(Part 1 can be found here)
Halakha encompasses what are known as the Hukim – laws which seem to be purposeless – and the Mishpatim, laws which seem to be purposeful. Had the Halakha only consisted of Mishpatim, Leibowitz’s position would be untenable. The Mishpatim are laws which conform to our own intuitions about morality and ethics. But Leibowitz says that the Halakha has nothing to do with our own ethical intuitions; rather, it is a meaningless code which enables us to serve God. So if the Halakha consisted of just Mishpatim, there would be two codes of conduct: Halakha and the set of our moral intuitions, which don’t really have anything to do with each other but coincidentally are practically identical. A coincidence of such magnitude is not something I find plausible. Conversely, if Halakha consisted of just Hukim, it would not seem to the onlooker as though Halakha was trying to conform to any other moral system. What moral system sees an inherent value in salting sacrifices and lifting willow branches? Indeed, the reasons given for Hukim by Maimonides and the Sefer HaHinukh seem to be somewhat dubious. Is t’chum shabbas really something we mentally associate with cosmic chronology? Is bringing Bekurim really something which causes men to be humble, as Maimonides says (Guide 3:39)?
Perhaps, then, the solution lies in considering the Hukim and Mishpatim separately. Mishpatim are an approximation of a broader moral code, while Hukim are obligations without external reasons.
But this is problematic for a number of reasons.
First of all, this explanation does not make sense within either of the philosophical justifications for the two opposing understandings of Halakha. If Halakha without external reasons is proof of an irrational God, like Maimonides holds, then even the Hukim must have reasons. And if Halakha is to be considered within the framework of Divine Command Theory – that one must conform completely to the Divine Will whether or not it has a rationale – then even the Mishpatim are intrinsically valuable and are not a mere reflection of conventional morality.
It is possible to say that the Divine Will is completely captured by the Halakha, and the Mishpatim exist because God wills us to follow conventional morality. However, this doesn’t work since we could construct cases where even the Mishpatim go against our moral intuitions. Consider the following scenario. You are serving on a beis din of 23 during a murder trial. You have DNA evidence that the suspect is the killer as well as a video of the suspect committing the murder and a signed confession from the suspect. Clearly, under conventional morality, the suspect should be deemed guilty. Under Halakha, he would not be without two witnesses. Thus, either Mishpatim are completely divorced from conventional morality, or they are an approximation to conventional morality but are not identical to it. If we say that God wills us to follow conventional morality, then Halakha is only an approximation of the Divine Will.
In addition, saying that the Hukim and Mishpatim have completely different rationales doesn’t square well with their unification under a grand Halachic system. The Halakha deals with Hukim and Mishpatim the same way. The rules for how you judge a murderer are not all that different from how you judge an idolater. Meta-Halachic principles like “Osaik b’mitsvah patur min hamitsvah” apply equally with respect to Hukim and Mishpatim. Thus it would seem intuitive that they should have the same overall rationale.
We want to say the same thing about Hukim that we would say about Mishpatim. What will we say about them? Continue to part 3.