Chukim & Mishpatim: A Perspective
PLEASE NOTE: Because of the timing of the end of Pesach, Acharei Mot is the Parashah this week in Israel and next week in the Diaspora
In 2007, I published a book review in Tradition. In it, I tried to put in perspective the debate in Orthodox communities about how to respond to Orthodox homosexuals. I’d like to present here an idea that didn’t make it into the book review.
A few years after my article, the debate went public: two manifestos, each garnering over 200 signatures, displayed competing responses to Orthodox homosexuals, one less tolerant and one more tolerant.
In any argument, it is tempting to assume the worst about the other side, tarring its adherents with nasty labels such as “homophobic” or “liberal.” But aside from the Torah obligation to judge people favorably, this is unfair. Today’s debate might very well depend on a classic machloket (argument), going back to Chazal, about whether the sexual prohibitions called arayot are considered chukim or mishpatim.
WHAT ARE THE ARAYOT – CHUKIM OR MISHPATIM?
The Chumash uses both words to describe mitzvot, and the standard interpretation is that mishpatim have understandable reasons while chukim don’t. (The Rambam argues that chukim can indeed be understood, it’s just that their reasons aren’t obvious.)
However, Chazal disagree as to which mitzvot are in which category. On the one hand, a short list of mishpatim in the Gemara includes the prohibitions of theft, murder, idolatry, and arayot (Yoma 76b). On the other hand, according to the Midrash, one shouldn’t say, “I don’t want to wear sha’atnez, eat pork, or have prohibited sex (arayot).” Rather, one should say, “I do want it, but what can I do? My Father in heaven has forbidden them to me” (Sifra, Kedoshim 9:12). This Midrash equates arayot with chukim.
Commentaries are ambivalent. Both Rambam and Ramban give rational explanations for arayot, and yet call them chukim. The Maggid of Slonim distinguishes among arayot, arguing that incest is a chok, while adultery is a mishpat.
WHAT DIFFERENCE DOES IT MAKE?
I used to consider the distinction between chukim and mishpatim to be purely theoretical. But the Rambam in Shemoneh Perakim says that in fact there is a difference on the human level. There’s nothing wrong with being tempted to violate a chok (as in the Sifra above). But only a bad person is tempted to violate a mishpat! Rabbi Benjamin Hecht elaborates that a chok is a technical obligation; we don’t understand it, but it’s God’s will. (Those who don’t keep kosher might be fine people. You can still be friends with them.) In contrast, a mishpat is a moral obligation. We should not violate it or even want to do so. (Those who steal or murder cannot be fine people. Stay away from them!)
APPLYING THIS TO HOMOSEXUALS
Rabbi Hecht concludes (and Rabbi Aharon Lichtenstein concurs) that how we relate to Orthodox homosexuals may well depend on whether we view the prohibition of homosexual sex as a chok or a mishpat. Sometimes we see this explicitly, as when one rabbi posits that homosexual sex is prohibited on religious grounds only, not moral grounds, and another rabbi retorts that “Any simpleton reading this chapter (Leviticus 18) must come to the conclusion that a moral statement is being made by the Torah.” According to the opinion that it’s a mishpat, those who violate it are immoral, so tolerating them might be immoral as well. According to the opinion that it’s a chok, those who violate it are moral, so tolerating them might be a moral imperative.
CAN THE LINE MOVE?
Must there be an impasse? Not necessarily. Rabbi Hecht suggests that the very existence of the category of mishpatim is a vote of confidence in people, because the Torah’s morality is giving some weight to human morality. After all, while halakhah is absolute, ethical feelings can sway with the times. He asks, “Can the dividing line between [mishpatim] and [chukkim] also change?” He gives two examples of this change. First, to us, slavery is obviously immoral; yet it wasn’t obvious for most of world history. Second, circumcision is generally accepted in today’s society as reasonable, and perhaps even medically advisable. For most of history, though, brit milah was challenged and ridiculed by non-Jews, and Jews viewed it as a chok. So too, as society changes its attitudes to homosexuality, it may be that more Orthodox Jews will reevaluate the prohibition and consider it a chok rather than a mishpat.
While some will find this disturbing and others will find it comforting, I hope that all will find it thought-provoking.