I didn’t understand. I quoted what you wrote there in the article, that the theory of law also has a prohibitory dimension, meaning a legal prohibition. But Shai argues (to the best of my understanding, though it can’t really be understood otherwise, since he repeated it dozens of times) that there is no prohibitory dimension in the theory of law. The theory of law only defines reality; the prohibitory dimension comes only from the Torah’s commands.

I no longer remember what he writes. If that’s what he writes, he’s mistaken. Rabbi Shimon says quite clearly that there is a prohibitory dimension, and I proved that here on the site as well (for example, from his question at the beginning of Gate 5: why obey a law that is not written in the Torah? According to your thesis, there is nothing here to obey at all).

I’d be happy to understand the question, because a legal definition such as “ownership” has no meaning without a legal claim demanding that it be upheld.
And that’s because if there is no claim, then what is included in the statement “it’s his”? After all, I can take it from him. What is the content of “ownership” if it demands nothing? The whole concept of “ownership” is just a legal fiction, that the uses and rights that the object makes available by virtue of its reality should belong only to the owner, but it does not add any new use.
And even more so, the concept of ownership is only a relation (for it is not an ontological or mystical entity, but a legal definition), and if it demands nothing, what does it mean?
What one could say is that there is no Torah-based claim, only a legal one (like morality, etc.). And that is what Rabbi Shimon Shkop says.

First, ownership can be something ontological and not merely a legal relation. As implied by several expressions of Rabbi Shkop (see for example Sha’arei Yosher 5:6).
Second, a rule of definition has meaning even if there is no rule of conduct attached to it. For example, a minor who stole is, by definition, financially liable, but he is not obligated to return it because he is a minor (there is a rule of definition upon him, but not a rule of conduct). However, there is a normative practical difference that follows from this rule of definition: a religious court can go down to the minor’s assets and return the money to its owner.

In principle there could be a metaphysical situation with no implications, except that it isn’t very interesting. In any case, on the matter itself I wrote that it is clear that according to Rabbi Shimon there is a meta-halakhic (legal) prohibition.

I don’t think there is proof from a minor, since there the definition is that there is a legal claim, but the minor is not obligated by claims. Like an object lying in the street, where there is in principle a claim that associates the object with its owner, but there is simply no one to return it; so too with a minor—there is a claim, but he is regarded as if he were absent.

You explained that Choshen Mishpat = my duties whose basis is my fellow’s right; and Yoreh De’ah = my duties whose basis is not the other’s right, but rather duties that are upon me. Based on that, one can explain why coercion regarding the commandments of Yoreh De’ah (they beat him until he says “I want to”) differs from coercion in Choshen Mishpat (they seize his assets): because in Choshen Mishpat the main thing is that the other person’s right not be violated, not that I fulfill my duty.
1. True, the normative source of legal duties (common sense, natural law, etc.) differs from religious duties (the divine command), but the Torah still gave religious sanction to legal duties. If so, why in coercion for the commandments of Choshen Mishpat do they not beat him until he says “I want to,” so that he will fulfill his religious duty to repay his debt?
2. I was unsure what the motivation should be when fulfilling a legal commandment. Is it “I am fulfilling this in order to obey God,” like other commandments, or not? On the one hand, it seems to me that no motivation is needed (like someone paying taxes to a police officer—we don’t care about his motivation), but on the other hand, since there is also a religious obligation here, maybe yes?

1. It works the other way around. Of course they beat for Choshen Mishpat just as for Yoreh De’ah. What they do in Yoreh De’ah they also do in Choshen Mishpat. Only the reverse is not true: in Choshen Mishpat they seize assets, and in Yoreh De’ah they do not (though see Chiddushei Rabbi Shmuel, Bava Batra, sections 9-10, at great length).

