Can Jewish law conflict with ethics?  If so, how is this dealt with?

     As classical rabbinic Judaism always has held, Conservative Judaism teaches that the development of Jewish law, which includes revisions due to ethical concerns, is in fact one way that God can reveal His will.  There are two schools of thought within Conservative Judaism on this issue.

     One school of thought defines halakha (Jewish law) broadly, and thus teaches that halakha can never conflict with moral and ethical values.  Thus, when there is a clear conflict between the law and the moral and halakhic leaders of a generation, Jewish leaders have used a number of methods to change the law.  A second school defines halakha more narrowly, and thus opines that halakha can at times be in conflict with ethics.  In such cases, the law in question must then be overturned.  Representing this latter view, Rabbi Seymour Siegel writes.

"Most important in Conservative Judaism's view of the interpretation of Jewish law is the introduction of the aggadic and ethical component.  Since the Law is the expression of the covenant, and a basic aim of the covenantal obligation is the practice of justice and compassion, we cannot sustain the authority of any norm which results in unethical outcomes.  When the halachah cannot adequately address the aggadah, it must be modified.  Thus, we do not practice the exclusion of mamzerim ...because it is an unfair law.  We do not defend the laws of slavery because they are not up to our ethical standards; we accept the marriage of a divorcee and a kohen because we feel that the notion of a divorcee being somehow flawed and therefore not worthy of a kohen does not square with our notions of right and wrong.  This does not mean that we are more ethically sensitive than our forebearers.  It means that in our situation, certain ethical considerations are present that may not have been present in ancient times.  These ethical perceptions come out of our tradition as a whole.  Of course, there will be different conceptions about outcomes, but the principle remains." (Pages xxiii-xxiv)

From these and many other examples it is clear that the sages modified the law when they saw that following another norm would result in unfavorable results.  Ethical considerations and public policy were sufficient to change the decision.  In this connection it is interesting to read a comment by Yehoshua Walk Katz in his commentary, Derisha, to the Tur Hoshen Mishpat 1:1:

  When the rabbis spoke of a true judgment which conforms to
  the truth, they meant to say that the judge should judge
  according to the place and the time, so that the judgment
  may be truly true.  A judge should not always rule according
  to the letter of the law...if he does not do this then he
  may be a true judge, but his judgments are not true.

It is possible to formulate the approach in terms of the relationship
between the aggadah and the halakhah.  If we loosely define the aggadah as the expression of the ethical and theological values of Judaism, and the halakhah as their embodiment, then our thesis is that the aggadah should control the halakhah - not vice versa. [p.124-132]  [excerpted from R. Siegel's "Conservative Judaism and Jewish Law"].

 

     Those in the former school of thought are more likely to see Jewish law as being based in natural law.  Any perceived conflicts between law and ethics means that either the law as stated never was valid to begin with, or that the law was valid for that time in history, but in view of changed historical and social realia, is no longer valid.  People in the latter school of thought are more likely to see Jewish law as a positive law based system.  Thus, any law that is in conflict with ethics means that the legal system had an inherently flawed or incomplete approach in that area, which is not in consonance with the high moral standards demanded of Jews by God.

    In either case, people in both schools of thought recognize that Jewish law has changed in the past, and in pressing circumstances, must continue to do so in the present.  Rabbi Elliot Dorff summarizes the approach taken by the rabbis (in both schools of thought) when such conflicts exist:

(1) In areas where the Bible has little legislation, the Oral Law is written and developed by the rabbis in a manner that is consonant with halakha and ethical sensibilities, following the Torah mitzvah "Do what is right and good in the sight of the Lord" (Deut. 6:18)

(2) At times the rules announced in the Bible are in conflict with the moral sensitivities of a new generation.  In such cases, in order to retain the authoritaive link between Jewish law and divine authority the rabbis tried as much as possible to link their laws to the Torah and Mishnah, much as American judges and lawmakers did vis-a-vis the Constitution.  To get around a morally objectionable law, they used various techniques:

  (a) Surround the objectionable law with multiple restrictions, so
  that it stays on the books, but in effect becomes inoperative.

  (b)  Deliberately give a new interpretation to a biblical verse.

  (c) Create a legal fiction to circumvent a problematic law.  The
  most famous example of this is Hillel's prosbul, which circumvents
  the Biblical cancelation of debts during the Sabbatical year so
  that creditors would not be afraid of lending money to needy
  borrowers in the 5th and 5th years of the Sabbatical cycle.

  (d) Issue a takkanah, which basically is halakhic legislation which
  openly and directly changes the existing halakha.  This method is
  dangerous, since it could undermine the law's authority by severing
  its connection to its basis in the Torah.  But when historical
  circumstances required extraordinary measures, such decrees were
  issued, more often than one might expect.  See See Menachem Elon's
  "Jewish Law: History, Sources and Principles" for many such examples.


     These strategies are not innovations;  rather, they are traditional imperatives based in the Oral law.  Talmud Yerushalmi notes:

    If the Torah had been given in a fixed form, the situation would
    have been intolerable.  What is the meaning of the oft recurring
    Phrase "The Lord spoke to Moses" ?  Moses said before God, Lord
    Of the Universe, cause me to know what the final decision is in
    each manner of the law.  God replied: "The majority must be
    followed.  When the majority declares a thing permitted, it is
    permitted, and when the majority declares a thing forbidden, it
    is forbidden, so that the Torah may be capable of interpretation
    With 49 points pro and 49 points contra." [Sanhedrin, 22a]

     Note that the rabbis were aware that many positions could be justified within the law, and the legitimacy of a decision was based both on the moral character of the judges, and the explicit condition that such judges accepted that halakha was normative and binding.  [From the article "The Interaction of Jewish Law With Morality" Rabbi Elliot N. Dorff, Judaism, Fall 1977, Vol.26, No.104, , p.455-466 ]

     For more information on this topic, see any of the books on halakha by Rabbi Ellot Dorff, Joel Roth, Robert Gordis or Louis Jacobs.