Study and Halachic Ruling – Lesson 5
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- Torah and Jewish law versus law, custom, and factual clarification
- The question of the Mahari Basan on monetary doubt and the framework of certainty and uncertainty
- “We go by the claim” and the question of a false oath in Havatzelet HaSharon
- Rabbi Shimon Shkop’s theory of jurisprudence: ownership as the foundation and theft as a second layer
- Theft from a non-Jew and proof of the existence of a separate legal prohibition
- Resolving the Mahari Basan’s question: “the burden of proof is on the claimant” as defining when theft applies
- Ownership, convention, Platonism, the law of extortionary rule, and the validity of law
- The Kovno Ghetto, Rabbi Gibraltar, and the claim that there is no ownership without an effective legal system
- Law versus morality, legislation, and rabbinic acquisition as de facto reality
- Studying jurisprudence and studying state law are not Torah study
- Sources in the Talmud, the blessing over Torah study, Torah as object and Torah as subject, and the relation to aggadic literature
- “The burden of proof is on the claimant,” reason and verse, and the status of reasonings like migo
- The limits of the analogy: murder versus money and the social nature of ownership
Summary
General Overview
In previous lectures it was established that there are laws that obligate in practice by force of state law, communal enactments, and customs, but dealing with the details of the law or with factual clarification is not called engaging in Torah. A basic distinction is developed between Torah and Jewish law: there are areas that determine practical Jewish law, and nevertheless studying them is not Torah study, such as clarifying “what the king said” under the rule that the law of the kingdom is law, or clarifying “what exactly the person vowed” in vows. From there, Rabbi Shimon Shkop’s theory of jurisprudence is brought as an explanation for the structure of monetary law, and from that further practical implications are derived regarding ownership and acquisition in situations of chaos like a ghetto, and regarding the relationship between morality, law, Jewish law, and enforceable validity.
Torah and Jewish law versus law, custom, and factual clarification
The claim is that the essence of Torah is Jewish law, but Torah and Jewish law are not overlapping concepts, because there are binding laws that are not Torah. The Torah principle that the law of the kingdom is law is Torah study, but studying state law in order to clarify what the law says is not Torah study. Knowing that a person must fulfill whatever comes out of his mouth is Torah, but clarifying what the person vowed, what he meant, and what the facts of the case were is factual clarification and not Torah study, even though it is essential for halakhic ruling. The clarification of facts that a religious court performs in order to formulate a ruling is necessary for halakhic decision-making, but dealing with facts is not dealing with Torah.
The question of the Mahari Basan on monetary doubt and the framework of certainty and uncertainty
The Mahari Basan asks why in monetary law the rule is that monetary doubt is treated leniently for the defendant, meaning that the burden of proof is on the claimant, even though there is a concern that the defendant may be violating the prohibition of theft if the money is not his. It is determined that the sharp version of the question exists mainly in a case where one party claims with certainty and the other claims uncertainty, because then the defendant himself is also in doubt. It is brought that in practical Jewish law, certainty versus uncertainty is ruled such that certainty is not stronger when the defendant is in possession, and therefore the claimant’s certainty cannot extract the money from him. The discussion distinguishes between the judges’ doubt and a situation in which the litigant himself does not know the truth, and it becomes clear that the issue is whether there is room to compel the defendant to pay under the principle that a Torah-level doubt must be treated stringently in order to avoid theft.
“We go by the claim” and the question of a false oath in Havatzelet HaSharon
It is brought in the name of Havatzelet HaSharon that there is a distinction between what a person knows in his heart and what he claims before a religious court, and the court relates to what was said within the framework of the legal claims. An example is brought of a claim for two hundred when the truth is one hundred, and the discussion revolves around the possibility of evading partial admission and the implications for an oath. The claim is that the religious court system operates according to the parties’ claims, and not according to inner knowledge that is not part of the formal claim. Within that framework, the question returns of how to view a person’s obligation to be stringent because of doubt when the court exempts him on account of evidentiary rules and legal presumptions.
Rabbi Shimon Shkop’s theory of jurisprudence: ownership as the foundation and theft as a second layer
Rabbi Shimon Shkop presents an understanding that the prohibition of theft depends on a prior determination by the laws of acquisition, which establish who owns what and how ownership is acquired. It is argued that in acquisition law there is a layer of “the laws of jurisprudence” that is not learned from an abundance of verses, such as lifting, pulling, possession, and document, and therefore it appears as a legal-social determination that organizes ownership and transfer. The prohibition of “you shall not steal” comes after the proprietary determination and gives it halakhic force, so that the halakhic prohibition is derived from the legal ruling as to who the owner is. A common mistake is rejected, as though Rabbi Shimon Shkop means that jurisprudence is merely a description of ownership facts without prohibition; rather, it is said that he means there is also an independent legal prohibition, and on top of that a religious-halakhic prohibition of “you shall not steal.”
Theft from a non-Jew and proof of the existence of a separate legal prohibition
A proof is brought from Rabbi Shimon Shkop concerning the dispute whether theft from a non-Jew is forbidden by Torah law. According to the views that hold there is no Torah-level “you shall not steal” regarding a non-Jew, there is still a prohibition by force of jurisprudence. It is established that even when the prohibition of “you shall not steal” does not apply according to those views, the non-Jew’s money still belongs to the non-Jew by force of the laws of acquisition, and therefore there is a legal prohibition against taking it. From this it emerges that jurisprudence for Rabbi Shimon Shkop is not merely a factual determination of ownership but a binding system of prohibitions and obligations. His statement is also cited that intellect and logic require obedience to jurisprudence, and he compares the force of the Torah command itself to a more basic foundation of reason that obligates one to fulfill a command.
Resolving the Mahari Basan’s question: “the burden of proof is on the claimant” as defining when theft applies
Rabbi Shimon Shkop resolves that the scope and application of “you shall not steal” are determined by jurisprudence, and not the other way around. The legal rule that the burden of proof is on the claimant establishes that when the claimant did not bring proof, the defendant is not required to pay, and therefore legally the money is considered the defendant’s. Since the halakhic prohibition of theft applies only when it is legally determined that the money is not his, there is no “doubt about the prohibition of theft” requiring stringency, because legally there is no theft. It is established that the relation is one-directional: the prohibition of “you shall not steal” is subordinate to jurisprudence, and jurisprudence can be broader than it, as is evident from theft from a non-Jew.
Ownership, convention, Platonism, the law of extortionary rule, and the validity of law
A philosophical question is raised whether the world of law is an arbitrary social convention or grounded in meta-legal “Platonic” facts, and it is said that this will be discussed later. A distinction is brought between “the law of the kingdom is law” and the law of extortionary rule, where an arbitrary and wicked regime does not receive halakhic validity. It is argued that even if a law is valid, one can still level moral criticism against whoever legislated or implemented wickedness, and this does not depend on whether the law has validity. A conception is presented according to which, in monetary law, the very existence of law is tied to enforcement and sanction, and where there is no power of enforcement there is no law, but at most morality that is not law.
The Kovno Ghetto, Rabbi Gibraltar, and the claim that there is no ownership without an effective legal system
A story is brought about a series of articles in Yated Ne’eman by Rabbi Gibraltar about his father, who was in the Kovno Ghetto, and there a view is described according to which in the ghetto there is no ownership of money and therefore no prohibition of theft, to the point of refusing to accept repayment of a loan after the Holocaust on the grounds that “the money wasn’t mine.” It is argued in a response article that this is absurd, but it is then said that an article was written in Tzohar defending the view and establishing that it is correct in light of Rabbi Shimon Shkop. The claim is that where there is no effective legal system and no enforcement at all, and anyone can take property by violence without sanction, ownership has no meaning, because ownership is determined through the legal system and not directly through the Torah. Since “you shall not steal” applies on top of a legal determination of ownership, when there is no legal infrastructure there is nothing for the prohibition to apply to, even though the situation is morally intolerable and those responsible for the chaos are wicked.
Law versus morality, legislation, and rabbinic acquisition as de facto reality
It is established that morality and law are not the same thing, and that a moral principle becomes law only after legislation and enforcement, as illustrated by the distinction in Israeli law around “do not stand idly by your neighbor’s blood.” It is argued that in monetary law, the very meaning of “ownership” is a social status that exists only when society and the legal mechanism recognize it and prevent others from using force. A discussion is brought about rabbinic acquisition and the claim that when the Sages determine de facto that money is “mine,” the social-legal reality is that it is mine, and therefore uses such as betrothal can take effect. It is established that a system of chaos effectively strips norms of their appearance in the world, even if there is an idea of the “correct law” on the theoretical level, and the gap between idea and worldly validity is explained through an analogy to Platonic ideas that do not “appear” without actual realization.
Studying jurisprudence and studying state law are not Torah study
It is said that studying jurisprudence or state law is parallel to the law of the kingdom, and is very important in order to act in accordance with Jewish law, but it is not Torah study in the sense of Torah as an object. Studying the principle that jurisprudence has validity and determines the laws of acquisition is Torah study, but studying the details of what jurisprudence determines in a particular case is like studying “what the king said,” and is not Torah. It is said that this also applies to vows: the halakhic principle is Torah, but the factual clarification of the content of the vow is not Torah, even though it is required for halakhic ruling.
Sources in the Talmud, the blessing over Torah study, Torah as object and Torah as subject, and the relation to aggadic literature
It is said that there is no remembered Talmudic discussion from which one can extract an unequivocal definition of what Torah study is, and there is a discussion about the blessing over Torah study but it is hard to derive from it a comprehensive definition. It is argued that most people consider the study of ethics, Guide for the Perplexed, and similar things as Torah study just like the discussions of Abaye and Rava, but here it is argued that this is at most Torah in the person, not Torah in the object. Regarding the Written Torah, it is said that even the non-halakhic parts are Torah by virtue of being the word of God at Sinai, even though it is difficult to explain what exactly one learns from them; but regarding the aggadic passages of the Sages, it is argued that one does not recite the blessing over Torah study on them, just as one does not recite it over Guide for the Perplexed or Dostoevsky, unless one is engaging in the verses themselves. A discussion is brought about the plain meaning and the interpretive reading of “an eye for an eye,” including a proposal in the name of Anshka in Ma’ayan in 1977 that the plain meaning and the interpretive reading can be understood as part of the Jewish law itself, such that the plain meaning defines the conceptual punishment and the interpretive reading implements it monetarily.
“The burden of proof is on the claimant,” reason and verse, and the status of reasonings like migo
It is said that “the burden of proof is on the claimant” is an example where the Talmud presents a logical reason alongside a verse and asks, “Why do I need a verse? It is logical,” and this is interpreted to mean that when there is a verse, the reasoning interprets it and therefore it is Torah. It is argued that independent logical reasonings that are not interpretations of a verse are not Torah as an object, and the blessing over enjoyment is brought as an example of such a question. Regarding migo and evidentiary law, it is said that they are tools for explaining “judge your fellow with righteousness,” and therefore they are Torah as an object, unlike the proprietary system that is defined as a jurisprudence prior to Jewish law according to Rabbi Shimon Shkop.