2. Both: one should do it because of the legal duty and also because of the commandment.

1. I didn’t understand why they beat in Choshen Mishpat. Fair enough in Yoreh De’ah, because we want him to discharge his obligation, but in Choshen Mishpat why should we beat him? After all, first and foremost the main thing is that the money be returned to the lender, and second, in any case we can seize his assets!?

2. Is there a difference between the motivation that should accompany us when performing some commandment and the rule that commandments require intention?

1. Clearly, if there is no need to beat, then we do not beat. And if they seized his assets, there is no point in beating. But this is not a difference between Yoreh De’ah and Choshen Mishpat. In Choshen Mishpat too, if necessary they would beat him (for example, if he hid his assets and it is impossible to seize them).
2. No. That is the rule that commandments require intention. Although even according to the view that commandments do not require intention, that only means it is not indispensable after the fact, but ideally one certainly ought to do it that way. And as for opposite intention, some of the medieval authorities wrote that it invalidates according to everyone.

And beyond that, in the rule that commandments require intention, we’re talking about the conscious intention that accompanies the act. Motivation is something else. For example, a person comes to synagogue in the morning and puts on tefillin. Clearly his motivation is to discharge his obligation. But he is not necessarily consciously aware of that while doing it.

2. Got it, thanks.

1. Sorry for pressing the point, but would you agree that they are two different kinds of enforcement: in Yoreh De’ah it is enforcement to make sure he fulfills his religious duty, whereas in Choshen Mishpat it is enforcement to make sure (even by means of beatings) that the other person’s right is not violated. If so, the question comes back to its place: why in Choshen Mishpat is the enforcement not to make sure that the borrower fulfills his religious-legal duty, namely to repay the debt, but only to make sure that the lender’s right is not violated?

1. That was your original question, and I already answered it. The purpose of enforcement in Choshen Mishpat is both.

According to what you explained, that Choshen Mishpat is founded on the other’s right, so that no one may violate it because it is the territory of the right-holder—then why is it actually permitted for a king to use someone else’s property (as in King David and the story in Bava Kamma, chapter “Ha-Kones”)?

Because the king has the right to do whatever he wants with his subjects?

Because a king is “one of the people,” meaning he stands at the foundation of the public and at the foundation of each one of us. Just as the public is permitted to expropriate property. Rights are a result of public recognition of those rights, and in the absence of recognition there are no rights. And the public that recognizes rights can also revoke them. A religious court too can declare property ownerless.

You once brought a midrash about Alexander the Great, who visited a king and saw him judging between two people, each one claiming in religious court against the other that a certain palace was not his own but his fellow’s; and you said this is a beautiful expression of the idea that the role of a religious court is to save the oppressed from his oppressor and prevent someone’s rights from being harmed.
My question is: isn’t it also the court’s role to clarify to the litigants what their rights are, even if they themselves aren’t aware of them? A right is something objective and ontological; it has nothing to do with what the right-holder thinks. So maybe in that case the court should have said to the litigants, “Listen, you’re righteous people and all that, but the halakhic truth is that the palace belongs to this one and not that one.” Meaning, the litigants simply didn’t know who had the right, and therefore wanted to go beyond the letter of the law. But in that case it seems to me that the judge should have told them who really owns the palace, and afterward if the owner wanted to give gifts that would be his right, no?

Absolutely not. That is the role of a rabbi or halakhic decisor, but not of a religious court. I also brought there the example of a student who asked me a question in the laws of rental concerning a dispute he had with his landlord. And when I answered him, the landlord came to me with complaints that I hadn’t heard his side. I told him that I wasn’t acting here as a judge but as a rabbi whom people come to consult. These are two completely different roles. In a religious court, if a person does not claim his rights, he will not receive them. If he is an ignoramus, let him find out.

Can one say, similarly to what Rabbi Shimon Shkop argued regarding ownership (first of all there is ownership, and afterward one is commanded accordingly not to steal), seemingly the same thing regarding life: first of all life has value in itself, this is a concept that preceded the Torah, and on top of that value the Torah added the prohibition of “Do not murder” (and not that life has value because there is a prohibition of “Do not murder”)?
And such a claim would seemingly enjoy a broader consensus than the claim about ownership (as is known, Rabbi Shmuel Rozovsky did not accept that one; I would be surprised if he would not accept the claim about life).

