Efrat, Israel – Is halakha (Jewish law) the maximum ideal towards which we must strive, or the minimal expectation of conduct which is necessary for a well-ordered and ethical society?  In the words of Dr. Eugene Korn, (in a masterful article he wrote for Edah), is halakha a floor or a ceiling?  (I believe this phrase first appeared in a book on Jewish ethics by Rabbi Prof. Walter Wurtzberger).

At least one Biblical commentary, the Ramban (Nachmanides, 12th Century Provence), expounds an indubitably clear position in his explanation of the opening commandment of this week’s Biblical portion Kedoshim, “You shall be holy…,” (Kedoshim tihyu).  In answer to his query that this particular commandment appears to be too general and undefined, the Ramban explains that despite all of the detailed laws of the Bible, it is still possible for clever and unscrupulous individuals to technically remain within the confines of the law whilst completely defying the spirit and goal which the laws are trying to accomplish;  they can spend most of their time grossly overeating (only Kosher food, of course), for example, or they can continually make everyone in their company feel inferior and incapable by a cynical and supercilious manner of behavior, neither of which activity is specifically prohibited by Jewish law.

In order to prevent the creation of what the Ramban calls a “scoundrel within the boundaries of the Torah,” he maintains that there are two “meta-halakhic” overarching principles which teach us the real goal of Jewish law and help us determine the correctness of a specific deed or behavior pattern which is not necessarily forbidden or obligated within the 613 commandments:  “you shall be holy” in the sphere of person-G-d relationships, and “you shall do what is righteous and good”  (ve’asita hayashar vehatov) in the sphere of inter-personal relationships.  These commandments are purposefully vague and open-ended in order to leave room for right-of-conscience decisions (wherein you really know what you ought to do even though the Torah does not specifically order you to do it) as well as for changes in societal norms which certainly must affect our personal and national conduct.

For example, in a completely polygamous world, the Bible does not condemn polygamy; nevertheless, the Bible does tell us that “an individual must leave his/her mother and father and cleave unto his/her spouse so that they become one flesh”, certainly insinuating that the wholeness of the couple is comprised of a couple and not a ménage a trios, so that there is not one single instance of a polygamous union by any one of the sages of the Mishnah (100 BCE – 200 CE) despite the Biblical leniency.

A second example is the methodology of warfare, wherein the Sages of the Talmud completely obviated the possibility of our “not keeping alive any soul (man, woman or child)” of the indigenous seven nations of Canaan with their setting down of the principle that “Sennacherib came and completely confounded and intermingled the nations of the world” (B.T. Berachot 28b), making the total obliteration-of the seven nations obsolete and inapplicable in later generations.  The guiding principle of the Written Law (called the “harsh law” or dina detakfa by the mystical Zohar ) seems to have been that if a leader is one step ahead of his people, he is a genius, but if he is two steps ahead of his people, he is a crackpot.  Hence we understand the ongoing importance of the Oral Law, continuing through our Responsa literature to this very day, which is called the “soft law” or dina de rafiya by the mystical Zohar.

Permit me to give two clear examples of where the halakhic code is clearly viewed by our sages not only as a minimal standard, but even as a practice which must be improved upon by anyone who wishes to be considered a good or righteous individual.

The Talmud (B.T. Bava Metzia 83b) records an incident in which two porters transported wine barrels for Rabbah bar bar Hanan, a wealthy scholar and sage in his own right.  Through an act of negligence on their part, they broke the barrels; Rabbah took their cloaks in payment for their negligence, which is what the law demands.  They complained to Rav, the legal decisor in that area, and he instructed Rabbah to return their cloaks.  “Is this the law?” asked an astonished Rabbah.  “Yes”, replied Rav, “based on the verse ‘in order that you walk in the way of the good people’” (Proverbs 2).  The porters went once again to complain to Rav:  “But we are hungry, since we worked all day and received no payment,” whereupon Rav further instructed Rabbah to provide them with a salary as well.  Once again Rabbah asked:  “Is this too the law?” to which Rav replied, “yes, in accordance with the verse ‘and the paths of the righteous shall you observe’” (Proverbs 2).  Clearly Rav was saying to Rabbah that for him – Rabbah bar bar Hanan, the wealthy scholar matched against two poverty stricken porters – the law would expect that he would act beyond the legal requirement and provide the porters with payment for their day’s labor, despite the losses they had incurred for Rabbah as a result of their negligence.

Maimonides, the master legalist-theologian of the twelfth century, is even clearer in his exposition:  The Bible allows for Gentile (Canaanite) slaves, although the Decalogue provides that the Israelites “observe the Sabbath day to keep it holy…in order that your Gentile man-servants and maid-servants may rest like you,” expressing Hebrew and Gentile equality before G-d.  In his Mishnah Torah Code of Jewish Law, Maimonides (the Rambam) rules
 
    “The Israelite is permitted to work his Canaanite slave with vigor.  But even though the     law is such, it is a trait of piety and the way of the wise to be compassionate, to pursue     righteousness and to see to it that the slave not be scorned, but is to be addressed     kindly,… His complaints must be seriously dealt with… After all, the Book of Job t    eaches, ‘Is it not true that one stomach has formed me (the Israelite) and him (the Gentile     slave), and that one womb (of the One) has fashioned us both’” (Laws of Servants 9,8).