The limits of the analogy: murder versus money and the social nature of ownership
A question is raised whether Rabbi Shimon Shkop’s model can also be extended to murder, and it is said that with murder there is a prohibition that predates the giving of the Torah, and the Torah itself says, “Whoever sheds the blood of man, by man shall his blood be shed,” as well as the claim to Cain, “The voice of your brother’s blood cries out to Me.” It is established that Rabbi Shimon Shkop’s novelty, according to which the absence of a prohibition in jurisprudence creates the absence of a halakhic prohibition, does not fit murder; and the distinction is explained by the fact that monetary ownership is by its essence a social idea dependent on social recognition and enforcement, whereas the value of human life does not depend on that same social infrastructure. It is argued that this also underlies the possibility of ownerless property by decree of the religious court in monetary matters, and that discussions of intellectual property show that the system cannot be decided arbitrarily by simply saying “declare it and it will be so,” but is subject to a broader principled framework.
Full Transcript
[Rabbi Michael Abraham] Okay, let’s begin. Let’s mute. Good. In the previous lectures we talked about the law of the kingdom, communal enactments, and the like, all of which are basically state law, for example, right? Or customs. All of these can actually determine the law. Meaning, from the standpoint of practical Jewish law, it’s important to understand and know what they say, but engaging in them is not called engaging in Torah. And so here—this basically shows us that there is a difference between, on the one hand, I said that the essence of Torah is Jewish law, or actually I think it’s not only its essence, maybe it’s all of it even—but on the other hand, the concepts Torah and Jewish law are not overlapping concepts. There are things that are laws that obligate us in practice, and they are not Torah. For example, the law of the kingdom. So the principle that the law of the kingdom is law is of course a Torah principle; engaging in it is Torah study. But checking what the law of the kingdom says, studying law, that is not Torah. And I brought an example for this, like vows. So knowing that a person must do whatever comes out of his mouth—a person who made a vow has to fulfill what he vowed—that’s Torah. But clarifying what the person vowed, what he meant, what so-and-so vowed and what someone else vowed, that’s factual clarification, which of course is not Torah study. It’s required in order to know how to rule for him, to tell him what he has to do, what is forbidden for him to do, so from the standpoint of halakhic ruling it’s a necessary clarification. But dealing with it is not Torah study. Or like the practical clarification that the religious court does as part of deliberating over a ruling—that is, in the course of formulating the ruling, the court has to clarify the facts of this case. Clarifying the facts is very important in order to rule the Jewish law, but it’s not correct to say that engaging in facts is Torah study. So all these examples show us that there is a difference between Torah and Jewish law. And I may want to—I’ll say maybe one more thing, I’ll bring another example for this matter. Another example is what’s called Rabbi Shimon Shkop’s theory of jurisprudence. And he basically makes the following claim. He brings a question from the Mahari Basan. And the Mahari Basan basically asks: why is it that when we have doubt in monetary law, the rule is that monetary doubt is treated leniently? What does lenient mean? A leniency for Reuven is a stringency for Shimon, and vice versa. In monetary law there are two sides. Lenient means lenient for the defendant. In other words, the defendant doesn’t have to pay if there is doubt. In order to force the defendant to pay, the claimant must bring proof. The burden of proof is on the claimant. If he didn’t bring proof, it could still be that he’s right, but it could also be that he’s not. We’re in doubt. What do you do in a case of doubt? The burden of proof is on the claimant; the money stays with the defendant. The Mahari Basan asks: why? After all, the defendant may be violating the prohibition of theft if it isn’t his. We have a doubt. A Torah-level doubt must be treated stringently. The defendant should really have to pay because he’s in doubt about the prohibition of theft. He should have to be stringent in order to avoid theft and pay even in a situation of doubt, even without evidence.
[Speaker B] And what about the other one? What?
[Rabbi Michael Abraham] And what
[Speaker B] about the other one?
[Rabbi Michael Abraham] The other one can’t take it for the same reason. Throw it into the sea. Although that question by itself obviously isn’t difficult, because who exactly is in doubt here? The judges. The litigants themselves know what the truth is. One of them is lying, one is telling the truth, but both know what the truth is. The judges are the ones in doubt. So if I now go to the defendant and tell him, listen, the other party didn’t meet the burden of proof, so legally the money can remain with you. But since there’s a doubt that you may be violating the prohibition of theft, you should be stringent and nevertheless pay the money, or throw it into the sea, or I don’t know what to do with it. But the person says, what do you mean I need to be stringent? I’m telling you that it’s—
[Speaker B] Sometimes there’s doubt about the facts, Rabbi, sometimes there’s doubt about the facts too.
[Rabbi Michael Abraham] What do you mean, doubt about the facts?
[Speaker B] Doubt about the facts of who the money belongs to, like whether he damaged or didn’t damage.
[Rabbi Michael Abraham] What difference does it make whether the doubt is factual or not?
[Speaker B] Then he doesn’t know whether he really—
[Rabbi Michael Abraham] That has nothing to do with factual doubt. Both legal doubt and factual doubt can be cases where he knows or doesn’t know. What you mean is certainty versus uncertainty. The Mahari Basan’s question really exists only in certainty versus uncertainty. What does that mean? In a case where the defendant claims uncertainty. Say someone sues me and says, I lent you a hundred shekels. And I say, you know what, maybe, I don’t remember. So the claimant claims with certainty and I, the defendant, claim uncertainty. Now if there’s no presumption of possession, then certainty against uncertainty—certainty is stronger according to everyone. But if the certainty is the claimant’s and the defendant says uncertainty, that’s a dispute among the Amoraim. And in practical Jewish law we rule that certainty versus uncertainty—certainty is not stronger. Meaning certainty cannot extract from someone in possession who claims uncertainty. Okay, that’s the Jewish law. In that case the Mahari Basan’s question arises. Why? Because the defendant himself doesn’t know the truth. Meaning he himself is also in doubt, not only the judges. So if that’s the case, why doesn’t he have to worry that he may be violating the prohibition of theft and therefore be stringent out of doubt? And here there’s also no problem of what to do with the money. He’ll give the money to the claimant, and the claimant claims with certainty, which means he knows the truth. So there’s no problem. I can’t force him to be stringent because I, the judge, am in doubt. He says to me, listen, what do you want from me? I’m not in doubt; I’m telling you that I’m right.
[Speaker C] We go by the claim. We go by the claims, right? It doesn’t matter what he thinks; what matters is what he claimed before the religious court. I don’t understand. There’s a difference between what he knows and thinks and what he claims before a religious court. There’s a Havatzelet HaSharon that says in Choshen Mishpat—I don’t remember exactly where—that there’s such a concept. He asks about a false oath: if one person says to another, you owe me two hundred, and really he owes him one hundred, and he claims he owes him two hundred, then he can say—it’s forbidden for him to say that he owes two hundred. But the defendant is also forbidden to say, I don’t want to admit partially, because then I’ll be obligated in an oath, so it’s better for me to deny everything and then privately I’ll give him the money. So he’s not allowed to do that in order to avoid the oath. And then Havatzelet HaSharon asks: apparently that should be a false oath, because he knows what he knows—he knows he owes only one hundred—and if so this isn’t partial admission. So he immediately explains—it’s not really a question apparently, but that’s how he frames it—and then he immediately answers that this is not called partial admission, it’s not called a false oath, because we go by the claim, by what the person wants, so to speak, by what the person says before the religious court. The court only relates to what he says, not to what he thinks. And before the court he said it this way. So what does that have to do with it?
[Rabbi Michael Abraham] Obviously the court relates to what he said, but why isn’t it a false oath? Why the court administers the oath—that’s obvious.
[Speaker C] Because they don’t know.
[Rabbi Michael Abraham] But he does know.
[Speaker C] And that doesn’t matter—that’s the point. Once we moved into the category of religious court, all that matters is what the court tells you to do.
[Rabbi Michael Abraham] Fine, I already knew that in the question. I don’t see what the novelty in the answer is. Meaning, fine, so you’re telling me it’s not a false oath. Okay, so what does that have to do with us?
[Speaker C] It has to do with us because the question the Rabbi raised doesn’t seem relevant according to that answer. Because once he claimed before the court… The Rabbi asked: it’s a Torah-level doubt requiring stringency, because he really knows. It doesn’t matter who knows, because once he claimed before the religious court that he doesn’t owe—
[Rabbi Michael Abraham] No—what do you mean knows? The defendant doesn’t know; the defendant is in uncertainty.
[Speaker C] Yes, and what’s the claim? The claim is that a Torah-level doubt requires stringency and he should have to pay, right?
[Rabbi Michael Abraham] Yes, he should pay.
[Speaker C] No, but for him too it’s doubtful that they’ll take from him.
[Rabbi Michael Abraham] What do you mean doubtful that they’ll take from him? So what if they take from him? If he owes and he doesn’t pay, then he violates the prohibition of theft.
[Speaker C] Yes, but if the other one takes from him then he also violates it, because he’s stealing from the defendant.
[Rabbi Michael Abraham] Not true, because the other one claims that he knows the truth and that he’s right; he claims with certainty.
[Speaker C] Yes, but you’re taking from him something that may not belong to him.
[Rabbi Michael Abraham] No, it does belong to him.
[Speaker C] Ah, because he claims with certainty?
[Rabbi Michael Abraham] The judges are in doubt; they have a problem of doubt. You can’t tell the claimant, listen, you have to be stringent because I’m in doubt.
[Speaker C] Whoever is in doubt should be stringent. That’s exactly the answer—according to that Havatzelet HaSharon, you don’t need to relate to the person at all; the fact that the person is such-and-such doesn’t matter. We relate to the court.
[Rabbi Michael Abraham] What you’re saying has to do with the parameters of a false oath. What does that have to do with the issue? Obviously you can’t force me to be stringent out of doubt when you’re the one in doubt. I’m not in doubt. What do you want from me?
[Speaker C] That’s only if it’s just between the two of us. But once it’s before a religious court, then from their standpoint everything is in doubt.
[Rabbi Michael Abraham] No, let the court be in doubt—what do I care? The court says: the burden of proof is on the claimant. That’s what the court ruled. Fine. Now the court goes home, okay? Now the defendant says to himself—it has nothing to do with the court—he says to himself, okay, but I have a doubt, and maybe I’m violating the prohibition of theft? Fine, then I’ll pay him. The question is not why the court doesn’t obligate him to pay. The question is why he himself isn’t obligated to come and pay on his own because there is doubt, doubt about theft. And if he pays, then what’s the problem—why shouldn’t the claimant take it? Nobody can tell the claimant not to take it because the court remained in doubt. The claimant isn’t in doubt.
