CAN THE TORAH PERMIT WHAT UNIVERSAL LAW FORBIDS?

The major text dealing with the relationship between Jewish law and universal law is the famous Mekhilta at the beginning of Mishpatim which addresses the issue of one who kills a gentile. In parashat Noach, there appears a general directive to humanity: “Whoever sheds the blood of man, by man shall his blood be shed” (Bereishit 9:6). However, a verse in Mishpatim (Shemot 21:14) seems to indicate a Jew is put to death only if he murders a fellow Jew. How are we to understand this?

Issi ben Akiva says: Before the giving of the Torah, we were prohibited to murder. After the giving of the Torah, instead of being more stringent, are we now more lenient!? (Mekhilta De-Rabbi Yishma’el, Parasha 4, s.v. Ve-khi Yazid)

Issi ben Akiva finds it inconceivable that something which had previously been forbidden to general humanity would now be permitted to Jews by the Torah. The gemara applies this reasoning with regard to various laws, asking simply, “Is it possible that there is anything at all which is permitted to a Jew, yet nonetheless is prohibited to a non-Jew?”

The principle elucidated by Issi ben Akiva does not necessarily negate the possibility that the new berit abolishes the old one. One may argue that indeed the new berit supplants the old, and the Jew can approach God only through God’s covenantal relationship with Kenesset Yisrael—but in terms of its content, the new berit must be more demanding than the old one.

Even if this is so, it does not matter much for our purposes. When trying to understand what are the normative demands made upon us, there is not a great difference between saying that the old berit is gone and the new one comprehends all of the contents of the old, and saying that there exists a dual level of responsibility. Practically speaking, both positions agree that whatever is demanded of a person on a universal level is a priori demanded of a Jew as well; Torah morality is at least as exacting as general morality. The only difference is whether we formulate the demand as emanating from a general covenant or from the specific berit. Thus, part of what is demanded of a ben-Torah is simply, on an initial level, what is demanded of every person as a human being.

DEREKH ERETZ KADMA LA-TORAH

Broadly speaking, this is what is intended by the celebrated phrase, “Derekh eretz kadma la-Torah” (“Civility preceded the Torah”). Chazal (Vayikra Rabba 9:3) understood this in historical terms: the Torah came twenty-six generations after the precepts of derekh eretz had already been in effect. But there is another meaning to this phrase, which refers to logical or axiological priority. The Maharal (Netivot Ha-Torah, Netiv Derekh Eretz) understands it in this sense. The ben-Torah in you is built on the spiritual person in you; if it is the other way around, then you are walking on your head, so to speak.

Let me emphasize that this has nothing to do with the question of what is more valuable. If we say that something is prior to something else, it does not necessarily mean that it is more important. For example, there are two ways we can understand Chazal’s requirement that someone who wants to be a ben-Torah must be “yirato kodemet le-chokhmato—his fear [of Heaven] must precede his wisdom” (Avot 3:9). It is entirely conceivable that Chazal intend to say that ultimately the yira is really more important than the chokhma (as important as the chokhma may be). However, we can also understand this as referring to logical precedence; and what serves as the basis is not necessarily the most important element. Although foundations must precede a building both temporally and logically, no one would imagine that they are more important than the building.

Chazal themselves may have been divided on this question, as would appear in the following dialogue:

While Rabbi Simon and Rabbi Elazar were sitting, Rabbi Ya’akov bar Acha passed in front of them. The one said to the other, “Let us stand before him, because he is a man who fears sin.” The other said, “Let us stand before him because he is a scholar.” He replied, “I tell you he fears sin and you tell me he is a scholar!?” [In other words, I praise his fear of sin, and you think that being a scholar is greater?] (Shabbat 31b)

The one who believes that chokhma is more important than yira does not negate the fact that yira must precede chokhma. The kind of chokhma which may be more important than yira is only one which is rooted in yira. Chazal say (e.g. Ta’anit 7a) that chokhma which is not rooted in yira, God forbid, is not an elixir of life but rather a potion of death.

So, in speaking of “Derekh eretz kadma la-Torah,” we should not in any way prejudge what is more or less important, simply because one precedes the other. The question of importance is a totally independent issue. But as far as kedima—what provides the matrix, the context, the foundation—one can speak of the logical and not only the temporal priority of derekh eretz over Torah.