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Some Thoughts on Elliot N. Dorff, To Do the Right and the Good:
A Jewish Approach to Modern Social Ethics
(Philadelphia: JPS, 2002)

By Sasson Lerner

Posted April 22, 2003

It should be noted that, regrettably, I had no time to read the whole of Dorff's book -- which obviously means that for the time being I missed much of the author's thesis. Still, it seems that those parts of the book which I have read -- the preface and the two appendices -- allow for some preliminary conclusions.

This is definitely not an apologetic work -- it is not bent on showing that the "Jewish approach to modern social ethics" is the best thing around, and although it strives to show the positive sides of this approach, it openly admits the existence of negative sides as well. Dorff is careful to point out that every existing ethical tradition has its own advantages and drawbacks, and that for this very reason all such traditions are worth study to enable appreciation and utilization of their positive sides and sharpen one's sensitivity to the negative ones.

Dorff openly admits that he opts for the Jewish approach rather than others mentioned in his book only for reasons of ethno-cultural tradition and religious belief: "I find the Jewish tradition's approach to moral questions interesting, first, because it is my own tradition... In addition to that ethnic reason, I indeed believe that God really wants Jews, and perhaps all humanity, to abide by this tradition."[1] But this perception of God's will notwithstanding, Dorff does not deny the value of other approaches to the same subject:

The important thing to note is that no human being can be a completely objective observer, none of us can attain the vantage point that Judaism ascribes to God in His omniscience. Instead, each of us must look at the world from a particular perspective, through a particular set of lenses. We both can and should learn about other people's perspectives -- we can try on other people's or other religion's eyeglasses, as it were -- but ultimately we must come to recognize that each religion and secular philosophy suggests a different way to think and act based on its specific way of seeing who we are and who we ought to be. Moreover, each perspective, as a human product, inevitably has its strengths and weaknesses; even the religions, or the forms of religions that claim to be revealed directly by God ultimately have to be interpreted by human beings with their particular limits and assets, insights and prejudices.[2]

Note especially the last sentence -- I do not think that apologists of the common variety with would affirm it with this degree of certainty and emphasis. Regrettably, though, inaccuracies of this kind and ones even worse abound in the book. For example, on a single page Dorff speaks first of the Jewish tradition having "close to four thousand years of experience in trying to understand individuals and communities," and then asserts that the biblical tradition, though to a lesser extent than the rabbinic tradition, embodies "the experience of judges who see the highs and lows of human life each day in their courtrooms."[3] Both these statements are unsubstantiated -- but neither impedes the points made by Dorff: first, a cultural legacy of two or three thousand years is hardly less impressive than that of four and second, Rabbinic Judaism indeed sees many things from the viewpoint of a court of law (whether real or imaginary), and it was this Judaism that, since the first centuries of the Common Era, set the agenda for the subsequent development of the Jewish tradition.

Significantly, while Dorff sometimes speaks of "the Jewish tradition's approach" to ethical issues, the subtitle of his book refers to "a Jewish approach to modern social ethics." His inconsistency with articles might have caused some confusion, but Dorff is careful to point out explicitly that his work

...is specifically a Jewish approach to social ethics, not the Jewish approach, because the Jewish tradition is much too rich and varied for any articulation of it to legitimately make the latter claim. I nevertheless maintain that I present a fair reading of the Jewish tradition in these matters -- that is, I present a Jewish approach to the topics included and not just my own idiosyncratic views -- and I try to support that claim by affording the reader a rich set of classical materials along with the reasons for my interpretation of those materials.[4]

So wherever Dorff speaks in his book of "the Jewish tradition's approach," it must be understood as a mere shorthand to his own view of that tradition in regard to the issues in question -- but the degree to which he has presented "a fair reading of the Jewish tradition" may be fairly disputed.