[Speaker C] Yes, but is the question about the claimant and defendant, or is the question about the court?
[Rabbi Michael Abraham] No, about the claimant and defendant.
[Speaker C] Fine, but are we expecting them on their own to be upright people? I don’t understand, I’m trying to understand the question here.
[Rabbi Michael Abraham] Upright people? They’re obligated by law—what do you mean upright people?
[Speaker C] Yes, but there’s no one to obligate them legally, because the court won’t adjudicate. How not?
[Rabbi Michael Abraham] Because we compel people to fulfill commandments.
[Speaker C] What, because he says with certainty?
[Rabbi Michael Abraham] Yes—no, because the other one says uncertainty. They would obligate the defendant to pay because the defendant claims uncertainty, so they’d obligate him not because he certainly owes, but under the rule of a Torah-level doubt requiring stringency—compelling fulfillment of commandments. Ah, I understand.
[Speaker B] No, but besides certainty and uncertainty there’s another simple example of factual doubt, like whether the woman who was coerced gave birth and then became coerced, or gave birth and then became coerced—I caused damage and I don’t know when the damage happened, so nobody knows.
[Rabbi Michael Abraham] That has nothing to do with factual doubt. You’re going back again to something where the parties also don’t know, so it’s the same thing.
[Speaker B] Yes, the parties also don’t know—each one says uncertainty, both say uncertainty.
[Rabbi Michael Abraham] And if both say uncertainty, then what? Then we’re back in the same situation that even if the defendant wants to pay, the claimant can’t take it.
[Speaker B] Yes, okay, no—the Rabbi asked what the Mahari Basan’s example is.
[Rabbi Michael Abraham] Right, because the example is only certainty and uncertainty.
[Speaker B] Which is also correct. Either certainty and uncertainty or uncertainty and uncertainty.
[Rabbi Michael Abraham] Not true, only certainty and uncertainty. Because if it’s uncertainty and uncertainty, then the defendant may pay because of doubt, but the claimant won’t be able to take it.
[Speaker B] So what the Rabbi said—throw it into the sea. Yes, that’s what the Rabbi said.
[Rabbi Michael Abraham] Fine, that’s what I said before, but the real question is when you have certainty and uncertainty. In principle, the important thing is that the defendant claims uncertainty. So that is the Mahari Basan’s question, and Rabbi Shimon Shkop makes the following famous claim. He basically wants to say that the prohibition of theft is different from all other Torah prohibitions. Why? Because the prohibition of theft means that I may not take money that belongs to someone else. Now the question is: how do I know, or what determines, whether this money belongs to someone else or not? In the background of the laws of theft there are the laws of acquisition—that is, who owns what, how ownership is established, and all the proprietary determinations of who owns each thing. After I know all those things, the prohibition of theft comes and says: if there is something that belongs to so-and-so, you may not take it without permission. That’s theft, okay? But underneath it there are laws of acquisition here. Now where do I know the laws of acquisition from? As is well known, in the yeshivot they say tractate Bava Batra is a tractate without verses. Meaning it deals with acquisitions—there’s some of that in Bava Metzia too, but in Bava Batra there’s more. It deals with acquisitions, and it’s without verses. The Sages establish all kinds of rules: lifting, pulling, possession, document, and the like, and most of these things have no source in the Torah, no verses. There are a few that do, but most do not. Where does it come from? Rabbi Shimon Shkop says it comes from what he calls the laws of jurisprudence. What does that mean? There is some legal determination that society establishes. It establishes the laws of acquisition—who owns what, how things are transferred, how coercion works, who owns each item. After the laws of jurisprudence establish the proprietary allocation, meaning who owns what, then the prohibition of theft comes and says: one who harms the other’s property, one who harms the other’s property, violates a prohibition, violates a Torah prohibition. Meaning the prohibition of theft gives a stamp of approval to a determination that precedes Jewish law, a legal determination, a jurisprudence that precedes Jewish law. After jurisprudence says that this money is yours, the prohibition of theft comes and tells me I may not take this money. Meaning it gives force to the proprietary determination that this money is yours. There is a common mistake among many people, including all kinds of people who claim that Rabbi Shimon Shkop means to say—
[Speaker B] that the
[Rabbi Michael Abraham] jurisprudence only determines, call it factually or descriptively, who owns what. But before there was a prohibition of “you shall not steal,” I could take that money even if it’s considered yours from the standpoint of jurisprudence. Because after all there is no prohibition of “you shall not steal.” Meaning prohibitions exist only in Jewish law. What precedes Jewish law is only the factual determination of who owns what. But that’s a mistake. It’s not true. Clearly Rabbi Shimon doesn’t mean that. I also think it’s not true—but in any case, clearly that is not what Rabbi Shimon meant. Rabbi Shimon says more than that. He says there is also a prohibition against taking from you money that is yours—a legal prohibition. On top of the legal prohibition there is also a religious-halakhic prohibition called “you shall not steal.” Okay? That is his claim. How do I know that this is what Rabbi Shimon Shkop means? Because Rabbi Shimon Shkop, for example, says there is a dispute whether theft from a non-Jew is forbidden by Torah law. Now he says that according to the view that theft from a non-Jew is not forbidden by Torah law, it is still forbidden by Torah law—what does that mean? It is forbidden by force of jurisprudence. The prohibition of “you shall not steal” does not apply to it. But still, the non-Jew’s money belongs to the non-Jew. There are laws of acquisition for a non-Jew too. Once the money belongs to the non-Jew, I’m forbidden to take it—a legal prohibition—even if “you shall not steal” doesn’t exist here when I take a non-Jew’s money, according to those views where it doesn’t apply. But there is still the legal prohibition against taking it. So you see from this that Rabbi Shimon Shkop sees prohibitions on the legal level as well, not just factual determinations of who owns what.
[Speaker D] More than that, Rabbi Shimon Shkop—I think he even says it explicitly. He says: how, why are we obligated if the Torah didn’t command it? So he brings that logic obligates, intellect obligates. You can see that he really means it prohibits.
[Rabbi Michael Abraham] That was going to be my next sentence. Rabbi Shimon Shkop there asks: and if you say, why should I obey something that the Torah did not command, namely jurisprudence? Then he says: why should I obey something that the Torah did command? There is an obvious logic that if the Torah commands, one should fulfill it. So that same logic also says that jurisprudence obligates. Meaning reason is a more basic foundation, a more basic obligating principle, than the Torah’s command itself. Even the force of the Torah’s command is grounded in the force of reason, in the fact that reason basically recognizes it. That’s his answer. But it’s not important for our purposes. For our purposes, the important thing is the question. If he asks why one has to obey, it’s clear that he understands there is also a prohibition of theft in jurisprudence. Because otherwise there really is no obligation to obey. All jurisprudence would be saying is that this money belongs to you, and it didn’t tell me anything about what I may or may not do with it. If I take the money, then I took it—what’s the problem? Only the prohibition of “you shall not steal” creates a prohibition against taking the money according to that approach. If that were the approach, there would be no place for Rabbi Shimon Shkop’s question. So what is he asking there—why should I obey something the Torah didn’t command? What exactly do I have to obey? Clearly Rabbi Shimon Shkop means that jurisprudence also forbids taking someone else’s money; it doesn’t just determine the fact that the money belongs to someone else. In light of that claim, Rabbi Shimon Shkop now resolves the Mahari Basan’s question. And he says as follows. Essentially, the prohibition of “you shall not steal” gives force to the determination of jurisprudence. Once the determination of jurisprudence says that you are a thief, that you took someone else’s money, then the prohibition of “you shall not steal” applies to you. But what determines the application of the prohibition, the scope of the prohibition, when it exists and when it doesn’t—that is not the Torah at all; it is jurisprudence. It determines which money belongs to whom. Once it determines that, if I took the money then I violated the prohibition of “you shall not steal.” Now if that’s so, then he says: after all, from the standpoint of jurisprudence, the legal rule is that the burden of proof is on the claimant. That is the legal rule. Meaning that if the claimant did not bring proof for his claim, then the defendant does not need to pay. So now you ask me: fine, the court ruled that you are exempt, but you yourself should still be concerned because of the rule that a Torah-level doubt requires stringency. What are you talking about? What doubt is there here? A doubt about the prohibition of theft? But the prohibition of theft exists only regarding something that on the legal level was ruled not to be mine. But here, legally, it was ruled that it is mine. Again, even if factually, historically, I really borrowed it—in reality I did borrow it—but from a legal standpoint, because I am in doubt, this money is considered mine, because he didn’t bring proof. So if legally it is mine, then I’m not a thief either. I’m not violating the prohibition of theft. Because the prohibition of theft is derived from the legal determination, and if it is legally determined that this money is mine and I’m permitted to hold it, then the halakhic prohibition of theft also does not apply. Therefore there is no question of why I don’t have to be stringent in a case of doubt about prohibition. And that is Rabbi Shimon Shkop’s claim.
[Speaker B] Rabbi, does it also work the other way? Does it go in the opposite direction too? If I’m not violating “you shall not steal,” does that necessarily mean I’m also not violating the legal prohibition? Since there it’s not overlapping.
[Rabbi Michael Abraham] Certainly not. Theft from a non-Jew, for example.
[Speaker B] Yes, theft from a non-Jew. Right?
[Rabbi Michael Abraham] The prohibition of “you shall not steal” is subordinate to jurisprudence, and jurisprudence can be broader than the prohibition of “you shall not steal.” Meaning the prohibition of “you shall not steal” is less than or equal to jurisprudence. Less than or equal. Meaning jurisprudence will never be narrower than the prohibition of “you shall not steal,” but it can be broader.
[Speaker B] And one more thing—the Rabbi said at the beginning that ownership is defined according to how people define it. So ownership is not something that exists objectively regardless of the definitions we give it? Whether it’s his or not his?
[Rabbi Michael Abraham] That’s already a philosophical question about how you understand the world of law. Is the world of law conventions? Meaning a social agreement—we decide how to determine the laws of acquisition. Or is the world of law actually—and maybe I’ll talk about that further in a moment—based on some kind of meta-legal facts, and not subject to arbitrary social determination? Okay? So that’s a philosophical question that I’m not getting into right now. We touched on it a bit when we talked about Platonism. Yes, when we talked about Sodom.
[Speaker B] But it would also be very relevant to Jewish law, say if someone lived in the Soviet period, where ownership was different. Then apparently it’s really a question whether “you shall not steal” applies there or not.
[Rabbi Michael Abraham] There is still “you shall not steal,” because even in Soviet Russia there was ownership of property. They distributed the property—
[Speaker B] Yes, but not exactly, not exactly.
