This week’s double parasha deals with עריות, forbidden sexual relationships, twice:
I’m not going to mention Obergefell (how’s that for paralipsis?) but it will hang over everything we talk about.
Rashi cites a Sifra on that last pasuk:
There’s a subtle problem with Rashi: what does this have to do with the עריות of the previous paragraph? Kosher animals were dealt with 3 parashas ago and shatnez at the beginning of קדושים.
It’s important to note that Rashi doesn’t quote חז״ל; he restates them. The original explicitly mentions עריות:
Why would Rashi leave עריות out?
The answer lies in understanding אלעזר בן עזריה's statement לא יאמר אדם אי איפשי.
The Rambam in his introduction to פרקי אבות, deals with the question of which is better, a מְעֻלֶּה, an “elevated” person, a person of such sterling character that they do not even desire to sin; or a ֹמּוֹשֵל בְּנַפְשו, a person desires sin but overcomes that desire. He cites משלי כא:י, נֶפֶשׁ רָשָׁע, אִוְּתָה רָע and other sources, that the מְעֻלֶּה is moraly superior. Then he cites our Sifra (without Rashi’s elision; he includes עריות) that seems to contradict this.
We talk about classifying מצוות as חוקים or משפטים, as “commanded” or “rational”. Secular legal theory has the same distinction, between malum prohibitum or malum in se. Rambam’s חידוש is that it is clear there is no practical difference in terms of observance; both are prohibited. However, there is a difference in terms of מידות. For משפטים, we should feel revulsion for the act. It is inherently wrong, and even if ה׳ had not forbidden it, it should be anathema to us. If not, we need to work on our attitude. But for חוקים, there is no moral superiority in despising it; it is simply גזרת הכתוב. Note that we may still try to understand the reasons for חוקים; it’s just that those reasons are not “natural”. For instance, מצה on פסח is understandable, but not immoral.
So the Sifra counts עריות as a חוק. Why does Rashi leave it out? There actually is a disagreement in the Sifra; earlier it says:
So there is a מחלקת between Elazar ben Azaryah and the stam Sifra, and between Rashi and Rambam, on whether עריות are a משפט or not; whether we ought to be bothered by that behavior or whether we should simply accept it as G-d’s command.
And I think this disagreement persists. 50 years ago, an article in Tradition stated:
Then, it was “obvious” that עריות are a משפט. That’s not so clear in 2017:
As an aside, the fact that the עריות are called תועבה doesn’t impact this question. Things that are generally accepted to be חוקים are called תועבה:
As are משפטים:
I think that the classification of whether a given מצוה is a חוק or a משפט changes, not just with the times but with the individual and their sense of inherent morality. The reason is that at its core, every משפט is a חוק. We do it because it is commanded. And every חוק is a משפט. We believe there are reasons for מצות, and the world we live in was created to be the world in which the תורה is the fundamental law. We just don’t always see those reasons.
Rav Soloveitchik, in a 1972 shiur, addressed a slightly different question: if משפטים are rational, why do they need to be divinely commanded?
What we consider משפט is dependent on the way we perceive our society.
What we have been calling the rational מצוות are not literally rational. They depend on what we unconsciously consider “normal”, the behavior of normal people. And that depends on what we observe. As Rambam says, הֵם הָעִנְיָנִים הַמְפֻרְסָמִים אֵצֶל כָּל בְּנֵי אָדָם שֶׁהֵם רָעוֹת.
That’s what makes TV and movies so powerful. Our brains don’t understand “fiction”. Observing something over and over in a normalizing context makes it normal and therefore ethical.
So the distinction between חוק and משפט seems to be tautological. We feel revulsion at violations of משפטים, and a משפט is defined as a מצוה that we feel revulsion about. But it is not. The problem is one of hypocrisy: there are things that we intellectually know are משפטים, that are inherently immoral or unethical, but we don’t feel any problem with them. That’s when the Rambam says מִי שֶׁלֹּא יִתְאַוֶּה אֲלֵיהֶן יוֹתֵר חָשׁוּב מִן הַמִּתְאַוֶּה אֲלֵיהֶן וְיִכְבּשׁ אֶת יִצְרוֹ מֵהֶן, and that lack of feeling is the warning sign that we need to work on our מידות to internalize the values we proclaim.