Thus in Appendix A, titled "The Right in Contrast to the Good," Dorff dwells on the distinction between these two terms in regard to ethical theory, based on the verse of Deuteronomy 6:18 that provided the title of his book: "You shall do the right and the good in the eyes of the Lord." Dorff has found several ways to formulate this distinction; thus, for example:

The "right action" describes a duty that I have, often deriving from a relationship that I have from times past... A judgment of the right thing to do... is an evaluation of what an individual should do given his or her relationships to others (however broadly "others" is construed).
So, for example, I have a series of moral duties to my parents simply because they are my parents; these duties, if rightfully performed, are not in payment for whatever they did for me or in hope that my own children will treat me in the same way some day. That is, they are not pragmatically grounded. Filial duties arise simply from the existence of a relationship between children and parents...
That personal reference is usually absent from judgments of a morally good thing to do, which stem more often from the assessment of goals: The good thing is that which will produce future desirable consequences, whereas the bad thing is that which will produce bad results. This is true for whoever does these things: The relationship, or lack thereof, of the actor to the beneficiary makes no difference...
A goal becomes a moral good (rather than simply a good for me) when it is, at least partially, other-directed. Thus, it may be good for me to get a promotion, but that is not a moral good; it is solely a practical good... Moral goods involve the welfare of others. I too might benefit, but if the good is moral, I alone cannot benefit. In general, then, it is a moral good to donate time, energy, and money to the benefit of others beyond what any call of duty may require.[5]

Unfortunately, neither here nor anywhere that I saw while browsing through the book -- does Dorff cite the verse of Deuteronomy 6:18 in full: "You shall do the right and the good in the eyes of the Lord, so that it be well with you and you come and take possession of the good land, regarding which the Lord had sworn to your ancestors." Thus, contrary to Dorff's thesis, the verse grounds doing both the right and the good in purely selfish motives. This may not bear on the definitions of the right and the good themselves, but Dorff's basically altruistic perception of ethics (according to which self-serving deeds and intentions do not properly fall into the category of either the right or the good) is definitely not borne out by his main source text. This is not to say that an altruistic perception of morality cannot be found in the Jewish, or even specifically the biblical, tradition -- but the burden of proof lies on the author, not on the reader.

Dorff's further discussion of the distinction between the right and the good is quite interesting and impressive in terms of moral philosophy; still, the conclusion he comes to at the end is not substantially different from what he stated in the beginning:

Judgments of "the right," it seems to me, are assertions of what must be done to advance the basic needs of a society as that society envisions them. Those needs include both physical and spiritual requirements. By "spiritual requirements," I mean values that the society regards as necessities of character and that it may even prefer over life itself in extreme cases. "The good," in contrast, is a declaration of the less basic needs or ideals of a society...
[It should be noted] that what may be considered good in one society may be what is expected of everyone (that is, right) in another, and vice versa. Thus, while it may be good to be clean about yourself in general society, it is your duty to be so if you are a physician administering care to patients; in other words, medical ethics requires a degree of cleanliness that general ethics would consider beyond the bounds of duty and either usually good or, with a tone of disdain, much too fastidious. Among automobile mechanics a doctor's degree of cleanliness would be considered unrealistic and inappropriate.
Our use of ethical terms, then, must be flexible enough to accommodate different social and professional groupings and varying contexts. We use the terms "right" and "good" with relative stability only in regard to those obligations required by any society for it to exist. Thus, it is almost universally considered "wrong" to lie or steal, but in most societies it is only "bad" to be lazy. Even the definition of the duties of minimal morality, though, depends crucially, as I discussed, on different societies' perspectives on their fundamental physical and spiritual needs... But in each society one can usually determine what it considers to be crucial to its interests (physical or spiritual) by checking which acts it considers right and wrong, in contradistinction to those it classifies as retrograde ("bad") or approaching the ideal ("good").[6]

Dorff acknowledges that this distinction is just one theory among many in moral philosophy, [7] and by implication does not claim it represents some kind of philosophical consensus. But what is more important in the light of his book's subtitle -- "a Jewish approach to modern social ethics" -- is to what extent this distinction is Jewish; that is, to what extent it is present in classical Jewish sources. Regrettably, Dorff does not consider this question at all, and the only time he invokes a classical Jewish source in this regard, he mixes up the two categories that he was trying to make a distinction between:

