The Sexual Prohibitions: Chukim or Mishpatim?

My recent post on Parshas Acharei Mos, The Laws of Sexual Morality: When a Mishpat Appears to be a Chok, elicited a few interesting challenges and questions (in various online forums) that I believe are worth sharing with my readers.

In my post, I briefly mentioned that, in the sixth chapter of his Shemoneh Perakim (the introduction to his commentary on Pirkei Avos), Maimonides argues for a distinction between chukim and mishpatim with regards to perfecting our character. Specifically, he argues that with regard to mishpatim, one is obligated not simply to obey the mitzva but also to work to remove the desire to commit the act in the first place, i.e. not only must one obey the laws prohibiting murder and robbery, but one must also work to eliminate from within oneself the desire to murder and steal. With regard to chukim, however, there is no obligation to eliminate the desire itself, thus, for example, while one is forbidden from eating a cheeseburger, there is nothing wrong with wanting to eat a cheeseburger.

One of my correspondents noted that, in his discussion, Maimonides specifically describes the arayos (sexual prohibitions) as chukim! The apparent reason Maimonides does so is because of the famous teaching of the Sages (Sifra, Kedoshim):

לא יאמר אדם: אי אפשי לאכול בשר בחלב, אי אפשי ללבוש שעטנז, אי אפשי לבא על הערוה,  אלא אפשי, ומה אעשה ואבי שבשמים גזר עלי.

A person should not say, "I do not wish to eat meat and milk, I do not wish to wear shaatnez, I do not wish to have relations with an erva (forbidden woman)," but rather [a person should say], "I wish to [do these acts], but what can I do? My Father in Heaven has decreed upon me [these prohibitions]."

According to Maimonides, the attitude expressed in this teaching would apply exclusively to the chukim. Thus, according to Maimonides, the inclusion of erva (sexual prohibition) in this teaching would indicate that the arayos are to be considered chukim.

The problem with this is that, in multiple locations, the Sages explicitly list the arayos among the mishpatim. Thus, for example, the Talmud (Yoma 67b) states:

ת"ר "את משפטי תעשו" - דברים שאלמלא לא נכתבו דין הוא שיכתבו. אלו הן: ע"ז, וגילוי עריות, ושפיכות דמים, וגזל, וברכת השם. "ואת חקותי תשמרו" - דברים שהשטן ועכומ"ז משיבים עליהם. ואלו הן: אכילת חזיר, ולבישת שעטנז, וחליצת יבמה, וטהרת מצורע, ושעיר המשתלח. ושמא תאמר מעשה תהו הן, ת"ל "אני ה'" - אני ה' חקקתים, אין לך רשות להרהר בהם.

Our Rabbis taught: [The Torah states,] "You shall do my judgements (mishpatim)" - These are matters that, if they had not been written [in the Torah], reason would require that they be written. These include [the prohibitions against] idolatry, sexual immorality, murder, robbery, and blasphemy. "And you shall guard my decrees (chukim)" - These are matters that the soton and the idolaters challenge [as being unreasonable]. These include [laws such as the prohibitions against] eating pig, wearing shaatnez (fabric made from wool and linen), [and the laws of] chalitza of a yevama (widowed sister-in-law who is subject to levirate mariage), the purification of a metzora ("leper"), and the goat that is sent away [as part of the Yom Kippur ritual in the Temple]. And lest you say that these are empty matters, the Torah teaches us, saying, "I am Hashem" - I, Hashem, have decreed these laws, and you do not have the right to doubt them.

 This would seem to raise an obvious difficulty with the Rambam's approach.

In fact, this problem was noted by a number of commentators (including the notes of the Yad Yosef on Ein Yaakov, Yoma 67b and in Rabbi Yosef Jacobs commentary on Shemoneh Perakim). 

To resolve the difficulty, they cite the commentary of the Maharsha on the passge in Yoma in which the Maharsha argues that the categorization of the arayos as mishpatim only applies to those arayos that are also forbidden to non-Jews as part of the Noahide laws. (See Maimonides, Hil. Melachim 9:5.) Thus, the general category of arayos would actually include both mishpatim and chukim, and when Maimonides refers to arayos as being chukim, he is only referring to those sexual prohibitions that apply only to Jews. Thus, following the Maimonides' approach in Shemoneh Perakim, a perfected individual would have no desire for adultery or homosexuality, which are forbidden to all mankind, but he may well have desire for his wife when she is a state of niddah, which is a purely Jewish prohibition.

While we see from this that the classification of the sexual prohibitions as mishpatim is not absolute (i.e. some sexual prohibitions would qualify as chukim, at least according to Maimonides), the basic idea that the sexual prohibitions are a mishpat is not really a matter of dispute.

A number of correspondents challenged the classification of the sexual prohibitions as mishpatim based on the fact that, as many sources teach us, the desire for forbidden sexual relations is among the most powerful and ubiquitous of all sinful desires. I have to admit to having difficulty following this argument. The fact that something is self-evidently immoral does not mean that the desire for it is unnatural or abnormal. There are many self-evident prohibitions that people naturally desire, and it can (and is supposed to) take great effort and self-discipline to bring such desires under our control.

