Kiddushin, Chapter 2 – 5783 – Lesson 1
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
🔗 Link to the original lecture
🔗 Link to the transcript on Sofer.AI
Table of Contents
- Opening the course and focusing on the chapter
- The division of Jewish law: Tur and Shulchan Arukh versus Mishnah, Talmud, and Maimonides
- Grouping phenomena and the problem in philosophy of science
- Defining Choshen Mishpat: rights and duties versus Yoreh De’ah
- The flexibility of monetary law versus the rigidity of violating rights
- Judges and rabbis: the authority of a religious court versus the expertise of a halakhic decisor
- Even HaEzer as personal status and public status
- Witness testimony for the existence of a matter and the constitutive character of betrothal
- Maimonides at the beginning of the Laws of Marriage: betrothal as a legal layer that precedes marriage
- Two levels in the marital bond and the plan going forward: ownership, agency, and opening the chapter
Summary
General overview
The lecture places tractate Kiddushin and chapter 2 within a broad halakhic picture of the division of Jewish law, and proposes a conceptual understanding of the difference between the legal realm of Jewish law and the non-legal halakhic realm. The claim is that the later division of the Tur and the Shulchan Arukh into four sections is a conceptualization that fixes earlier intuitions, and that at the foundation of Choshen Mishpat stands a discourse of rights and duties in the style of Hohfeld’s table, as opposed to Yoreh De’ah, where there are obligations that do not generate rights of legal claim. From this it is explained why in Choshen Mishpat and Even HaEzer there is a religious court and public authority, and why tractate Kiddushin deals mainly with betrothal as a constitutive legal layer that precedes natural married life.
Opening the course and focusing on the chapter
The lecturer explains that the current lecture deals with general points and places the tractate and the chapter in halakhic context, while the next lecture will begin to deal with the chapter itself. He asks that for the next lecture people look at the beginning of the chapter, “It is more of a commandment for him to do it himself than through his agent,” and says that afterward the first pages of the chapter focus on matters of agency and on the topic of agency for a transgression. He notes that these are classic topics in yeshiva learning and that there will be comments even for those already familiar with them.
The division of Jewish law: Tur and Shulchan Arukh versus Mishnah, Talmud, and Maimonides
The lecturer describes the common division of Jewish law, following the Tur and the Shulchan Arukh, into four categories: Orach Chayim, Choshen Mishpat, Yoreh De’ah, and Even HaEzer, and alongside that a division into two broader groups: judging versus rabbinic ruling. He argues that this division is late, whereas in the Mishnah, the Talmud, and even Maimonides, the division is mainly topical, such as “Laws of the Sabbath,” “Laws of Megillah,” and so on. In Maimonides there is some movement toward categories through books like Hafla’ah, Mishpatim, and Nezikin, but without a sharp cut between legal and non-legal. He credits the Tur with a kind of conceptual primacy in the sense of framing and fixing a division that had already been hinted at or intuited earlier, and illustrates that ideas get fixed in the history of thought when someone formulates them systematically, similar to the role attributed to Rabbi Chaim in conceptualizing object-status and person-status.
Grouping phenomena and the problem in philosophy of science
The lecturer presents the distinction between topical division and division into “types,” and argues that grouping topics under a category reflects the identification of a common denominator that is more than just a general label. He compares this to the question of how fields like physics and biology arise, and to Newton’s example of unifying different phenomena under the law of gravity. He uses the example of Carr and the question of explaining Napoleon’s defeat at Waterloo to argue that trial and error among infinitely many facts cannot even begin without prior intuition directing us toward what is relevant, and he criticizes a naive Baconian picture of moving “from facts to theory” without guiding assumptions. He also brings the example of Semmelweis from philosophy of science courses to show that without a theory one does not know which facts to examine, and concludes that there is a kind of “sense of smell” or “common sense” that precedes formulated theory and makes progress possible.
Defining Choshen Mishpat: rights and duties versus Yoreh De’ah
The lecturer rejects the definition of Choshen Mishpat as merely “monetary law” or “between man and his fellow,” because Yoreh De’ah also contains monetary and interpersonal laws, such as charity and interest. He proposes that the essential distinction is that Choshen Mishpat is a discourse of rights and duties in which every duty establishes a right and vice versa, similar to Hohfeld’s table, whereas Yoreh De’ah includes duties for which there is no corresponding right of another person, and therefore no claim. Charity is presented as an obligation of the giver without a corresponding right of legal claim on the part of the recipient, so the recipient is not a “claimant” in religious court. The lecturer recounts, in the name of Rabbi Yechezkel Abramsky, a story about an interest claim, and argues that the borrower does not have the status of a claimant but of a witness, because compelling the return of interest belongs to the realm of prohibition and permission in Yoreh De’ah, not to the discourse of rights in Choshen Mishpat.
The flexibility of monetary law versus the rigidity of violating rights
The lecturer presents two seemingly opposite aspects of monetary law: on the one hand the flexibility of “everything follows local custom,” the ability to make stipulations “in monetary matters,” and freedom of contract; and on the other hand the presentation of Rashi’s view in the chapter HaKones, according to which “one may not save himself with another person’s money,” to the point of “be killed rather than transgress” theft in the context of rescue. He explains that the contradiction is resolved through the concept of a right: the holder of the right can waive it, and therefore stipulations are possible, but one who is not the holder of the right cannot nullify another person’s right even at the cost of life, because saving a life overrides a person’s obligations but does not cancel another person’s rights. He distinguishes between the severity of a prohibition and the lack of mandate to make decisions about property that is not yours, and illustrates this with a joke about “do not covet” versus “do not steal” in order to argue that the mistake lies in taking the authority to decide about another person’s property.
Judges and rabbis: the authority of a religious court versus the expertise of a halakhic decisor
The lecturer argues that Jewish law contains a legal branch and a non-legal branch. In the legal branch, Choshen Mishpat and Even HaEzer function as public matters, whereas Yoreh De’ah is a private matter in which one goes to a halakhic decisor as an expert, not to someone with authority. He compares a dayan to a judge in the general legal system and emphasizes that expertise is not enough to obligate; authority is also required, similar to the distinction between a law professor and a judge, or a district psychiatrist who has the authority to order involuntary hospitalization. He cites the Talmudic topic of ordaining judges in Sanhedrin 5 and describes a “race of authorities” between the Nasi in the Land of Israel and the Exilarch in Babylonia in order to explain the split between appointing an expert and granting permission to judge, and to describe the emergence in Babylonia of a governing institution with authority.
Even HaEzer as personal status and public status
The lecturer places Even HaEzer as a legal sub-category alongside Choshen Mishpat, and defines it as dealing with personal status and the definition of the public status of a marital bond, even before specifying the duties and rights between spouses. He distinguishes between forbidden sexual relations, which in essence belong to Yoreh De’ah, and situations in which the prohibition creates personal-status consequences. He illustrates this by saying that a doubtful priest married to a divorcee raises a personal halakhic question of whether he is obligated to divorce her, a matter that does not necessarily require a religious court because betrothal does take effect in cases involving simple prohibitions, whereas the question of the legal validity of the betrothal and the public status is indeed given over to religious court. He explains that betrothal creates a public status in which the woman becomes forbidden to the public and further betrothals do not take effect, and therefore this belongs to the legal system of Jewish law.
Witness testimony for the existence of a matter and the constitutive character of betrothal
The lecturer asks why betrothal requires witnesses for the existence of the matter, and presents an understanding according to which the witnesses are a constitutive condition that gives a “public stamp” to the act, not just factual clarification. Therefore without them “she is not betrothed,” not merely “there is no proof.” He describes the witnesses as functioning somewhat like a religious court in the sense of establishing public recognition of the couple, not as witnesses who come afterward to testify. He argues that betrothal is a public institution, and without it the relationship has no legal force even if in natural terms the couple lives together.
Maimonides at the beginning of the Laws of Marriage: betrothal as a legal layer that precedes marriage
The lecturer quotes Maimonides at the beginning of the Laws of Marriage: “Before the giving of the Torah, a man would encounter a woman in the marketplace… bring her into his house and have relations with her… and she would become his wife,” whereas after the giving of the Torah “Israel was commanded… that he should first acquire her before witnesses.” He explains that the novelty is not in natural married life itself but in the addition of a prior legal layer of betrothal, also called erusin and acquisition, and that tractate Kiddushin deals almost entirely with that legal regulation and not with “marriage” as shared life. He notes that there are opinions according to which witnesses are not needed for the marriage itself, only for the betrothal, and he describes marriage as the natural result of living together while betrothal is the legal act that imposes the status of “a married woman.”
Two levels in the marital bond and the plan going forward: ownership, agency, and opening the chapter
The lecturer says that in the next lecture he will continue the introduction and deal with two topics: the two levels in the marital bond—the legal level and the social-natural level—and their implications; and the question, “Does a husband have an ownership right in his wife?” and what the legal relationship between spouses means in light of the language of acquisition. He directs the beginning of the study of chapter 2 from the topic “It is more of a commandment for him to do it himself than through his agent,” and afterward to the laws of agency, and asks the participants to start running through the chapter. He closes with practical arrangements regarding lecture time, attendance, uploading materials to the website or mailing list, and a possible delay of fifteen minutes on Rosh Chodesh.
