Life is complicated, and in any given circumstance we must determine which consideration outweighs the others in guiding our decisions. Serious moral dilemmas often arise during times of war; for example, the question of striking at the enemy while knowing that collateral damage will be inflicted upon innocent civilians. In hospitals, serious moral conflicts arise on a daily basis; for example, when a decision must be made in a life-threatening situation about who should be treated first – a family man whose death would cause suffering to all of his loved ones, or a loner living all by himself. Sometimes a person must act on the basis of general considerations that are not necessarily relevant to the specific case, for example, social considerations or the like. The question may be raised: is it possible to demand that a person act counter to his natural morality for the sake of other considerations?

The Tannaim appear to have disagreed about this question, as did the Rishonim in their rulings about the Tannaitic dispute. We find in Tosefta (Sanhedrin 11:2) that the Tannaim disagree about the law applying to minors found in an ir ha-nidichat, a city the majority of whose inhabitants committed idolatry:

The Rishonim disagree about the law. Rambam writes in Hilkhot Avoda Zara (4:6):

Kesef Mishneh raises an objection: "The matter needs study: from where do we know that the women and children are put to the sword?" He cites the objection raised by Rabbi Meir ha-Levi Abulafia (Iggerot ha-Rama, no. 12):

Rama continues and asks about the children:

Rama's objection is reminiscent of the argument put forward by Avraham: "Far be it from you to do after this manner, to slay the righteous with the wicked" (Bereishit 18:25). Ramban, as well, writes in his commentary to the Torah (Devarim 13:16): "The women follow after the men. But the children who are minors, among males and females, are not killed." He bases his argument on the words of Sifrei (piska 94), which parallel Rabbi Akiva's position in the Tosefta.

Rambam appears to have ruled in accordance with the opinion of Rabbi Eliezer. Many have grappled with the question why children are put to death. Kesef Mishneh adduces support for Rambam from other instances in which children were put to death (e.g., Korach and his followers, and the killing of the inhabitants of Yavesh Gil'ad [Shofetim 21:10]). He concludes: "Some of what I am saying here does not appear right to me." Rabbi Menachem Krakovski, author of Avodat ha-Melekh, cites Rabbi Chayyim Soloveitchik's explanation that Rambam is discussing children who worshipped idols. The novelty of the situation is that we relate to them as adults, even though they are not yet thirteen years of age.

In truth, however, we seem to be dealing here with a fundamental attitude that is clarified by Rambam himself in his Guide of the Perplexed (I, 54):

Rambam accepts that for the sake of a general consideration of great significance, like the prohibition of idolatry which is one of the principles of the Jewish faith, even children are put to death. It stands to reason that Ramban and Rama disagree with this position. It should be emphasized, however, that even according to Rambam, the readiness to set aside moral considerations in favor of general considerations applies only in extreme cases, like the idolatry of the inhabitants of an idolatrous city, and it is impossible to draw conclusions and apply them to other cases.

The question regarding the role of natural morality in the framework of Halakha also comes up in a different context. The Gemara in tractate Yoma (83a) cites a Baraita that states that a person who has become overcome with ravenous hunger may be fed forbidden foods in order to save his life. If possible, however, he should be fed that food item whose prohibition is the least severe:

But what is the law in a case where a person is faced with a choice between a food forbidden by the Torah and human flesh? According to most opinions, the Torah does not forbid human flesh by a negative precept; at most, there is an issur aseh[1] – a prohibition that is not stated in the Torah in the form of a negative commandment, but merely inferred from a positive commandment. Others believe it is forbidden only by way of a rabbinic decree[2]. This being the case, human flesh should be considered the less severe prohibition! But is it really true that the sick person should partake of human flesh and not from foods proscribed by Torah law, like untithed produce or the flesh of an improperly slaughtered animal?

It seems obvious to me that God does not want man to eat human flesh. The Torah fails to mention that the eating of human flesh is forbidden, not because it is permitted, but because certain things are so obvious that it is unnecessary for the Torah to state them. As for the requirement that the forbidden foods be eaten in the order of their severity, this law is merely of rabbinic origin,[3] and I have no doubt whatsoever that the Sages never meant that it is preferable to eat human flesh rather than other forbidden foods. Moreover, theentire discussion is about forbidden "foods," and human flesh does not fall into the category of "foods."

This idea is supported by another source as well. The Gemara in Sanhedrin (71a) cites the words of Rabbi Shimon regarding a rebellious son:

Due to a moral consideration, Rabbi Shimon was not ready to entertain the possibility that the law pertaining to a rebellious son was ever actually implemented. Regarding a Torah law, all that we have is what the Torah commanded, but in the case of rabbinic laws, there is certainly room for moral considerations when deciding the Halakha.

