When I speak to defenders of the latest round of deportations, I often hear the same defense: Everything the Trump administration is doing is legal. Pointing to long-forgotten laws like the Alien Enemies Act of 1798, supporters of these actions explain that the presidency has wide-ranging powers to remove residents that they deem dangerous.
I am not a legal expert. I leave it to the courts to figure out whether these actions are, in fact, legal. But as a rabbi, I am tasked with making ethical judgments. It is hard to ignore the general callousness on display for the well-being of those who are detained. As the administration has pursued their course, they have left a tremendous amount of collateral damage, destroying families and upending communities.
Though I wish that in all cases, law was a reflection of morality, though many times it is not. Often, great harms are perpetrated under the auspices of law. If the courts rule that the administration’s actions are legal, that does not preclude me from finding them immoral. As the medieval commentator Nakhmanides puts it, you can be a “scoundrel within the bounds of Torah” (commenting on Leviticus 19:12).
This essay will not assess which particular actions by ICE are immoral; plenty of other pieces have done just that. This one will take at face value the fact that at least in some circumstances, they have crossed a moral line. Instead, it will ask a more fundamental question: Do Jews have an obligation to go past the basic expectations of law toward a more expansive understanding and application of ethical behavior?
As the medieval commentator Nakhmanides puts it, you can be a “scoundrel within the bounds of Torah” (commenting on Leviticus 19:12).
To answer this question, one need look no further than the famous Talmudic tale of Rabba bar bar Hanan (Bava Metzia 83a). As the story goes, Rabbah bar bar Hanan hires a group of porters to transport wine for him. As they move the merchandise, they inadvertently break the wine barrels, losing all the wine. Knowing that he is within his legal right not only to withhold payment from the porters but also to take their cloaks as restitution for his lost wine, Rabba bar bar Hanan has his revenge: He leaves the porters unrecompensed and naked.
But when the porters approach Rav, the leading rabbinic authority at the time, asking for his aid, Rav forces Rabba bar bar Hanan to return the workers’ clothes and pay them for their labor. Just because Rabba bar bar Hanan is within his legal rights to punish the porters doesn’t mean that he should.
To prove his point, Rav cites a verse, “So follow the ways of the good and keep to the paths of the just” (Proverbs 2:20). For Rav, halakhah is not fulfilled unless one pursues a morally upright course. The letter of the law must meet its spirit — one that inspires us to walk in the footsteps of the righteous who came before us.
Rabbinic stories like this provide an important hedge against ethically suspect, legally sound actions. Through them, the rabbis marry the virtuous with the practical, the noble with the sensible.
Knowing that situations will arise where there is dissonance between the law and ethics, the rabbis develop a set of framing questions to help one determine how to act in a given situation.
Can I act and still feel I am doing ‘right and good’?
Jewish law frames ethical decisions off the biblical precept to “do what is right and good” in the sight of God (Deuteronomy 6:18). When quoted, this teaching implores the rabbis to consider the overarching moral bent of a given law.
The rabbis constantly temper their impulse to misuse law in favor of a more expansive view of moral obligation.
In one instance, the rabbis explore the case of a man who ends up indebted to another and is forced to sell his land to his creditor (Bava Metzia 16b). After settling the debt, the original owner finds the money to repurchase his land. If he informs his creditor of his wish to recover the land, Jewish law requires the creditor to sell it to him, even over other preferred buyers. Although technically the original owner has no legal claim on land that has been sold in its entirety and any new owner should be able to sell it freely, the rabbis ask the owner to do “right and good” (Deuteronomy 6:18), and sell it to the original owner anyway. For the original debtor, having that land means more than it would to another purchaser. Beyond sentimental value, it symbolizes reaching an important level of solvency in his life.
Teachings like the “right and good” principle show that the rabbis understand that Torah could never be long enough to cover all the technicalities of ethical living. Instead, God provides overarching texts and precepts that give Jewish law a filter to help us see our way through novel questions. In doing so, we have an eye toward what is right, not just what is required of us.
Is there a possibility of going beyond the letter of the law?
There are numerous Talmudic stories where a person has the option to hide behind a given law, and other rabbinic authorities force them to go beyond it. Invoking the teaching that we should act lifnim mishurat hadin or “beyond the letter of law,” the rabbis constantly temper their impulse to misuse law in favor of a more expansive view of moral obligation.