[Rabbi Michael Abraham] So what? Still, my money is mine. So if you take it, you’re a thief. The big question of Sodom—
[Speaker D] What’s the problem with Sodom? What’s the problem with Sodom? At least according to the stories, if they take from this one and give to that one—if that’s their code, then if it’s a convention, how can Sodom—
[Rabbi Michael Abraham] That doesn’t mean you can establish whatever you want in a wicked way. The fact that something has validity is unrelated to whether you are morally okay. Like the law of the kingdom is law. The law of the kingdom has validity, but not the law of extortionary rule. When the king behaves in an arbitrary and wicked way, then it doesn’t even have validity. But even if it did have validity, obviously people could still complain against him—he’s wicked, the Holy One, blessed be He, will punish him. Those are two different things.
[Speaker D] Now according to what the Rabbi said, it comes out that in Bava Batra this is not even the same topic, right? Why? Because one could say that law, relative to the Torah question, is actually a matter of fact.
[Rabbi Michael Abraham] Correct—there is some legal aspect here. Not Bava Batra—jurisprudence.
[Speaker D] Yes, I said it jokingly, yes. If we say there are no doubts there.
[Rabbi Michael Abraham] I’ll get to that in a moment.
[Speaker D] Or that the Torah basically turned it into moral validity in itself?
[Rabbi Michael Abraham] I’ll get to that in a moment, just a second. Okay. So the claim basically—I’ll sharpen it a little more. I once wrote an article about monetary law in the ghetto, in the Kovno Ghetto actually. This followed a series of articles that once appeared in Yated Ne’eman by a Jew named Rabbi Gibraltar. He described what happened with his father, who was in the Kovno Ghetto together with the Dvar Avraham and several other important Jews—they were there in Kovno. And Rabbi Gibraltar the father had a very special approach. That’s how the son described it in those articles. The father’s approach, Rabbi Gibraltar the father, in the Kovno Ghetto, was that in the ghetto there is no ownership of money. No ownership of money. Meaning there is no prohibition of theft, no ownership, it is ownerless. For example, someone borrowed money from him, and after the war came to repay what he had borrowed. He told him, “You don’t have to repay me—the money wasn’t mine.” Meaning his claim was that there is no ownership of money. So after that series of articles ended, some person who deals with monetary law wrote a response article. He said, “Look, I’m not blaming him—he didn’t have books and so on—but this is absurd.” Meaning, there is no such thing, it does not stand up to the Jewish law as we have it. Then I wrote an article about it in Tzohar, and afterward expanded it a bit more elsewhere, and my claim was that it is really not absurd at all, and he was right. And what I wanted to argue in light of the words of Rabbi Shimon Shkop that I just brought, was that in a place where there is no effective legal system at all, there is no meaning to ownership of money. Why? Because any Ukrainian child—or Lithuanian—can come, shoot you in the head, and take all your money, and no one will do anything to him. There is no law forbidding it. There is no legal system that establishes laws of acquisition in some orderly and uniform way and that also enforces them. In such a place there is no acquisition, no ownership of money. Since ownership of money is determined by the legal system, not by the Torah. Once the legal system determines ownership of money, then the Torah comes and says that whoever violates that is violating the prohibition of “you shall not steal.” But if there is some crazy place like a ghetto, where there are no monetary laws, everyone can come and take from you and nobody will do anything to him and nothing will happen—then in such a place there is no legal jurisprudence, no legal system. If there is no legal system, then the prohibition of “you shall not steal” has nothing to apply to. So therefore, in such a place there is no ownership of money, and consequently there will also be no prohibition of “you shall not steal.” That is the practical implication that I think really emerges from Rabbi Shimon Shkop’s words.
[Speaker E] A question, but is that true only—
[Rabbi Michael Abraham] One second. And of course this does not mean that this is a proper situation. And the fact that in that place the group controlling it decided that there would be no monetary law, or that property would be ownerless—that is Sodom. It does not mean there are no claims against the Ukrainians or the Nazis or whoever was there when he caused there to be no system of monetary law. No—he is thoroughly wicked. But in practice there is no system of monetary law, so there is no prohibition of “you shall not steal.”
[Speaker C] But ownership—isn’t that not something objective? Meaning, the moment a person—and like the Rabbi explained about territory, the Rabbi explained a few lectures ago that there’s such a concept as “this is my territory,” that’s something objective. It’s mine, period. Now, if someone doesn’t respect that, that’s his problem.
[Rabbi Michael Abraham] When I say it’s territory, that doesn’t mean it’s objective. Those are two different things.
[Speaker C] No, I’m saying, the laws determine that it’s—
[Rabbi Michael Abraham] It’s my property; now it’s in my territory.
[Speaker C] Yes, no, I just gave an example, but in reality too it seems reasonable to me that it would be something objective. The moment I take hold of something, it’s mine, no matter what. If someone else denies that it’s not mine, he’s crazy—that’s his problem.
[Rabbi Michael Abraham] Rabbi Shimon Shkop claims no, no, no.
[Speaker B] Yes,
[Speaker C] The Rabbi said Rabbi Shimon Shkop. Rabbi Shimon Shkop doesn’t claim no. What does he claim? He only claims that theft depends on legal theory; he doesn’t say how legal theory works. But the Rabbi here is explaining that legal theory is—
[Rabbi Michael Abraham] —not working through Jewish law, so how does it work? I don’t understand. So how does it work if it doesn’t work through Jewish law? It works like a legal system.
[Speaker C] Right, but exactly—that people… I’m saying that with a legal system, it doesn’t sound reasonable to me that the moment someone else decides for me that it’s not so, I have to submit to him. He decided? His problem. Let him go.
[Rabbi Michael Abraham] No, it’s not that someone else decides for you; society as a whole decided. That’s the procedure that actually takes place there.
[Speaker C] You can stand against it. It’s not “society as a whole decided,” because all those people in the ghetto didn’t agree to it. A group of people came and imposed it on them.
[Rabbi Michael Abraham] That’s true with a king too—when the king decides, the whole public didn’t agree to it. They can dance a hora if they want.
[Speaker C] In the end, the king is the one who rules in the matter, like “the law of the kingdom is law.”
[Rabbi Michael Abraham] Whoever rules is also responsible for property matters.
[Speaker C] Granted, it could be that actually “the law of the kingdom is law” wasn’t said about a king who came and took over a people. Maybe it means a king who was crowned.
[Rabbi Michael Abraham] Who said that “the law of the kingdom is law” means someone who was crowned? What king gets crowned?
[Speaker C] A king of Israel is crowned? A gentile king is crowned? Who crowns him? As long as the people didn’t rise up against him, that’s in a certain sense like crowning him. Well, well. The people also didn’t rise up against the Ukrainians who shot someone in the head and took—
[Rabbi Michael Abraham] —the money. They did object; they just had no power to object. If you asked every person, he’d tell you—
[Speaker C] “I want this out of here.”
[Rabbi Michael Abraham] If you asked, if you asked, every person would want the king out of here too, but he can’t.
[Speaker C] Not necessarily, not necessarily.
[Rabbi Michael Abraham] I think with many kings that is the case.
[Speaker C] Fine, whatever, that’s already a factual question, whether kings are like that or not.
[Rabbi Michael Abraham] It’s not just factual; it’s very important. That’s exactly the claim. The claim is that it’s the same thing.
[Speaker E] But Rabbi, you yourself already taught us that laws of ownership are not—they’re a reflection of reality.
[Rabbi Michael Abraham] I said earlier, I said earlier, that there’s a philosophical question here in the background. Right now I’m saying: this is a legal determination. Beyond that, we can now discuss on the philosophical level how a legal system works. It has nothing to do with Jewish law. How does a legal system work?
[Speaker E] No, but the philosophical level affects the legal level. If philosophically there’s some Platonic thing standing behind ownership, such that it’s a real reality, then that has implications and practical halakhic ramifications.
[Rabbi Michael Abraham] Of course, what do you mean?
[Speaker E] So ownership still exists even in a place where there is no proper legal system at all.
[Rabbi Michael Abraham] You jumped. I said that after establishing that property law belongs to legal theory and not to Jewish law, there’s still an open question how a legal system works. Is it Platonic or not Platonic? That’s another question. But if the legal system—you’re claiming that if the legal system is Platonic, then you can’t say what I’m saying here. Because then the determination is not a convention of society; rather society is merely explicitly formulating what reality says—the meta-legal reality.
[Speaker E] And therefore—so what? In the end is Rabbi Gibernter right or not? Because on the one hand you say he’s right that there is no ownership of property in the ghetto, and on the other hand you say you hold a conception… what?
[Rabbi Michael Abraham] Let me finish saying it and then we’ll see what I’m saying. I mean, I’m in the middle of saying it.
[Speaker F] But what the Rabbi is saying—that legal theory—it really seems very similar, it really looks like legal theory derives from Rousseau’s social contract. It’s the same thing: if there’s no such legal-social contract, there’s no legal theory.
[Rabbi Michael Abraham] Fine, that’s the claim. Now, they asked here—rightly—that this now has to go back to the beginning of this whole series. After all, my whole claim was that at the basis of monetary law and property law there are halakhic or legal facts, and not just a social convention. And if that’s so, then people are claiming: what difference does it make in a place where the world is ownerless chaos, like in the ghetto or something—there are still legal facts. And those legal facts exist because they are objective facts. That’s not precise. Why not? Because in a place… after all, it’s obvious that even in a place where the legal fact says that when I pull something toward me, I acquire it—if the legal system doesn’t legislate that, it won’t be valid. The legal fact only says what it is correct to legislate. That there is such a thing as something that is correct to legislate, or not correct to legislate. But people aren’t claiming that there’s no need to legislate. They’re claiming that there is a determination of what is right to legislate. And if you legislate this way, you’re right; if you legislate that way, you legislate something wrong. More than that: after all, “what the court declares ownerless is ownerless,” and a king can also render property ownerless. Therefore, in a place where there is no effective legal system, even if I’m the biggest Platonist and I say there are correct property laws on the metaphysical level, regardless of our determinations—but in a place where society allows taking property from anyone, any property from anyone, it is basically saying: I have rendered this property ownerless. And then those pure, correct Platonic determinations do not appear, they are not valid in our environment. Therefore de facto there is no ownership of property, even if it would have been right that there should be. It should have been—but there isn’t. Therefore, even according to the Platonic conception, you can say what I said here.
[Speaker C] Meaning there are several conceptions? I can’t hear. Are there several conceptions? Several stages? The Platonic one, and after that the issue of how the world relates to it?
[Rabbi Michael Abraham] The Platonic view says… it’s a fact. What does that fact say? That fact says: this is the correct way to act.
[Speaker C] And that has nothing to do with what the reality in the world is?
