Rights and Obligations in Halakha – Lesson 4

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[Rabbi Michael Abraham] All right, so it could be that afterward he’ll have to give it to me again, and again I’ll waive it. And since I can always waive it, then there’s no point, so you don’t need to give it. So here I’m saying that because we’re talking about money, even though this is Yoreh De’ah and not Choshen Mishpat, money too has a certain feature: you can give it back as a gift. Meaning, in that sense this is maybe a feature of Choshen Mishpat, because once the money is yours, you’re the owner, and ownership can be waived. Here we’ve come back to Choshen Mishpat. He gives me the charity under Yoreh De’ah, but once I have the money he gave me, now I’m the owner of it. So now the relationship between me and my money is a Choshen Mishpat relationship. I can waive that money. Right? Because after all, it’s my right to be the owner of the money. So I waive it. Therefore even though this is Yoreh De’ah—you were talking about honoring parents—we said that honoring parents too, okay, it’s not that they have a right to receive or not receive. Here it’s not their right; exactly the opposite, it’s my obligation, because this is Yoreh De’ah, not Choshen Mishpat. It’s not the parents’ right to receive honor from me, or according to the view that says it comes from money—not as Jewish law rules, but still, money and so on. So it’s not their right; it’s my obligation. But still, if the parents don’t want it, they don’t want it. Meaning, my obligation is to give it to them if they want it. So it’s not on the plane of rights and obligations in the Choshen Mishpat sense.

So I’m returning to the difficulty. In practice, this is a question I haven’t seen many people really struggle with, but basically when you encounter these possibilities of making Choshen Mishpat flexible—because everything goes according to local custom and the law of the kingdom is law, and the parties can stipulate around Choshen Mishpat—then what this really means is: so why does the Torah write this whole collection of recommendations? They’re basically just recommendations that you can shape however you like. Society, or the contracting parties, or whatever depending on the context, or the king, can shape it however they want. So the Torah doesn’t really have any special preference that specifically a paid guardian should be liable for theft and loss. He can be exempt from theft and loss if we decide so, no problem. So why does it write Choshen Mishpat at all? For cases of disputes, where it wasn’t possible to rule precisely? That’s what Shmuel said earlier—we’ll see in a moment. And that’s what there is law in the state for. What? No, that’s not state law. One second.

So to sharpen this more, I’ll put it this way. Regarding the laws of the Noahides: one of the seven Noahide commandments is laws. “Laws” means to establish courts and legislate a legal system, a judicial system, so there will be order. According to most opinions in Jewish law, the legal system required of the Noahides is not Choshen Mishpat. There are opinions that say it is. There’s the dispute between Nachmanides and Maimonides, and in neither of them is it completely clear, but some people do hang it on that dispute. But the accepted approach—I’m saying again, the accepted approach—is that Noahides can shape their civil law however they want. It’s not that as part of the commandment of laws they have to adopt Choshen Mishpat. Because just on a practical level, what would that mean—that every non-Jewish judge would have to take rabbinical court exams on Choshen Mishpat? Come on, that’s a bit excessive. There aren’t that many Jews who could pass such an exam. It’s hard to believe there is some demand that every non-Jish judge pass an exam on Choshen Mishpat. Therefore the accepted approach is that they can shape it however they like.

Now if that’s really true, after all the Torah also expects Noahides to be a decent society—to organize a reasonable, decent, and just legal system, as much as possible. That means the Torah has no particular stake in one specific form of justice. For example, the laws of bailees: Noahides have to shape them themselves. For them there isn’t even a default, there’s nothing. There are no laws of guardians. They were just given an obligation to formulate laws of guardianship, or tort law, or all of Choshen Mishpat. And there the Torah doesn’t tell them, “Do it like this, because if you want to stipulate then stipulate.” No—it determines nothing. “Do what you want, as long as you do it and determine how this whole thing should operate.” So why not for us too? If that also brings us to a sufficiently just system, if the Torah trusts our judgment that we will determine things in accordance with natural justice, then we too can determine it according to natural justice. Why only for non-Jews? So does the Torah have some specific preference—does it want specifically the laws of guardians as it formulated them? Then why does it allow stipulations? Why does it allow custom, or the king, or all the other things I mentioned earlier, to determine it? Which way is it? Meaning, if it wants from us that we establish it the way it establishes Yoreh De’ah—like it establishes the prohibition of pork, Sabbath, honoring parents—then fine. And if it isn’t interested in one particular arrangement, then why get involved in the whole matter at all? It should tell us too: there is a commandment of laws, establish for yourselves a fair and reasonable legal system, like the Noahides. What’s the difference?

So that’s a very non-simple question. In a sharper formulation, I’d put it like this: why is studying Choshen Mishpat considered Torah study at all? It’s some set of default recommendations, one way or another. After all, today, in the end, the binding laws of guardians are what’s written in state law, not what’s written in Choshen Mishpat—even according to Jewish law. The laws of guardians, the default if we didn’t determine anything, are the law of the state, even according to Jewish law. So should we make the blessing over Torah study when learning law school material and not when learning Choshen Mishpat? Seemingly that’s the conclusion, no? In the end, that’s the binding Jewish law—what’s written in the statute book. So when I want to learn what Jewish law says, I need to go to the law books, not to Choshen Mishpat. And then I should make the blessing over Torah study before I study the law books, before I study legal studies. And the blessing over Torah study—on the contrary—over Choshen Mishpat would be something lacking… just idle Torah study; why deal with it?

Now, you know that in yeshivot they generally study Nashim and Nezikin. Most of the years, most of the learning period, they study tractates from Nashim and Nezikin. These are the tractates with more “lomdus,” more analytical weight. And those are exactly the tractates connected to adjudication, Choshen Mishpat. Those are exactly the tractates that really have no value, basically. Nashim, okay, maybe Nashim does, although I said at the end of the previous class that maybe even in Nashim one could stipulate in the same way. No—but in practice today the law is like that there too in matters of personal status. Fine, but still—even there, the law could have not recognized it, and then what? Then in yeshivot they would stop studying Even HaEzer if the law had not transferred personal-status matters to the rabbinical courts, but had left them with civil courts as in many countries in the world. So then what? We wouldn’t make the blessing over Torah study when learning Even HaEzer? So on the conceptual level, precisely the areas of adjudication are the areas that are studied. This is just an aside, not so important, but these are precisely the areas generally studied. And precisely they, apparently, have a somewhat dubious status as Torah. Who says this is Torah at all? It’s basically only some kind of default arrangement. If there’s what’s called a dispositive arrangement—meaning, if there’s nothing else, then this determines it, but no problem, you can do whatever you want—then that’s a question that bothered me for quite a few years, really for a long time.

