It’s Not (Just) About Jewish Law

On Saturday last week, a very small corner of the AI/OpenClaw-obsessed1 internet blew up over this X post:

Last I checked, this post had 1.5 million views and some 250 replies. I didn’t read them, obviously, but I’m pretty sure that none of the hundreds of responders really have the knowledge to properly consider or answer this question. If they were inclined to do just a bit of research, they might have found Rabbi Chaim Jachter’s chapter from his book Grey Matter IV on closing websites for Shabbat, which walks through all the relevant sources; this is not a question that was just invented last week.

For websites, Rabbi Jachter’s conclusion quotes from Rav Shlomo Dichovsky: “One cannot forbid allowing one’s business website to remain operational on Shabbat. However, this certainly involves a violation of the spirit of Shabbat.” [emphasis mine]

For better or for worse, this way of thinking has been a hallmark of halakhic writing in the modern world. Rabbi Yaakov Breisch, in his responsum on answering machines, wrote the following in the year 1961:

At a time when technology is quickly progressing forward, it is possible that in the near future, [it will be feasible] to organize a large store through automation where the store will open by itself at the appropriate time without anyone present... An individual will sit in the Beit Midrash on Shabbat or at his table singing Shabbat Zemirot and his business will operate on Shabbat on his behalf as it does during a weekday.

This concern is precisely what motivated the Sages to prohibit various activities such as doing business on Shabbat in the first place (Ramban Vayikra 23:24; cf. Rambam Hil. Shabbat 24:12). As the greatest American halakhist of the 20th century, Rabbi Moshe Feinstein, wrote about mechanical timers: “It is obvious that had this existed in Talmudic times, they [the Sages] would have forbidden this.” He couldn’t point to a specific law that would prohibit setting a timer on Friday to go off on Shabbat, but he wasn’t comfortable with using them either.

In discussions about philosophy of law and its relationship to ethics, people like to quote from Edmund Burke, in his speech on conciliation with America:

“The question with me is, not whether you have a right to render your people miserable, but whether it is not your interest to make them happy. It is not, what a lawyer tells me I may do; but what humanity, reason, and justice, tell me I ought to do.”

Burke was talking to Parliament about colonial policy, but the structure of the argument is universal. This may not always have been obvious to people in all cultures, but everyone reading this probably recognizes that what is codified by law is not identical to the “right thing to do.”2 In my previous essay, I mentioned that halakha is often considered to be a legal system, and while that’s not entirely wrong, it doesn’t sit right with me. To the extent that it contains law, it also points beyond law — it includes what Burke identified as “humanity, reason, and justice;” Torah teaches not just law (what you may do) but ethics (what you ought to do).

If you’ve spent any time in Modern Orthodox intellectual circles, you know that if anyone mentions “halakha” and “ethics” in the same sentence, someone is going to bring up an essay by Rabbi Ahron Lichtenstein. He was widely considered the most important religious thinker for that community after his father-in-law, Rabbi JB Soloveitchik. I don’t know how many people who claimed him as giving rabbinic certification to their lifestyle actually read his writings, but if they did, they were most likely to have read (or at least heard of) his essay titled “Does Traditional Judaism Recognize an Ethic Independent of Halakha?”

At the risk of having myself kicked out of any Modern Orthodox synagogue I might walk into, I have to say that I really did not like this essay when I first encountered it, especially as THE source everyone cites on “morality and halakha.” If you read it, you’ll see that in the first page or two he completely sidesteps and reinterprets the question. He even says so himself at the beginning: “I could, were I literally minded, simply answer our original question in the affirmative and close up shop.” Basically yes, obviously the tradition recognizes ethics beyond strict law, goodbye.

Then, to justify writing a whole essay on the topic he reframes the question. The real issue, he says, isn’t whether the tradition theoretically acknowledges natural morality, the question is whether or not this has any practical significance for the contemporary Jew. Can it be “legitimate and relevant at an operative level”? So then he spends a bunch of pages on whether lifnim mi-shurat ha-din, going “beyond the line of the law” is enforceable by a court. I used to think this was such a cop-out. When someone asks you whether Judaism has ‘an ethic independent of halakha,’ they are obviously not really secretly asking you, “will a Jewish court seize my assets in one of those few dozen cases where it is only suggested that the defendant make a payment.”

To me, Rav Lichtenstein’s reasoning seems rather tortured because he presents the essay as if considering that halakha means law— or at least as law first, and ethics second. He is committed to halakha being the organizing principle of Jewish life, but he also can’t deny that if you have such a view, then halakha alone is “palpably naive and patently false” as a self-sufficient system. If halakha is all-encompassing but it also isn’t enough, then whatever fills the gap has to somehow also be halakhic, and he winds up with the conclusion that there is a “law beyond the law” that is just halakha operating in a different mode.

This has never sat quite right with me. Halakha just means “the way,”3 and it is indeed all encompassing because it is simply the way to be in the world; it is law and ethics and manners and reasoning and every other thing. The rabbis did have a word for “law” in this more limited sense: they called it din. Halakha includes din but it also includes lifnim mi-shurat ha-din, beyond the line of the law. In later years, I came to appreciate that this is exactly Rav Lichtenstein’s point! He ultimately concludes that the question is a semantic one: do you define halakha as din only, or as being more expansive? As he quotes earlier on in the essay, it is obvious that “what you must do,” what God demands of His people, includes more than “din”:

״אשר יעשון, זו לפנים משורת הדין״, דאמר רבי יוחנן: לא חרבה ירושלים אלא על שדנו בה דין תורה. אלא, דיני דמגיזתא לדיינו? אלא אימא, שהעמידו דיניהם על דין תורה, ולא עבדו לפנים משורת הדין.