[Rabbi Michael Abraham] But I’m saying, fine, this is the correct way to act; obviously, whoever legislates otherwise is legislating something incorrect. But even so, if he legislates otherwise, then that is the law that determines matters in that place. So there is something objective here in the sense that there is such a thing as a correct law and an incorrect law. Part of the legislator’s job is to try to understand the meaning of the Platonic idea, what the correct legal definitions are. He’s not just free to determine whatever he wants. But if he decides to do something even though it’s not correct—“what the court declares ownerless is ownerless,” or a king can render property ownerless—then in the end his law will still be a valid law. Just a valid law without metaphysical grounding, or even against it.
[Speaker C] But the example of ownerless property—
[Speaker E] But then are the citizens supposed to act according to the correct law, and not according to the incorrect law that appears?
[Rabbi Michael Abraham] No, it’s correct to legislate that law, not correct to act it out if it wasn’t legislated. If my property was declared ownerless—if a court declared my property ownerless—then the property is not mine, even though in principle that property is mine. Fine. But society can render a person’s property ownerless.
[Speaker C] Yes, but a court can’t just do whatever it wants. Specifically, “what the court declares ownerless is ownerless” isn’t just whatever they feel like.
[Rabbi Michael Abraham] Are they doing whatever they feel like or not feel like?
[Speaker C] No, I mean: are they doing whatever they want, or are they doing it for particular reasons? Because what the Rabbi argued—the Rabbi said even if there is some objective truth somewhere—
[Rabbi Michael Abraham] He disappeared. Can you hear? I—he disappeared.
[Speaker B] Yes, yes Rabbi, I can hear.
[Speaker F] But we can’t hear him.
[Rabbi Michael Abraham] You can’t hear him.
[Speaker B] Right, we can’t hear him.
[Rabbi Michael Abraham] The claim I actually want to make is that both regarding a court and, by the way, regarding “the law of the kingdom is law,” there is a claim by the halakhic decisors that “the law of extortion has no validity.”
[Speaker C] What’s that? I didn’t hear the Rabbi.
[Rabbi Michael Abraham] “The law of extortion has no validity.” If the king acts in an improper way, then there is no “law of the kingdom is law.” Jewish law does not recognize his rules as rules that are halakhically valid. And the same is true regarding judges. But if in practice, if in practice the world is ownerless chaos, then that’s the reality: the world is ownerless chaos, and Jewish law can dance a hora.
[Speaker C] No, but the Rabbi brought an example from “what the court declares ownerless is ownerless.”
[Rabbi Michael Abraham] “What the court declares ownerless is ownerless” is apparently not really an example. I brought that example not to say it’s the same thing, but to show that the practical situation does not always fit the Platonic ideas. I didn’t say that here it’s like “what the court declares ownerless is ownerless.” Rather, even there we see that the practical situation does not always overlap with or parallel the Platonic situation—the state that should have been, the perfect or theoretical state. Okay?
[Speaker C] It’s strange. It seems to me a bit like surrender. Because the moment someone forms a group, is inside a group of people doing something wrong, and then to say, “Okay, now everyone is doing this, so I’ll be like that too”—isn’t that a bit of surrender in that sense? And not only surrender—even legally. You need to do what is right—
[Rabbi Michael Abraham] I need to do what is right, period. That’s not surrender; that’s reality. You know what, I’ll bring another example. There’s a discussion whether a rabbinic acquisition is effective on the Torah level or not. Now in my opinion it obviously is. This whole discussion sounds absurd to me. Why? Because once the Sages determine that something is mine on the rabbinic level—for example, through the mechanism of the presence of all three parties—that’s a rabbinic acquisition, okay, so let’s say it’s mine on the rabbinic level. What does it mean that on the rabbinic level it’s mine? In practice it’s mine. So now, once it’s mine, I can also betroth a woman with it, I can do whatever I want with it. Because the question whether it’s mine or not is not connected to the validity level of the determination whether it’s mine or not. It’s a factual question: either it’s mine or it isn’t. If in practice society sees it as mine, even though originally it’s only by rabbinic law, that doesn’t matter. De facto it’s mine, so factually it’s mine, that’s it. There’s no room here to distinguish between rabbinic law and Torah law. So similarly, I want to claim that in a world ruled by ownerlessness, by chaos, where there is no legal system, then the whole significance of the Platonic rules of how one ought to act is irrelevant. Not because they’re incorrect—they’re correct, that’s what should have been done. But in practice it isn’t happening, what can you do. You can’t invent monetary law when it is not actually practiced.
[Speaker C] So in such a place it has no force. According to the Rabbi, regarding taxes: if most of society regarding taxes behaves by stealing, then is it permitted to steal? Seemingly—because property law doesn’t apply there, and whatever the government says doesn’t apply because the public doesn’t accept it?
[Rabbi Michael Abraham] That’s mixing unlike things together. It’s a confusion. When you— I’m not talking about if—
[Speaker C] —everyone are criminals,
[Rabbi Michael Abraham] —then I’ll also be a criminal. I’m talking about recognizing reality. If the reality is that there is no property in the world, then there is no property in the world—that’s the reality. That doesn’t mean that if someone ate garlic then I too should go and eat garlic. That’s not the claim.
[Speaker C] No, but in terms of the obligation—say, the agreement that the kingdom is a kingdom is built on the fact that in reality we treat it as a kingdom, or even a government as a government. It has validity because we treat it as a government. But if there is a society that treats the government not as a government, but just as some bizarre thing, and from their perspective they owe it nothing and they steal from it, and that whole society steals from it—the question is whether that government still has validity. I’m just asking incidentally, just asking.
[Rabbi Michael Abraham] That’s an attempt to force this question, which is a different question, into a pattern similar to the one we were discussing. Here it’s not theft from the government and non-recognition of the government. The public behaves by evading taxes, but if someone gets caught, he goes to prison. There is a government in the world. And there are criminals.
[Speaker C] Okay,
[Rabbi Michael Abraham] So what if there are criminal norms? When there are criminal norms, that doesn’t mean I’m also allowed to be a criminal. By the way, “bandits like you established it”—that’s very similar, and there apparently a real argument like this comes up, that people pass through someone’s field without permission. But after years of passing through there, a path is considered established there, and now everyone has permission to pass even though the owner doesn’t agree. That’s apparently how it works. And then I say: what do you want from me? The path is already established. He complains to me that I walk there. I say to him: what do you want? The path is already established. Meaning, yes—“bandits like you established it.” They’re bandits too, so if they’re bandits, does that mean you’re also allowed to be a bandit?
[Speaker E] Rabbi, I didn’t understand. Because Platonic ownership doesn’t mean there’s a law according to which one must act, according to which law it’s forbidden to steal. Platonic ownership means that this object belongs to someone. Afterwards natural law comes and says that since this object belongs to someone else and not to me, it’s forbidden for me to steal it from him. So basically, if we assume the Platonic conception of ownership, a situation is created where both in the ghetto and in chaos—even in total chaos—the object still in reality belongs to someone else.
[Rabbi Michael Abraham] And then—
[Speaker E] —natural law says that it’s forbidden for me to steal it, whether or not there is a proper legal system. No, no.
[Rabbi Michael Abraham] In monetary law, in property law, Platonism by itself cannot be valid in the world. If property law is not actually practiced here—Plato may sit in heaven and scream at us—but if in practice it is not practiced here, then there is no acquisition, no ownership. That is a reality in which there is no ownership. It’s a reality that is not okay. It may be that people can complain to whoever created this reality, but that is the reality: there is no ownership.
[Speaker D] I would maybe add—it’s not clear, Rabbi, not—
[Speaker B] —I understood.
[Rabbi Michael Abraham] Wait, one at a time.
[Speaker D] Maybe let me say one thing. I think the criterion isn’t what everyone actually does, but what everyone would want to become a general law. That also answers the question of taxes, but also in the ghetto it would have been right to ask.
[Rabbi Michael Abraham] What would happen with taxes? People want… In the ghetto everyone would want that to be a general law? Who’s “everyone”? Maybe the Ukrainians yes; the Jews no.
[Speaker D] The residents of the ghetto—the residents of the ghetto themselves would perhaps want there to be law and order.
[Rabbi Michael Abraham] They would want it, but there isn’t any. That’s the reality—there isn’t.
[Speaker D] No, I’m not managing to understand: is there an identity between enforcement of the law and its convention, so to speak?
[Rabbi Michael Abraham] Yes. In monetary law—and by the way, this is the conception in every legal system—in a place where there is no sanction alongside the law, there is no law. The law is not valid. That’s why in criminal law they always attach a sanction to the law. For example, “do not stand idly by your neighbor’s blood”: there was a big debate whether to insert it into the law books. But from the moment it entered the law books, then someone who stands by his fellow’s blood—say, he sees his fellow in trouble and doesn’t help him—has a punishment. A sanction is imposed on him. There is no criminal law without a sanction. And when there is no sanction, the law is not valid. There is no law. This is a legal principle everywhere, in every legal system. Meaning: enforcement and the system that ensures implementation of the law are part of the law’s very existence. If there is no such system, then there is no law. There is morality—that’s something else. Morality can exist regardless of a system that enforces it. But law, by definition, is connected to the use of force in order to enforce the law. Without force there is no law. A law exists only when the one legislating it has the power to enforce it. Therefore a Platonic law is at most a moral principle. It is not law in the binding legal sense. By the way, for example, there might have been room to say that in the laws of certainty versus uncertainty—true, I may not be violating “do not steal,” but morally it could be that I still need to give him the money. Because morality says: why wouldn’t you give it to him? He claims you owe him and you don’t know that you don’t—so why not give it to him? So Rabbi Shimon Shkop explained why legally I’m not obligated and halakhically I’m not obligated, but morally one can still come and argue: yes, give it. So the same here.
[Speaker B] Isn’t law built on moral reasoning according to Rabbi Shimon Shkop?
[Rabbi Michael Abraham] It is built on moral reasoning, but there is a step between the moral reasoning and the law, and that step is called legislation. Moral reasoning says what should be legislated, but as long as I haven’t legislated it, it isn’t law. It’s only what should be law, but it is not law. Now, in a place where these Platonic norms were not legislated, those Platonic norms are still there, but they do not bind in that place as law. Maybe they bind as a moral principle, but not as law. Because law has to be—
[Speaker B] That’s it, this point still isn’t clear enough to me, Rabbi. What the Rabbi is saying is basically that there is a Platonic principle, and it is true and moral. And they define ownership as something that exists, so even if society comes and says we don’t want to enforce this thing, this existing reality, then here, because society says that, the Rabbi is saying it doesn’t really cancel the existence of that Platonic ownership. It doesn’t cancel it.
[Rabbi Michael Abraham] The idea—not the ownership. There is no ownership. If it isn’t enforced, there is no ownership. The idea says that in such a case it would have been appropriate to legislate that this person is the owner of the property. That is the correct thing. There is a principle of ownership.
