Answer

Hello.
I read it quickly, because of lack of time, and I have a great many comments. I’ll note a few briefly.
1. I hadn’t noticed the Tur’s comment at the beginning of section 160. It is indeed very interesting. But it seems to me that he is not explaining why this is not in Choshen Mishpat, but why it is located specifically there and not elsewhere in Yoreh De’ah. I then saw that the Perishah also wrote this there in se’if katan 1, though he also suggested another possibility—that this explains why he did not arrange it in Choshen Mishpat. As a matter of reasoning, it doesn’t seem likely to me that the Tur would shift the location of the laws of interest so fundamentally just because it came to hand and he wanted to say something about it. So my explanation still seems correct to me.
2. In my view there is no proof that according to Maimonides this is monetary law. Its location in the laws of lending and borrowing proves nothing, since Maimonides arranges the laws by subject matter and not by essence. The laws of lending and borrowing deal with loans, so it is no surprise that interest appears there. By contrast, the Tur and the Shulchan Arukh are arranged according to four sections, and Choshen Mishpat has an essential characteristic in that it deals with monetary obligations (civil law, as explained in my article).
3. As for seizing property, Rabbi Shmuel discussed this at length in his general lectures on Bava Batra, if I recall correctly sections 9–10, and my recollection is that he showed there that even according to those views this is still not monetary law. Certainly there is Nachmanides’ famous reasoning: instead of compelling him physically, compel him financially. That means the seizure of property is by way of coercion, not collection.
4. The one who disagrees with Rashi whom you cited is the Rashba in a responsum, but not everyone who disagrees holds that way. And in truth the Rashba’s reasoning is puzzling, because the fact that I am obligated to save someone is not a monetary obligation but a prohibitory one (Yoreh De’ah, not Choshen Mishpat), so how does that permit someone else to take my money when I did not give it to him? Is a poor person allowed to rob me of the charity that I am obligated to give him, just because it is an obligation from Yoreh De’ah?
5. Regarding stealing the canteen, the Hazon Ish wrote that this is murder and not theft—a typical sort of reasoning for him. I wrote something similar in my article on monetary law in the Kovno Ghetto.
6. As for your basic argument, I think you did not explain it sufficiently. I understood you to be claiming that this is a Choshen Mishpat obligation whose basis lies in the Yoreh De’ah obligation to keep the borrower alive. I seem to recall that I wrote something like this in a “Good Measure” article about the Sabbatical remission of debts. And along similar lines, the later authorities explain the view that repayment of a creditor is a commandment, which exempts heirs from repaying a loan because they are not subject to that commandment, even though the debt is of course monetary.
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Questioner:
1. The Bach also explained it as I did, and I’m not sure there is such a great difference whether the apology is for why it is here rather than in Choshen Mishpat, or why it is not elsewhere in Yoreh De’ah. If one has to preserve order, that is true for the internal order within the sections as well.
2. In the article too I was very surprised by your claim that specifically Maimonides is the technical one and the Tur is the essentialist. As far as my limited understanding goes, it seems exactly the reverse.
Maimonides arranges by essences throughout his whole work. Tefillin appears with Torah scrolls and mezuzah, not with tzitzit, unlike the Tur. The laws of niddah are split between forbidden relations and impurity of lying and sitting surfaces, to the point that it makes it hard to find a complete law, just because he was so careful to place each thing in its essential place. There are many other examples. Only recently I wondered why unloading and loading were grouped by him with preserving life rather than with lost property, and the explanation is apparently that lost property is restoring money while unloading is rescuing the animal and also helping the person himself, though it still needs study. Honoring parents appears together with the rebellious elder. The connection is obviously essential, not technical.
 
The very arrangement of life in Orach Chayim—on weekdays from morning to evening, and on the Sabbath from the eve of the Sabbath until its close—and first the laws of the daily order and only afterward the prohibited labors, that is not an essential arrangement but a technical one for convenience.
 
I always understood that Maimonides constructed the whole Torah in an ideal structure and from there it cascaded downward into practice, whereas the Tur dealt with the practical bottom line: how the Jew should conduct himself in life.
 
If you are right that interest belongs to the realm of prohibition and not monetary law, one would have expected the Tur specifically to place it with monetary law, because practically speaking it is business, while Maimonides would find it a place among the prohibitions.
 