And I found a pamphlet on monetary law—I already mentioned it—by Rabbi Yechezkel Abramsky. There he argues: what is the meaning of Choshen Mishpat? He asks what the meaning of Choshen Mishpat is. He doesn’t present it… not in terms of blessings over Torah study and state law. He says: what is the meaning of Choshen Mishpat if you can knead it into whatever shape you want? Do whatever you want. Or why does the Torah set the default? So he says that the Torah understood the human mind to its depths. If a person doesn’t set some particular contract regarding paid guardianship, then presumably he intends that the guardian will be liable for theft and loss. Both parties intend that, assuming I paid for the guardianship contract. The Torah assesses what a reasonable person intends when making such a contract. If he said something else, fine, he can say it; one can stipulate otherwise. But if not, then the Torah reveals to us our innermost intentions, yes, the depths of the human person. It’s basically a psychological presumption: when a person entrusts money, or some object, for paid safekeeping, the assumption is that this is what the parties intend, even if they didn’t say so. Because the Torah knows our psychology perfectly. And if it’s unpaid guarding, then no liability for theft and loss. Right? All these laws and so on.

Basically he claims that certain parts, at least, of Choshen Mishpat are in effect a psychology book. That’s really the meaning of what he says. It tells us what we mean when we’re not aware of it, or when we didn’t formulate to ourselves what we meant—this is what we really meant. And then his claim basically says that Choshen Mishpat is in fact—let’s sharpen it more—a factual book. Not a book of norms, but a factual book. It tells us what the fact is, what people mean when they say this or that. And that actually intensifies your question if you phrase it even more strongly. Yes, obviously; I’m already hinting here at the difficulty I see in the solution he proposes, because he has turned Choshen Mishpat into a psychology book. Now if I want to study psychology, I go to the psychology department. I ask them what human nature is, how people behave. This also changes from society to society, from period to period, from place to place. Why assume there is one psychology of human beings that is innate and eternal and always correct unless they said otherwise? I believe human nature changes. People mean different things. If so, then why not also for Noahides?

What? Exactly. And if so, that’s precisely why I brought up Noahides earlier. If that’s really the case, then what—are Noahides built differently? If the soul is structured in such a way that people always mean what is written in the Torah even if they didn’t say so, then no problem—give Noahides what they mean too. Write the psychology of Noahides. If it changes, that’s why we get confused. But for Noahides it changes in every generation. The Noahides are a big difficulty. The sense is that the Torah’s demand of Noahides is a lesser demand. What, because a Jew is obligated in 613 commandments? But no, I didn’t obligate him—that’s exactly the point. I only revealed what he means; I didn’t obligate him to anything. In tort law and laws of guardianship I only revealed what he really meant. So reveal to a non-Jew too what he means. Why don’t you reveal to a non-Jew what he means? Let’s assume for a moment—assume that the Torah thinks this is the default and the ideal default. No, that’s already saying something different. An ideal default is something else. He says it’s not an ideal default; it’s an estimate of what people mean. Not that the Torah thinks it’s more correct this way, or that it’s perfect in some theoretical sense; it just reveals what we mean. That’s all. You’re already proposing a somewhat different formulation; we’ll get there in a moment. Fine—but right now I’m talking about what Rabbi Yechezkel Abramsky writes.

And what he writes basically turns Choshen Mishpat into a book that reveals facts, not norms. Now Jewish law by its essence—I think I spoke about this—deals by its essence with norms, not facts. When we spoke about changes in Jewish law, I said that facts can change. The Torah has nothing to say about facts. The Torah speaks about what norms apply to a given factual situation. Right? For example: “There is a presumption that a person does not repay before the due date,” if that’s the example I gave. “There is a presumption that a person does not repay before the due date.” So even if today in fact people do repay before the due date, like with a mortgage or various things—people don’t want to drag it out if they have the money, so maybe they prefer to repay earlier—so has the legal presumption disappeared, that a person doesn’t repay before the due date? Then why study the passage in Bava Batra 5 that says there is a presumption that a person doesn’t repay before the due date? So maybe we can tear that page out of the Talmud and throw it away. What’s it doing there?

My answer is: not true. First of all, I don’t even totally reject that possibility; maybe, not so terrible. But I think it’s incorrect, because that passage isn’t coming to teach me the psychological facts that a person doesn’t repay before the due date. Facts are facts; even if they were eternal, I’m supposed to learn them empirically, not from the Talmud. And certainly I don’t think they’re eternal—they change—so all the more so, why set them in stone? If they were eternal, why learn them empirically? What advantage would there be in learning them from the Talmud? That’s not the Talmud’s job. You can learn them from the Talmud, but that shouldn’t be the Talmud’s role. The Talmud also doesn’t teach me physics, and physics actually is eternal and doesn’t change. It doesn’t need to teach me that; that’s not its role. Facts I’m supposed to learn the way one learns facts—empirically, from research, from observing the environment, however one learns facts.

I think what the Talmud comes to teach us is the normative principle: that when there is a presumption, it can extract money. No matter what the presumption is. In the Talmudic period, the presumption was that a person doesn’t repay before the due date. So when you claim “I repaid before the due date,” there is a presumption against you. And even though you are in possession of the money, since there is a presumption that you did not repay, we will take the money from you despite your possession. A presumption is sufficiently good evidence to extract money. That’s what one learns from that passage. Now what the presumption is—that’s a factual question; presumptions can change. If today the presumption is that a person specifically does repay before the due date, then if someone claims “it wasn’t repaid,” we would take money from the other side. Meaning: because there is a presumption against him. And I learned that from the same passage on page 5, which says there is a presumption that a person doesn’t repay before the due date. Because I argue that the passage is not coming to teach me the psychological fact that a person tends not to repay before the due date. That’s a fact, and facts are learned from observation. The Talmud comes to teach me how to apply norms, what norms to apply, given a certain factual situation. If the factual situation is that there is a presumption against you, the norm is that I have met the burden of proof. I can take money from you despite your possession. A presumption is sufficiently good evidence. That’s what I learned from that passage there, and that’s a normative principle, not a factual one. The facts—each time the presumption will be determined according to the circumstances. In every situation there is a different presumption.

