[Avodah] ethics outside of Torah

[Micha Berger]

On Fri, Jun 11, 2010 at 01:52:54PM -0400, Eli Turkel wrote:
:> So the question becomes how do we define "outside of halakhah". Are we
:> asking about ethics we would know even before the Torah was given? Do
:> we mean values relayed in aggadita that we must follow even though they
:> aren't amenable to codification as halakhah? Both?

: We all agree that any code of law including SA cannot account for every
: conceivable happening. Hence, one has to decide on occasion on things that
: are not in SA. I would not use the phrase prohibited but rather
: "correct behavior"....

We have a way of growing new law. Halakhah isn't the SA, it's the
process by which we reached the conclusions in the SA. So in theory,
I think halakhah could be applied to every conceivable happening.

AISI, the questions are:

1a- Do we have a definition of permitted but undesirable behavior? Or
are all choices not covered by halakhah equal?

Not just in terms of how many heteirim we're invoking, or relying on
a daas yachid, or whatever... Does the Torah relay values?

1b- Are there prohibited choices for reasons other than halakhah prohibits
that activity?

The answer I proposed for these questions is "yes", because we are
mandated not only in terms of issurim and chiyuvim, but there are also
chiyuvim to reach for particular ideals, to embody values -- what I've
called on this list QY"T mitzvos ("*Q*deshim tihyu", "ve'asisa ha*Y*ashar
veha*T*ov"), roughly -- Rambam hilkhos Dei'os.

Thus it's actually prohibited to be a naval birshus haTorah even though
that sounds self-contradictory (prohibited vs birshus). Not just inferior,
but outright assur.

The activity is permitted; the "doing" is fine. It's the "being" that
doesn't fit the Torah.

This feeds question 3:

2- Is the definition of who we are to be presumed to flow only from the
Torah? Or, as I put it in my earlier post (quoted above), "Are we asking
about ethics we would know even before the Torah was given?"

Naniach that there is a chiyuv to try to be an ever more yashar person.
Is "yashar" as defined in the Torah, or does it also include yashrus as
HQBH wired us to know instinctively.

: As I previously gave the example of RMF insisting on paying for the transportation
: of a talmid. RMF did not say he was required rather he thought that was the
: right thing to do.
: This has to based on some generally accepted societal attitudes.

Or, based on values relayed in halakhah, but taken lifnim mishuras
hadin. That is the difference between question 1 (both parts) and 2. One
can believe in a "lifnim", what we can know which direction is better
than minimum required of us, without belief that it's "accepted societal
attitudes", or the way humans were programmed (e.g. lo sirtzakh), etc...

: I note that some achronim actually use this for psak. Their is
: controversy about the
: extent of patent/copyright law in halacha...

This is the Shoel uMeishiv's position (see 1:44). He holds that (1)
there is ownership of ideas because of common morality, and (2) that
barring a qinyan, that ownership is eternal, as halakhah recognizes
eternal baalus. Even if secular law sets a horizon for copyright, the
SuM argues that we would be required beyond that -- so we're not just
talking about dina demalkhusa. As you write, it's based upon the notion
that we are obligated to keep contemporary morality. Not just should,
but must do so.

I first mentioned this in v7n58 (posts #4 and 13; that's Jun 2001),
after a shiur by R' Zev Reichman during the height of the legal action
around Napster (a music sharing service).

Tir'u baTov!
-Micha

-- 
Micha Berger             Like a bird, man can reach undreamed-of
micha at aishdas.org        heights as long as he works his wings.
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