One important instance surrounds the returning of lost articles. According to Jewish law, if you find something (say, on the street) and you can surmise that the owner has relinquished hope of ever getting it back, either because it is too generic (without distinguishing marks) or because it was clearly lost a while ago, you may keep it. Later, even if you figure out its owner, you still do not need to give it back because through the very act of despairing over ever finding it, the owner has fully relinquished ownership.
However, a rabbi named Shmuel requires a person to act “beyond the letter of the law” and return it. The Talmud notes that Shmuel learned this from his father, who once found donkeys in the desert, and, using the same lifnim mishurat hadin rationale, returned them after 12 months — well past the time when the owner would have given up hope of ever finding them (Bava Metzia 24b).
Rabbis even go so far as to assert that the Temple was destroyed, in part because judges at the time “established their rulings on the basis of Torah law and did not go beyond the letter of the law” (Bava Metzia 30b).
The importance of superseding the baseline expectations of law are so important that rabbis even go so far as to assert that the Temple was destroyed, in part because judges at the time “established their rulings on the basis of Torah law and did not go beyond the letter of the law” (Bava Metzia 30b). Although the Talmud teaches this without explanation, commentators suggest that the rabbis believe that judges in and around 70 C.E. were too inflexible. Since another traditional explanation for the Temple’s destruction is that the people were punished by sinat hinam, “senseless hatred,” from the rabbis’ point of view, the judges’ refusal to do more than the law requires would have fomented discord within society and incited people to hate one another. Knowing this, lifnim mishurat hadin doesn’t just give us the permission to work against unjust laws, it gives judges the permission to be more creative. “Activist judges” are not an aberration in Jewish law, they are the expectation.
If I had an audience with God, what would God say?
The rabbis understand that humanity’s laws don’t always conform to God’s expectations. Sometimes God will still judge us harshly for following the law:
Rabbi Yehoshua said: There are four matters in which one who commits an offense concerning them is exempt from liability according to human laws but liable according to the laws of Heaven [and it would be proper for him to pay compensation], and the cases are as follows: One who breaches a fence that stood before another’s animal, [thereby allowing the animal to escape]; and one who bends another’s standing grain before a fire [so that it catches fire]; and one who hires false witnesses to testify; and one who knows testimony in support of another but does not testify on his behalf (BT Bava Kamma 55b).
In all four matters, perpetrators set bad things into motion without being legally liable, since they are not the ones causing the direct damage. To take the first two examples, if you breach a fence and your neighbor’s animal escapes, getting injured or killed in the process, Jewish law does not hold you accountable for letting the animal out since the animal had agency to escape on its own. In the same vein, since you didn’t actively light a neighbor’s wheat on fire but only made it slightly easier for the wind to carry the embers into the adjacent field by bending the crop toward the fire, you are not directly liable for its burning. The fire might have found its way into the field without you.
Since a court cannot punish you, the rabbis’ only recourse is to warn you: God is watching; God knows if you fall into the category “liable to the law of Heaven” (Bava Kamma 55b). The Eternal has no patience for pragmatic loopholes. Don’t risk Divine retribution by taking advantage of the law’s weakness to do wrong. And if your misdeeds have hurt others, avoid God’s reprisal by reimbursing them promptly for the damage done.
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Given the importance of drawing the distinction between law and ethics, we Jews should feel free to advocate for the latter. In many cases, this means working tirelessly to change a law. In other more extreme cases, it means protesting in the streets or even resorting to civil disobedience.
Even the central legal ruling that Jews are religiously obligated to follow the secular laws around them, known as dina d’malkhuta dina, comes with important caveats. For some commentators, the secular laws only must be followed if they are fair. Laws that are discriminatory or unequally enforced, or keep Jews from fulfilling their own legal obligations, hold no weight. When even the most powerful kings violate these principles, Jews have the green light to ignore and, in some cases, actively work to subvert these unjust laws.
These exemptions show just how much of a moderating force one’s moral compass can be on law. Things may be scary at times, but a Jew’s hands are never tied. The rabbis remind us that we answer to a higher power — one that demands that in the light of injustice around us, we remain perpetual advocates for “what is good and right.”