Full Transcript
[Rabbi Michael Abraham] Okay, so let’s begin. Today I want to touch on a few general points, to place the tractate, the chapter, within the broader halakhic context, and in the next lecture we’ll already start dealing with the chapter itself. So I’m already saying: for next lecture, look at the beginning of the chapter, “It is more of a commandment for him to do it himself than through his agent.” That will be the first part we deal with. After that, the chapter basically focuses—at least the first pages of the chapter focus—on matters of agency. Agency, and agency for a transgression, yes, pretty classic topics in yeshiva learning, but I assume there will also be comments even for those to whom this is familiar. Okay, so first of all, some context. I’ll start with a really broad context. In the halakhic context we’re used to dividing Jewish law, following the Tur and the Shulchan Arukh, into four categories: Orach Chayim, Choshen Mishpat, Yoreh De’ah, and Even HaEzer. But this division is actually a later division. The Tur was really the one who created this division, the Shulchan Arukh followed him, and today we’re very used to the idea that Even HaEzer and Choshen Mishpat are judging, while Orach Chayim and Yoreh De’ah are rabbinic ruling, rulings of prohibition and permission—Orach Chayim not exactly. So we basically have a division of Jewish law into four, where those four are divided into two sets of two, meaning judging and ruling. But in the earlier phase of Jewish law, if you look at the Mishnah, at the Talmud, even Maimonides, this division doesn’t appear there. The division that appears there is really a division by topics. There are Laws of Megillah, Laws of the Sabbath, whatever, sacrifices of this or that kind. Meaning, the division is topical, while in the Tur and the Shulchan Arukh the division is categorical. There are categories—those categories of Even HaEzer, also the four categories of the Shulchan Arukh, and also the two broader ones of judging and rabbinic ruling. Basically, this thing is some kind of conceptualization by the Tur, although obviously the Tur didn’t invent it. Meaning, in the Talmud itself there appears the idea that we do not derive matters of prohibition from monetary matters, so these categories are hinted at or at least intuitively present in the earlier phase too, in the more ancient sources. But as always in the history of ideas, in the end someone comes along and conceptualizes it. He conceptualizes it, and from that point on the idea becomes fixed; it becomes clearer, sharper, available for public use. And in that sense I think the Tur definitely deserves conceptual priority here. Again, he didn’t invent it, but he was the one who conceptualized and fixed it. Just let’s maybe write down the name—remind me, Penina? One second. Yosef Kindi, right? Okay. Fine. So what’s the meaning of this division? In Maimonides too, by the way, the division is topical. True, in Maimonides there are already books—beyond the individual collections of laws that are divided topically—where it starts moving closer to categories. There’s Hafla’ah, Mishpatim, Nezikin, meaning there’s already some progress toward categories. You could also say the six orders of the Mishnah in a certain sense. But the categories as the Tur defined them are broader categories. In Maimonides there is no sharp division between the legal part of Jewish law and the other part of Jewish law, judging and rabbinic ruling or whatever. In the Tur there is. A different kind of—no, a topic is according to content. Say, if you want to look up the laws of the Sabbath, then you go to the laws of the Sabbath; you’re looking for a topic, you know what subject the thing belongs to, within which you’re searching for the relevant law, so you look in Maimonides, in the Shulchan Arukh, wherever, under Laws of the Sabbath. Okay? But you don’t search in Choshen Mishpat. Choshen Mishpat is not a topic; Choshen Mishpat is a type. It’s a type of laws, not a topic. Okay? Now, obviously within that type there are topics. But the division into types is not exactly a topical division; it’s groups of topics. And then we have to understand what all the topics in that group have in common such that they create the type. It’s a collection of topics, but it’s not just a general label. Because the very fact that I chose this particular collection and gave it one common name, and gave another collection another name, means that I identified something common among all those topics. Otherwise why didn’t I mix laws of the Sabbath, lender and borrower, and corpse impurity, and call that “Laws of S-T-M,” okay? I could give that a name too. I don’t do that. This is a question in philosophy of science, by the way. The question is: how do I group phenomena? How is this field called physics created? It includes many laws. Biology too has many laws, laws of nature. Why don’t I take law B of biology together with law C of physics and make a field out of them? What is common to all the laws we call physics as opposed to all the laws we call biology? And why, I’ll say more than that, why at all—say when Newton came and talked about, meaning, identified the law of gravity—so think before him: if I had told you there is a certain law responsible for the following set of phenomena: tides, the paths of the stars, and the falling of objects to the earth—when you let go of an object and it falls to the earth—okay? You would’ve looked at me wide-eyed: are you crazy? What’s the connection between these phenomena? Right? And then Newton suddenly says: wait, wait, I have one law that explains all three of these phenomena. Think how almost impossible it is, really, to do that. Why didn’t he look for the color of a raven’s wings together with, I don’t know, the speed of cloud movement and the falling of objects to earth, and look for some law or theory that explains those three? How did he know—before he knew the law, yes? Before he knew the law—how did he know that there was something common specifically to those three phenomena? How did he find it? Because in order to find, you have to search, and in order to search you have to—maybe I’ll give you an example. There’s a British historian named Carr, C-A-R-R in Hebrew transcription, early twentieth century I think, and he wrote a book called What Is History? And there he says: think of someone who—just one second, tell me your name so I can put you here on the… Shimon? Great. Shimon. Yes, think of someone who wants to explain why Napoleon lost the Battle of Waterloo. Okay? Blücher and Wellington defeated him. Why did Napoleon lose? Now you ask yourself—and let’s say we know nothing about wars. We’re tabula rasa, we arrive, military theory—we’re starting to develop it now from scratch. Okay? So what do we look at? The height of the adjutant of the fourth battalion? The mother’s name of each deputy battalion commander? How do I know which facts to look at? What’s connected to victory in war? Notice, I have no experience. I know nothing. I’m just starting now. Why not? And how is it obvious to you? Because you know something already about what can cause military victory and what cannot, even before you finished your research that told you okay, what causes military victories—or a theory. Not specifically about Napoleon, but in general—to develop a theory of how one wins in battle, in wars. Okay? There’s a prior assumption here. So in principle I couldn’t even look at anything at all. Right? How do I know? There are infinitely many facts. Okay? So how do I know which of the facts to check? Before the question—I’m saying, after I check, maybe I’ll find with very high regularity that whoever won a war always had more soldiers, or more advanced weapons, say, or something like that. That’s after I checked. How do I know to look at the number of soldiers? Or at the quality of the weapons? I need to already have some sort of feeling in advance—where should I look, what should I focus on. Hear me? But trial and error, when you have infinitely many facts, won’t get you anywhere. One second, understand what I’m saying: trial and error means searching for which facts are relevant from among all facts, but there are infinitely many facts. How many facts are there about Napoleon’s army? Okay, that common sense—okay, so that common sense, exactly that, is what I’m talking about, that common sense. We need to notice—it’s not a trivial thing. Because ostensibly it’s not the result of experience. There are those who would say maybe indirectly it is experience, but…
[Speaker B] What’s your name? Aviad. What? Yes, so the claim is… yes, sorry, did you want to say something?