3. The plain sense of the passage at the beginning of “Which Is Interest,” which our discussion is also dealing with, is quite clear that interest is robbery, at least once it has been prohibited. That is indeed difficult for the medieval authorities. Likewise, I brought the dispute about whether one can betroth a woman with fixed interest. Maimonides disagrees with the Geonim, who held that waiver is ineffective, and maintains that it is effective after the taking, because this is full-fledged money. It seems quite clear that Maimonides consistently understands interest as actual robbery and treats it as money in every respect, except with regard to heirs.
4. Later authorities say the Rashba’s reasoning in explaining the view of Tosafot and the Rosh (Afikei Yam, Achiezer). Interesting that they didn’t see the Rashba’s responsum. In my article I cited it; the credit, which I didn’t give in writing, goes to your article. That’s where I found it and looked it up inside.
5. Nice, but not binding. It seems that Igrot Moshe, Yoreh De’ah I:145, comes out differently.
6. A general observation for you, if you like: you taught us, Rabbi, and this is perhaps the teaching of your life, the axis of “analytic–synthetic.” If I have understood it correctly, then in result, although you ostensibly advocate the synthetic, in practice you create an analyticity of the synthesis. You descend to exact definitions all the way down, leaving no room for intuitive vagueness. Is that really so?
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Rabbi:
1. I definitely see a difference between internal ordering within Yoreh De’ah and mixing between the sections.
2. Obviously Maimonides has order and system, but it is according to content. For him, the books of Mishpatim, Nezikin, and Shoftim all deal with Choshen Mishpat. He did not gather them into one whole, unlike the Tur. In Maimonides, the laws of loans—even if in character, that is, according to the Tur’s classification, they would belong in Yoreh De’ah—will enter the laws of lending. The Tur is the one who grasps the categorical distinction between monetary law and prohibitions, and that is why he places interest in Yoreh De’ah. He created another level of classification above the level of Maimonides’ books, namely the columns. By the way, even the essence in the Tur changes between sections. In Orach Chayim it resembles Maimonides’, since it deals with laws in the order of the day and year. Only Choshen Mishpat really conceptualizes an abstract category rather than arranging by content. The distinction between the sections—that is, Orach Chayim and Yoreh De’ah versus Even Ha-Ezer and Choshen Mishpat—is a categorical distinction: rabbinate versus judiciary.
3. Indeed the passage at the beginning of “Which Is Interest” is very puzzling in many respects, and it is already difficult even for the medieval authorities. I do not deny that there are medieval authorities who saw interest as monetary law, such as those who hold that one cannot betroth with it, but I am not sure that this is Maimonides’ view. See at very great length in Rabbi Shmuel’s novellae to Bava Batra mentioned above, sections 9–10.
4. In some of the medieval authorities it does not seem to be like the Rashba, especially since his reasoning is very puzzling, as I wrote. By the way, as far as I remember, it does not say there that according to this there is no permission regarding a non-Jew’s property. I remember this from Rabbi Israeli’s responsum on the Qibya operation. True, that would indeed follow from the Rashba’s approach.
5. I certainly try to produce definitions, but I am aware of their limits and am prepared not to force reality to bend to them completely.
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Questioner:
As for the classification methods of Maimonides versus the Tur, first of all Even Ha-Ezer is not all judiciary, if the intent is that it requires a religious court. (I’m sure you do not mean the rabbinical ordination exams of the Chief Rabbinate, where for that purpose all of Even Ha-Ezer does indeed belong to that certificate and not to the certificate of “rabbi.”)
Admittedly, divorces and halitzah require a religious court, but kiddushin is in principle no different from Yoreh De’ah, and ketubbot are really Choshen Mishpat for the most part.
The Tur’s classification is not essential but technical: Even Ha-Ezer is simply everything connected to man and woman.
 
Choshen Mishpat is the only category created here, and I ask: is fewer categories a higher level of classification and conceptualization, or a lower one? Maimonides distinguished four different categories in monetary law: damages, acquisition, judgments, and judges. Somewhat parallel to the Mishnah: Bava Kamma = damages; Bava Metzia = judgments; Bava Batra = acquisition; Sanhedrin = judges—with his usual exceptions.
The Tur wrote only four books and not fourteen, so he had to cram more topics into each section. That is not more classification but relative mixing.
 
Within Orach Chayim, Maimonides gathers all the laws of prayers, for example—weekday, Sabbath, and festival. And the laws of the Sabbath include only actual Sabbath laws. The Tur arranged the Sabbath prayers along the course of the Sabbath day, to serve the reader rather than the content. Likewise the laws of conjugal duty, which Maimonides placed in the laws of character traits, the Tur inserted into the laws of nighttime after the evening prayer. That is not essence but completely technical.
 
