Q&A: Indirect Causation in Damages
Indirect Causation in Damages
Question
Hello and blessings.
I wanted to ask about the exemption for indirect causation in damages. At first glance it seems very puzzling: why exempt it? In my humble opinion it is hard to say that this is due to a blanket rule of the Torah, that there are cases where we really should exempt and therefore the Torah exempted it entirely. What is the actual reasoning?
The only thing I know is that there are in fact two different systems in monetary law (based on the Ran, in Derashot, discourse 11) — the laws of the Torah, and the laws of the state. So really there are many things we would do differently from the Torah, and his wording there is: “I further explain this, and say that just as our Torah is distinguished from the legal systems of the nations of the world by commandments and statutes whose purpose is not political order at all, but rather that what follows from them is the drawing down of the divine flow upon our nation and its attachment to us… This is what distinguishes our holy Torah from the legal systems of those nations mentioned above, for they have no involvement in this at all, but only in the ordering of their collective society… For that order, the king whom we appoint over ourselves will complete, but the judges and the Sanhedrin had as their purpose to judge the people with a true judgment, just in itself, so that through it the divine matter may cleave to us, whether the ordering of the masses’ affairs is thereby fully achieved or not.”
If so, then indeed the simple reasoning says one should obligate payment, except that the Torah’s laws of damages did not come to resolve the affairs of the state, and in fact the king would obligate payment for indirect causation, as appears from the Hatam Sofer (Responsa, part 1, Orah Hayyim, no. 208): “Up to this point I have discussed the law of the king, and it seems to me that the leaders have authority to kill and punish, from the verse ‘so that blood shall not be upon you’ (Deuteronomy 19:10), as they expounded on this in Moed Katan 5a. And presumably even had the Torah not been given, and before the giving of the Torah, there were still laws and norms, and every king establishes the land through justice; see the responsum of the Rema, Yoreh De’ah no. 10. The Torah was then given and introduced these ordinances, and established the law that a thief pays double, that an innocuous ox pays half-damages, that bailees are such-and-such. But what the Torah did not mention, such as damage that is not perceptible, was certainly not permitted, Heaven forbid — her ways are ways of pleasantness — rather, it is simply not included in the Torah’s judicial laws, and the king and the Sanhedrin will see to it according to place and time. And the Torah is not involved in this. The same applies, and all the more so, to removing the many harmful people, murderers without witnesses, and the like. Her ways are ways of pleasantness, and all her paths are peace.”
This is not so clear to me. Does the Ran mean that there is no reasoning in the laws of damages, and that tractate Nezikin should be learned the way tractate Kodashim is learned? Seemingly his intent is that the Torah is concerned with legal truth, and according to legal truth you are exempt because it is not attributed to you, or something like that. If that is the reasoning in indirect causation, I’d be glad if you could explain this more and the logic behind it. But that is also difficult, because what about the exemption of tooth and foot in the public domain, which the Rosh explained (Bava Kamma 6:1) as exempt because it is impossible for the owners to always walk after them? That seems to be a “civic-regulatory” kind of reasoning.
I would be very grateful if you could shed light on all this. Thank you very much, and have a good week.
Answer
As for the general question about the differences between Jewish law, morality, and justice, you answered correctly in light of the Ran’s comments in his derashot.
But there is still room for moral and logical reasoning within Jewish law. First, because there is not necessarily a difference; there can be a difference. When there is proof, I’m not bothered by a gap between Jewish law and morality, but when there is no proof, there is no reason not to align them. Also, because these distinctions do not always stem from morality. For example, the explanation for tooth and foot in the public domain can also arise from the fact that there is no blame, and in Jewish law too (regardless of morality) liability for damages requires blame.
I would just note that even in the study of the realm of sacrificial law, which you brought as a clear example of a scriptural decree detached from ordinary reason, a great many rational explanations come up. Why don’t you ask the same question there? I have written more than once that this is the illusion of Brisk — they believe they ask only “what?” and not “why?” And for that reason they are comfortable dealing with sacrificial law and purity law, because there it is far removed from ordinary reason. In any case, they assume there are no rational explanations there, and then there is no need to struggle with our normal way of thinking. But as I said, this is just a childish illusion. They themselves constantly raise rational explanations even in matters of sacrificial law and purity. And the reason is that we do have intuitions and reasoning even in areas that seem distant from us. Reason has a foothold there too. So even if we were to learn Nezikin like Kodashim and view both as detached domains, there is still room to use logical reasoning.
[In parentheses I’ll note that you yourself are puzzled by the reasoning behind the exemption for indirect causation, so how can you bring this distinction as an example of using ordinary reason in areas of Jewish law? In my opinion, though, you are actually right. The exemption for indirect causation is not logical and has nothing to do with morality. Someone who kills or causes damage indirectly is wicked exactly like someone who did it with his own hands. But in Jewish law you need a direct connection in order to impose liability. Under the king’s law this can of course be covered, as you wrote.]
Discussion on Answer
Seemingly, from the very fact that the Torah gives scriptural decrees in monetary law, it follows that these are not legal reasonings — because the whole idea of legal reasoning is that we would have said it on our own, by reason, as a kind of “theory of law.” So any scriptural decree is either some spiritual matter that brings divine flow, as the Ran says, or something regulatory-civic…
There is no connection here to consistency. Some laws fit moral logic and some do not. Beyond that, legal reasoning is not necessarily connected to morality or justice. See the second part of my booklet on migo (the power of a claim is a legal reasoning).
Hello and blessings, thank you very much for the answer.
It would seem that the Torah is consistent, and if it exempts indirect causation in damages because there is no legal reason to obligate, since there is no direct connection, then all the reasoning in damages according to the Torah should be legal in nature. But that seemingly contradicts the fact that the Torah gives a scriptural decree exempting pit damage to vessels, which seems aimed at imposing a normal social order; likewise with half-damages for an innocuous ox, and likewise with “a loan written in the Torah,” which they explain as cases that from a legal standpoint we would not have imposed, and the Torah did impose, etc. And that is really my main question: why in monetary law is the Torah sometimes “legal” and sometimes “regulatory”…