...for example, if I were to say that it is good to exercise every day, I could simply be saying that I like to do that, that it makes me feel good, and I may even be implying or saying that you might like it too. On the other hand, I could be invoking the American ideal of fitness, based, as usual for American ideology, on its pragmatic benefits. I might even justify my positive evaluation of daily exercise with statements from a long line of American presidents supporting fitness programs. In this latter usage, I would be appealing to the standards endorsed by the society...
According to the convictions of Jewish ideology, though, I might even say that it is right to exercise every day and that you are doing something wrong if you do not. Health in the Jewish tradition, after all, is not just an ideal that one should, if one can, to take steps to attain and retain; it is rather, in the Jewish conception, a prerequisite for our ability to fulfill our divine mission in life. As a result, maintaining our health is nothing less than a commanded act as well as continual service to God. Maimonides states this explicitly:
He who regulates his life in accordance with the laws of medicine with the sole motive of maintaining a sound and vigorous physique and begetting children to do his work and labor for his benefit is not following the right course. A man should aim to maintain physical health and vigor in order that his soul may be upright, in a condition to know God... Whoever throughout his life follows this course will be continually serving God, even while engaged in business and even during cohabitation, because his purpose in all that he does will be to satisfy his needs so as to have a sound body with which to serve God. Even when he sleeps and seeks repose to calm his mind and rest his body so as not to fall sick and be incapacitated from serving God, his sleep is service of the Almighty.[8]

The Maimonides quotation is taken, as Dorff rightly notes, from Mishneh Torah, Laws of [Ethical] Attitudes,[9] 3:3. Yet, the phrase "not following the right course," marked here in bold, says in the original 'ein zu derekh tovah -- that is, using the Hebrew adjective for "good," the same word which, although as a noun and in masculine (tov), yields "good" in the translation of Deuteronomy 6:18. To be sure, at this point I am not making a definitive claim that the Hebrew usage did not change from the biblical to Maimonides' Mishneh Torah -- but this is at least a point that should not be left unconsidered in a work like Dorff's.

Having drawn a distinction between the right and the good in his view -- without showing it to be a Jewish distinction -- Dorff turns, in Appendix B, to "Comparative Ways for Identifying the Moral Course of Action." Dorff's comparison is limited to, besides the Jewish approach, "only the other traditions likely to be familiar to North American Jews -- namely, Catholicism, Protestantism, and American secularism."[10] Dorff briefly discusses what are, in his view, the advantages and disadvantages of each of these ethical traditions.

Among the Catholics, says Dorff, "in matters of faith and morals, the pope has the right to declare something 'infallibly.'"[11] "Protestant theorists place strong emphasis on individual conscience in defining the right and the good. They expect that individual Protestants should be guided in their moral perceptions and actions by Scripture, in particular the stories of Jesus."[12] And "American secular thought, with strong roots both in Protestantism and the Enlightenment thought, places great faith both in individual conscience and in rule by the majority in a government with checks and balances."[13]

Now, I am far from expert on the intellectual traditions just mentioned, but some of Dorff's comments strike me as misguided. Thus, his remark on the Catholic approach is based on a decision of the First Vatican Council in 1870. Not only would a 2000-year-old creed deserve representation through a more ancient source, but that very council -- adjourned only two months before Italian troops entered Rome and put an end to the Papal state -- was in fact an attempt by Pope Pius IX to create new ideological bulwarks against the rising tide of rationalism and liberalism, and the concept of papal infallibility was just one of these bulwarks. This concept was so new to Catholicism that it aroused considerable opposition in several European countries, most of all in Germany. Approved by the council, the principle of infallibility did become part of the official Catholic doctrine -- but many dissenters split from the official Church and formed another one, tellingly named the Old Catholic Church. Dorff may be justified in considering, for the purposes of his book, only mainstream Catholicism -- but the issue still deserves a more careful discussion than he offers.