So that’s why I say that on the conceptual level, to identify a halakhic corpus or a certain halakhic category simply as a collection of facts—that’s something I find theoretically problematic. I’m not willing to accept that there is some part of Jewish law that is nothing but facts, that comes to teach me facts. Jewish law isn’t supposed to deal with facts; Jewish law speaks about norms. Therefore I don’t think the solution Rabbi Abramsky proposes is sufficient. Quite apart from what I said earlier, with all the comments I made before—that if so, then for Noahides too, either tell them our Choshen Mishpat, since I assume human beings are built similarly whether they are Jews or non-Jews, or if you want to be like the Chatam Sofer, who said that one should not be treated by a non-Jewish doctor because he doesn’t know the Jewish body—fine, then reveal their psychology to them. Do them that favor too. Write another psychology book intended for non-Jews.

Not to mention that Choshen Mishpat is a book written by human beings, not by the Torah. The Torah did not reveal to us any psychology. All of Choshen Mishpat was developed by human beings. So if anything, this is psychology developed by the Sages; it’s not taken from the Torah. The Torah gives some very, very initial outlines. So the whole thing sounds very problematic to me. I would not make the blessing over Torah study on a factual book. It doesn’t rescue the status of Choshen Mishpat as Torah, as part of Torah. I asked earlier: why isn’t studying law generally part of Torah—why Choshen Mishpat? I don’t see in this solution a sufficient answer. Meaning, it still isn’t Torah; it’s a psychology book. So instead of going to the law faculty to learn the facts, now I go to the psychology department to learn the facts. Now I should make the blessing over Torah study on psychology studies, not legal studies. We haven’t materially changed the situation. Therefore I’m saying that his solution seems to me insufficient.

It seems to me that the picture I described earlier does offer an answer to this difficulty. Because what I’m basically saying is this. Suppose I entrust an object for safekeeping in exchange for payment, and the Torah determines that the guardian is liable for theft and loss and exempt in cases of unavoidable accident, according to all the laws of a paid guardian. What does it mean that we can stipulate regarding the contract? If both parties agree, then we can shape the contract however we want. What that means is—as I explained before—it basically means that it is my right to receive compensation, right? If it was stolen or lost and the guardian is a paid guardian, it is my right to receive compensation. That is what the Torah establishes. That right stands forever for me; it is a fixed and standing norm. The only thing is: I can waive it. I can waive it from the outset, no problem at all, as long as I am waiving the right. But not by stipulating that I have no right. That I can’t do, because that is eternal. The Torah decided that I have a right in such a case. That is a decision, that is a norm; it is not some descent into the presumed intentions of the parties. It is a halakhic decision just like the decision regarding eating pork, and it stands forever.

In several passages—a very complicated topic, I won’t go into the details now—the Talmud distinguishes, for example, in the cancellation of debts in the Sabbatical year. The Talmud says: I want to lend someone money on condition that the Sabbatical year not cancel the debt for me—that when the Sabbatical year comes, he will still owe me; there will not be cancellation of this debt. You can’t do that, even though it’s monetary. What’s the problem in monetary matters? I can waive my rights, can’t I? You can—but it’s not certain that you can do it in advance. Why? I’m waiving my right—what’s the problem, why not in advance? There’s no problem stipulating regarding the laws of guardians; one can stipulate in advance. What—when we stipulate in the laws of guardians, we stipulate at the time of the contract that he won’t be liable for theft and loss. We don’t waive it after it happened. In a stipulation about the laws of guardians, we’re speaking about a stipulation already at the time of the contract. Or in overcharging: “on condition that you have no claim of overcharging against me.” I sell you an object on condition that you have no claim of overcharging against me. If it turns out that the price exceeds the value by more than one-sixth, doesn’t matter—the sale stands. You can’t do that, even though overcharging is Choshen Mishpat. Loans too are Choshen Mishpat. But the Talmud says: yes, but you can say “on condition that the Sabbatical year not cancel me in the Sabbatical year,” not “on condition that the Sabbatical year not cancel the debt,” but “on condition that you not exercise cancellation against me in the Sabbatical year.” Or “on condition that you have no claim of overcharging against me,” not “on condition that there is no overcharging here,” but “on condition that you have no claim of overcharging against me.” That you can do. That is waiver. Waiver. What’s the difference?

If you stipulate against Torah law, I’m saying: I don’t want Torah law to apply to this loan. There is no such thing. Torah law on a loan is like eating pork. You cannot stipulate against what is written in the Torah, even in monetary matters. What you can do is waive your rights. I understand that it’s my right, he too understands that it’s my right, but together we agree that I waive it—or I agree; he doesn’t have to agree. I agree to waive that right. I know it belongs to me, and I waive it. In other words, as I said before, I give you a gift of 1,000 shekels. I’m allowed. It’s not that I’m not receiving from you; I am receiving, and theoretically I’m giving it back to you as a gift. Okay? That is possible in monetary matters. I can’t stipulate against what the Torah says. “On condition that the Sabbatical year not cancel the debt”—I turn to the Sabbatical year and say: here you don’t cancel; up to here you apply, from here on there is no Sabbatical year; the laws of the Sabbatical year do not apply. There’s no such thing. The laws of the Sabbatical year are not in my hands; the Torah determines them. I cannot stipulate such a thing. What I can do is say: “on condition that you not exercise cancellation against me in the Sabbatical year.” “Not exercise cancellation against me in the Sabbatical year” means I ask the other person: it belongs to you not to repay the debt, to leave the debt with you; you need to waive that for me. “That you not exercise cancellation against me in the Sabbatical year”—that is possible. Because you can give the money as a gift, waive your rights. Fine, all good.

So once again, regarding the Sabbatical year—well, there’s a question whether that is Choshen Mishpat or Yoreh De’ah… but overcharging is certainly Choshen Mishpat. It’s good when we’re talking about something interpersonal. But when it’s on the societal level—for example, “the property declared ownerless by the court is ownerless.” How am I not waiving my right? How does the court determine that I don’t have the right? I’m not waiving it. Doesn’t matter. The court determined there is no right, and the Torah determined that there is a right. The Torah didn’t determine that you have a right; the Torah determined that society has to give you a right. Meaning, the Torah addresses only society in monetary law, because society determines the monetary laws. The Torah just tells them: there are such-and-such rights. Okay, fine, but we decide that people will waive their rights, and “we,” of course, means all the people together. He can’t decide that they’ll waive; he can decide that they don’t have them. Someone can’t decide that I waive. Waiver is my own will. No one can decide that my will will be such-and-such.