In a related, though far more extreme vein, one correspondent argued emphatically that all of the sexual prohibitions are chukim because, "they only make sense if one accepts the Torah's belief system," and that without that belief system there is no rational reason to accept the idea that there might be something wrong with "loving and making another person feel good."

I believe this approach is erroneous on several counts. Perhaps most importantly, the fact that idolatry and blasphemy are themselves considered mishpatim would seem to indicate that accepting the Torah's belief system, or at least certain basic elements of that system, is itself a self-evident obligation. It certainly demonstrates that there are certain basic spiritual concepts that are understood to be intrinsically self-evident and do not require revelation. It, therefore, cannot be argued that any law that is based on the Torah's belief system is inherently a chok without fundamentally redefining the meaning of the term.

With specific regard to sexual morality, my correspondent argued that, absent a revelation to the contrary, there is no rational basis for viewing sexual relations as anything more than "loving and making another person feel good." In my opinion, this claim, which goes far beyond simply rejecting the specific sexual restrictions of the Torah, is self-evidently absurd, even from a purely materialist point of view. Sexuality is one of the most powerful human drives and desires, touching upon the most elementary aspects of our psyche. Thus, even in the most sexually decadent societies, there is a recognition that sexual behavior is much more than just a pleasurable activity that one does with close friends and loved ones, like sharing a meal or playing a game.

What often happens in such societies, however, is that people obscure the specific significance of the immoral sexual behavior by describing the immorality in non-sexual terms. Thus, for example, the immorality of adultery will be described as "betrayal", implying that it wasn't the sex itself that was the problem. Of course, if sex really were just a pleasurable activity, then adultery would be no more of a betrayal than a married woman sharing lunch with a coworker. The reason we see it as a betrayal is precisely because we recognize that sexuality involves a level and form of connection between people that goes far beyond that of simple love and friendship.

Similarly, rape is seen as one of the worse possible crimes that a person can commit, and the victims of rape are recognized as having suffered in a unique manner, fundamentally distinct from the victims of other violent crimes. However, if sex were truly nothing more than a pleasurable activity, like eating a candy bar, then it would be hard to explain why rape is so bad. Obviously, it is immoral and unethical to use violence or the threat of violence to force people to do anything against their will, but if someone was running around forcing people to eat donuts, I don't think we would see him as the moral equivalent of a serial rapist. Once again, we intuitively recognize that sex involves something more than just physical pleasure, and that forcing someone to engage in sexual relations against their will is a form of aggression that is fundamentally different from ordinary violence.

The point of the above is that we intuitively recognize that sexuality is much more than simply a physical act of pleasure, and, as such, we also recognize that there are moral restrictions on sexual behavior that are unique to sexuality. Thus, an objective assessment of human reality will tell us that some kinds of restrictions on sexual behavior are morally necessary. As I said earlier, this would be true even from a purely materialist point of view. Once one recognizes that a human being is more than just a physical body, then the idea that sexuality is nothing more than a physical act of pleasure which ought to be free and unrestricted is absurd. This would be true even if we had no Torah and no revelation of any kind.

The point I made in my post is that the concept of mishpatim teaches us that these laws are such that we ought to be able to recognize their necessity even without such a revelation. With regard to the sexual prohibitions, this means that we ought to be able to recognize on our own why these forms of sexual behavior are immoral. If it happens that we cannot, this tells us that, on some level, our capacity for rational thought has been corrupted.

This brings me to a point that was raised by another correspondent with regard to the teaching of the Sifra that I quoted, in which the Sages appear to be promoting worldly ignorance:

"To walk in them" - Make them primary and not secondary.

"To walk in them" - Your discourse should be exclusively in them and you shall not intermingle other worldly matters with them.

A person should not say, "I have studied the wisdom of Israel, [and now] I shall study the wisdom of the nations of the world," for the Torah says, "To walk in them" - you are not authorized to take leave from them.

In fact, the same issue concerned me as well when I was initially writing the post. At first glance, the language of the Sifra does seem to imply that one should absolutely avoid studying anything other than Torah. However, as we know from other sources, the approach of the Sages (throughout the generations) to worldly knowledge is far more complex than simple negation.

Exactly how to approach the study of secular knowledge in practical terms is obviously complex, and has been a matter of debate throughout the generations. However, the basic points are not in dispute. Torah must be seen as absolutely primary. This is the basic point made by the Sifra. A Jew must focus his primary attention and energy on the study of Torah, and he should not equate other studies to Torah study. 

The point I make in my post is that I believe that the reason the Torah stresses this topic at this particular point is because it is precisely the fact that we do allow foreign ideas to enter our minds on a level that is functionally equivalent to Torah that causes our thought processes to become distorted so that we are no longer able to recognize truths that are supposed to be self-evident.

As a general rule, this doesn't happen consciously, by which I mean that people usually don't deliberately choose to adopt foreign ways of thought instead of Torah, but rather these ideas enter our minds from the surrounding environment precisely because we don't already have the Torah principles firmly in place. (The principle that "nature abhors a vacuum" is far more true in psychology than it is in physics.)

This is why I conclude the post by saying that, to the degree that the basic mores and principles of the surrounding culture are in conflict with the Torah, it is that much more important to emphasize the study of Torah.

I would like to thank the various people who engaged in these discussions with me and I hope that they will continue to do so in the future.