The main fault Dorff found with the Protestant approach to ethics is the doctrine of Original Sin adopted by most Protestant denominations: plagued as human souls are by Original Sin, why suppose they can find moral guidance on their own in the words of the Scripture? Discussion of this topic lies entirely in the field of Protestant theology and is better left for another occasion. Of more interest is another difficulty Dorff found with the Protestant view:

Moral and communal chaos is another problem inherent in this system. There is ultimately no way in the Protestant method to determine that some act is definitely right or wrong; the best one can do is to say that I, or the members of a particular church community, think that it is right or wrong. If others in my community do not agree and we can live together despite the difference, then fine; but if not, the only alternative is for me to join another denomination or to create one of my own -- one important factor in the history of Protestant splintering, which today counts more than 250 denominations in the United States alone. Put in more abstract terms, Protestant methodology leads to moral relativism, if not moral individualism, with its inherent difficulties for defining the right and the good with any authority or clarity and for creating a cohesive community.[14]

The penultimate sentence is provided by Dorff with reference to a book by John Dillenberger and Claude Welch, Protestant Christianity Interpreted through Its Development, published in 1954 [15] -- so the talk of "today" should be taken with a grain of salt. But much more importantly, why should the stated difficulty present an ethical problem? What's wrong with people forming religious denominations out of mutual consensus -- and quitting them once the consensus is no longer shared on matters of fundamental importance? This is what the whole idea of religious tolerance is about, and Protestantism had a decisive role in introducing it to the Western world.

Of course, people are usually interested in maintenance of a stable social order, for which some minimum of shared moral values is a sine qua non -- but why should this task be carried out in religious terms? The Western world has actually devised much better tools for accomplishing this very goal -- which is the point of the next philosophy discussed by Dorff, American secularism:

American secular thought, with strong roots both in Protestantism and in Enlightenment thought, places great faith both in individual conscience and in the rule by the majority in a government with checks and balances... Thus, to quote the quintessential Enlightenment American document -- the Declaration of Independence -- some rights, "endowed by their Creator," are "unalienable" by any government authority. As a result, defining the right and the good is a matter, first, of individual conscience and, second, of majority vote with protections for minority rights.[16]

Then Dorff proceeds to remark: "I noted the advantages and disadvantages of individual conscience as the guide earlier, when I discussed Protestantism."[17] But the only disadvantage he has found with the concept of individual conscience as moral guide was, as mentioned, its inability to provide for a stable social order -- while the latter is precisely the task of "the rule by the majority in a government with checks and balances." To be sure such rule may have its own problems, but Dorff's view of them is quite surprising:

Ever since Thucydides warned us in The Peloponnesian War, however, of the reality that the rule of the majority can very easily become the rule of the mob -- with emotion ruling decisions rather than information, expertise and reason -- moral theorists have rarely invoked the will of the majority as a criterion of what is right or good. What, after all, provides the majority with the requisite, special knowledge to make an informed and reasoned moral decision in a specific case or the philosophical knowledge to understand more theoretical moral issues? On the contrary, the greater the experience required, the less likely the majority will have it. Moreover, what is the basis of the majority's decision? Their own desires? That raises the standard ethical problem that the desired is not necessarily the desirable, that, in other words, the criteria for judging the right and the good are not necessarily -- and maybe even not often -- identical with the criteria for deciding what we want. Furthermore, what kind of stability can be ensured through such a moral system? The majority can presumably change its mind any time, and then what is construed to be moral today may be deemed immoral tomorrow, or vice versa.[18]

This sounds convincing -- until one realizes that in the secular American model government does not establish morality. The part of the Declaration of Independence mentioned by Dorff deserves more extensive quotation:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. -- That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.[19]

Government's whole business is securing the unalienable rights of citizens -- which is, of course, easier said than done, since the rights of different citizens clash unceasingly -- but no decision of a government is binding on the citizens' views of morality. As Chief Justice Robert Jackson put it more than a century and a half after the Declaration of Independence, "It is not the function of our government to keep the citizen from falling into error; it is the function of the citizen to keep the government from falling into error."

