Does the Torah set forth the constitutional floor for human morality, thereby enabling mankind to evolve and progress and act in a manner that is more moral than the Torah’s mandates or, are the Torah’s mandates ipso facto the apex of morality and the constitutional ceiling?

Recently, there have been those inveighing for Israel to defend itself in a more substantial manner.  Without attempting to navigate the treacherous minefields inherent in any general discussion, I’d prefer to focus on those who use or adduce the Torah as a means to substantiate their position (e.g., Numbers 33:50-56).

For the sake of argument, let us grant these interlocutors the theoretical premise that these verses could be applicable today and that their understanding of the verses is accurate.

The question then is whether such verses should be applicable in our age and the answer in part depends on whether we can be more moral than the Torah’s initial directive, for surely if we can be more moral that we should aspire to be.

As with all exegesis, there can be no objective answer and within this area of the Torah in particular there is certainly enough ambiguity to allow for a multiplicity of interpretative possibilities.  That said, the paucity of responses from a Torah perspective to these interlocutors strikes me as a void that needs to be filled.

Without getting into the classic dispute between the medieval commentators over the Torah’s divine recipe for conquest, or the veracity of which opinion is a better read of the text, Rashi (Numbers 21:22) argues that Moses offered “peace” to Sichon despite the lack of divine commandment.

Abraham (Genesis 18:25) challenges God stating that “shall not the Judge of all the earth deal justly”.  God’s response isn’t that His actions are per se just, but rather He justifies the imminent action in Sodom by stating that there aren’t in fact enough righteous people to warrant sparing a city that personified evil.  The text would seem to indicate that God’s initial message of destruction to Abraham was something open to challenge and didn’t ring morally to him.

Studying the Torah would lead one to believe that capital punishment is meted out with some regularity, however, we find a striking Mishna (TB Makkot 7a), which records a dispute between the sages as to when a court is deemed destructive, some argue that it’s if they kill someone once in 7 years, others say in 70 years and still others say that if they were on the court, they would challenge witnesses with such impossible questions that no one would ever get killed. Regardless of whether this position was adopted generally, it would seem that Rabbi Akiva, Rabbi Tarfon and Rabbi Eliezer Ben Azarya thought that the Torah’s words required attenuation.

Moreover, as Rabbi Yehuda HaNasi notes (Chullin 7a) each generation allows for the subsequent generation to leverage the previous generation’s accomplishments and become greater.

On the other side of the equation, we have Samuel adjuring Saul (Samuel I 15:22) that God prefers heeding His voice more than Saul’s personal initiative.  Moses castigates the officers who took revenge against Midian for allowing the females to live (Numbers 31:15).  God criticizes Joshua for getting old without conquering the land as per His command (Joshua 13:1).  Ecclesiastes (7:16) warns us not to be excessively righteous or overly wise.  There are repeated warnings in the Torah not to add or detract to its commandments and to heed God’s word as is.

The question then becomes one of aspiration.  Those who view modernity’s yield in a negative light see the resumption of slavery and returning women back to their Biblically mandated arena as objectives to aspire to.  Such people view the lack of capital punishment or lashings meted out by our sages as negatives that ideally wouldn’t be present in a rabbinically run society.  While many people yearn for yesteryear or the Alte Heim and pray thrice daily for the return of the judges of yore, I don’t think that in reality many people truly pine for a resumption of Biblical life.  We see with our own eyes the inhumanity and danger posed by people who take their sacred texts too literally.  While we can continue to denigrate our modern Western democracy and its compassion as misplaced and relativistic, we should recall that it’s Western democracy that has allowed us to engage in theological fantasies without consequence.

I am partial to the dead hand of the past approach to constitutional theory given that a constitution written by man should be interpreted as close to the drafters’ intent as possible.  However, the Torah is a divine document, meaning that each successive generation can plumb its infinite depths for meaning and relevance and, as such, its theory of interpretation must be more akin to the theory of living constitutionalism.  It would be remiss however,  not to acknowledge the slippery slope and verification issues, namely that as we argue for continual progress built upon the shoulders of the earlier generations, we inevitably subject the Torah to our own subjective, fickle and contemporary sensibilities without knowing if we are taking the correct approach.

Having no spiritual sextant for celestial navigation, no seer who determines our path provides an opportunity for us to eventually relate to God in a more “equal” fashion as our partner and not our master (Hosea 2:18), and while it is exceedingly frustrating not to have complete directions prior to embarkation, perhaps if we temper our actions by considering not merely the Halacha, but also whether our approach truly passes the litmus test of aspiring to the day that the rest of humanity will use the Jewish Nation as their lodestar, we would come closer to fulfilling our mission of being a “nation of priests” (Exodus 19:6) and a guiding “light unto the nations” (Isaiah 49:6).