[Rabbi Michael Abraham] But war by definition is one army against another, and now the question is who wins. Now, the data about Napoleon’s army is infinite data. Okay, victory in war too—the definition of victory in war is that you killed all the enemies, for the sake of argument, that’s a simplistic definition. You killed them all, or killed or captured them, fine for the sake of discussion. Now the question is how do you get there? How does it follow? You still know nothing, you have no experience, you still know nothing—how would you know what to focus on? On which… there are infinitely many facts. No, but who said… what made you decide on killing the enemy? Or that whoever killed more people won? But military theory tells me—I want to prepare for the next war, let’s see how to prepare the army, which parameters matter in order to get to that result that I kill more people. In no way at all. Try to think: there are infinitely many facts I could have collected about Napoleon. Okay? So if he lost, I could say, well, he lost because he was short, the commander… yes, you know Napoleon said that the decisive height is from here up. And that’s the relevant height. Meaning maybe the commander’s height matters, maybe I don’t know, the way his parents treated him in childhood, how many soldiers he has, the weather, whether he was in the east or the west, all kinds of things—anything could be relevant, there are infinitely many facts. So trial and error can’t work. In trial and error you need some initial intuition, what you called common sense, that already tries to reject some possibilities and adopt others. And that’s the problem in philosophy of science. Francis Bacon at the beginning of the—okay, I’m drifting a bit, never mind—at the beginning of the modern era, Francis Bacon tried to build a logic of inquiry, of scientific research. How do you do elimination, how do you get from facts to theory? Okay? Analogy, induction, elimination, all kinds of things like that. And the picture he described there was some picture—I’d even say naive—of how one builds a scientific theory. You collect facts, try to find an explanation for them, and that’s it, and then validate it afterward, test it against other facts, and so on. That’s of course nonsense, because you don’t know which facts to collect if you don’t have the theory. Right? If you don’t know what theory affects victory in war, how do you know which facts to look at? There are infinitely many facts. But if you know the theory, then why do you need the facts? After all, you already know the theory. What is the purpose of research? The purpose of research is to arrive at a theory. So how does this whole thing begin? Actually, by the way, the same thing appears… if you look at the Open University course, Philosophy of the Natural Sciences, I think that’s what it’s called, something like that—Carl Hempel, philosophy of science—he gives an example about a Jewish Austrian doctor, Semmelweis, who basically discovered puerperal fever, never mind, a disease of women giving birth, and how it worked there. There were two wards in the hospital, one ward of Semmelweis—he was head of the ward—two maternity wards, and another parallel ward. And in his ward the mortality of women giving birth was much higher than in the other ward. He had no idea why, what influenced it. Now, you need to see what kinds of things he checked in order to try to understand the difference between the wards. He tried to understand the direction the priest walked in the ward, whether he entered through this door or that one, the direction of the windows, the noise… He had no idea. If you don’t have a theory, you don’t know which facts to look at. In order to know which facts to look at, you need to be equipped with a theory, because the theory determines which facts are relevant and which facts are irrelevant. Okay, so basically we have a chicken-and-egg problem here, a loop. To know which facts to look at you need a theory, but how will you know the theory if you don’t have the facts from which you learn the theory? So the whole thing can’t get started. So how does it start anyway? Obviously we have some kind of intuition, common sense, whatever you want to call it, that even before we know the theory, we have some kind of nose that says these facts could be relevant, these facts probably aren’t relevant—and even if we make mistakes, by the way. But there is such a nose, which directs us; without it we’d still have the scientific knowledge of Adam the first man. We wouldn’t have moved forward one millimeter. Okay? Meaning that many times there is some kind of nose that precedes the formulated, conceptualized theory, and tells us in what direction it can go, what could be there. If I return to our subject, the conceptualization of the Tur that divides Jewish law into four categories—really two large ones, each divided into two. Yes, judging and rabbinic ruling. Judging is Choshen Mishpat and Even HaEzer; rabbinic ruling is Yoreh De’ah and Orach Chayim. Basically this is the Tur’s conceptualization, but clearly he didn’t invent it. Meaning, even before him people understood that there is something different between the legal category and the halakhic non-legal category. There is a difference between them, even though there still weren’t words for it and it still hadn’t been formulated, but it was there. And the Tur simply took that intuition, conceptualized it, gave it names—like Rabbi Chaim’s object-status and person-status. People used distinctions like that before him too, but they didn’t have names, and they didn’t identify that there was some kind of systematic toolbox here that you could apply in every topic. Rather, intuition said yes, this is an objective law, this is a subjective law; they called it this, they called it that, differently in each topic. Until Rabbi Chaim came, conceptualized it, gave it names, and defined those tools, those analytic tools or logical tools, and now it’s much easier to use. Because the history of ideas is always a very complex thing. When people look for who has copyright over an idea, there’s really no way to define that. Meaning, there’s almost no idea that began with a person out of nothing. There are always earlier sprouts, and then someone comes and conceptualizes more, defines more, grasps something that before him maybe hadn’t been fully sharpened, and that’s how the whole thing advances. So here too, same thing. Now let’s try for a moment to understand what this division actually means. The division of the halakhic world into law and non-legal Jewish law—what stands behind it, what’s the definition? So let’s take a look for a moment at Choshen Mishpat. Choshen Mishpat—how would you define this field of Choshen Mishpat? Before I go further, again, I’m just organizing for myself the list of participants. What’s your name? Shmuel what? Druzin. Okay. Okay.
[Speaker B] So basically, basically, how can Choshen Mishpat be defined? How would you define it?
[Rabbi Michael Abraham] Okay, that’s not exactly the same thing, what you’re saying here. Between man and his fellow, monetary law, civil law. Civil law—I would ask you, okay, and what’s its definition?
[Speaker B] Okay. I…
[Rabbi Michael Abraham] I disagree. I completely disagree. I’ll tell you why. Not because every such category has a formulated definition. It’s certainly possible that many times we won’t succeed in formulating it, but that doesn’t mean there isn’t a definition. Meaning, the question whether there is something common to all the different kinds of laws in Choshen Mishpat or not—that’s one question. The question whether I can formulate that common thing in words—that’s another question. Meaning, you can say there is nothing common at all; I disagree. The fact that it’s not always possible to formulate it in words, obviously. Meaning there is—okay, here I disagree, I think always. Okay. No, useful it may be, but I think… the later Wittgenstein himself, when he talks about following a rule—what do you mean there’s no way to do it, when all of us do it? So what are you telling me? That it’s only usefulness? I don’t accept that. Because otherwise you couldn’t convey that thing to me. If you convey that thing to me, that means I actually understand it beforehand. No, I said if it can’t be formulated, that’s another question. But how do I understand? How? No, how do I understand what you mean? Before the question whether it’s useful. How do I understand that there’s a rule here? What is the rule? One, two, three, four—what’s the next number? Minus seventeen and a third. Okay, so how do I know it’s supposed to be five? No, no, I’m not talking about a borderline case.
[Speaker B] A borderline case is another story. The question is the regular cases, first of all to understand them. Right? No! Exactly!
[Rabbi Michael Abraham] So people argue because there there is no definition; it’s really not similar. So that’s unrelated. I disagree. Fine, that’s another discussion. I completely disagree. No. Okay. Come on, I’ll give you an example, I’ll give you an example from an article of Rabbi Isser Zalman on the labor of building. I spoke about this once, I don’t remember with whom. Rabbi Isser Zalman explains Maimonides, basically. The Kehillot Yaakov also brings it, and it appears briefly in Even HaEzel, but it’s really his own piece regarding the labor of building. He says that the derivatives of the labor of building in Maimonides are making cheese and making a tent. Now what’s the connection between them? So his claim is that there is no connection between them. Why? Because the primary category of building is gathering parts and creating a space. Okay? When you build a house, you take bricks and connect them and create some functional space. Okay? That’s the primary category. Now what is a derivative? A derivative has to resemble the primary category. The tent is creating a space not by gathering parts. Making cheese is gathering parts without creating a space. Meaning the primary category has two characteristics, A and B. The first derivative has characteristic A and not B, the second derivative has characteristic B and not A. So what is the connection between derivative one and derivative two? There is none. Now, you can group them together because, as you said earlier, it’s useful, or whatever. But obviously behind this sits the resemblance to the primary category, where in that route there is a connection between them. If you understand that the primary category is an organic definition, that A and B connect together organically, not just as two separate things, then there is a connection between them. That’s why I say: you can say there is no direct connection between the derivatives; the relation of resemblance that comes out here is not transitive. Meaning, if A resembles B and B resembles C, it doesn’t mean A resembles C. Not at all. There may be no connection whatsoever between A and C if the resemblance is in different parameters. Okay? It’s transitive if it’s in the same parameter, but it can be in different parameters. Anyway, that’s getting too philosophical. Let’s go back to our topic. So now the question is: what characterizes the collection of laws grouped in Choshen Mishpat? Several suggestions were raised here. Let’s try to challenge those suggestions a bit. Before “civil law,” because that’s a definition that itself needs to be defined. It’s not very clever to use an undefined term. But “monetary law” seems pretty clear and defined, “between man and his fellow” seems pretty clear and defined. So let’s challenge that. Are there no monetary laws in Yoreh De’ah, or laws between man and his fellow? Certainly there are. Right? Charity, interest. Okay? So that can’t be the definition of Choshen Mishpat. Unless you say it’s just arranged that way for convenience, but there’s no need to look for a category behind it. I claim—okay, now this is starting to get closer, I think. The point is that you can’t define Choshen Mishpat as monetary law, nor as between man and his fellow. That simply isn’t the definition. So what is? I think the definition depends on something from the legal world. Jurists talk about Hohfeld’s table. What is Hohfeld’s table? Hohfeld’s table is some table—it doesn’t matter—that illustrates how your right with respect to me creates a duty on my part toward you. Say, if you lent me money, then now I have a right to receive money from you and you have a duty to give me money—no, sorry—if I lent you money, then I have a right to receive money from you, and you have a duty to give me money. And it’s always like action and reaction in physics: corresponding to every right there is a duty, corresponding to every duty there is a right. That’s the short definition of Hohfeld’s table; it’s a bit more complex, but briefly that’s the idea. Now the question is what happens in Jewish law. People commonly think that in Jewish law there is no discourse of rights, only a discourse of duties. And people have written that. But there’s no greater mistake than that. The discourse of rights in Jewish law is called Choshen Mishpat. That’s the definition of Choshen Mishpat. In Choshen Mishpat every duty imposed on me is based on your right with respect to me, and vice versa. If I owe you something, that means you have a right to receive that thing from me, and vice versa. In Yoreh De’ah, no. Even though there too there are monetary laws and laws between man and his fellow—take charity. Okay? I have a duty to give a person charity, under the category of the laws of charity. I have a duty to give him charity. But he has no right to receive charity. He cannot—and from this it follows that there is no claimant. He cannot sue, because a legal claim is based on the fact that you have a right; your right was violated, so you petition the religious court to protect your rights. If you have no right, you can’t petition the religious court; no right of yours was violated. The fact that I’m not fulfilling my duty—maybe the religious court will compel me regarding the commandment, maybe not, whatever, that’s its consideration. You have nothing to do here. There’s a very nice story from Rabbi Yechezkel Abramsky. He has a pamphlet on monetary law; I don’t agree with what he says there, it’s too technical, but he brings a story there. He was head of the religious court in London, the author of Chazon Yechezkel on the Tosefta. He was head of the London religious court, and he tells there that once a Jew came to him and said: listen, I went to religious court and sued so-and-so, who had lent me money with interest. Fixed interest—fixed interest is collectible by judges. So I sued him in religious court and told them to make him return the interest. So they told me: no, it’s not fixed interest and we don’t extract it. He says to them, “On what grounds did you judge me? Give me your reasoning so that I can appeal; give me your reasoning—on what grounds did you judge me?” They didn’t want to give him the reasoning. A Kafkaesque story. Meaning, there’s no way out; you’re trapped from all sides. You can’t even appeal the injustice done to you. So he went to Rabbi Yechezkel Abramsky, tells him the story, and there he got the third blow. Rabbi Yechezkel Abramsky told him: they were right. Why? So he explained. He said: you, as the borrower paying interest—what do you mean, “On what grounds did you judge me?” They didn’t judge you. What are you, the plaintiff? You’re not a plaintiff. The money you undertook to give, the interest you undertook to pay—you were obligated to pay it in monetary law. He has a right to receive it and you have a duty to give it. The fact that there is a prohibition against taking the interest, and that the religious court will compel the one who took it to return the interest to the borrower—that is a matter of prohibition and permission. That’s Yoreh De’ah. Interest belongs to Yoreh De’ah, not to Choshen Mishpat. You are not a plaintiff; you are a witness. The borrower who paid interest and receives the money back is not a plaintiff at all—he’s a witness. He simply comes and testifies that someone took from him interest as payment for a loan. He is a witness, and when your testimony is done, go home. What does “On what grounds did you judge me?” mean? Who judged you at all? You’re not a party here. This is a case of compulsion regarding commandments; it’s not a legal case between one person and another. That’s why it belongs to Yoreh De’ah and not to Choshen Mishpat. Because with interest, if you obligated yourself—say I lent you one hundred shekels and you said, return one hundred twenty, and I agreed—once there is a contract between us, I owe you the one hundred twenty. Legally, you have a right to receive the one hundred twenty; I have no right to those extra twenty. I gave them to you, and I was supposed to give them. The Torah forbids giving that and taking that, but that’s the Torah—that’s not about our rights. Therefore it belongs to Jewish law, but not to legal Jewish law. It belongs to Yoreh De’ah and not to Choshen Mishpat.