Yes, yes, because it’s not “someone”—that’s exactly the point. I think we spoke once about rabbinic legislation, the authority of the Sages to enact rabbinic laws. According to Maimonides, it is rooted in “do not turn aside,” and Nachmanides disagrees. Nachmanides says that otherwise every rabbinic prohibition would come out as Torah-level, and its doubt would have to be ruled stringently, and so on. So Nachmanides says no: “do not turn aside” speaks only about interpretation or exposition within Torah-level law, not about rabbinic enactments. Then the question arises: so according to Nachmanides, why do the Sages have authority to enact rabbinic legislation if it’s not from “do not turn aside”? And it can’t be because of another verse, as Rabbi Elchanan Wasserman says, because if it came from another verse then the same question would arise—then it would still be Torah-level, and its doubt would have to be ruled stringently. What he asks against Maimonides would be difficult for him himself.

So I said that I think—maybe I once heard this from Rabbi Blumentzweig, I don’t even remember, maybe, not sure—when you talk about authority, and this is the answer to what you asked, I think, then you picture some body standing opposite you with authority over you, and you have to obey it, and then you ask: on what basis? Who gave it that authority? Why do I need to obey? But if I see the Sages as not standing opposite me—I stand behind them, not opposite them. They speak in my name. They are my representatives. Like in a more democratic world it’s easier to see, but from the Torah’s perspective, even though ordination comes from above and not from below—ordination to rule, ordination to judge and rule—still the conception is that they are representatives of the public. The moment they are representatives of the public, they speak in our name. It’s like the question: why obey the law? So what if the Knesset legislated? Who put it there? What do you mean, who put it there? It’s my representative. And once it legislated, I basically determined that this is what will happen. A representative government.

I don’t have a problem with the obedience; my problem is the waiver. I’m saying: take the laws of guardians, for example. The Torah established that a paid guardian—that is an establishment, a norm. I can waive my right. Correct. And if I entrusted something to someone for paid safekeeping and it was stolen, I can waive it for him. I can waive it for him. Now let’s assume society determined that from now on a paid guardian is exempt from theft and loss. And you do want that. I want that. Now the Torah determined that I have such a right. So the only possibility is that society tells me I must waive—but how can you force someone to waive?

So again, I’ll say it in two formulations. One possibility: society isn’t telling you “waive.” Society is telling you: pay him 1,000 shekels. I obligate you to pay him the 1,000 shekels you received. It’s like waiver, as if it was received. That’s a technical formulation. On the substantive level, it’s what I answered earlier. The Torah is not speaking to individuals; it doesn’t grant a right to individuals. The Torah tells society to give rights to individuals. The one responsible for monetary rights is society. So the Torah told society to give a right to a person in the case of a paid guardian. Society gives the person that right—correct, it gives him that right. And now what—it can choose not to give it? Just as when the Torah gives me a right I can waive it, waive it. But if society now does not give the right, that isn’t waiver. But society now is the relevant factor, not you. So now what you do privately by waiving, society waives on your behalf. Because you are part of it, as I said. The Sages are society, they are your representatives, they speak in your name. It’s not that they decided not to give it; they decided to waive it on your behalf. Exactly. Because they are representatives; they say: our society waives these rights globally, waives the rights in the case of a paid guardian.

Meaning, I can understand society as society obligating me to something, but society waiving on my behalf? So I said—there are two formulations. The previous formulation says… okay. Okay. Does this work in the other direction too? Suppose between us, you are a paid guardian and we stipulated between us that even in unavoidable accidents you would be liable. Of course. No problem. Because the guardian waived his right. Yes, obviously. This and that, all explicit in the Mishnah. It’s a Mishnah in Bava Metzia 94, both leniently and stringently. A paid guardian can stipulate to be like an unpaid guardian, and an unpaid guardian can stipulate to be like a paid guardian, which is more stringent. Right. You can waive your right and I can waive my right; whether it’s the guardian or the owner depositing the object, it doesn’t matter. And even in unavoidable accident—waiving your right in unavoidable accident means being an insurance company. Right, what is an insurance company? An insurance company pays when an unavoidable accident happened to you. Fine? Now the insurance company isn’t guilty—so why does it pay? Because it undertook to pay for that accident. A person can undertake such a thing. So no problem. What? It didn’t guard. No, doesn’t matter. There’s no problem. The guardian who guarded—when an unavoidable accident happened to him, he doesn’t have to pay because he failed in guarding; he didn’t fail. He pays as an insurance company. He undertook it. He’s a guardian plus an insurance company. Fine, he gives you insurance too on what you deposited with him. He doesn’t just provide guarding services; he also provides insurance services.

By the way, there are conceptions in Jewish law—I tend to think this in practice too—that the payment of a paid guardian for theft and loss is an insurance payment. It’s not payment because of negligence in guarding; it’s not like in the case of negligence. For example, Maimonides writes—this is a dispute between Maimonides and the Raavad—but Maimonides writes that the payment of a guardian for negligence is from the laws of torts. It’s not contract law. It’s tort law. Now what are torts? If I opened the door to your stable and your horses ran away, I’m exempt. I’m not such a righteous person, yes? It’s indirect causation. But I’m exempt; that’s not called damaging. But if I was the one appointed by you to guard the stable and I opened the door, then I’m liable. Why? It’s still indirect causation. And Maimonides says I’m liable under tort law, not under contract law. If it were contract law, no problem—you can undertake liability even for indirect causation. Maimonides says you are liable under tort law. Why? Because once I took upon myself the guarding, then you are no longer guarding that door. So when I opened that door, that is now direct action. It’s indirect causation when I open the door while you are merely responsible for guarding there—I caused you damage, but I’m not supposed to ensure that the door remains closed. So that’s indirect causation. But if I am the one who is supposed to ensure that the door remains closed, and I opened it, that is direct damage—it’s damaging. So you become a damager under the laws of guardianship.

And regarding theft and loss, Maimonides says no. That’s contract law, not tort law. What’s the difference? A paid guardian has to guard more… but still this is responsibility; he didn’t guard against theft and loss. Why isn’t that the same thing as payment for negligence? Because it’s insurance. He says the law of the paid guardian is an insurance company. It’s not—therefore, for example, the Talmud on page 93, the previous page in Bava Metzia, discusses the shepherd who has to pass the animals one by one over the bridge. There there is a discussion—a dispute between Abaye and Rava, I think—about whether a paid guardian has to guard better than an unpaid guardian, or not, according to the way people ordinarily guard. Must he guard the way people guard, the way an unpaid guardian guards, the way a person guards his own property? So what’s the question? Right. As for being obligated to pay, he is certainly liable more, because ordinary people—the Talmud says there—that ordinary people don’t generally guard against theft and loss. Meaning, guarding that prevents theft and loss is excellent guarding. And a paid guardian need not provide excellent guarding, at least according to one of the opinions there in the Talmud, and perhaps even according to all of them—that’s a dispute among the medieval authorities (Rishonim). But he still must pay. Why must he pay? Because it’s an insurance payment, not a payment for breach of contract. You fulfilled your contract, you did what you had to do. The money you received is for the insurance, not for the guarding. Because an unpaid guardianship is done without money. So the paid guardian, who wants money—the money is for the insurance, not for the guarding. The guarding he does like an unpaid guardian. For the insurance he receives the money. The wages of the paid guardian are an insurance premium.

