issue of monetary problems which
are implicit when one is hired based on the assumption of pos-
essing the mastery attested to by the diploma.
The responsum also refers to the notion that one may not lie.
The reference is a statement in Talmud that the Rabbis were
accustomed to lie in three specific situations. The responsum
clearly takes this as implying a prohibition re lying for the
general public, not just Rabbis.
3. Janice Gelb (7/22/94) suggests that cut-off criteria in grade
curving criteria are often statistical and not based on the
"personal decision" of the professor. While this may be correct,
the situation still does not spell out a "direct" form of harming
another. In addition, the notion of "deserving" a specific grade
sounds ethical, not Hallachic to me.
4. David Levy (7/19/94) attributes to posters who cited various ex-
amples of "lies in the service of higher good", a confusion between
lying vs. tact/sensitivity. I suggest that there is no confusion
here at all, and that the examples involve both concepts: lying and
tact/sensitivity.
With regard to the general thesis of morality values as distinct from
Hallacha, the posts seem to be reaching the "citation slinging" phase.
Let me throw in some of mine:
a. David Levy (7/19/94) uses the phrase "R'shaim B'derech Hatorah." I
am not familiar with that term, and would appreciate a note re its
origin. I do know the term "Naval Birshus Hatorah" (despicable in
the domain of Torah; I think it derives from Ramban in Parshas
Kedoshim). The latter term seems supportive of morality as dis-
tinct from Hallacha.
b. The construct of Dina D'Malchusa Dina (The laws of the land are
legal) implies a code of bahavior distinct from Hallacha. I do
not think that this merely is an accomodation wit the powers that
be to avoid practical trouble. Indeed, I remember a qualification
somewehere that this principle only applies when the laws are just
and moral. Apparently, the latter can be conceptualized outside of
Hallacha.
c. Consider the statement in Talmud (citation not available): If not
for the fear of government, man would swallow another alive." Do
we take this statement as limited to non-Torah observers only?
d. There is a folk construct known as the "Fifth Shulchan Aruch,"
referring to common sense and ethics. Is it just a misnomer?
e. There is a category for the unsocialized in Talmud (Eino Osek
B'Yishuvo Shel Olam). These are barred from Hallachic civil
status in some domains. This sounds like a recognition of ethical
or social standards outside of Hallacha.
Basically, the discussion re morality outside of Hallacha seems to beg a
a larger question yet: Are there decisions one has available which are
unrelated and unimpinged upon by Hallacha. I may be driving this issue
to absurdity, and this may be ridiculous. But just for the record, I do
not see Hallacha having any bearing on which side of the street I walk or
on which color slacks I wear.
Dr. Sam Juni Fax (212) 995-3474
New York University Tel (212) 998-5548
400 East
New York, N.Y. 10003
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End of Volume 14 Issue 56