[Speaker B] What? Does he have—? Yes.
[Rabbi Michael Abraham] Wait, but the Torah established that with a loan… once the Torah established that I’m obligated, it became an encumbrance. It turns into a monetary encumbrance afterward. But in principle it’s a penalty. If someone admits to a fine, he’s exempt; if that were your right, how could my admission exempt me? Because there it really doesn’t happen. Coercion regarding commandments. And a fascinating legal distinction emerges from this—right now I’m putting it a bit simply. There are long lectures by Rabbi Shmuel Rozovsky in Bava Batra, siman 9 and 10, I think 10 and 9 or 9 and 10. There he discusses this at length. It’s fascinating, worth reading, but let’s leave ourselves a little time. In any case, the claim is basically that in the whole halakhic world, as opposed to the ordinary legal world, in the halakhic world there is a legal category. What defines it is that it’s a category of rights versus obligations. Every obligation establishes a right, every right establishes an obligation. And there are non-legal parts of Jewish law, which don’t exist in the ordinary legal world. There are non-legal parts of Jewish law where there are obligations with no corresponding rights. My obligation to give charity or return interest or things like that does not derive from the other person’s right. And therefore he cannot sue me, which is why courts deal with Choshen Mishpat and not Yoreh De’ah. Courts—meaning interpersonal matters—not coercion regarding commandments. Right? They don’t belong to Yoreh De’ah because in Yoreh De’ah there aren’t two sides. Wait, that’s where I’m heading. This brings us back to your definition of civil law. That’s the definition. I accept the definition once you understand what civil law is. Choshen Mishpat is civil law. Why? What does that mean? It means that here there are rights and corresponding obligations, and therefore anyone whose right has been violated can petition the religious court to realize his rights, to protect him. Okay? That doesn’t exist in Yoreh De’ah. I’ll give you two interesting implications. The implications go in two directions, right? This is what they call making the law like a worm or like a tree. Monetary law has a quality of both a worm and a tree. On the one hand, regarding monetary law one can stipulate contrary to what is written in the Torah in monetary matters. Right? Everything depends on custom, everything follows the custom of the place. The beginning of Bava Batra, and so on. Things depend on custom; in monetary law, custom determines. The Mishnah in Bava Metzia 94, regarding a stipulation that an unpaid guardian should be treated like a paid guardian—you can stipulate that. Not only that, the commentators say, and it’s also quite clear from the passage, there is no problem at all doing this—not just that after the fact it takes effect. There is no problem; do whatever you want. There is what’s called freedom of contract. Right? You want to make this kind of contract or that kind of contract, make whatever contract you want. So on the one hand, that’s one feature of monetary law—they’re as flexible as can be, whether this is the law of the tree or of the worm, okay? On the other hand, according to Rashi in the chapter HaKones—and you can see this from other directions too—there is a rule of be killed rather than transgress regarding theft. Saving oneself with another person’s property is forbidden. And if you need to steal in order to avoid dying, it’s forbidden to steal—you must die. Be killed rather than transgress. No, no, that’s something else—that’s punishment. I’m talking now about saving myself. Someone is chasing me with a gun, and now I can take this chair that belongs to you, smash it over his head, and save myself—it’s forbidden for me. I have to die. That’s Rashi’s view; it’s the plain meaning of the Talmud. And Rashi’s view there is like that; all the medieval authorities (Rishonim) disagree, formulating it one way or another. I claim there are other medieval authorities (Rishonim) who hold this in essence too, but I won’t get into details here. That’s Rashi’s view. And there are other places too. There is Tosafot—Tosafot on Taanit, I think—regarding, “It is preferable for a person to throw himself into a fiery furnace rather than humiliate his fellow publicly.” Now on the face of it, that’s an aggadic saying, but Tosafot claims that this is be killed rather than transgress regarding humiliation. His explanation is problematic in my opinion. Right, so that’s the question people ask. So he says it’s a kind of accessory of murder, because the blood drains from the face, as the Talmud says above there, so this is basically… But in Arukh LaNer, in the responsa Binyan Tzion, he has several responsa on this, and there he basically argues that no, there is be killed rather than transgress regarding laws between one person and another. Now what does that mean, laws between one person and another? Obviously there is no be killed rather than transgress regarding charity. You don’t have to die in order to give charity, or to avoid violating the prohibition by not giving charity. So what is be killed rather than transgress in interpersonal matters? He means to say: be killed rather than transgress another person’s rights. Not every interpersonal matter, but something that harms the other person’s right—robbery, damage, things like that—not charity. Okay? If you are harming another person’s right, it is be killed rather than transgress; you may not do that even at the cost of your life. Okay? That’s what he claims; he has several proofs for it, and he elaborates there about the implications of the matter. Now this seems to be the opposite side of what we saw earlier. On the one hand, in monetary law you can stipulate. It’s as flexible as can be. On the other hand, not even in the face of saving a life can you override it—it’s as rigid as can be, as inflexible as can be. You can’t move a millimeter, even if you’ll die. How do these two things fit together? Very simply. Because in monetary law, say theft: if I steal from you, you have a right to your property, and therefore I have an obligation not to harm that right, not to take your property, right? Now, if we make a stipulation in a monetary matter, then it means you are waiving your right. No problem—it’s your right, you are allowed to waive it, right? That is the meaning of a right. A right is something at your disposal. If you want, take it; if you don’t want, waive it. What the Torah said is not that you must take it, but that you are entitled to take it. The object is due to me, but I don’t want to do it—fine. I’m allowed, no problem. And therefore one can stipulate contrary to what is written in the Torah in monetary matters. On the other hand, if you don’t waive it, and now I want to steal from you because I’m in mortal danger, that can’t be done. Because the only one who can decide there is you. The question is not what overrides the obligation imposed on me not to steal; the question is what cancels your right to your property. As far as my obligation is concerned, the prohibition of theft is not one of the three cardinal sins; obviously there is no be killed rather than transgress on the prohibition of theft. But the fact that I do not have the prohibition of theft does not mean I’m allowed to take from you. You have a right to your property. My life-threatening situation does not override your rights; it overrides my obligations. But your right remains in force. And therefore the two sides of the coin that I mentioned earlier are not contradictory. From the standpoint of the right-holder, it’s flexible, because he is the right-holder—he can waive, he can insist, he can do what he wants. From the standpoint of the one who is not the right-holder, the fact that he has the obligation not to harm another person’s right—that is as rigid as can be. It’s not in my hands at all. If you waive it, excellent; if you don’t waive it, then even if I will die, I am forbidden to touch the thing. Which is what Rashi says—and again, not everyone agrees—in the chapter HaKones, page 60b. The claim is that this is not a prohibition of the ordinary type of prohibitions; I’d have to get into it more, but it’s not a prohibition of the ordinary type. As long as your right exists, I cannot violate it. Not “you shall not steal.”
[Speaker B] It’s not that “you shall not steal” is overridden. No, it’s like, it’s like… halakhically for sure you’re fine—what does that have to do with it? No, what does halakhically mean? You did not violate the prohibition of theft; you violated the legal prohibition of harming another person’s right. He can say whatever he wants. It doesn’t have to be written in the Torah—this is Rabbi Shimon Shkop in Sha’arei Yosher—it doesn’t have to be written in the Torah. He talks about it.
[Rabbi Michael Abraham] And therefore I say, the question is what counts as halakhically. Halakhically in the sense of the second level—just Jewish law, as distinct from the legal system—you’re right. Obviously. But there is also the first level.
[Speaker B] That’s not true. No, that’s not true. This is Rabbi Shimon. No, it’s Rabbi Shimon Shkop—you need both levels, we are bound by both levels.