[Speaker B] The principle of ownership, but not the ownership in practice.
[Rabbi Michael Abraham] I’m not the owner of this thing just because there is a Platonic idea. When there is horseness, that doesn’t mean there are horses. Horseness appears when there is a concrete horse. It appears in the world. If there is no concrete horse here, the idea of horseness still exists, but it does not appear in the world.
[Speaker B] Yes, no, because for example with “what the court declares ownerless is ownerless,” I remember that I asked the Rabbi in responsa about this Platonism, and the Rabbi told me that indeed the court has the right to expropriate the metaphysical ownership, כביכול. Right.
[Rabbi Michael Abraham] To go against the Platonic principle.
[Speaker B] Oh, meaning not really to uproot the metaphysical ownership as an idea, but only on the factual level.
[Rabbi Michael Abraham] Correct. They can’t cancel an idea. The idea is there; the one who created it is the only one who can destroy it. The court can’t touch ideas. What they can do is issue an instruction here not to act according to the idea. Here we do not do what pure Jewish law should have told us to do. There are reasons to deviate from the correct behavior on the theoretical level.
[Speaker B] But I thought that the ideas operate according to the laws that we establish.
[Rabbi Michael Abraham] No, no, absolutely not.
[Speaker B] I mean legally—so what is it, how are we actually defining this idea here, the laws of acquisition? You have a law, you transfer ownership, now it’s yours; if you buy it then it belongs to so-and-so. And what does the ideal ownership say about that?
[Rabbi Michael Abraham] There’s no such thing as ideal ownership. There is an idea of ownership. The idea of ownership is something that exists in the Platonic world of ideas, and it says as follows: if someone comes and acquires, performs an act of pulling, pulls this object in such-and-such a way with the owner’s consent, then he acquires it. That is what the Platonic idea says. But the whole Platonic idea is hypothetical. If such-and-such a case happens, that will be the result. Now I ask: if such a case happened, did the result take place? No. Because if the legal system here on the ground does not say, “We take the Platonic idea and obligate everyone to act according to it,” so that it became an actually valid law here in our world and not only in the world of ideas, then there is no such law here. We are not okay, because the meaning of the Platonic idea is that this is how one ought to act; therefore we are not okay when we don’t have such a law. But we still don’t have that law.
[Speaker B] No, but who defines it? After all, certainly human beings define how acquisition works. The Torah and the legal system—
[Rabbi Michael Abraham] Human beings define how it behaves in practice. But the Platonic claim says that this definition is not a definition that creates the act of acquisition; rather it tries to characterize the Platonic idea. But—
[Speaker B] It changes—meaning it depends on what act you do.
[Rabbi Michael Abraham] It could be that there are societies where, under different circumstances, the Platonic idea appears differently—that’s one possibility. A second possibility is that some people are mistaken. Who said that if there is a Platonic idea, that means everyone is right when they apply it? It could be that some apply it incorrectly. Fine—but what can you do, that’s what they understood. They may be mistaken. There are also disputes among the Sages in the Talmud about acquisition law. Does pulling acquire, or does money acquire? Rabbi Yochanan and Reish Lakish. So what does Plato say? Why didn’t they ask Plato? Because Plato was already dead, and even if they had asked him, he wouldn’t have known the answer. So they argue about what the Platonic idea says. It may be that one is right and the other is wrong, but we don’t know. So there’s nothing we can do; we do the best we understand.
[Speaker B] Fine, so for me that explains the idea. And then the Rabbi says that even now, if society doesn’t want to implement it, or in practice doesn’t implement it, then I simply have no legal obligation. But society is not okay.
[Rabbi Michael Abraham] Society is not okay, but such a law does not exist here. Never.
[Speaker B] It just never occurred to us to go by the moral law and not by the law that is carried out in the world.
[Rabbi Michael Abraham] Of course not—law and morality are not the same thing! Once morality is legislated, it becomes law, but the fact that a certain behavior is moral doesn’t turn it into law. What is “beyond the letter of the law”? “Beyond the letter of the law” is also a moral principle, so why isn’t it the law?
[Speaker B] Because it—
[Rabbi Michael Abraham] —didn’t pass the threshold of legislation. Moral principles that passed the threshold of legislation became law; moral principles that remained outside the law are still moral principles, but they are not law. Before there was a law of “do not stand idly by your neighbor’s blood”—I’m not talking now about Jewish law but about Israeli law—before such a law was passed, if I saw a man drowning in the river and I could save him, then obviously morality says I should save him, and yet the law did not obligate me because it had not been legislated. After it was legislated, it obligates me. Obviously, when they legislated it, they legislated it because that’s what is moral. But still, as long as it wasn’t legislated, it wasn’t law; it was only morality.
[Speaker B] And why isn’t that enough, Rabbi? Why isn’t that enough for Rabbi Shimon to speak of the prohibition of theft?
[Rabbi Michael Abraham] Because we’re talking about law, not morality.
[Speaker B] Meaning it can’t exist outside law, this whole prohibition of theft? Right. And is that necessarily so, or is it—
[Rabbi Michael Abraham] What does “necessarily” mean? I think it’s correct. I don’t know what “necessarily” means. No—
[Speaker B] That prohibitions of theft cannot simply be based on something that has moral grounding.
[Rabbi Michael Abraham] Then why did we need Rabbi Shimon Shkop? We needed Rabbi Shimon Shkop because until him everyone thought differently. So don’t ask me whether one can think differently—everyone thought differently. Fine. But this is what Rabbi Shimon Shkop innovated, and it seems to me that he’s right. Okay? Good, okay.
[Speaker B] So for our purposes, we’ve gone far with this.
[Rabbi Michael Abraham] For our purposes, what I basically want to say is that when I study legal theory, when I study legal theory or the law of the state, you understand that this is completely parallel to “the law of the kingdom is law,” which I talked about in previous lectures. When I study legal theory, I have not studied Torah, even though Jewish law itself is determined according to legal theory. Legal theory determines the laws of acquisition; consequently the prohibition “do not steal” will apply according to legal theory if he takes another individual’s property. Now, when I study legal theory, did I study Torah? No. Exactly like studying state law is not called studying Torah. It’s not even an analogy; it’s the same thing. Studying state law is studying legal theory.
[Speaker E] But if it’s the Torah that teaches you legal theory, why isn’t that considered Torah?
[Rabbi Michael Abraham] No, the Torah does not teach me legal theory. Yes—
[Speaker E] When there’s a dispute whether money acquires, or whether lifting as an act of acquisition is effective, and so on.
[Rabbi Michael Abraham] Whether money acquires or pulling acquires is apparently not legal theory, because there are verses about that. I’m talking about rules that do not emerge from the Torah.
[Speaker E] So for example what?
[Rabbi Michael Abraham] Lifting, possession, locking, fencing, breaching—a majority of acquisition acts are like that. Commercial custom, of course, is obviously one of those, and according to most opinions it is Torah-level; in my opinion it is obviously Torah-level. Exchange acquisition—there’s a source for that in the Scroll of Ruth. Fine, but the Scroll of Ruth is not the Torah.
[Speaker E] So specifically regarding something not learned from the Torah—something in legal theory not learned from the Torah—that is not called Torah.
[Rabbi Michael Abraham] What is learned from the Torah may also exist in legal theory, but I don’t need legal theory for it because I have a source in the Torah for it. The Torah wanted that already to be part of Jewish law, not something prior to Jewish law. Okay? It could be that here, in this particular case, it wanted the court not to do what it thinks, or it thought maybe the court would not understand what legal theory says in this case, and therefore the Torah decided to write it explicitly—for various reasons, it doesn’t matter. Once it wrote it, then even if it exists in legal theory, I don’t need legal theory for it because it appears in the Torah. Consequently, studying it is also studying Torah. Okay? When I study legal theory, that means going to law school; it means studying law. That’s exactly what I said in the previous lecture. Once you study law, obviously you are studying something very important in order to act according to Jewish law. That’s what I said in the previous lecture. You are studying what determines what the Jewish law will be, and still you are not studying Torah. So for example, studying Rabbi Shimon Shkop’s own principle—that legal theory has validity and that legal theory determines matters—that is Torah. Because that is the principle that says there is such a thing as legal theory and that legal theory has validity, and so on. But studying what legal theory says specifically about a given case or another is not necessarily Torah.
[Speaker B] Why, why isn’t that Torah? That’s basically the whole infrastructure of Torah. I didn’t understand—why not?
[Rabbi Michael Abraham] It’s like—think of “the law of the kingdom is law,” or a vow. Those are the examples I brought in previous lectures. When I study the parameters of “the law of the kingdom is law,” of course I’ve studied Torah. It’s a principle: “the law of the kingdom is law.” But when I study what the king said, that is not Torah. When I study how I’m supposed to relate to what the king says, I studied Torah. And now if I want to apply it, I need to study what the king said. At that point I’m no longer studying Torah. Same with a vow. When I study “if a man makes a vow,” yes, “whatever comes from his mouth he shall do,” or “he shall not profane his word,” I studied Torah. I’m studying how I’m supposed to relate to my vows. But clarifying what I vowed and what I didn’t vow—that is not Torah, even though you need it in order to implement it.
[Speaker B] Because when the Torah says “do not steal,” it is basically saying: do not steal what legal theory defines as belonging to someone.
[Rabbi Michael Abraham] Right. Just as it says: keep what you vowed. What did you vow? I don’t know—go check what you vowed.
[Speaker C] So when is it Torah as an object? I said—for example, when you study Torah as applying to the person, no?
[Rabbi Michael Abraham] What? Why?
[Speaker C] No, no, no, yes yes. No, I meant—I meant, when is it Torah in the sense of what the king says? No, I meant, when is it Torah as applying to the person?
[Rabbi Michael Abraham] What do you mean, when is it Torah as applying to the person?
[Speaker C] After all, the Rabbi has that famous distinction between Torah as applying to the person and Torah as an object, right? So after what the Rabbi explained, I’m trying to understand why legal theory is not Torah as applying to the person.
[Rabbi Michael Abraham] After all, it develops the mind, helps understand things better, and so on. Everything is Torah as applying to the person, Ami.
[Speaker C] It’s no different from philosophy.
[Rabbi Michael Abraham] If philosophy is Torah as applying to the person, then law certainly can be too.
[Speaker C] The Rabbi there defines what Torah is—
[Rabbi Michael Abraham] —as an object, meaning that’s the definition. And Torah as applying to the person is not… I’m not talking about material over which one should recite the blessing on Torah—
[Speaker D] The blessing on Torah, that’s—
[Rabbi Michael Abraham] —not Torah in the sense that I’m talking about here. Yes, yes, exactly. Something of value. There’s room to distinguish. Between what and what? Between talking about vows, say, which is a matter of fact, and—
[Rabbi Michael Abraham] —legal theory.