Governments make laws, laws bear on citizens' actions, forbidding some of them and demanding others -- but laws do not say what is right or good. This role is left to the individual moral conscience of each and every citizen. Of course, if democratically established law demands you to do something that you consider bad or wrong, you will have trouble -- especially with law-enforcement agencies -- but that is the price people have to pay for a stable social order. The human need for such order is actually expressed by the following sentences of the Declaration of Independence:

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.

One of the ways to make evils sufferable is to make them fair. Part of this fairness is letting everyone influence his government's policy: if you don't like something your government does, you can work to make it cease doing that thing. Another aspect of fairness is the rule by majority: since all men are created equal, no one's moral opinion should be given more weight than that of his fellow, so whenever a controversy arises, the fairest way of making a public decision would be to add up the equal opinions on each side and see which side has the most. Still, better no evil at all than a sufferable one -- hence the reluctance of Western liberal thought to impinge on individual rights even when exercise of these rights brings about actions deemed morally wrong by the vast majority of a given country's citizens. Thus, most Americans seem to consider adultery morally wrong -- not just bad but wrong in Dorff's terms -- yet few would like to have it legally banned. On the other hand, American law unambiguously prohibits rape -- because this is not merely a violation of a commonly held moral norm but a grave offense against the raped person's basic right to his or her physical and mental safety.

And if one can do something broadly considered immoral as long as he does not violate others' rights, he is all the more entitled to hold moral opinions contrary to commonly accepted ones, or even to the law itself -- in which case he may be expected to put some effort into having the existing body of law changed. Dorff notes that "the tension between individual conscience and majority vote is evident in such contemporary moral issues as abortion and school prayer"[20] -- still, this tension does not cause either the American society to disintegrate or either side of the debate to abandon its view of what would be the morally correct decision. Perhaps the very existence of such tensions may be seen as a difficulty -- but it seems that they are inherent to any grouping of human beings, and besides, recognition of and acquaintance with different viewpoints on any issue surely enriches our minds (with the proviso that acquaintance does not necessarily make for acceptance).

Respect for individuals' rights is precisely what prevents modern democracies from slipping into a tyranny of the majority -- that is, as a matter of principle. In practice, bare principles hold poorly -- hence the need for a separation of powers, with the judiciary, not dependent directly on the will of the majority, capable of invalidating those governmental decisions that impinge on the basic rights of any citizen as guaranteed by the core documents of a given political entity (e.g. the Constitution in the United States). This is actually just one example of how the system of checks and balances prevents a government from assuming too much power at the citizens' expense. The sophistication of governmental machinery also ensures the kind of stability whose lack is so fervently lamented by Dorff: to change the existing legislation or policy, the majority of citizens has to lend support, or at least show no substantial discontent for the proposed change over quite a long time, so as to enable the proponents to affect all the relevant branches of power. It is still possible for a democratic regime to be not only altered but to be outright dismantled through the continuously and insistently expressed will of citizens -- but this can only to be expected in a system admitting its origin with fallible human beings and not pretending to reflect an imperative of the perfect and infallible God. (This is the reason for terming this system's ideology "secular.")

Having discussed the three "other traditions likely to be familiar to North American Jews," Dorff moves on to Judaism. In Judaism, he contends, the way of defining the right and the good is legal -- that is, these criteria are determined by law. How this law develops in regard to the mentioned criteria he does not detail, merely noting instead that "a legal approach to moral issues is inherently conservative."[21] This is meant to indicate that he means a legal system built on precedent rather than fresh legislation -- which is, of course, true.