In Yoreh De’ah, Maimonides connected sending away the mother bird with slaughtering, because that is one essence. The Tur sent the mother bird commandment to the end of the section, because the average slaughterer does not encounter it. That is completely technical.
 
In short, I see the Tur as an arranger for the benefit of the ordinary Jew, consistently, while Maimonides is the man of essence, as one would expect from his whole personality and enterprise. If interest were monetary in its technical character and prohibitory in its essence, then the Tur should have put it in Choshen Mishpat and Maimonides in the Book of Holiness. I am amazed at how you reversed the picture.
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Rabbi:
Indeed. But why did the Tur choose to divide his work into four and not like Maimonides? Maimonides followed the Talmud more or less, and the Tur changed it. In my opinion this is because of his intuitive conceptualization.
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Questioner:
Because of the overall picture of the Tur, which does not seem to reflect a higher level of classification and conceptualization, in my humble opinion it is more correct to go with a more trivial explanation.
The Tur wrote on far fewer topics, mainly because he did not write on what is not practiced. So sacrificial law, purity law, and agricultural law dropped out, as well as laws of the state. In addition, he did not deal with philosophical laws, like repentance—he inserted a bit of it into Yom Kippur, again technically—or character traits. Half the material disappeared.
 
He composed four separate books: one for daily life, one rabbinic, one legal, and one family-related. In other words, they are indeed umbrella topics, but not out of principled conceptualization—rather according to target audiences who would study his books, so that it would be convenient.
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Rabbi:
Maybe. But he still put charity and interest into Yoreh De’ah, even though there are monetary laws there between one person and another, and they seemingly should have gone into Choshen Mishpat. The legal Tur, that is, Choshen Mishpat—that itself is his overall conceptualization.
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Questioner:
Regarding charity, I wonder whether it is “money” or not—not on the essential-conceptual level, but in ordinary language. Charity is a commandment, not business. People buy a lulav, donate to a synagogue, and give charity. It is not perceived as something monetary like damages, bailees, or partners.
 
As for interest, we already discussed that.
 
In any event, my main concern is to defend the good name of the Great Eagle as the greatest essentialist of all time. Am I right?
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Rabbi:
I do not fully agree. I still think his division was subject-based and not categorical. And in the Tur, at least in Choshen Mishpat, one sees a categorical dimension.
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Questioner:
The more I think about it, the harder it is for me to accept.
What sort of subject-based division can group together tzitzit and circumcision, or forbidden relations and slaughtering, and on the other hand separate sacrificial law from valuations and consecrations, or forbidden relations from women?
Indeed, the Tur put forbidden relations—which are clearly Yoreh De’ah matters in character—into Even Ha-Ezer, because it deals with man and woman.
 
I admit I never understood the division between Temple service and sacrifices, and it seems partly based almost only on the title of the law. That is the only difference I have managed to find between the “service” of Yom Kippur in the Book of Service and the “sacrifice” of Passover in the Book of Sacrifices. Perhaps public and individual, roughly speaking?
 
As for the Tur, you are claiming that even if he does not conceptualize across the whole work, Choshen Mishpat is one conceptual point—in other words, one essential pearl in an otherwise entirely technical space.
But even that he did not edit rigorously to the end. How did the laws of a parapet get in there, for example? Why were the laws of ketubbot not included there?
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Rabbi:
Forbidden relations are a matter for the religious court, since they prevent marriage. Moreover, incest prohibitions prevent kiddushin from taking effect, and in that sense they are part of Even Ha-Ezer. And all forbidden relations create a status for the offspring, and that is certainly personal status. All matters of personal status are part of judiciary.
Your two opening remarks about Maimonides of course play into my hands, but let me sharpen the point. Circumcision and tzitzit are both “love.” There you have it: the classification is by the reasons and purposes of the commandment, not by the halakhic category to which it belongs. And that is exactly what I said. In the Guide for the Perplexed you can see his explanation of the division into the fourteen books, and everything is based on goals and purposes, on reasons, not on halakhic category. And that is exactly my point. Maimonides does not divide his book by halakhic categories but by subjects. That is a more primitive division, less conceptual in the analytic sense, though much more convenient for orientation. Someone looking for the laws of interest in Maimonides will find them much more easily than in the Tur.
I would also note that even in the Tur there is some degree of conceptualization—which is partly content-based like Maimonides, though there is still a broader linkage because it is divided into fewer books—in the other sections too: Orach Chayim is matters of everyday religious life. Yoreh De’ah is prohibition and permission, and many of its topics are interconnected. Even Ha-Ezer and Choshen Mishpat are judiciary. That is a fairly impressive broad conceptualization, even if today it seems self-evident to us.
The laws of ketubbot are in Even Ha-Ezer because they are part of the laws of marriage. After all, Even Ha-Ezer is also judiciary. Should the monetary minutiae of kiddushin—the whole set of passages in the first chapter of Kiddushin—be put into Choshen Mishpat?
The laws of a parapet are about preventing damages, and the laws of damages appear in Choshen Mishpat. There is an obligation on a person to prevent harm to his fellow even if it is on his own property. True, there was room to place it in Yoreh De’ah, but I do not think it is so difficult.
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Questioner:
I see that a large part of our argument stems from disagreement about the language.
You present an axis of “purposeful–technical–conceptual.” I do not understand that axis.
To my mind, purposive is much closer to conceptual than technical is, since technical sits lower down on the practical plane.
The ordinary person finds his way much more easily through a practical technical division than through a conceptual purposive division. Maimonides is harder to navigate, aside from the case of interest from which this whole discussion began, because you claim that interest is monetary on the technical plane and prohibitory on the conceptual plane, while I claim that on every plane it is monetary—certainly in Maimonides’ view—and the Tur simply put it in Yoreh De’ah and apologized for it.
 