So is it the same regarding unavoidable accidents too? A better policy? Exactly—a policy even for unavoidable accidents, not only for theft and loss. It depends what is included in the policy, that’s all. That’s the difference in the policy. Okay?

So what I want to argue is that Choshen Mishpat establishes the rights a person has over his property. The rights that society must give a person over his property, according to the formulations I gave earlier. Those things are engraved in stone. There is no way around them. You cannot stipulate against them, no custom helps against them, nothing. Exactly like Yoreh De’ah. The only thing is: what is engraved in stone? What is engraved in stone is not that he has to pay me, but that I have a right to receive from him. That is engraved in stone, and that cannot be erased. Exactly as one cannot erase the prohibition of pork. But once I have a right to receive, that right is vested in me, and nothing will help against that. Only I can waive it—but I can waive it because it is a right. That is the meaning of a right: if a person doesn’t want it, he can waive it.

So therefore, in principle, when I stipulate regarding Choshen Mishpat, that does not mean Choshen Mishpat has a different character from Yoreh De’ah in the sense that it is not part of Jewish law. The Torah says that the laws of… now I’ll go back to the questions I asked earlier. Choshen Mishpat is not a psychology book. And it does not bind because that’s what people intended. That’s not the point. If we intended something, we’re supposed to say it, not the Torah. Choshen Mishpat binds because that is what is correct. It is the perfect law, the ideal law. It is the divine truth in the monetary context of Choshen Mishpat—assuming we got it right, because I said most of it is human anyway, but never mind. The assumption is that this discussion is supposed to lead us to the perfect legal system.

But the perfect legal system says that I deserve compensation if your case involved theft and loss while you were a paid guardian. That is the perfect system, and there is no other. But even if I deserve compensation, I can waive it. There is no problem with that. It doesn’t mean this system is more perfect or less perfect. The Torah’s system—this is the halakhic law and there is no other. It is the halakhic law; you cannot change the law of the Torah, exactly as you cannot change Yoreh De’ah. I deserve compensation for theft and loss, and nothing can help against that. Only I can say: okay, it’s due to me, I have such a right, and now I waive the right. No problem. But the fact that the right is vested in me—that is the Torah’s will. The Torah says that if you gave something, deposited something, for paid safekeeping, you have the right to receive compensation for theft and loss. And that is a halakhic truth exactly like the truth of the prohibition against eating pork.

By what authority do you waive? Suppose there were an Israeli government with 120 religious Knesset members who observe Torah and commandments—so what, apparently they would be allowed to legislate a law contrary to the Torah? And you tell them no—after all, you’re saying don’t legislate, this is the Torah’s will. No, no—and what about two people themselves? We’re back to Shmuel’s question. What about two people themselves? The Torah tells us this is My will—so what are people doing? That’s what I said: people are not waiving the Torah’s will. The Torah’s will is that I am entitled to compensation for theft and loss, and truly I am entitled to it. The contract anchors that I am entitled. I only undertake not to realize that right, not to use it. There is no obligation not to waive the money.

Not Israeli law—wait, I’m talking now about Israeli law. Apparently, what you’re saying, I say: start with individuals first. Israeli law is only doing this collectively. Exactly. No—because I’m saying: Israeli law, if this is something, if it’s like you say, then indeed we should aspire that this be the law. No, I argue that we should not. How not? If this is the Torah’s will—right, the Torah’s will is that I have rights. I have rights in this way, what’s the problem? No, it’s the Torah’s will that the rights be structured this way. Yes, this way—I have rights this way. So? Only I can waive. And if the community as a community—not a pair signing a contract, but the community—decides that it waives these rights, that everyone waives these rights collectively, what’s the problem? Collective decisions can also be made. Society decides that these rights we waive. Now who decides this are our representatives, who speak in our name—doesn’t matter how—whether the Sages or the Knesset or whoever. Whoever is entrusted with expressing what the public decides. We chose them, and they express what we decide. What they decide is as if we decided. That’s what I answered Shmuel earlier.

So my claim is that there is no substantive cancellation here by two individuals; one has to understand. Why does custom determine matters in monetary law? Why does the law of the kingdom determine matters in monetary law? What does that have to do with the fact that one can stipulate? After all, there are three special features of monetary law: that the king determines it, that local custom determines it—the law of the kingdom is law, local custom—and that one can stipulate. These three features do not exist in Yoreh De’ah. A king cannot determine that pork may be eaten; society cannot determine it either, and you cannot stipulate about it. There is a connection between these things; it’s not random. What is the connection? Everything begins from stipulation. The ability to stipulate is the basic difference. Custom is simply a collective stipulation. The whole society has stipulated regarding all cases of guardianship carried out within it, that the guardians waive or the depositors waive. Wait—and why does it stipulate? Because it thinks that this better suits the circumstances of its time, and therefore it waives. Wait—but shouldn’t we tell society, shouldn’t we cry out: you are mistaken, the Torah says otherwise? No, not mistaken. The Torah gives me, vests in me, that right. It really is a right vested in me. But it could very well be that in these circumstances it is not good to realize that right, that it doesn’t produce the perfect result on the legal-social level. So it is the role of the Sages to determine that here it will not apply. That is “the property declared ownerless by the court is ownerless,” or it is a collective stipulation.

Just as a private pair can stipulate—and a private pair stipulates because that is what suits them personally, not necessarily society; they think it’s a better contract for them. They are not challenging the justice of the Torah’s contract—that is the perfect contract. But it is my right not to go with that contract. I want another contract, not the Torah’s guardianship contract. What’s the problem? There is freedom of contract; I can make whatever contract I want. Society simply does this collectively. The stipulations in those pairings are something society does: all of us together do it together. The Knesset stipulates on behalf of all of us, or the king stipulates on behalf of all of us. The law of the kingdom and local custom—everything works by the law of stipulation. “Stipulates against what is written in the Torah”—that’s the basic mechanism. These aren’t three different laws; this is one law. The fact that one can stipulate regarding monetary laws is what allows the law of the kingdom to apply here, and what allows local custom to apply here. The law of the kingdom and local custom are simply collective stipulation. The whole society stipulates.