[Rabbi Michael Abraham] The opposite—you brought a bad example, because you didn’t violate any prohibition. This is what’s called in analytic philosophy constitutive rules as opposed to regulative rules. It’s not a prohibition; you’re simply not playing chess. It’s not a prohibition—you’re simply not playing chess, you’re playing checkers. No, no, no, that’s not right. It’s like a foul in soccer. In the philosophy of… no, no, obviously not. A foul in soccer is not forbidden. A foul in soccer is something that, when you do it, is part of the tactic. You do it, the other side gets the ball, that’s all. It’s not a grave offense—“foul” there means what they call an infraction that transfers the ball. That’s just a manner of speech; it’s not a prohibition. No, no—prohibition is when there is a system of regulative rules. When there is a system of constitutive rules, it’s not a prohibition—you’re simply not in the game. Someone who runs a red light—you can’t say he’s not driving on the road. He is driving on the road, and he violated a prohibition because he ran the red light. But someone who runs on the sidewalk did not violate a prohibition; he simply isn’t playing that game. Fine, so yes. No need—why call it mere intuition? No need. Right? Understand it, don’t guess. How was Cain supposed to guess, “Where is Abel your brother?” “Your brother’s blood cries out to Me from the ground”—what, was Cain supposed to guess that murder is forbidden? So what does the Holy One want from him? How would he know? How was he supposed to know murder is forbidden? Obviously yes—what do you mean? He was punished for it. He was punished for it. What do you mean?
[Speaker B] Obviously yes—there are things you understand on your own are forbidden. That’s the question.
[Rabbi Michael Abraham] According to Rashi, no. Again, if the owner of the other car agrees, no problem—even if you merely estimate that he agrees, it doesn’t need to be that he’s here; he’s not here, you estimate that he agrees, then also there’s no problem. But if, hypothetically, he is standing here and says, I do not agree—then according to Rashi, you have to die. Yes, exactly. Right. It’s only because of the king that it’s permitted, but for an ordinary person it’s forbidden.
[Speaker B] So the other medieval authorities (Rishonim) disagree with Rashi, but Rashi interprets it literally.
[Rabbi Michael Abraham] Correct. The decree belongs to the halakhic plane, obviously. Rights are part of Jewish law. I’m only arguing that even where the obligation imposed on me is set aside because I am in a life-threatening situation, your right has nothing to do with my life-threatening situation, and as long as your right remains in force, I am forbidden to touch your property—not because of the prohibition “you shall not steal.” Huh? Maybe yes, maybe no, but what Rashi says is no. I didn’t say Rashi’s view is necessary, but if Rashi says it, that’s what he assumes. What does be killed rather than transgress mean? It means be killed rather than transgress, and that’s perfectly fine, no problem. De facto, obviously it is be killed rather than transgress, but it does not enter the categories of be killed rather than transgress, because the obligation to be killed is not due to the severity of the prohibition I am violating. It’s not severity at all. Yes, but again, it’s because it is not under my control. That’s the point. The point is not that I am violating some prohibition so severe that it is worth my life—and it’s not that at all. Rather, it’s because this is not my decision. My decision would actually be the correct decision, to harm your property if I’m in mortal danger. So what’s the problem? The problem is not that the decision is wrong. The problem is who made the decision. Regarding your property, only you make the decisions, not me. So even if my decision is the correct one, I don’t have the mandate to make decisions about your property. Only you can make them. That reminds me of another joke I like. I have a good friend in Bnei Brak, kind of a clown, and once we were sitting by a table and he saw some book next to someone sitting there, and he said: look, I have two options. Either I violate “you shall not covet” and leave the book with you, or I violate “you shall not steal” and take the book for myself. Now since either way I’m violating a prohibition, at least let the book be with me. Now aside from the fact that of course this is a mistake about “you shall not covet,” and he knew that, of course—he knows how to learn—that’s a mistake in the definition of “you shall not covet.” But let’s say it were correct. What is the mistake in this reasoning? The mistake in this reasoning is that even if it’s correct, that book is his, and decisions about that book are made only by him, not by you. Not because your decision is incorrect. Your decision is correct. But decisions, even correct ones, about my book are made only by me, not by anyone else. In other words, the Holy One told us that there is also a world of rights and not only a world of obligations. Do you understand? Obviously He can say anything. There are places where the second level freezes the first or uproots the first—obviously. There are places where according to Maimonides there is a commandment, “You may lend at interest to a foreigner,” okay? So that means the Torah tells me to lend at interest to a non-Jew. There are situations where the Torah—well, that may not be a good example because it belongs to the first level and not the second—but I don’t know, in a place where the Torah would say I have an obligation to steal from a gentile, then there would be an obligation to steal from a gentile, even though on the first level it is forbidden to take a gentile’s money—he has rights to his property independent of the question of the prohibition “you shall not steal,” because the prohibition “you shall not steal” does not exist regarding a gentile, according to a dispute among the medieval authorities (Rishonim). But according to those medieval authorities (Rishonim) who say that stealing from a gentile is not Torah-level forbidden, okay? It is still forbidden to take it. All right? But if the Torah were to say there is an obligation to take it in a certain situation, then you take it. The Torah says to kill Amalek—he has a right to his life even more than a right to his property. The Torah says kill. By the way, also a Jew—a Jew who desecrated the Sabbath has a right to his life. It is forbidden to kill a person not only halakhically, “you shall not murder,” like we said earlier with Cain, but also legally. Just as you have a right to your property, you also have a right to your life. But the Torah says that in certain situations Jewish law instructs us to harm that right. Obviously the Holy One, who is the source of the right, can also say: here I freeze the right, or nullify it, or some obligation overrides that right. And as long as that has not been said, that right is a solid wall. You cannot penetrate it. And you cannot penetrate it not because of the severity of the prohibition; that’s why it is not included in the list of be killed rather than transgress. Theft is not a severe prohibition such that because of that I may not steal when I am in mortal danger. It’s not the severity of the prohibition. What forbids me to steal is simply that theft means making decisions about property that is not mine. And I cannot make decisions about that property; only someone else can. It is proper that he should give me that property to save my life. But there the Torah speaks to him. I cannot demand that he do it. So I say no—then no problem, that is an estimate, assuming he stands here and says no, I don’t agree. If he’s comfortable with it were he here—well, I’m not comfortable. Then I can’t. It’s true that if he isn’t here I can perhaps assume that he would be comfortable with it, and so on and so on. That doesn’t matter; that’s the principle. Fine. So in any case, what this says is that in Jewish law there are two—let’s call it the broadest division—two large wings: the legal wing and the non-legal halakhic wing. The legal wing in Jewish law looks exactly like any other legal system. There are obligations and corresponding rights, there is freedom of contract, and overall it’s quite similar. And the non-legal part of Jewish law works completely differently; outside ordinary law, it doesn’t exist there. What may be eaten, what may not be eaten, sexual relations, how one fulfills permitted and forbidden things—not in terms of personal status.
[Speaker B] No, criminal law is when you harm someone. Tax evasion—tax evasion too, say, is harming someone. No, say in a place where homosexuality is forbidden, that’s a good example. No, because the state sues on behalf of all of us; that doesn’t matter, the state sues on behalf of all of us because all of us were harmed.
[Rabbi Michael Abraham] Obviously not, because the offense is not monetary. No, but it is still potential harm to others, so here it’s like, say, in Choshen Mishpat, neighbor law. In neighbor law in Choshen Mishpat, chapter 2 of Bava Batra, there too they basically tell you that visual intrusion—if there is no wall, you can cause harm. And these are indirect damages, but it is still on the plane of tort law.
[Speaker B] No, the state is the acquirer—yes, right. No, there is always, corresponding to every obligation, a right. It’s just that the right belongs to the public.