[Speaker D] Because there’s room to suppose that maybe the Torah is coming to say not, “the fact that legal theory applies there, I add on top of that the prohibition of theft,” but rather that legal theory, in its binding sense, is also binding by Torah law. It essentially gives force to the moral idea itself.
[Rabbi Michael Abraham] One could have said that, and many did say it. Rabbi Shimon Shkop—I’m currently speaking within his approach, which I also happen to agree with—says not so.
[Speaker D] No, what I’m saying is even according to Rabbi Shimon Shkop. Without Rabbi Shimon Shkop altogether, all you have is only a legal fact, or maybe not even a legal fact, but an acquisition fact, and the Torah adds what it adds. According to Rabbi Shimon Shkop, there is some binding legal theory. So I’m saying that the Torah adds from itself—
[Rabbi Michael Abraham] —the obligation on what legal theory obligates.
[Speaker D] When there is no legal theory, then indeed the Torah also doesn’t obligate. Therefore it still aligns with what Rabbi Shimon Shkop says. That’s what he says. What do you mean “aligns”? So I didn’t understand the claim. No, I’m saying: after the Torah says “do not steal,” for example, then it is saying that legal theory has binding validity—legal theory itself—according to the Torah. No, but the Torah—
[Rabbi Michael Abraham] —did not create it.
[Speaker B] Legal—
[Rabbi Michael Abraham] Legal theory exists before “do not steal.” “Do not steal” adds a second level. If “do not steal” also establishes the first level, then there is no first level, then everything is just “do not steal.” That was the accepted conception before Rabbi Shimon Shkop. The conception there was that what the Sages did when they determined all the laws of acquisition was simply to spell out the details and parameters of the laws of theft. But it was all interpretation of the prohibition “do not steal.” Therefore everything is Torah. Interpretation by reasoning, interpretation through rabbinic enactments—it doesn’t matter. But it was interpretation of the prohibition of theft; they established the parameters of the prohibition of theft. And Rabbi Shimon Shkop comes out against that. Rabbi Shimon Shkop argues: what do you mean? No—even without the prohibition “do not steal,” all this would have existed and would also have had force. People would come with claims against you if we violated it.
[Speaker D] Fine, so why did the Torah nevertheless add “do not steal”?
[Rabbi Michael Abraham] Because there is also a religious prohibition here, and not only a legal prohibition.
[Speaker D] Right, so this legal thing basically has a religious prohibition—not to the legal fact, but to the legal obligation, there is religious force. What I’m trying to say is that the Holy One, blessed be He—
[Rabbi Michael Abraham] —will come with claims against you if you violate it. Yes. Fine. If that’s what you call religious force, then morality too has religious force; everything does. Every force is religious, because in my view without God there is no force to anything.
[Speaker D] So what did Lutsotzki want to add here?
[Rabbi Michael Abraham] That’s not what I call religious force. Fine—what I call religious force means halakhic force. Everything—there are no norms that are not the will of God.
[Speaker D] Fine, so let’s speak in terms of halakhic force for legal theory.
[Rabbi Michael Abraham] But legal theory doesn’t have that.
[Speaker D] After “do not steal,” yes.
[Rabbi Michael Abraham] “Do not steal” applies to what belongs to a gentile too. Okay? So the medieval authorities say—some of the medieval authorities say—I did not violate a Torah prohibition; there is no “do not steal” here. So I violated a legal prohibition, but I did not violate a halakhic prohibition. And in a place where there is a prohibition of “do not steal”—I stole from a Jew—I violated two prohibitions: a legal prohibition and a halakhic prohibition. But the legal prohibition is autonomous; it does not derive its force from Jewish law or from “do not steal.”
[Speaker D] Right. It may be that the Torah prohibition is not autonomous; it is based on the legal prohibition.
[Rabbi Michael Abraham] No, not that either. It is only defined according to it. It’s not that the legal prohibition gives force to “do not steal.” “Do not steal” doesn’t need force from it; its force comes from God’s command. But the definitions of when the prohibition “do not steal” applies are according to legal theory.
[Speaker C] Could there be a situation where there is legal theory and there is no “do not steal,” so to speak?
[Rabbi Michael Abraham] Yes—stealing from a gentile. But the reverse cannot happen.
[Speaker C] And then that wouldn’t be called Torah as an object. Right. Right.
[Rabbi Michael Abraham] Liens—Rabbi Shimon Shkop throughout that section talks about this. Also with a Torah-level lien he wants to claim it’s that kind of thing. So basically I brought this perspective because it’s another perspective on what we already saw: that there is a whole normative infrastructure here that one can engage with, and it is very important also from the standpoint of Jewish law, and still engaging with it is not Torah—as an object. Yes, I’m not getting here into the distinctions between Torah as an object and Torah as applying to the person, but that is what I mean when I say it’s not Torah. It is not Torah study, even though it is very important for Jewish law, in order to know what to do in practice.
[Speaker C] Where is the sugya that deals at all with the topic of what Torah study is, just in general, in the Talmud? Is there such a sugya at all? Are there medieval authorities on it? Anyone?
[Rabbi Michael Abraham] A sugya—I may talk about this a bit later—there is a sugya dealing with the blessing on Torah, what one recites the blessing on Torah over. But there it’s hard to derive from it a definition of what Torah is. So I don’t think—I can’t recall right now sugyot from which one can extract a definition. I don’t think so. Certainly not the distinction between Torah as applying to the person and Torah as an object. By the way, that’s one of the reasons why most of the world—yes, I’m in the same position as Rabbi Shimon Shkop relative to his predecessors—most of the world thinks that studying Guide for the Perplexed and ethics and all kinds of things of that type is also Torah study exactly like studying the discussions of Abaye and Rava. And I claim it isn’t; it’s Torah as applying to the person.
[Speaker C] In the circles… yes.
[Rabbi Michael Abraham] No, I’m saying—that’s why I don’t have a sugya that proves it. I’m saying it from reasoning and from looking at the things themselves. And if there were a sugya that could prove it, then it would be very easy to brush aside all the others who think differently. But everyone thinks differently.
[Speaker C] I had the privilege of selling over this vort of the Rabbi’s in the circles where I am, and people really enjoyed it.
[Rabbi Michael Abraham] Okay, I also think it’s correct. I think that when one hears it, it sounds right. But I don’t have any proof.
[Speaker C] In the Rabbi’s name—I said it in the Rabbi’s name.
[Rabbi Michael Abraham] Okay, no, that’s perfectly fine. You’re exempt even from saying it—that doesn’t bother me. But the claim is that one can still define what Torah is even if there are no sugyot dealing with it. After all, the sugyot that deal with it themselves—I can ask about them whether they are Torah as applying to the person or Torah as an object. Meaning, these are not concepts that exist in the Talmud, and I don’t think one will be able to extract unambiguous definitions for them from the Talmud. But there is some kind of perspective that comes down to us through tradition and so on. And even though most of the people who transmit that tradition do not think this way, it seems to me that when you look again, you understand—I think this is correct.
[Speaker B] But we opened this whole series, Rabbi, with the Rabbi bringing Nefesh HaChayim and so on, and saying that “the word of God—this is Torah,” and “Jewish law—this is Torah,” and the Rabbi said only that Jewish law is the core of Torah. The Rabbi didn’t say that aggadah, at least in the verses where it’s called “the word of God,” doesn’t have the status of Torah.
[Rabbi Michael Abraham] No, so here too—fine—you’re pulling me into topics that this really isn’t the place for, but I’ll do it briefly, because I see that our time is basically already up. I’ll do it briefly. Regarding the Written Torah, that’s what the first Rashi is about, and what I said about the Written Torah: in the Written Torah, even the non-halakhic parts are of course Torah, and you don’t need me or anyone like me in order to determine that the Torah of the Holy One, blessed be He, is Torah. Yes? So that’s obvious. If you ask me why—I don’t have the faintest idea, because in my view you don’t learn anything from them. But I can’t—fine, it needs analysis—but I can’t say that verses we received from the Holy One, blessed be He, at Sinai, and He told us that this is the Torah—they’re not Torah. I can say that engaging with them is not study, but not say that it’s not Torah study. Okay? But with the aggadic literature of the Sages, for example—there I do say: I think one should not recite the blessing over Torah study on the aggadic literature of the Sages, just as not on Guide for the Perplexed and not on reading Crime and Punishment by Dostoevsky. To me it’s the same thing.
[Speaker B] Unless—unless—they’re based on the word of God.
[Rabbi Michael Abraham] I didn’t understand.
[Speaker B] Unless they’re based on some verse, something.
[Rabbi Michael Abraham] Yes, but Dostoevsky is also based on the word of God. I don’t think there is any fundamental difference between the aggadic literature of the Sages and Kant’s Critique of Pure Reason. They said their own ideas about thought, worldview, values, just as Kant said his ideas—so what? The fact that they were righteous men and rabbis turns it into Torah? Why? Is the medical book Maimonides wrote Torah because the one who wrote it was Maimonides? The question is what the content is, not who the author is.
[Speaker B] Yes, but at the end of the day, if a verse is brought in aggadah, then in the end you still do need to recite the blessing over Torah study anyway.
[Rabbi Michael Abraham] I’m not sure at all. But if you’re learning the verse, then you recite the blessing on the verse. That has nothing to do with the aggadah.
[Speaker B] Yes, aggadah is homiletic interpretation, or I don’t know what, of the verse, but—sometimes.
[Rabbi Michael Abraham] I don’t see it as interpretation. Jewish law is interpretation of the legal verses; aggadah is not interpretation. In aggadah they latch onto verses in order to say what I think.
[Speaker B] Rabbi—
[Rabbi Michael Abraham] How, from the Rabbi’s perspective—in Jewish law there is exposition and interpretation; in aggadah there is only exposition. Yes, say—
[Speaker B] No, say the example we brought last time, “an eye for an eye,” say, in Maimonides’ introduction—it’s not Jewish law, but he certainly derives it from the verse.
[Rabbi Michael Abraham] What do you mean it’s not Jewish law? “An eye for an eye” absolutely is—to derive. Yes. Okay, so what?
[Speaker B] And he derives from the verse that the Torah teaches that there should be an eye for an eye. Fine, maybe even without the Torah I would know that, but in the end the Torah teaches it.
[Rabbi Michael Abraham] What—what does it mean that the Torah teaches it? Once the Torah writes “an eye for an eye,” that’s a legal verse. Except that the exposition says that “an eye for an eye” means monetary compensation, while the plain meaning says that “an eye for an eye” means literally.
[Speaker B] Okay, and that exposition—what is that exposition? Torah.
