Q&A: Questions on Bava Metzia, Chapter Two
Questions on Bava Metzia, Chapter Two
Question
Hello Rabbi,
I am studying tractate Bava Metzia, chapter two…
1) In the Rabbi's article, he analyzed the difference between the Jewish conception of the Torah regarding returning a lost item, which stems from an essential bond between the owner and the object, and a secular, formalist conception of our times that is conventional… The Rabbi connects this to the fact that Jewish law is a religious system based on metaphysical conceptions ("intellectual and not merely conventional," in the Maharal's formulation)…
I am not an expert in law, but a friend of mine said that essentialist legal conceptions were common in the ancient world (Rabbi Shagar discusses this in his book Worldly Ways, regarding the laws of damages—indirect causation, pebbles kicked up by an animal, etc.)…
If so, why explain that the Torah specifically has an interest in such a conception? Many medieval authorities (in Guide for the Perplexed and in the Kuzari) understood the legal part of the Torah as arranging society in a way that prepares one for divine virtues… In light of that, we are certainly obligated by Torah law, but we do not necessarily have any special commitment דווקא to such essentialist conceptions… And accordingly, with regard to enactments and the law of the kingdom, one could be much more flexible, calculating mainly in terms of improving society…
2) There is an issue that many have written about, but I have not found a satisfactory explanation…
On 21a, the Rosh writes that since the Talmud leaves unresolved the case of half a kav within four cubits, this is a case of doubt regarding returning a lost item, and one is obligated to announce it… And he ruled similarly on 25a regarding an arrangement like a row and like a wall…
The Vilna Gaon explains that he treats the doubt as a prohibition-related doubt and not a monetary doubt, and therefore one must be stringent…
The question is that the law of returning a lost item derives from the question of ownership, and seemingly one should first discuss it in terms of monetary law… As Rabbi Shimon Shkop wrote regarding the prohibition of theft, here too one should first determine whose it is, and if it belongs to another person then one is automatically obligated to save his property…
I saw that they brought in the name of Rabbi Moshe Feinstein (I did not find it myself) that only regarding despair of recovery did the Rosh rule stringently; in the case of ownerless property he would not be stringent, because that is a monetary question… But despair of recovery is also a monetary question and not a question of the commandment of returning a lost item; if the owner despaired, it is no longer his, and therefore one is not obligated to announce it…
Answer
Yitzhak, hello.
1) That is indeed correct. In the past, everyone had a metaphysical conception. I did not understand your question. What do you mean by "why explain"? I am arguing that if one looks at the halakhic facts, one sees that this is how Jewish law works. Therefore, this is how Jewish law must be explained. If you are asking why the Sages chose to shape it this way—because in their view the metaphysical reasoning is correct. In modern law, by contrast, they moved to a conception of law as an instrument for social order.
If there are medieval authorities who thought otherwise, I do not agree with them. In my opinion, their words do not stand up to the test of the halakhic facts, as I explained.
I did not understand what this has to do with the law of the kingdom. That is indeed intended for improving society, and the author of the Derashot HaRan already addressed the duality of legal systems within Jewish law (Derush 11).
2) First, many medieval and later authorities wrote that despair of recovery is different from ownerless property. Despair of recovery is permission to take, not actual abandonment. From this it follows that despair of recovery really does belong more to the layer of prohibition.
Second, as I recall, there is a similar Rosh also in chapter 2 of Bava Batra regarding a doubt in the laws of damages (against Maimonides).
Third, I do not think this is similar to Rabbi Shimon Shkop's position. He is speaking where there is a legal rule that determines ownership, such as "the burden of proof rests on the claimant." There one follows the legal rule, and the prohibition follows after it. But in a case of doubt, there is no legal rule. Here there is monetary doubt and prohibition together, and therefore the laws of doubt in prohibitions should be applied here.