Not surprisingly, Dorff deals extensively with the advantages of Judaism's "legal" approach to morality -- and to be sure, advantages there are. But regarding disadvantages Dorff is remarkably briefer:

The inherent conservatism of the law, though, also has some distinct disadvantages: It means that Jewish moral thinking and action may lag behind contemporary moral sensitivities and become downright reactionary in those areas where it does not change when it really needs to do so.[22]

More importantly, however, Dorff continues:

In light of all these pitfalls, why would classical Jewish sources depend so heavily on law to define and inculcate moral norms? Part of the reason, of course, is that the tradition presents the laws as the will of God; we are bound to those laws, including the moral laws among them, even if we do not understand why God has given moral norms to us in that form. Even if we cannot discern God's purposed in this, we can look at the way in which law actually functions in society -- that is, the results of putting moral norms into legal form. Then, just as we have described some of the major drawbacks of this approach, we can also analyze the advantages of Judaism's linking matters of conscience and the spirit to law.[23]

Again, advantages are not to be denied -- nor are disadvantages -- but what is overlooked in this passage is that it is precisely the "will of God" approach which exacerbates the drawbacks of Judaism's way of ethical deliberation and causes them to be sources of faith crisis.

Because of the inherent conservatism of traditional Jewish law, moral norms that it expresses can easily, and indeed in many fields have long ago "become downright reactionary" and even embarrassing (at least, embarrassing to people acculturated to the modern world, and most contemporary Jews belong to this category). Yet according to the view presented by Dorff, a tradition-true Jew has not only to follow these laws but to identify with them, seeing them as the will of the perfectly good God -- including, for example, the ban on saving the life of a non-Jew on the Sabbath, lest he incur most heavy punishments at the hands of Heaven if not of men.

Needless to say, a person acculturated to modernity would experience a great deal of moral, and hence psychological, discomfort with such a ban. And while the ban itself can be withdrawn from practice by a directive that it should be violated because of some ad hoc contingency (e.g. of the fear of strengthening anti-Jewish sentiment and thus endangering Jewish lives), the secondary character of this proviso in relation to the original law would remain self-evident -- which would leave the believer with the same moral discomfort, only slightly alleviated by the bottom-line directive on matters of praxis. Apparently, in such situations Dorff would concur that the basic law itself "really needs" to be changed -- but under the prevalent conventions of Jewish law it is hard to see how this can be accomplished, given the legal system's conservatism, the strictness of said ban and its ubiquity  in classical Jewish sources.

Judaism's view of law as the basic medium carrying the moral message seems to have led Dorff to obscure the difference between law and morality in the secular American view (a view that lies, de facto if not de jure, at the foundation of all modern democracies). It is the lack of distinction between law and morality -- the view that existing law is by definition moral -- which wrecks havoc with the consciences of modern Jewish believers. Nobody promised that religious life, Jewish or any other, would be free of existential crises, and how to solve them is the believers' concern -- but Dorff's failure to even relate to the problem in its full extent will surely not contribute to the solution.

References

[1] To Do the Right and the Good, p. xv.

[2] Ibid., pp. xiv-xv; italics preserved.

[3] Ibid., p. xvi.

[4] Ibid., pp. xvi-xvii; italics preserved.

[5] Ibid., pp. 241-243; boldface added.

[6] Ibid., pp. 249, 261; italics preserved, parentheses added.

[7] Ibid., p. 249.

[8] Ibid., pp. 259-261; italics preserved, boldface added.

[9] That is, Hilkhot De'ot. My translation seems to me better than Dorff's plain "Laws of Ethics," which falls short of reflecting the original Hebrew.

[10] To Do the Right and the Good, p. 263.

[11] Ibid.

[12] Ibid., p. 265.

[13] Ibid., p. 267.

[14] Ibid., p. 267; italics preserved.

[15] Ibid., p. 286, n. 3.

[16] Ibid., pp. 267-268.

[17] Ibid.

[18] Ibid., pp. 268-269.

[19] Quoted from The Declaration of Independence: A Transcription

[20] To Do the Right and the Good, p. 268.

[21] Ibid., p. 271.

[22] Ibid., p. 272.

[23] Ibid.; italics preserved.