[Rabbi Michael Abraham] Obviously it’s Torah—what do you mean?
[Speaker B] Fine, okay, so it’s not—it’s exposition, not legal exposition, but—
[Rabbi Michael Abraham] Why? Legal exposition.
[Speaker B] No, not the exposition of the law of monetary compensation, but the exposition that apparently isn’t connected to Jewish law.
[Rabbi Michael Abraham] No, if you’re making homiletic expositions, then it’s not Torah in the object-sense; it’s Torah in the person-sense. Torah in the person-sense. If you see it as a legal statement, then it’s Torah in the object-sense. Once, when I spoke about plain meaning and exposition, I said—I brought in the name of Anshka; he has articles in Ma’ayan from 1977. There he talks about this, and among other things he proposes an explanation for why, with “an eye for an eye,” both the plain meaning and the exposition are Jewish law. Not that both are correct, but that both are Jewish law. He brings an example that wasn’t actually ruled as practical Jewish law, but there is an opinion in the Talmud that payment is according to the eye of the damager, not the eye of the injured party. If you took out my eye, I have to pay you money equal to the value of my eye, not the value of your eye. Now, on the face of it, that’s absurd, because I’m supposed to compensate you for your eye. So Anshka says: no. When I say “an eye for an eye” literally, the meaning is that my eye should be taken out when I took out your eye. Then the exposition comes and says: yes, but we don’t take out an eye; instead, monetary compensation is paid. That way of looking at it is not like the Maimonides you mentioned earlier, who says that it would have been fitting to take out my eye—that’s a homily, an exposition, whatever you want to call it; at most that’s Torah in the person-sense. But when you learn it this way, then both the plain meaning and the exposition take part in the law itself. So that’s Torah in the object-sense.
[Speaker B] Yes, but in the end, even if it’s Torah in the person-sense, like—because you’re learning the verse.
[Rabbi Michael Abraham] Fine—because of the verse, not because of what you said. Because of the verse, not because of what you said. Correct. Fine, you could also have read the verse without saying anything about it, and then too you would have recited the blessing over Torah study. So it’s not—there’s no difference. You simply read the verse. That’s all. Not because of what you said about it. It’s like reading the verse. Fine, but here this really requires much more elaboration. In the second book of my trilogy, I go on at great length about this matter—what counts as Torah study, over what one recites the blessing, why, Torah in the person-sense, Torah in the object-sense—there you have the full discussion of the matter. Okay, we’ll stop here. This went very slowly for me, but that’s okay. If there are questions or comments, then go ahead.
[Speaker B] So what? So we stopped only at the responsum of the Mahari Bash? About the Mahari Bash?
[Rabbi Michael Abraham] No, what I wanted, I stopped—I finished the point. What I wanted to say is that legal theory is actually very important for halakhic rulings, but Torah it is not. Torah in the object-sense it is not. And this is another example of the distinction I’ve been talking about in the last few classes between Jewish law and Torah. There are many things that are required in order to issue a halakhic ruling, but they themselves—someone engaged in them is not engaged in Torah.
[Speaker B] So all the reasoning in the Talmud, say—all the reasoning of “the burden of proof is on the one who seeks to extract from another,” say—a simple logical principle—is that also called legal theory and not a halakhic category?
[Rabbi Michael Abraham] “The burden of proof is on the one who seeks to extract from another” is a good example, because there the Talmud says, “Why do I need a verse? It’s logical reasoning.” Right? So, “the one who has a claim should approach him”—the Talmud brings a verse. After that it brings a logical argument, and then it asks, “Why do I need a verse? It’s logical reasoning,” right? But since there is a verse, the only thing the reasoning is doing is interpreting the verse. Fine—reasoning that interprets a verse is fine; that’s Torah, because we’re interpreting the verse. But if it’s reasoning that stands on its own, that’s not Torah. For example, blessings over enjoyment—
[Speaker B] Why is it forbidden to benefit from this world without a blessing?
[Rabbi Michael Abraham] What—but “the one who has a claim—”
[Speaker B] “The one who has a claim should approach him”—that really isn’t just an asmachta? What is that, “the one who has a claim should approach him”?
[Rabbi Michael Abraham] Whoever basically wants to make claims should bring proof. Yes, that’s how they interpret the verse. I don’t think it’s an asmachta. Why asmachta? If it were asmachta, then the Talmud wouldn’t ask, “Why do I need a verse? It’s logical reasoning.” The verse is only an asmachta—what do you want?
[Speaker B] Right. And in other things, Rabbi—migo and the other forms of reasoning in Jewish law?
[Rabbi Michael Abraham] Migo is basically just the Sages’ explanation of “judge your fellow justly.” How do you judge justly? There are rules of evidence, there is presumption, there is migo. So all of these are forms of reasoning that come to explain the halakhic principle of how one judges. So that is Torah in the object-sense.
[Speaker B] But it’s not based, so to speak, according to whom—Rabbi said it’s not based on whose legal theory it belongs to, but rather it’s based on what the justice is that the Torah commanded. Right.
[Rabbi Michael Abraham] What does the Torah mean when it says, “judge your fellow justly”? That is justly. Say, without Rabbi Shimon Shkop, when we would have understood that all the laws of ownership are definitions within the prohibition of “do not steal,” then engaging in the laws of ownership would have been Torah in the object-sense, if so. Yes.
[Speaker F] How far can this idea of Rabbi Shimon be extended—that legal theory, in a time of chaos, no longer exists as legal theory? Can you say that also about murder? Murder also apparently stems from legal theory, no? It’s something universal beforehand; it’s no less strong than the issue of ownership.
[Rabbi Michael Abraham] With murder it’s not a question of stronger or weaker. Clearly there is a legal prohibition against murder even before the Torah’s “do not murder.” It’s even rooted in the Torah itself: “Whoever sheds the blood of man, by man shall his blood be shed.” Right. Even before “Whoever sheds the blood of man,” they already came with a claim against Cain: “The voice of your brother’s blood cries out to Me from the ground”—when they still hadn’t said “do not murder,” and also hadn’t said “Whoever sheds the blood of man.”
[Speaker F] Right, but what happens if society, like in—
[Rabbi Michael Abraham] So that’s not—it’s not enough. It’s not enough to say that it precedes the Torah. The question is whether, when the Torah adds a prohibition, it adds here a prohibition like “do not steal,” which gives force to what already existed beforehand, or whether there is also a Torah prohibition but it does not give force to what existed before. And I think that with murder, that— And the fact that a prohibition exists even before the Torah is only half of Rabbi Shimon Shkop’s innovation, and that is true also regarding murder. But Rabbi Shimon Shkop makes another claim: that where legal theory does not prohibit, there will also be no “do not steal.” That is not true regarding murder. Okay?
[Speaker F] Maybe we should say the same thing regarding murder—that if in legal theory there isn’t, then there also won’t be a halakhic prohibition of “do not murder.”
[Rabbi Michael Abraham] Maybe one could say it, maybe anything—but I think it’s not true.
[Speaker F] Yes, yes—no, I’m asking. I understand the distinction, but it’s hard for me to understand how it really works.
[Rabbi Michael Abraham] Because look at Cain and you’ll see. With Cain they came to him with the claim that he murdered Abel.
[Speaker F] Because maybe—so in Cain’s time it wasn’t—fine, if we relate to the biblical story, let’s say there was a population and it was accepted among them not to murder.
[Rabbi Michael Abraham] There were two people in the world. One of them murdered, the other was murdered, and that was the entire population of the world. So is there a prohibition of murder or not?
[Speaker F] From that perspective, that there were only the two of them, yes. Fine, I—
[Rabbi Michael Abraham] I would say—and if there are ten such people and they’re all murderers, then what? Okay. No, because the logic itself says this too. Again, in the laws of property, I think simple logic says that it’s obviously a social status. To say that you own something is not some abstract statement of yours inside your house. All it means is that society recognizes you as the owner and forbids someone else to make use of that property. That is the whole idea of ownership. The whole idea of ownership is, in essence, a social idea. Why does this property belong to you and is forbidden to others? But the value of human life is not a social matter.
[Speaker F] And therefore I would say: in a society—a savage society, a very primitive society—he bothers me, I kill him, I kill him and that’s it, and therefore there is no—
[Rabbi Michael Abraham] That doesn’t change the value. But the question is whether the Torah sees that as meaning there is no value. They think there is no value to human life because they are wild people, but does the Torah also see that as there being no value to human life in such a situation? With property—yes. With murder—I don’t think so. Again, I’m saying once more: ownership of property, simple logic says that’s a social matter. By the way, that’s where “what the court declares ownerless is ownerless” comes from. Why can a religious court declare property ownerless? Because it’s a social matter, so society can also render it ownerless.
[Speaker C] You can see it, Rabbi—you can also see it from—from this too, that in murder a person cannot—a person cannot injure himself because he does not belong to himself. The Radbaz—yes—so from that you see that a person does not belong to himself, meaning it’s something that also comes from above; it’s already something that belongs from the outset, and it doesn’t belong to his own definitions.
[Rabbi Michael Abraham] No, but I think you’ve gone too far—too far. Meaning, even if I view a person as someone who does own himself, still that ownership is not ownership in the same sense as ownership of property. I don’t need society for that. I don’t think you need to get to the Radbaz’s approach in order to explain what I’m saying here.
[Speaker C] No, but it’s an approach that really gives, so to speak, an understanding of how much the person is—he doesn’t belong to the game, so to speak. It’s not like money; with money you can bring in something external, so to speak.
[Rabbi Michael Abraham] Even if a person is considered the owner of his own life, his ownership of his own life is not because others can’t murder him, but because maybe I might be able to kill myself. But that others are forbidden to murder me is obvious. It has nothing to do with the question of whether I am permitted to kill myself or not.
[Speaker B] Yes, it’s simple because only legal rules are really connected to society.
[Rabbi Michael Abraham] Murder is something that is not only legal. Okay.
[Speaker B] But it would have been much simpler to say, so to speak, that if we said ownership really is a convention, not something Platonic, then it’s really just society.
[Rabbi Michael Abraham] But there is evidence—there is good evidence—that it isn’t like that. We talked about that, and therefore I think it doesn’t work like that. The Sages certainly did not see it that way. A lot of evidence. Meaning, I think I established this point well in the previous classes. Thank you very much, Rabbi. The whole struggle around intellectual property—what is there to struggle over? Decide that there is intellectual property, and then there will be intellectual property. What’s the problem? No. All the medieval authorities and later authorities are tearing themselves apart, they don’t know what to do and all that—but what can you do, there is no intellectual property. Fine.
[Speaker B] Thank you very much, Rabbi,
[Rabbi Michael Abraham] Happy
[Speaker B] holiday.
[Rabbi Michael Abraham] Thank you very much, happy holiday,
[Speaker B] Goodbye.