If we put interest aside, I suggest a simple survey. Ask your students and I’ll ask mine a few orientation questions, and we’ll see where it is easier for someone unfamiliar with the material to find the laws.
Circumcision in the Book of Love—by the way, that does not fit the purpose of the Guide for the Perplexed, where it belongs under Holiness—is a conceptual distinction based on the purpose of the commandment and its definition. That seems to me a higher-level division, not a primitive one. On the contrary, to place it “like in the prayerbook” is simple and easy, and indeed the purpose of the Tur is accessibility, not definition.
 
With the Tur, I thought you were focusing mainly on Choshen Mishpat and agreed that the other sections are not really divided conceptually. What conceptually divides everyday religious life from prohibition and permission? That is a completely technical division.
As for Even Ha-Ezer as “judiciary,” I already asked: what is judicial about it? Personal status is a matter for judiciary only in the definitions of the Chief Rabbinate of Israel, whose authority you are famously not among those who accept.
Kiddushin has no judicial dimension at all, and therefore neither does marriage law generally. It is prohibition and permission in the field of personal status, bundled together with judiciary in the field of personal status, ketubbot and divorces. Again, a completely technical category. What is conceptual here?
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Rabbi:
The opposite. I am claiming there is a purposive-ideational axis—reason for the commandment and its purpose—by which Maimonides classifies, and a technical-conceptual axis—definition of the law and its category—which the Tur uses, at least partially. Tzitzit and circumcision are connected in purpose, under “love,” whereas damages and loans are connected conceptually, analytically, technically: both are legal obligations.
And yes, the ordinary person will find his way better in the purposive-ideational division. That is exactly what I wrote. I do not agree with you that Maimonides is less accessible than the Shulchan Arukh. He is much more accessible. If you tell a person “laws of interest,” he will go to the laws of lending, and he will not know that conceptually these are laws that belong to Yoreh De’ah rather than Choshen Mishpat. He does not distinguish between obligations generated by rights and ordinary obligations, because that is a conceptual-technical distinction.
The question of what is higher and what is lower can be debated. In my opinion the technical-conceptual requires far greater abstraction and conceptualization, but there is no point arguing about that.
As for the survey, if you ask them whether something is in Yoreh De’ah or Choshen Mishpat or Orach Chayim without giving them the internal content, then in my opinion they will be less oriented in the Shulchan Arukh.
Everyday religious life and prohibition and permission are indeed not divided categorically, and that is why I explicitly wrote that there the division is ideational. But it is an internal division within the Tur’s larger division into rabbinate and judiciary.
As for Even Ha-Ezer, it is the father of judiciary. As I explained in the article, every legal system rests on the fact that it defines personal status—marriage and divorce—which means this belongs to the legal part of Jewish law and not to the ritual-halakhic part. This has not the slightest connection to the Chief Rabbinate or one’s relationship to it. On the contrary, they ride the wave that this is a legal matter, and therefore demand that the state regulate it through them. If not everyone understood that this is a legal matter, they would not receive that authority. My anger is that they exploit this. It is prohibition and permission from the domain of personal status, just as robbery is prohibition and permission from the domain of monetary law. At the root of everything there is prohibition and permission, since we are dealing with Jewish law. The division is into subcategories within Jewish law.