[Rabbi Michael Abraham] Obviously. No, the religious court here represents Jewish law, the Holy One, but it is not a body that has rights here. That’s something else; it’s an entirely formal matter. I’m not speaking on the level of rights. By the way, in legal theory they talk about this. Hohfeld’s table is relevant both to criminal law and to anything else, except that the right-holder is the public and not a private person—that’s how it’s formulated there. That’s the usual way of saying it. In everything there is always an obligation corresponding to a right. And in Jewish law, what people don’t understand is that there is one wing where that is true. Some think all of Jewish law is not like that, that there is no discourse of rights. Not true. Some think all of Jewish law is like that, under the influence of the legal world; that also is not true. There is a legal part of Jewish law that works that way, and there is a non-legal part of Jewish law that works differently. These are different things. In the non-legal part, you stand before the Holy One, not before a right-holder who stands opposite you. You stand before the Holy One. And by the way, even in a commandment between one person and another, like charity or interest, you stand before the Holy One. The offense is defined where the object of the offense is another person, but the offense is not toward him in the legal sense; the offense is toward the Holy One. It is called between one person and another because you harmed him, but the plaintiff is not him, the plaintiff is the Holy One. In Choshen Mishpat, even on the legal level, it is an offense between man and God, not only on the technical level. Yes, so that is what he said earlier. I agree, but it’s a very formal resemblance. No, I’m saying: and the Holy One parallels the Knesset, not the state. That is, He is the legislator, so it’s not that He has rights—it’s not a question of rights, He does not stand here as a right-holder in this context. No, of course not. It is elected—the Knesset was elected; He, because He is the Creator. Never mind, but on the legal level He functions as legislator, not as the right-holder, not as the people. No. Fine, sounds good. Yes, yes, I’m in the introduction to chapter 2 of Kiddushin. Yes, so we are going—I like top-down, less bottom-up. Fine. In any case, the claim is that in the legal and non-legal world these are the broad categories. Within them there is an internal division. Within them—and here I enter into the legal category, getting closer, becoming more specifically legal. Within the legal category there are two subcategories. There is civil law—Choshen Mishpat, criminal and civil, never mind—and what is called law generally, criminal and civil together, and there is personal status. That is Even HaEzer. In the state too there are personal-status laws—who is married, who is not married, what the rights of spouses are, and so on. And forbidden sexual relations. Forbidden sexual relations, for example, are not Even HaEzer; forbidden sexual relations in the simple sense belong to Yoreh De’ah. All right? When you have relations with a married woman, that already begins to become Even HaEzer. If you have relations with your sister, that is not Even HaEzer; in principle that is Yoreh De’ah. Okay? It has implications for Even HaEzer because betrothal does not take effect with her; there is a question why it appears in Even HaEzer, but that’s because betrothal does not take effect there, so in that sense it somehow gets included, but in essence it is Yoreh De’ah, not Even HaEzer. The difference between these two, basically—or before the difference, what is the connection between these two, between Even HaEzer and Choshen Mishpat? In Choshen Mishpat it was very easy for me, that’s why I started there, very easy for me to define the legal category. In Even HaEzer it is more complicated. But Even HaEzer comes even before the question of the obligations and rights of husband and wife. First of all it defines their status. I wouldn’t define that as obligations. It has ramifications in terms of rights and obligations, but I think it’s something more abstract than that. I think what joins these two things into one category is that in both contexts a religious court is involved; it is a public matter. Yoreh De’ah is a private matter. Private law, as it were. I have obligations, I have rights to do this or that, I have prohibitions—it doesn’t concern someone else, it doesn’t concern the public, it concerns me. I desecrate the Sabbath, I eat carcasses and non-kosher animals, I become impure, I separate tithes and offerings—all these things are my personal matter. The religious court may coerce observance of the commandment, but in principle, from the standpoint of the commandment itself, it is a personal matter. In Choshen Mishpat we saw why in Choshen Mishpat one needs a religious court and does not go to a halakhic decisor. In Yoreh De’ah you go to a halakhic decisor, right? The one who determines the Jewish law in Yoreh De’ah is a halakhic decisor—or not exactly, just the Jewish law itself. The Shulchan Arukh; the decisor is only an expert. The halakhic decisor has no authority in Yoreh De’ah. The halakhic decisor is simply a halakhic expert. You want to know what Jewish law says, so you ask him. In a religious court in Choshen Mishpat they are not functioning as experts. A judge, someone ordained for judicial office, is no less expert than the judge, than the dayan. But he does not have the authority to be a dayan. Why? What does that mean? It means that the religious court is not functioning only as—he has to be an expert, but he is not functioning only as an expert; rather, he functions as one with authority. That does not exist in Yoreh De’ah and other branches of Jewish law. Think also of ordinary law. In ordinary law there is a law professor; he is no less expert than a judge, perhaps more expert than him, but he does not have the authority to judge. What he says binds no one. At most, as an expert opinion, it tells me what the law is. But if he said it, and I don’t agree with him, then I won’t agree; I owe him nothing. To a judge I cannot say, I don’t agree with you and therefore I won’t do what you say. A judge has authority. Therefore when judges are appointed—the Talmud in Sanhedrin page 5—when judges are appointed, two types of ordination are needed. One ordination of an ordained authority from an ordained authority, to ensure that he is an expert, what is called an expert or an expert accepted by the public. And one needs ordination to be a judge, to give him authority, not as an expert. Therefore in the Talmud on page 5 in Sanhedrin there is a kind of—let’s call it a race of authorities—between the religious court in the Land of Israel and the Exilarch. The head of the Sanhedrin in the Land of Israel and the Exilarch—the question was who can grant authorization in Babylonia. And where does this come from? It comes from the fact that there is what here? Not a religious court, the Exilarch. I’m explaining now. The Exilarch in Babylonia was a king. The Talmud says there, “The scepter shall not depart from Judah”—these are the Exilarchs in Babylonia, right? He was basically the king. In the Land of Israel there was no king then. All authority was concentrated in the Sanhedrin; therefore, by the way, the head of the Sanhedrin had to be from the House of David, because basically the powers of kingship were funneled into the head of the Sanhedrin since there was no king. For many years. That created a lot of confusion, by the way—a topic for another discussion. So the Talmud basically describes there a situation in which in the Land of Israel they didn’t understand what the Babylonians wanted from them. For years, the head of the Sanhedrin in the Land of Israel had been performing both functions. He would give you ordination, and that was it. Suddenly the Babylonians come and say, wait, wait, wait—ordination does not exist in Babylonia. Ordained authorities come only from the Land of Israel. But permission to judge comes only from the Exilarch; you can’t say anything. The people of the Land of Israel didn’t understand what they wanted from them. What? But it had always been this way; for centuries it had been like this. What happened? The moment there is an Exilarch in Babylonia, a governmental institution with authority arises in Babylonia. Something like Rabbi Chaim Ozer in Vilna; but basically he was more or less an Exilarch, at least for Europe and not only Europe. It’s a rare institution. There was hardly ever such a thing as Rabbi Chaim Ozer—those who know a bit what was going on there know. In any case, a secular authority arose. Secular not in the sense that he walked around without a kippah, but a non-religious authority, a civil authority. Now a split emerges that had always existed in principle; it was always like that. But here suddenly it was reborn, and people weren’t familiar with it because for centuries it hadn’t existed. Suddenly there is a king in Israel. And then the king says: listen, you determine who is an expert, and I will determine whether he has permission to judge. Just as here the law faculty will certify you as a jurist, but the state must give you permission to practice law as a judge, a lawyer, or whoever. Why? Is the state more expert than the law faculty? No. But it possesses governmental authority. If you need authority to do something, you must receive that authority from the one who has authority; it has nothing to do with expertise. Okay? That is what happens in a religious court. A halakhic decisor needs no ordination. A halakhic decisor needs nothing; he only needs to know the material. If he knows the material, let him say what Jewish law says, and that’s it. Agree, agree; don’t agree, don’t agree. And therefore in Yoreh De’ah you go to a halakhic decisor. If you don’t know. If you know, you don’t need a decisor either. In Choshen Mishpat you go to a religious court. Why? Because the religious court determines the ruling and it is binding, not because the religious court knows what is right. A religious court that errs in an explicit Mishnah—I won’t get into details now—but in principle the religious court has constitutive authority. That is the authority of the religious court; it’s not like a halakhic decisor. That is what distinguishes the deciding instance in Choshen Mishpat from Yoreh De’ah. That is also true in Even HaEzer. Why? Where does it come from? Why is a religious court really needed in Choshen Mishpat? Because Choshen Mishpat is not private Jewish law. Since my obligation is against your right and vice versa, then essentially I cannot determine what to do or not do. What I determine affects at least two people, if not more. Therefore there must be here public representation or public authority that says, from the standpoint of the public, what is binding here, what both sides must do. The moment there are two sides here, you must have public involvement; it is not a personal question that I direct to a halakhic decisor. The public must determine what the public status of this property is—yours, his, you made a contract, you didn’t make a contract, you breached a contract—it’s a discussion between people. Once it is a discussion between people, the one who conducts that discussion is not a halakhic decisor but a religious court. And a religious court is a public institution. Unlike a halakhic decisor. A halakhic decisor is a private individual; he is an expert, like a doctor. What is the difference between a district psychiatrist and an ordinary expert psychiatrist? A district psychiatrist has authority to hospitalize. Not that he can determine that it would be advisable for you to be hospitalized—that’s an ordinary psychiatrist. A district psychiatrist has authority to hospitalize compulsorily. Not because he is more expert, but because the state gave him authority. Once you are an authority-bearing agent, you need authorization from the authorities to exercise authority. To be an expert, you just need to be an expert; you need to know the material, and that’s all. In Sanhedrin, this comes from the Holy One, from an ordained authority from an ordained authority. There are theses like that of Maimonides, who speaks about renewing ordination; there were those who wanted to claim that this actually reflects what comes from below, but that sounds to me like… no, because the Holy One determined that they are the representatives of the public. Not the public—it’s not democracy. Not the public. We are so captive to the democratic idea that if someone is my representative, I must have chosen him. Not at all. The Holy One chooses my representatives for me, and they are my representatives.
[Speaker B] No, because this is not the Sanhedrin, it’s the king. A king is chosen.