You can say anything. What practical difference does it make? There is proof from Cain, who is held accountable for murder even though at that stage there is not yet any command prohibiting murder.

Rabbi, above you wrote that in Yoreh De’ah they do not seize his assets. But Maimonides wrote as follows (Gifts to the Poor, ch. 7, law 5) regarding charity—which belongs to Yoreh De’ah: “The religious court compels him, and they beat him with disciplinary lashes until he gives what he was assessed to give. And they seize his assets in his presence and take from him what is fitting for him to give. And they take collateral for charity, even on Sabbath eves.” Doesn’t that contradict what you wrote?

See the discussion of this at length in Chiddushei Rabbi Shmuel, Bava Batra, sections 9-11. Charity is an exception, and in my opinion this is not by virtue of coercion for commandments, but a special enactment in charity for the benefit of the poor (and not for the benefit of the giver, so that he fulfills the commandment). But see there.

I quoted above what you explained, that Choshen Mishpat = duties whose basis is the other’s right. Based on this, in your writings you often stress that despite the initial impression, there is in Jewish law a discourse of rights (that is, Choshen Mishpat) and not only a discourse of duties.
I wanted to ask: if so, why did Jewish law in fact choose to use the normative language of duties (“Do not murder,” “Do not steal”) and not the normative language of rights? Why did it choose to frame the norms as duties rather than as rights?

Because Jewish law deals with what is imposed on us to do. The value of life is a general and abstract statement. The prohibition of murder is concrete and practical.

I found a nice indication for Rabbi Shimon Shkop’s principle that in monetary law the Torah does not innovate a prohibition, but rather there is a pre-Torah prohibition and it comes to add a religious layer on top of it. That is, when there is a legal prohibition, a religious prohibition can also appear.
And here it is:
I am not aware of any distinction between ideal practice and after the fact in monetary law. Maybe you know of one? Throughout the whole Torah there are distinctions between ideal practice / after the fact, except in monetary law. And why? Maybe because of this—because in monetary law it is not the Torah that introduced the prohibition, but the theory of law!
What do you think?

I didn’t understand the claim (that there is no ideal practice in monetary law), nor the statement that this is proof for Rabbi Shimon’s principle. Generally speaking, in Torah-level laws there is no rule that is only ideal practice, except in sacrificial matters, where we require the verse to repeat it in order to make it indispensable.
If you want to discuss it, I’d be happy if you’d bring an example of an ideal-practice rule in general, say what should have existed in monetary law, and then explain what you think that means.

There are ideal-practice and after-the-fact distinctions in Torah-level law. See Tosafot in Niddah (66b, s.v. “Kol ha-ra’ui”), who wrote that in pressing down (and also in the recitation for the commandment of first-fruits, though there one could say it is similar to sacrificial matters) the law that recitation is required by Torah law is only ideal practice, and after the fact it is not indispensable. Also Tosafot in Gittin (35a, s.v. “Lichosh”), that one who forbade himself benefit from another in that person’s presence must be released from the vow in that person’s presence by Torah law, and that is only ideal practice; after the fact, if he was released not in his presence, it is permitted. And also see Tosafot in Zevachim (16a), that in religious court the witnesses must stand and the judges must sit by Torah law, as it says “And the two men shall stand,” yet after the fact this is not indispensable.
The approach that there is a distinction of ideal practice / after the fact only in sacrificial matters is not accepted.