Think about Mount Sinai: everyone gathers in the Knesset hall and says: we waive our right that in every future contract we make involving paid guardianship, we waive liability for theft and loss. That’s basically what is being said when the Knesset legislates such a law. Fine, you can do that—what’s the problem? Just as any two people can do it, the whole society can do it too. Of course they don’t actually have to gather; that’s the meaning of representative government. Representative government means we don’t need to gather in the city square, the demos, right? Rather, our representatives gather on our behalf and determine what the people want. What they determine is, by definition, the will of the public. They don’t have to match the actual will of the public, but that is the definition: when they determine something, it is defined as the will of the public. So the public stipulated, the public waived—and stipulating is possible.

I’ll tell you what maybe bothers me and Shmuel too. Suppose you said that we have what’s called “true and stable.” Then you say: true is the Torah, but stable is preferable—like a Supreme Court justice once said: stable is preferable. So the Torah tells you, fine, let it be stable already, stipulate whatever you want, the main thing is that there be one law. But that’s not the truth; the truth is what is written in the Torah. That would be much easier to accept. Much easier to accept. But why can one stipulate? Why didn’t the Torah establish some “stable” rule regarding pork? If the Torah preferred stability, then why not there too? Why only in monetary matters? What is unique about monetary law? You haven’t escaped that question. Why there does only truth determine it and not stability? Why can’t one stipulate regarding what is written in the Torah in Yoreh De’ah?

First of all, in other commandments too—such as the commandment to appoint a king—you can also have flexibility, and Rabbi Kook in Mishpat Kohen says a democratic regime is also possible, that’s okay. That’s not called stipulating; that’s called king. What? Because he argues that this is “king”; it’s not called stipulating. The kingship we shape according to our understanding. As long as there is kingship, it’s not stipulation, it’s something else. I don’t want a king. And in general regarding kingship, there may be model-disputes here too—after all, is it merely acceding to the people’s will, and in truth there is no Torah preference that there be a king? Abarbanel, well-known things. So king is not a good example here. Just take ordinary Yoreh De’ah. Can you stipulate regarding pork? Sabbath? Whatever. No, you can’t. Why not? Where is the stability there? Why there specifically truth and not stability? You still need to explain what is different in monetary law. I claim that what is different in monetary law is rights—the issue of rights versus obligations.

It would be easier for me if it were that second possibility: that the public makes a decision that obligates, that obligates you to return what you were supposed to receive—to return it. It can also waive. What’s the difference? The public waives on behalf of everyone; now all of us have waived. What’s the problem? No, because a public is like laws—public decisions, even if only 60 percent vote. Suppose there is a referendum; 60 percent vote—this obligates everyone, it obligates everyone. But if 60 percent vote to waive something, how can you force me to waive? You can force me to give; how can you force me to waive? That I don’t understand. What do you mean? Obviously. They aren’t forcing you to waive; you waived. I didn’t waive. Yes, you did waive. How? You waived because your representatives spoke in your name and they waived. Who are “they”? They don’t obligate you. You keep looking at it as if you stand opposite them: who are you to determine for me? They—you are not standing opposite them; you are standing behind them. They are your representatives. They speak in your name. You spoke when they stood there in the Knesset; basically all of us spoke and said: we waive theft and loss on our behalf. But I’m shouting that I’m not waiving. So you’re shouting—so what? Thoughts of the heart are not things; even words from the mouth are not things. I’m shouting that I didn’t waive. That is the meaning of government. If they force me to return it, I can shout that I don’t want to return it. I have no problem—you can adopt that formulation, but I don’t see it as necessary. Fine, everyone according to his understanding, but I don’t see it as necessary. Not at all. In my eyes that formulation is fine, and the second formulation is also perfectly fine. The Sages, or the legislators, or whatever, the authorized body—that is the whole meaning of representative government. The whole meaning of representative government is exactly that: when they legislate, it does not obligate me because they have authority over me, but because I legislated it. I have to do it because I undertook to do so.

Can the public, my representatives, decide what I think? What I think? What I think? Yes. Yes. Regarding social questions, not regarding Sabbath—but regarding social-legal questions, monetary law and personal status, yes. The public decides what you think, yes. Exactly. Not what we think—we need to decide what… That’s a more basic layer. What we are obligated to do, what is forbidden to us to do. And that’s what you wanted—not what I think. I think there are laws the Knesset legislates that are terrible. Right, but it doesn’t matter what I think. I have no problem thinking. But here too you can say the same thing. You must waive, even though you don’t want to waive. Fine—then in practice you waive. What difference does it make that you don’t want to? You can formulate it the same way here. You must waive because the law says you have to waive, even though personally you don’t want to. Same formulation.

Now here there’s another implication of the issue—these disputes about inserting halakhic law into state law. The big struggles over what is called “Hebrew law,” meaning attempts to insert legal clauses taken from Jewish law, which is usually perceived as some achievement of religious members of Knesset or something like that. Once that wasn’t the case, by the way. Haim Cohn and all the people who established this concept of “Hebrew law” were secular. About this Amichai Radzyner wrote a response. I have an article in Haqdamot on Hebrew law—on what Hebrew law is—and on why there is no value in putting it into state law, and why this whole discussion is devoid of meaning. Is it on the site? Yes. So there is a response by Amichai Radzyner in the following issue—our old dispute. He argued generally that Hebrew law is… well, I wrote and said I disagreed, that it is really a cultural matter, not a religious one at all. And in fact this movement, the movement for Hebrew law, was founded by secular jurists. Haim Cohn is the prominent example, but there were others before him. It was founded in… because Haim Cohn was a Torah scholar. Yes, I don’t know how much of a Torah scholar he was, but he knew, yes. Asher Gulak—I don’t know if he was secular, but… A hotel name? No. Come on, but that’s a generation… we’re talking much earlier, still in Europe, before the state. He describes there the historical development. I didn’t know all the details, and as usual he goes into great detail.