“That they must do” (Ex. 18:20); that is referring to acting beyond the line of the law, as Rabbi Yoḥanan says: Jerusalem was destroyed only for the fact that they adjudicated cases on the basis of Torah law… and did not go beyond the letter of the law. (Bava Metzia 30b)

Usually I prefer (as I think Rav Lichtenstein did) to use this more expansive definition of halakha, such that the din that is found in the rulebooks only starts the conversation. Halakha always requires asking as Edmund Bruke did: not just “may I do this?” but “ought I do this?”

Our guiding light here, as Rav Lichtenstein points out, is Ramban. In his commentary, Ramban shows that there are three separate instances in the Torah where God provides a general instruction that is meant to serve as a more expansive command than any “law” would be. God says to be a holy people, He says to do the right and the good, and to make Shabbat a day without work. All of these ‘commandments,’ says Ramban, are meant to encompass all of the ways to be that are not covered by specific laws—but they are nonetheless very much part of halakha, part of the way one must be. The intentionally ill-defined command to ‘be holy,’ for example, has sufficient force according to Ramban (to Deut 21:18) that it is for this sin that the ‘rebellious son’ is put to death! In fact, Ramban makes recourse to this idea in multiple contexts;4 din simply cannot cover everything, and rabbis of every generation have had to build upon the dinim of the previous ones.

I think we lose something vital when we think of halakha as just the laws on the books, when we equate halakha with din. We lose the ability to think through how to go [leilekh, from halakha] when we’ve entered a realm that din does not reach. To quote Rav Lichtenstein again:

Which of us has not, at times, been made painfully aware of the ethical paucity of his legal resources? Who has not found that the fulfillment of explicit halakhic duty could fall well short of exhausting clearly felt moral responsibility?

He is speaking of moral responsibility, but I think he’d agree that it applies to much more than what might conventionally be termed ‘morality.’ This is what the poskim were and continue to grapple with when it came to Shabbat and technology. They could feel that something was wrong about using electric appliances on Shabbat and setting up a system that allows for one to have their business run normally, even if they could not cite a specific ruling from the past that is clearly analogous.

Some rabbis pushed back; Rav Moshe Stern, for example, criticized Rav Breisch (who prohibited setting up an answering machine to record voice messages) for issuing “a new gezeirah, which no contemporary Rav, no matter his stature, is permitted to issue.” Our contemporary rabbis certainly do not have the same authority as the ancient sages. But even if we cannot create new dinim, Rav Lichtenstein (and, I believe, the vast majority of poskim throughout the ages) would argue that there is more to halakha than din.

Among Rav Lichtenstein’s published talmudic lectures, there is one volume covering an absolute halakhic masterpiece of Ramban called Dina D’Garmi (lit: the law of causing) which deals with when a person is liable for damages caused indirectly. On the last page of this volume, Rav Lichtenstein says:

בדורותינו, יישום חיובי גרמי - או, יותר נכון, פטורי גרמא - על פי מתכונת הרמב”ן הצרופה, נתקל בקשיים מעשיים ההולכים ומחריפים. במציאות הטכנולוגית המתפתחת, גוברת בהתמדה היכולת להסב נזקים, פיסיים או אפילו וירטואליים, של ממש בלי להתחייב על פי הקריטריונים של הרמב”ן... האם מגמת ניתוק האדם ממעשיו, על בסיס פער הזמן בין הפעולה והתגובה, ומתוך הנחת עצמאותן של מערכות מפותחות, שכמה פוסקים אימצו כדי להקל בשעת הצורך לגבי שבת, ישימה לגבי פטור נזק?

“In our generation, applying the Ramban’s framework for indirect damages runs into practical difficulties that are only getting worse. In our developing technological reality, the ability to cause real damages—physical or even virtual—without being liable under the classical criteria is constantly growing... Is the trend of disconnecting a person from his actions—based on the time gap between action and response, and the assumption of autonomy of sophisticated systems, which some poskim adopted to be lenient regarding Shabbat—applicable to exempting someone from damages?”

A clever enough thief, Rav Lichtenstein notes, could pull off the perfectly “halakhic” heist using what he calls a “grama toolkit,” causing harm indirectly enough to escape the classical categories of liability. The same leniencies that show up in the Shabbat discussion are relevant here. Maybe this works for Shabbat, maybe not. But even if yes, should it work for damages? If you set up a system that harms people, does the indirectness get you off the hook?

Rav Lichtenstein ends his book with a plea worthy of Ramban:

הבקשה שטוחה, הסמכות קיימת, והעיניים נשואות. במידה ויעלה ביד גדולי הפוסקים לתקן בנידון, הם יצליחו לגדור פירצה חברתית של ממש, ואף ישכילו, בד בבד, להרים קרנה של תורה.

“The problem is clear. The authority to act exists. We’re waiting. If the great poskim manage to legislate on this matter, they will succeed in closing a real social breach—and in doing so, raise the honor of Torah.”

Some have indeed answered the call, but far too few. And the questions are starting to get a lot more urgent.

[*Note: this essay has been edited from its original version to clarify that I am very much not intending to argue on Rav Lichtenstein]