Those are the examples of ideal practice. And for example, the Torah does not say that a paid guardian is liable to pay for theft only ideally, but after the fact if he does not want to then fine. Or it does not say that “the burden of proof rests on the one who seeks to extract from another” is only after the fact, but ideally one must return the money. In short, there is no ideal-practice / after-the-fact distinction in Choshen Mishpat. And this is an indication that monetary law stems from a pre-Torah legal truth, and if according to the theory of law the law is X, then the Torah cannot come and say that ideally it is X but after the fact Y.
If monetary law came from the Torah, there is no reason there shouldn’t be ideal-practice and after-the-fact distinctions in it (the Torah ideally wants this and after the fact wants that). Rather, necessarily, it comes only to add, when it wants, religious sanction to an existing legal prohibition, and therefore it attaches itself to the legal prohibition (if law says prohibited, then prohibited; if permitted, then permitted; if doubtful, then doubtful).

The “unaccepted approach” is an agreed halakhah in the Talmud, as far as I remember with no dissent. Every exception requires explanation.
In any case, now I understand what you meant to ask. Mind you, this is not connected to Rabbi Shimon’s innovation, but to the fact that in Choshen Mishpat the duties are grounded in the other’s rights. If the guardian has to pay the depositor, the depositor has a right to receive money from him. Therefore the categories of ideal practice and after the fact are inapplicable here.

Let’s split the discussion:
1. I brought several sources that there is ideal practice in Torah-level law. And even aside from those sources, what obligates / compels us to say that there is no ideal practice in Torah-level law? Why shouldn’t there be? There is no conceptual contradiction between Torah-level law and ideal-practice / after-the-fact distinctions (and the proof is from sacrificial matters), so why shouldn’t it exist? Especially since we also find safeguards in Torah law (half a measure, and Kesef Mishneh in the laws of corpse impurity)!

Just a second: the fact that in Choshen Mishpat duties are grounded in the other’s rights—isn’t that itself Rabbi Shimon’s innovation (that is, that he led us to this insight, to notice that in Choshen Mishpat duties are grounded in the other’s rights)?

Nothing obligates us. The Talmud simply says so. Is everything that appears in the Talmud a logical necessity?

That is not his innovation, but mine (my conceptualization). His innovation is that there are rights that exist before the giving of the Torah, and Jewish law recognizes them.

In your opinion, is the “theory of law” identical to natural law? Or more precisely: in your opinion, is the source of the theory of law natural law?
Rabbi Shimon Shkop writes that the theory of law is founded on straight reason and the decision of reason. In other words, rational considerations lead us to the theory of law.
In light of this, we seemingly arrive at the conclusion that when there is a contradiction between the laws of the Torah and the laws of the theory of law, it follows that there is no rational consideration behind the Torah’s laws (because they contradict the laws of law, and the laws of law are what straight reason dictates). Can one even say such a thing? Is it really true that behind the Torah’s legal laws there is nothing rational? I assume there is, of course, but the question then is: what is the rationale in them? If straight reason dictates X and the Torah dictates Y, what is the logic and reasoning behind Y?

I think yes, at least partially. He assumes there are natural laws that determine the laws of ownership, and his innovation is that they are binding according to the Torah as well. Beyond them, however, there are Torah laws that can limit them or cancel them.
As for the decision of reason, I’m not sure he meant that the laws themselves are rational. It may be that he meant that obeying them follows from the decision of reason, because there has to be a legal ordering of property law. The content of the arrangement itself might also be arbitrary. I haven’t now looked back at his exact wording.
Therefore your question falls away from the outset. But beyond that, how do you know that the Torah’s laws need to be rational? On the contrary, in my opinion Choshen Mishpat is not essentially different from the other parts of Jewish law, and at its root stand religious values (see Column 15). There may perhaps be logic or rationale in them, but not legal logic. It was already noted in the past that according to Torah law it is not really possible to run a society.