And he argues that this is a cultural matter. They basically wanted to attach themselves to Jewish culture, not because of a halakhic obligation to behave correctly, not because of obligation. They weren’t committed to Jewish law. But they thought it proper that we continue our own legal tradition. And exactly on that I said that precisely I, as a religious person, don’t want that. I do not want “Hebrew law” as culture, because I think either it has religious value because you think it should be observed as a commandment, or leave me alone. I am not in favor of Jewish culture in that sense—I’m against it. I think turning Jewish law into culture empties it of content. Its whole content is religious content, content of serving God, of doing it because that is right, because that is what should be done—not because I want it, like observing the Sabbath because of what Ahad Ha’am said, that more than the Jews kept the Sabbath, the Sabbath kept the Jews. Better than desecrating it entirely? In my view with Sabbath maybe that’s preferable. But in monetary matters, since one can stipulate, it’s not preferable. In monetary matters I’m not a sinner even if I stipulate, because one can stipulate in monetary matters and one can determine otherwise. So if it’s only for the cultural value, then the damage exists and the benefit doesn’t, because the benefit of fulfilling Jewish law—I have no problem even if the halakhah is not the Torah’s laws of guardians. So what’s the problem? I’m not committing a transgression, and the fact that they turn it into culture—I’m against that because I think it’s harmful, it flattens the issue. I’m against Jewish culture in that sense. Come on—“against” in that sense of culture, not against Jewish culture like reading Amos Oz, but against turning Jewish law into something that is “Jewish culture,” meaning: okay, what do I care if secular people open Maimonides? I have no problem if they open Maimonides. But the moment this is translated into cultural value, there’s a serious problem. Because that basically turns the matter into something cultural and not something religious, and that empties it of content. I think it harms the halakhic outlook.

Many times, by the way, this also pulls along religious people who perceive it that way, and I think these are damages that I oppose; I’m not in favor of it. Is that what yeshivot have against Talmud departments? Yes, but there it’s more a question of approach, because in Talmud departments there are also God-fearing people who study it like mathematics. Meaning, not as a religious matter, not as a command, not as something binding, but as a kind of wisdom. But when they study it, they study it as something that for Jews is a binding religious matter. They say: fine, it’s like studying Native American culture, so I learn what the Native Americans think one should do; I myself am not obligated. That’s a little different. There is a situation in which, when you teach it, you are not teaching it as something people are obligated to do, but rather as culture. Meaning, you are teaching incorrectly what it means for religious people. Not only are you yourself not obligated because you are not religious, but you turn it into culture—not in the sense that you adopt it as culture, but that you want it to be related to as culture. It’s like studying Native American culture and then teaching the Native Americans how to dance properly around the fire, saying: don’t think this will bring you rain; it’s just nice culture, the rain dance around the fire, I don’t know what.

So in that sense I’m saying that this aspiration to insert Jewish law into Hebrew law—into the legal system—has, in my eyes, no religious value whatsoever, no religious value at all. Because from the standpoint of Jewish law one can also stipulate regarding Choshen Mishpat. What the Knesset determines is perfectly fine; there’s no problem with it. Ideally, one can stipulate. I have no aspiration to insert the laws of guardians into the statute book, because I can manage with Jewish law even as it is. And if something else suits things better, then why do something unsuitable just for some ideology or another? On the contrary, do what suits best, and let that be the law. And in monetary matters that is perfectly fine—unlike, once again, Sabbath and other things. Therefore I think that the “benefit” here—that supposedly they will then be fulfilling Jewish law when it enters the legal code, for example the laws of guardians—they won’t be fulfilling Jewish law. They are already fulfilling Jewish law today even when they don’t follow the Torah’s laws of guardians, because there’s no problem; one may waive rights, and that fits Jewish law. No one is violating Jewish law by doing that. Therefore I have no such aspiration.

But why do you think that those who wanted, and still want today, to insert Hebrew law into Israeli law are doing it so that some halakhah will be observed? No—on the contrary, they are not doing it for that reason. From the moment they’re not doing it for that reason, they’re doing it for one reason only: cultural. They say: why should I have to go and learn the laws of Israel from English law and Ottoman law, which were always until today the layers we turned to? We have roots of our own, and so on. That’s culture. Those are cultural considerations. That’s what I was talking about. But doesn’t that coexist with there being a population that relates to these things as Jewish law? No, of course. It’s obvious that they’re not going to determine for that population how to relate to halakhah. But I’m saying that it transmits a very problematic message and can influence things, and therefore I oppose it. It’s not invalid in itself; it’s a matter of policy. I’m against it.

Are you claiming that someone who does this is a sinner? No. There can be another approach in which someone says it has value. Rabbi Sachs isn’t a sinner; he just thinks differently from me. He also thinks there’s cultural value to it, as many others do. I accept that—it’s legitimate to think that way. I just disagree. I’m not claiming they are sinners or that a religious person must oppose it. I think it’s not good because the loss outweighs the gain, if there is any gain at all. That’s my personal opinion. I’m only saying that the basis for my opinion is that same picture I described before. Because if this were an obligation like Yoreh De’ah, then what do you mean? Make sure it gets observed. Why do you care why it gets observed? Make sure at least that the halakhah is kept as much as you can. Here there’s no problem, because one may waive rights. Therefore my position can be legitimate. Whether it’s right or not is another question—a question of cultural policy—and about that one can argue. People think one way or another.

I’ll say even more. I even wrote there in the article that afterward they told me that this article is on the syllabus in every Hebrew law course. Meaning, because there is no source that… Usually the people who write articles are jurists, and religious jurists generally don’t think that way. So there’s Englard, who does go in this direction. Englard is known—there was a debate with Elon—as representing the view I wrote, but it’s a relatively rare position among religious jurists, and therefore when they need to present that side, they use that article. Englard comes from the secular side, not the… Why? Englard is religious. Englard? I didn’t know. Englard is religious. No—he says what I said. Religious with a black kippah? Yes. Well, “black kippah,” I’m not sure that’s exactly it, yes, yes. It’s one of those black kippahs, you know, like cardboard, sort of. We once had a meeting with him.

In any event, what I wrote there was basically this: suppose in the laws of guardians, suppose I think the most appropriate law—I don’t know, what fits the circumstances best—is English law. Fine? So what do you want: that now, in the name of our commitment to our cultural heritage, we should choose a law that is less good? What for? Well, yes, because for the cultural value it’s worth paying the price of having a somewhat less good law. But one has to understand: if the halakhic law is really the best law, then no problem—even I support adopting it. That’s what they say. No, but I’m saying: if it’s the best law, then not because it’s halakhic—that’s exactly the point. No, but that’s why I’m saying that’s not really what they mean. They always explain that it’s the best law and therefore worth adopting, but why are they doing it at all? They’re delighted whenever they find some law that can indeed also be justified in terms of ordinary common sense, because then it will allow them to insert it. But the value they’re talking about is cultural. What, only they care about the best law? Doesn’t the secular jurist want the best law? He also wants the best law. If you convince him that this is the best law, he’ll say, what do I care if it’s written in the Talmud—he’ll put it in too. But the dispute isn’t there. You always justify it by saying yes, but this really solves a lot of problems and it’s a wonderful law and worth adopting. But clearly behind this sits an ideological agenda—cultural, ideological, whatever. It’s always kind of the other way around: when a jurist comes from outside, people are usually influenced by some cultural tradition they came from. Fine, I have no problem with that, but in their eyes that tradition really is the correct law. That tradition causes them to think that this is the right way to build the law. But here these are extra-legal considerations. They are not legal, just because I want to match the Shulchan Arukh or the Talmud, you understand? Not because I’m claiming—or at least in the background—that this is really the law that will work best or solve the problems we’re dealing with, or something like that. True, usually they don’t do it when it doesn’t fit, so they try to find something that does fit. But the motivation to search for something fitting is in order to insert another section into the Israeli law book. The motivation isn’t legal—it isn’t to find proper legal solutions.