[Rabbi Michael Abraham] Yes, a king is chosen, yes. A ruler, a king, yes. Clear? No, because it wasn’t a democratic system, but in principle a king is some way in which the people decide who their ruler is. The fact that “the scepter shall not depart from Judah”—fine, the Torah says what yes and what no. The Torah also has things from which benefit is forbidden. There may be something that belongs to me, but orlah—forlah, these are my fruits, and the Torah says you are forbidden to derive benefit from them. The Torah can tell me what to do even with things that are my right. Huh? Yes, to return a debt to your father, right? Or to his father, never mind, there are various things. Fine. In any case, for our purposes, the claim is that in this sense Even HaEzer joins Choshen Mishpat. Because Even HaEzer is also basically not a private matter. If you are married to someone, then you have a status from the standpoint of the public. It’s not only that you owe her and she owes you; she is forbidden to the entire public. Someone else’s betrothal does not take effect with her. In other words, being a married couple is a public status, exactly like being the owner of property. And therefore it belongs to the legal wing of Jewish law and not to the non-legal wing of Jewish law. And therefore the one who handles it in principle is a religious court. Okay. And then someone asked me, for example—let’s qualify what I just said a little. Someone had a question: a man who is of uncertain priestly status and married to a divorcée, already married twenty years. It turned out from documents from here and there, from many years ago, from his grandfather’s birth records, that he is of uncertain priestly status. Now seemingly, uncertain priestly status is a Torah-level doubt, and we rule stringently, so he should divorce her. Divorce his wife of twenty years, they’re married, living together. What do you do? So I thought to myself—there were previous cases and I reached this conclusion—does one need to convene a religious court for this? To determine yes or no? Seemingly this is personal status. And the answer, I think, is no. It’s a halakhic question. This priest is definitely married to her. It’s not a question of what their status is from the standpoint of the public. After all, betrothal does take effect for a priest and a divorcée; these are only prohibition-based unions. Betrothal does take effect in prohibition-based unions. The question is whether he personally is under a prohibition requiring him to divorce her. That is a personal question. A personal question is given to a halakhic decisor, not to a judge. It doesn’t go to a religious court. And about that I can answer him according to my best understanding. He can accept it, he can refuse to accept it, but I tell him this as a halakhic expert, not as a judge. Therefore I don’t even need to verify the facts, by the way, in principle. Suppose he lies to me; I don’t verify the relevant facts of the birth, suppose he lied to me. If he lied to me, that’s his problem. He asks me what Jewish law says—does he need to divorce his wife or not? Based on the data you gave me, I tell you that you do not need to divorce her. If you lied, the Holy One will settle accounts with you; it’s a prohibition. It’s not something a religious court needs to decide. Where does a religious court decide? Whether the betrothal took effect or not. That is indeed a decision of a religious court. All right? Because that is the question of what your status is—are you married or not married. Not whether you are violating a prohibition. Okay? Also, fine. No, there are public implications, but charity also has public implications. If I need to give you money, then that money will be with you and not with others. No, so that’s what I’m saying. There is a difference here in essence, not just in implications. The act itself is public. I’ll give you an example. Why are witnesses needed for the thing to take effect in betrothal? We’re really getting close now. Why are witnesses needed for the thing to take effect in betrothal? Even though you say it’s not the same as ordinary testimony in monetary law, even though we learn “matter-matter” from monetary law. Rabbi Shimon asks: how can this be testimony that establishes the matter in betrothal, if we learn it from monetary law, which is the source, “matter-matter” from monetary law, and there it is testimony for clarification? Why in betrothal do you need testimony to establish the matter? The simple view—there is such a meaning to it—the simple view is that this testimony establishing the matter is a constitutive condition. These witnesses are not testifying to anything; they do not later go to a religious court to say anything. They need to be present there as witnesses so that this act will be valid. Without that, it has no validity. Not because we don’t know that she is betrothed, but because she is not betrothed. Huh? And therefore this is indeed done in a religious court. No, but it is done in a religious court, again, because of the implications. The implications are far-reaching. It’s only a question whether he is Jewish or not Jewish, a halakhic question. A religious court determines it as one who… no, no. No, and it creates a public sub-status, even more of a sub-status; the public sees you as a married couple. In every legal system, personal status is part of the legal system, part of the system of law. Personal status is a legal matter. It is not a matter of private concern in which the law does not intervene. In a private matter the law does not intervene; Jewish law does. State law does not. In personal status every legal system intervenes. Interesting question. Seemingly not. Seemingly not. Interesting question. But here it is simply because there is a dispute between people. If he were to come and ask, whose son am I, that would be a private matter. But it could be that when there is a dispute between people it is like Choshen Mishpat—a question whether he is Yoav’s son or your son, like the mothers before King Solomon. What do you mean obvious? I’m saying I think that is what Jewish law expresses. It could have been defined differently. Yes, because the fact that you are a couple—betrothal is a legal institution. I once argued, for example, that—well, we’re drifting today, all right, never mind, it’s an opening lecture—that why indeed is ownerlessness declared by a religious court effective? It is effective because in monetary law—again, Rabbi Shimon—your ownership of property cannot be valid if the public does not recognize it. Because ownership is a public concept. In a society in which there are no property laws at all, some kind of communism, I don’t know what, anarchism. Anarchism. In communism everything is state-owned. But anarchism is when there are no property laws at all. Then even if the two of us agree, it doesn’t matter, I still won’t be an owner. Because for me to be an owner of something, the public has to constitute a system of property law. Therefore, for example, I once wrote an article about the Kovno Ghetto. There was a discussion there—never mind, an interesting discussion. There was a Jew there named Rabbi Gibraltar. And he argued that there is no ownership of property at all in the ghetto. Why? Because in a place where any child can come in, kill you, and take all your possessions, that means that de facto there simply are no property laws. And once there are no property laws, it doesn’t matter that you acquired legally and the other person agreed and everyone agreed—that’s irrelevant. If it is not enforceable and the public does not recognize it as something binding, it is not effective, so it does not exist. No, obviously. Why? Biology is part of the discussion, so now you are in the biological clarification for that. Why? But once that is the decision, everything could have been decided differently, but once that is the decision, that is what turns it into a public matter. Everything could have been decided differently. It could also have been decided that if you borrowed from me, you do not have to repay, or if you damaged me, you do not have to pay. So Choshen Mishpat is no different in that sense. No, not on the basis of agreements. The basis is the Torah. But the Torah could have said otherwise too. What do you mean? So in Even HaEzer too it is that way. In Even HaEzer too it is that way. The Torah said it is this way. It could have said otherwise, true, but it said it is this way. So it is a public concept.
[Speaker B] That’s not true. In principle the question is biological. Yes. If society wants—obviously—even today they don’t know who the mother is. No, and that’s the point. That’s what they discuss. Okay.
[Rabbi Michael Abraham] So it depends—no. It depends on the view—no. It depends on the view, right. A legal system will determine whether the question is biological or not. But the legal system can determine this or that. No, not an institution. No. You are asking whether the Knesset can legislate such a law. The answer is yes, of course, because this is a public matter. But if it has not legislated such a law, then now there is a dispute between two people. A dispute between two people is fine; that belongs only to Choshen Mishpat, not to Even HaEzer. Yes. A dispute between two people over who the mother is. Yes. Like the two mothers before King Solomon. It is very interested, but if it wants to determine it, let it do so in the Knesset. No, fine, that’s really already… The claim basically is that just as I claim that on a deserted island, if there were Adam and Eve—yes, in the Garden of Eden—and Adam would betroth Eve according to the law of Moses and Israel with a ring, and there would even happen to be two witnesses who later died, I don’t know exactly how, okay—she would not be betrothed. Since betrothal is a public institution. And if the public does not constitute such an institution and recognize it, then it does not exist. And that is what distinguishes Even HaEzer and Choshen Mishpat from the other things. In Even HaEzer and Choshen Mishpat, therefore, you need testimony that establishes the matter. Testimony that establishes the matter means two witnesses who provide the public stamp. The public recognizes you as a married couple. They function basically somewhat like a religious court, not like witnesses. A religious court comes, and as with a religious court in conversion, say, the religious court comes and says: we declare you husband and wife on behalf of the public. These witnesses do not come later and testify before a religious court about anything. These are witnesses with a constitutive role. Okay, but this is a public matter not necessarily in the sense of obligations and rights as I tried to say earlier. There is also that, but not that this is the essence. The essence is that we are dealing here with something public, and therefore in that sense it differs from Choshen Mishpat but resembles it. It differs from Choshen Mishpat because we are not necessarily talking here about mutual obligations and rights. There are such things; there are implications, but that’s not the point. The point is that in Choshen Mishpat, because we are dealing with obligations and rights, it is something entrusted to the public and to the religious court as an institution appointed on behalf of the public to handle it. That is also true in Even HaEzer. Although there it is not because of obligations and rights, but because there is a public status that the public needs to recognize. Okay, so that is what distinguishes Even HaEzer and Choshen Mishpat, but of course there are other points too, which may be related to the matter—I’m not sure. Let’s look at this. Betrothal, for example, is the application of a legal status that is similar to ownership. It is similar to ownership—no, I’ll still talk about that—not in the sense that the husband becomes, that the wife becomes, the property of the husband. That is not true; she does not become the husband’s property. But the husband imposes upon her the legal status of a married woman. In that sense there is a legal act here that creates a legal status, and that characterizes—and I’m a bit unsure whether it must be this way—but it generally characterizes the legal sphere. In the legal sphere we speak of legal statuses. The legal status of acquisition; legal statuses create a kind of reality that the public now takes into account. Okay? And in the religious sphere you will see this less, except for terumah, for example—the legal status of terumah—or something like that, a vow or an oath. There are such things in the private world too, but somehow there is some connection—and it needs better definition—but there is some connection between the fact that I create legal statuses and the fact that I am in the legal sphere. The legal sphere deals with acts that create legal statuses—or not only, but to a large extent it deals with acts that create legal statuses. And in that sense, in Even HaEzer there is another resemblance to Choshen Mishpat, because there too we are basically talking about actions that create legal statuses with legal implications. In that sense it is very similar to Choshen Mishpat. As opposed to keeping the Sabbath or making a blessing over food or Orach Chayim, right, or Yoreh De’ah or whatever. Therefore the similarity between Even HaEzer and Choshen Mishpat is not in the narrow sense that here too there are obligations corresponding to rights as in Choshen Mishpat, although there are, I think indirectly, but rather in the implications of the fact itself. In Choshen Mishpat, because of obligations corresponding to rights, it is a public matter, there are legal statuses, and it is entrusted to a religious court and not to a halakhic decisor. That is also true in Even HaEzer. Not because it is rights versus obligations, but for other reasons; still, it is also true in Even HaEzer. The one who deals with it is a religious court and not a halakhic decisor; it has status, it involves the application of a legal status, there are rules for how to apply it and how not to apply it, and so on.