We find also regarding the laws of levirate marriage that the a moral consideration overpowers a halakhic argument. The Gemara in Yevamot (87b) states that if a woman's husband died and left a son, so that she is permitted to remarry, and then the son died, she is not required to undergo either levirate marriage or chalitza. This is notwithstanding the fact that from a purely halakhic perspective, there may have been room to require one of them. In the parallel situation regarding the eating of teruma, a priest's widow is forbidden to eat teruma (a priestly gift) after her son dies, because the dead son is not viewed as if he were still alive. The Gemara explains that we don't apply a kal va-chomer argument, deriving the law of levirate marriage from teruma, because the verse states: "Her ways are ways of pleasantness, and all her paths are peace" (Mishlei 3:17).[4]

This idea is stated explicitly in Dor Revi'i on Chullin, written by Rabbi Moshe Shemuel Glasner, great-grandson of the Chatam Sofer, who was a great Torah scholar and grandfather of my revered teacher, Rabbi Chayyim Yehuda Halevi, Hy"d. This is what he writes regarding the matter under discussion (General Introduction, 2):

Rabbi Glasner brings additional instances of this dilemma, for example, the case of a person who is lying naked in bed, when suddenly a fire breaks out in his house, and he has only two choices: running outside naked or putting on a woman's clothing. Rabbi Glasner assumes that it is certainly preferable to put on the woman's clothing, even though this involves violating a biblical prohibition, rather than run out naked, even though this is not explicitly forbidden by Torah law. He invokes the same argument: "It is obvious to me that running out naked is a greater sin… because it is a sin accepted by all intelligent people, and one who violates it excludes himself from the category of man who was created in the image of God."

Similarly, he argues that when the aforementioned Gemara says: "[If the choice is between] untithed produce and an improperly slaughtered animal – he is to be fed the improperly slaughtered animal," it is talking about a case where the animal was slaughtered, but in an improper manner. If, however, the animal died without having been slaughtered, he should certainly not eat it, for even non-Jews refrain from eating such animals "because of the rules of proper behavior and general morality." Proof for this position may be brought from the Gemara in Chullin (92b):

Rashi explains: "'The flesh of a corpse' – a human corpse. 'In the meat markets' – for they do not eat it in public. And I heard [another explanation]: 'The flesh of a corpse' – the flesh of an animal that had died on its own." This proves that that the meat of an animal that died on its own is loathed even by non-Jews.[6]

In any event, even if Rabbi Glasner goes too far when he argues that running into the street naked or eating the meat of an animal that died on its own is worse than its alternative, one thing is certain: Just because the Torah failed to forbid something does not mean that it is permitted. Rabbi Glasner proves this also from what Rashi says in his commentary to the Mishna in Makkot (23b): "The Holy One, blessed be He, desired to credit Israel; hence, He gave them a Torah that is rich in commandments." Rashi explains:

We have learned, then, that the duties stemming from natural morality are part of the obligations that were cast upon man in order to complete the will of the Giver of the Torah, whose ways are ways of pleasantness and all its paths are peace.

(Translated by David Strauss)

Footnotes:

[1] According to Rambam, Hilkhot Ma'akhalot Asurot 2:3.

[2]According to Rashba, Responsa, I, no. 364.

[3] See Kiryat Sefer on Rambam, Hilkhot Ma'akhalot Assurot, chap. 14.

[4] See Maharsha, end of Yevamot.

[5] See R. Ephraim Oshry, Responsa Mima'amakim (IV, no. 23): "'And in Israel is His pride,' and rightfully so. For the severity of the hunger that prevailed in the Jewish detention camps [during the Holocaust] is unimaginable and indescribable. And hunger is the greatest affliction of all. But nevertheless, the Jews never fell from their holiness, the holiness of man, and never ate human flesh, for we know what is stated in the Torah: 'And you shall be holy men to Me' (Shemot 22:30)."

[6] Rabbi Yitzchak Meir Alter of Gur, author of Chiddushei Ha-Rim, expressed a similar idea. Chazal pronounced a curse on anyone who fails to keep his word: "He who punished the generation of the flood … will punish him who does not keep his word" (Bava Metzia 44a). Chiddushei Ha-Rim asks: "Surely things are not acquired through words alone! [Why then is he cursed?] And regarding Sedom as well, why were they punished for stealing something worth less than the value of a peruta, when by Torah law it is regarded as having no value?" He explains: "For the lack of human feeling is like a gross transgression. Someone who does not keep his word, or someone who steals something that is worth less than the value of a peruta, when that is all that the victim has, is inhuman. Therefore, Chazal cursed one who does not keep his word with the same curse [as the generation of the flood]" (Si'ach Sarfei Kodesh, I, no. 536).