You try to convince everyone with signs and wonders, and for some reason the religious are convinced and the secular aren’t. What does that mean? That it isn’t true that this really solves your problems in the best way. Rather, it suits you and it’s not so terrible, so you say, okay, let’s use it here in order to insert Hebrew law into the statute book. And the others oppose it.

I once mentioned that in the debate over the law “do not stand idly by your neighbor’s blood,” the dispute was really around exactly this point. Because who is opposed to people helping others when they are in distress? Everyone agrees to that—secular, religious, what difference does it make? So you can see in the Knesset records of the committee debates there—there’s Yossi Beilin and some others, Dedi Zucker I think was there too, and various people. I read some of the protocols. At least some of the people are outraged by this very idea. They don’t want a verse in the statute book. They don’t want it, because it will make the state religious and all sorts of things… That was part of the opposition, even though in principle they supported causing people to help one another. Others objected in principle. They said: we are in favor of helping, but we are not willing to impose a sanction on someone who doesn’t help, because helping is not a legal obligation, it’s a moral obligation. That’s an argument on the merits; one can debate it. By the way, on this point they are right, because in halakhah “do not stand idly by your neighbor’s blood” is found in Yoreh De’ah, not in Choshen Mishpat. In Yoreh De’ah is there a sanction? No—what sanction is there? They lash him. No, they don’t lash him. No, they lash him in order to compel observance of commandments; there isn’t a punishment for someone who didn’t do it. And when you put it into law, then you have established that there is punishment for someone who didn’t do it—after all, there is no law without a sanction attached to it—and then you have departed from halakhah. Meaning, it’s not the rescued person’s right. Exactly. And once you inserted it into the statute book, you effectively moved it into Choshen Mishpat, and you departed from halakhah. Because the halakhah is the prior state—not the current state, but the state before the law. The halakhah was that there is a moral imperative to help another person, but there is no sanction if you didn’t do so. That was the legal situation before the law. Then Hanan Porat passed the law in order to insert Hebrew law into the statute book. But when he inserted Hebrew law into the statute book, he emptied it of content, because in fact it’s no longer Hebrew law. At that point the fit to Hebrew law ceased once it was legislated.

And this happens often, by the way. When you insert something—I’m showing here the distortions in this whole issue. That’s beyond the dispute I mentioned before. Once you insert it into the statute book, it turns out to be unsuitable. You are not doing the halakhah. It goes through all kinds of smoothing and in the end it won’t be the halakhah. Suppose you insert the laws of guardians into the statute book. Then what happens? For a paid guardian, you insert that he will be liable for theft and loss; an unpaid guardian will be exempt. Suppose we adopt the laws of guardians into the statute book. But within halakhah there is also the oath of a guardian. Will you insert that too into the statute book? A secular person will swear whatever you want—what does he care about swearing? To swear by the Holy One Blessed be He, say, by the explicit name, or by his grandmother’s teeth. And you understand that if you remove the oath, you have changed the entire balance of power. Because the right I have to exact an oath from you verifies that you didn’t lay a hand on it. I know that a religious person will recoil from swearing falsely, so if he swears, that reassures me; I know I can exempt him. But if this is a place where the oath has no teeth, then some of my rights have been impaired—the ability to clarify what happened to the object. So now I also want my obligations to be impaired correspondingly. You have to change the whole legal system, because the moment you removed one detail, now who knows—the whole balance of this legal system needs to change.

About the warning before testimony in court—once they would say “I swear to tell the truth”; they changed it. Today you say, “I declare that I am telling the truth, and if I do not tell the truth I will be liable to the penalties prescribed by law.” There’s no longer “I swear.” Exactly. Because it really addresses the whole public. That’s exactly the point. And it seems to me, certainly it’s not because of the religious people. Although the truth is that it would need to be changed because of the secular people, not because of the religious people. Because when secular people swear, what do they care? Swearing is a religious prohibition. It’s not because of the religious people, because the religious people don’t want to swear because there is such a prohibition. Yes, but in practice what I’m saying now is that this was true because of the secular people, not because of the religious people.

There’s a claim by Aharon Barak against Elon’s approach of integrating Hebrew law. He argues that every legal system has within it a certain texture. You can’t take one detail and insert it into another system, because you can’t even know where it will come back to bite you by suddenly contradicting something else. It changes the balance. So to combine, artificially, pieces from one complete legal system and insert certain pieces into another legal system can lead to results that often the legislator doesn’t think about when doing it. And then you’ll encounter lots of problems from another direction. A system has some kind of perspective; you have to understand the implications of things, how they are seen, what the implications are from another angle in that system. Therefore he opposes, as a matter of principle, combining legal systems. You can take something specific if it happens to fit, or if there is a gap, fine, take it. But to combine two legal systems as a policy is a recipe for crude seams. You’ll stitch those systems together crudely.

Here’s the example I gave before. You take the legal system but without the oath. But without the oath—then remove the liability for theft and loss too. For all you know, maybe he was negligent with it. An unpaid guardian is exempted from theft and loss on condition that he swears. Then I know he didn’t put his hand to it, that it really was stolen or lost. But how do I know it was really stolen or lost if he doesn’t swear? Then I can’t exempt him for theft and loss. Therefore in such a situation you would have to make an unpaid guardian liable for theft and loss unless he brought witnesses that it really was stolen or lost. Do you understand? There’s a balance. You can’t take one detail and leave all the others exactly the same. It doesn’t work. It’s simply a foreign plant. Therefore—and this is an addition to the argument I made earlier—when you take things and plant them in a different garden bed, you get a different plant. You don’t get the same plant. And that is always the case. I think in everything they tried to do—taking something from Hebrew law and transferring it there—in the end you don’t get it.