[Speaker B] I’ll still talk about that, I’ll still talk about that. Look, there’s Maimonides at the beginning of the laws of marriage, yes, Maimonides at the beginning of the laws of marriage writes—let’s see here everything I marked, right. Before the giving of the Torah, okay, can you see?
[Rabbi Michael Abraham] Before the giving of the Torah, if a man encountered a woman in the marketplace, if he and she wanted to marry, he would bring her into his home and have relations with her privately, and she would become his wife. Before the giving of the Torah, yes, couples would meet, decide to live together, go home, and live together. There was no formal legal dimension at all. It was simply a matter of mutual consent. I would even say that in a certain sense marriage wasn’t even a legal institution at all. It was the decision of two people; a private matter. Yoreh De’ah. Okay. Once the Torah was given… okay. So, midrashic pilpulim, yes. Okay. Once the Torah was given, the Jewish people were commanded that if a man wished to marry a woman, he must first acquire her in the presence of witnesses, and afterward she would become his wife, as it says, “When a man takes a woman and comes to her.” Okay. So what exactly was renewed here? What existed before the giving of the Torah, and what was renewed after the giving of the Torah? Before the giving of the Torah, marriage was basically a natural act; it had no legal regulation, okay? At least it didn’t have to. There may have been societies that decided to do it that way, but from the standpoint of Jewish law there was no requirement for Noahides to create a legal framework for it. So if two partners decided to live together, they simply lived together. And in a certain sense it’s a bit like concubinage or something similar to those concepts. What happened at the giving of the Torah? At the giving of the Torah, the new element was that a legal act had to precede marriage. That’s called kiddushin, erusin, it has various names, kinyan—all those names are synonymous. What today is called erusin is already something else. So a legal act must precede marriage. And the Torah’s innovation is not in the natural institution, but specifically in the legal dimension introduced into it. And the entire tractate of Kiddushin—almost all the laws you’ll study—you’ll hardly see any treatment of marriage itself. There isn’t any. Tractate Kiddushin doesn’t deal with marriage at all; nobody deals with it. “Does the chuppah effect acquisition” means kiddushin—that’s exactly the question. The question whether the chuppah creates kiddushin is the question whether the chuppah effects acquisition. The discussion is a discussion of the laws of kiddushin. Why? Because marriage has no laws. Marriage is the result. In the end it’s living together, and that’s all. What laws are there? Live together. So much so that there are actually claims among the halakhic decisors that you don’t need witnesses for marriage at all, only for kiddushin. Marriage is living together, and that’s all. Kiddushin is the legal regulation of that matter, and the Torah insists that before we begin our natural life together as a normal natural institution, we need to establish it on a legal foundation, begin with a legal foundation. And therefore that which the Torah added comes first; chronologically it appears first. First we perform kiddushin, and afterward we begin living together. By the way, this has many implications; we’ll maybe talk about that in the next class—I didn’t get to it today.
[Speaker B] I don’t know why they chose that order. Clearly you do the kiddushin first and then the chuppah. We do the opposite. Why in the blessing do they say it in that order? I have no idea.
[Rabbi Michael Abraham] Okay. But for our purposes, first they do the kiddushin and then the chuppah. So the claim, basically—why does Maimonides say this? Is it just a historical story? It could be; that’s not far-fetched. But it seems to me that it also has an implication. Even after the giving of the Torah, if two partners begin living together and didn’t do kiddushin beforehand, is that something with no status whatsoever? My claim is no, it does have status. They are a couple who did not act according to the law of Moses and Israel, because they did not first sanctify the union, but they are married with Noahide marriage. Some identify this with a concubine; the question is how to define concubine—there are various debates. But this act has significance, whatever you call it; this act has significance, because the Torah did not come to remove what existed before the giving of the Torah—it came to add. In other words, Noahide marriage still exists today; it’s just that the Torah requires us not to enter into Noahide marriage, not to suffice with Noahide marriage, but rather to precede it with a legal act of kiddushin. No, that’s a different discussion. Maybe we’ll talk about that—I think in any case it’s not a commandment, but that’s a different discussion. The claim is that… no, no, something else. The claim basically is that the Torah adds. It adds a legal layer here, but it adds it—it does not come instead of the cultural layer, let’s call it, the human, natural one, but in addition to it. Therefore, for example, I’ll want to argue in the next class, to complete the picture, that on the one hand everything I’ve said until now deals with kiddushin, not marriage. And kiddushin is the part of Even HaEzer, the halakhic part that belongs to adjudication, the Even HaEzer part, the legal part of Jewish law. But marriage also has some kind of standing. So for example, if I send the woman out of my house without a get, okay? What has happened here if we look at it essentially? We’re no longer married, but the kiddushin still exists. She cannot marry someone else, because what prevents her from marrying someone else is the kiddushin, not the marriage. So that basically means the woman has returned to the state of betrothal, right? Exactly as on the way in. On the way in, there is kiddushin, the woman is betrothed—in the past it was twelve months—and after twelve months she would marry. I claim that on the way back it’s the same process. Meaning, if he sends her out of his house and does not give her a get, she goes back to being betrothed, and that has halakhic implications.
[Speaker B] No, by Noahides I mean that it has some kind of status—not legal, call it halakhic status, whatever you want to call it.
[Rabbi Michael Abraham] Nobody said otherwise. I’m claiming that it has status. I didn’t say Maimonides writes this; I said that I think so, because I think it’s true and I’ll show it, I’ll show it, I’ll show it. But since I think it’s true, I’m also claiming that this introduction Maimonides gives here comes to teach us something about the present, not just about the history of this issue. Obviously, if they live together, they live together; nobody needs to tell me that. The fact that they live together means that they live together. But if I want to say that this means something, whatever it may be, then it means something beyond the physical fact that they live together. Fine, I said I’d get to that. We’ll talk about that. The Rashash says no—the Rashash in Bava Batra says no. Following the Rashbam, it seems to me, following the Rashbam. Regarding terumah that’s yet another story; we’ll talk about it, we’ll talk about it. But I just want to close the circle so we can discuss it next time. The claim, basically, is that the entire legal dimension we talked about earlier, of Even HaEzer, of kiddushin, deals with kiddushin, not marriage. Only with kiddushin. All the laws we’ll study, everything discussed there—agency, a perutah, all those details, witnesses and the whole story—all of it is only about kiddushin. It’s not about marriage. Marriage is the social dimension of living together, and then it has no—it is not something with legal significance. Now, what exactly the implications of this are, we’ll discuss next time. This introduction took me a little too long this time, so I’ll continue the introduction next time. Next time I’ll want to address two things. One is indeed this matter, these two levels in the couple’s relationship: the legal level and on top of it the level—let’s call it the social, natural one—and the implications of that. And the nagging question: does a husband have ownership of his wife? What is the meaning of the legal relationship between them? On the legal plane, is this ownership? Is it the application of ownership? Seemingly the words explicitly say yes. So we’ll talk about that. I’m not giving you source references because this is a general introduction; there’s no point, it’s not a specific topic / passage. What I will say is: start moving ahead in the chapter. Even at the beginning—we’ll begin the chapter itself in two classes from now, I hope, if everything flows—starting with the topic / passage about “it is more of a commandment for a person to do it himself than through his agent,” which is the first topic / passage at the beginning of chapter two. And afterward we’ll move to all the laws of agency, which continue the chapter. Start moving ahead. I’ll guide you a bit more specifically. I assume not. I assume not. It’s not next Tuesday, right? So if that’s the case, then it’s still a law for the messianic era. Well, in any case, that’s the situation. For anyone who wasn’t here except for the introduction, we just concluded that we start at eight, okay? Because there were degrees of freedom here. We start at eight. Eight to nine-thirty. I’m marking your attendance here in this table I made. If there’s any problem with attendance or anything like that, please try to update me. I’ll send materials; I just said I’d check it—I said I’d check it—whether it’s possible to upload it to the institute’s website or whether I need to send it by email, in which case I need to build a mailing list. I’ll check that, because the mailing list is a headache.
[Speaker B] I’ll check how—what’s going on with the institute’s website, because I
[Rabbi Michael Abraham] don’t remember anymore. Is it possible? Yes. No. It’s once on Rosh Chodesh, it’s not—it’s rare. Let’s say next time, let’s decide: if there’s another case like that, then we can postpone it by a quarter of an hour or something like that. Okay? But in principle we start at eight; if there’s some Rosh Chodesh, then we’ll set it for eight-fifteen. Okay? What else? That’s all. Just what I said to those who asked here: you’re of course welcome to contact me about any matter, whether about the class or not about the class. My email and phone number are on the website, and of course also physically. No, I didn’t collect people’s emails. I’ll try to upload it to the website; that seems more convenient to me.
[Speaker B] By the way, it also goes up on my website; it also goes up on the institute’s website.