If that is his intent, that only obedience to them follows from the decision of reason, then it turns out that he could belong entirely to legal positivism too. Because according to them as well, the first obligation, the basic norm, binds by force of the decision of reason.
What do you mean when you write, “and his innovation is that they are binding according to the Torah as well”? Because the way I understood it, I understood exactly that his innovation is that even without the Torah, the theory of law would still be binding.
I didn’t understand the end. The Torah’s laws are not rational??? They have no reason (perhaps hidden, but still…)?
This, by the way, brings me to a question I wanted to ask you: Is God subject to reasons and to rational considerations? Seemingly one can rightly say that He acts according to reason, and that God does not act in a merely arbitrary way. Does it follow from that that there is a reason standing above God? He wants to realize it, which implies that reason stands above Him, no?

By the way, I number my questions 1, 2, 3, etc., and they get ignored when the comment appears in a thread. Maybe there’s a problem.

In our case:
if so, that’s 1)
what do you mean, that’s 2)
I didn’t understand the end, that’s 3)

No. The laws were created without legislation, and in that sense they are natural law. But it may be that they have no inherent logic in themselves, except for the logic that there should be such a legal system.

He assumes they are binding even without the Torah, but in my view his main innovation is that they remain binding even after it (that is, that it did not cancel all the law that prevailed before it).

I explained that the Torah’s laws probably have a purpose and rationale, but these are religious values, not legal ones. I referred you to Column 15; see there.

As for your last question, see Column 457 (the Euthyphro dilemma).

I’ll look there.

According to the natural-law approach, where does law’s binding force actually come from? Seemingly a law binds me if there is legislation, and that is an a priori conceptual consideration. How can one dispute that? It’s like disputing the fact that a bachelor is unmarried, no?

That’s just a difficulty on the thesis of natural law, and has nothing to do with me. In my opinion there really is no basis for it if you are not a religious person. But for someone who is not religious there is also no basis for positivism, because the obligation to honor a contract and a commitment is also a moral obligation, and without God there is no morality. See Column 456.

Why do you assume throughout this whole discussion that a poor person has no right to receive charity? Why shouldn’t he have a right as a citizen in a democratic state whose constitution established that a poor person must be enabled to live with dignity?

What is the difference between charity, where the capable person may choose whom to give to, and gleanings, forgotten sheaves, and the corner of the field, where he may not reserve something for a specific poor person? After all, in both cases we are dealing with duties on the owner and not a right of the recipient.

I no longer remember what happened here earlier. But a poor person has no right to receive charity; rather, I have a duty to give him. I’m talking about Jewish law, not states and democracies.
From the standpoint of the state, if the law determines that a poor person is entitled to support, then he has a right that the law granted him. But if there is no law, then he has no right.
I didn’t understand the question. The Torah determined that in gifts to the poor I, as the owner, have no benefit of discretion. The definition is simple: gleanings, forgotten sheaves, and the corner of the field are well-defined objects. What remains in the field is specific property designated for charity. Therefore, from the moment it remains in the field, it is no longer mine but belongs to the tribe of the poor. Therefore I have no discretionary benefit there. In those cases we are not talking about a duty to give some amount, but about specific produce left in the field that belongs to the poor. But in charity we are talking about a duty to give an undefined amount of money, not a specific object. In fact, I also have no duty to give a specific amount. Therefore it is obvious that the decision whether to give, how much to give, and to whom, is mine.

According to Rabbi Shimon Shkop, and especially according to you, ownership is not merely my right of use and the absence of a right of use for others; rather, ownership has a metaphysical dimension of a bond between the owner and the object.

Does Hohfeld dispute this in his table, where he defined a right as a perspective on its consequences?

I haven’t gone over this whole thread again and don’t remember what was said in it. I didn’t understand your question.

Of course there’s no need to go over the whole thread. I’m just asking a question on the topic of the theory of law, so I asked it here.

My question is whether according to Hohfeld a right is only what it entails in terms of duties on others, or whether he agrees with your thesis that behind ownership/right there is a Platonic metaphysical bond.

I don’t see the connection. He dealt with the connection between right and duty, and did not address the metaphysical question.