Halakha and Jewish Law 1

We’re moving on to the next chapter in this series, and this chapter too will be divided into a few subsections. Today I’ll begin by trying to explain and distinguish between the different parts of Jewish law, let’s say through the sections of the Shulchan Arukh, though in the end I’ll focus on Choshen Mishpat. I’ll try to clarify what the role of each one is, what is unique about each one, and especially Choshen Mishpat is a unique section, and it’s very common not to understand its unique significance. From there maybe we’ll go on to try to look at Jewish law more generally, at least with regard to two additional aspects, maybe even more, of the character of halakhic law as against other legal systems, or certain aspects of it, and various halakhic considerations that at first glance seem surprising, and I think they can be understood in light of the picture I’m going to describe. So this is basically a chapter that deals with a bird’s-eye view of Jewish law, and in particular of halakhic law; I think that’s where it’ll be centered. I’ll begin perhaps with law, and afterward I’ll step back and divide things according to the sections of the Shulchan Arukh.

Halakhic law, as it is described for example in Choshen Mishpat, has two features that on the face of it seem opposite. On the one hand, it’s the most flexible part of Jewish law. In monetary matters, one may stipulate against what is written in the Torah; that’s a dispute among the Tannaim, but that’s how Jewish law is ruled. Custom determines monetary law, everything goes according to custom. An unpaid custodian can stipulate to be treated like a paid custodian, in the Mishnah in Bava Metzia. Meaning, somehow this seems like the most flexible business there is. Nobody would dream of stipulating against the prohibition of pork, or saying there’s a custom in some place to eat pork—would that permit the prohibition of eating pork? Of course not. So why in monetary matters can you waive what the Torah established? That’s on the one hand.

What exactly can you waive that the Torah established? The laws of custodians, for example. Custodians: an unpaid custodian can stipulate to be treated like a paid custodian. So if the Torah says what? That he’s being stricter with himself? No, no—even more leniently. And in monetary law generally there’s no such thing as stricter and more lenient, because what’s stricter for one side is more lenient for the other, and vice versa. So there’s no such thing at all as stricter and more lenient. In the laws of custodians, when we say that in monetary doubt we rule leniently, that means leniently for the defendant, because for the plaintiff that’s stricter. So that’s one side of it. In other words, it looks like some kind of flexible area, something we don’t find in the other parts of Jewish law.

On the other hand—and I’ll elaborate on these things a bit later, but right now I just want to give some motivation for the discussion—on the other hand there is, in a certain sense, an almost infinite severity in monetary law. I’m not talking about aggadic statements like theft being at the head of all sins, preceding them all, and things like that. I’m talking about halakhic conduct. In halakhic conduct, Rashi’s view in Bava Kamma—and I’ll spell this out later, but for now just in passing—Rashi’s view in Bava Kamma is that regarding theft, it’s “be killed rather than transgress.” Meaning, if my life is threatened, and the only way for me to save myself is to damage someone else’s property, I’m forbidden to do that: be killed rather than transgress. The author of Binyan Tziyon, the Arukh LaNer, Rabbi Dr. Ettlinger, writes—and he expands this further, he has a series of responsa, I think from 167 to 172 in Binyan Tziyon—he broadens it to all prohibitions between one person and another. For all prohibitions between people, it’s “be killed rather than transgress”: injuring someone, humiliating someone, things of that sort. So you see that there’s some kind of stringency here far beyond what you’d expect.

On the one hand, monetary laws are the most flexible thing there is: stipulations, customs, the law of the kingdom is law, everything, everything goes in monetary law. Anyone can do whatever he wants in monetary law. The Torah doesn’t insist: do whatever you want. On the other hand, there’s some terrible stringency here—if someone violates this matter, it’s “be killed rather than transgress.” Or if someone wants to violate it. How do these two faces fit together? There are also all kinds of other questions, because if you can do whatever you want with it, then what exactly is the meaning of this whole business? Why, then, was Choshen Mishpat written at all, if everyone can do whatever he wants in the laws of custodians, for example? Part of the… the laws of custodians in Choshen Mishpat—why were they written? Why did the Torah get into all those details? Theft and loss, a paid custodian, a renter, a borrower. If everyone can do whatever he wants, then just work it out among yourselves however you want. So what is this? You’ll say this is some kind of default arrangement. What our legal cousins call a dispositive arrangement. Fine? So it’s a default. Okay, but who spends so much time on defaults that aren’t relevant in a large number of places and times? It seems a bit strange. In what sense is this even Torah if basically everyone can do with it whatever he wants? So all we’re saying is: okay, if you didn’t determine otherwise, then this is the law. Fine. What is the great significance of that? In what sense is this default part of the Torah?

Okay, I’ll return to these matters in a moment. But let’s go back for a second. We’re very used to dividing Jewish law into the categories of the Shulchan Arukh, or of the Tur—really he’s the father of this categorical division: Choshen Mishpat, Even HaEzer, Orach Chayim, and Yoreh De’ah. This division is not trivial. Meaning, obviously the Tur didn’t invent it. In the Talmud itself it already says that monetary law cannot be derived from ritual prohibition. Meaning, the Talmud understands that there are different master categories in Jewish law. Beyond local differences—there are laws of terumot and laws of the Sabbatical and Jubilee years. There are differences of content. But I’m talking not about category in the sense of content, but in the sense of halakhic categories that each gather under them all kinds of different contents. I’m not even talking about the distinction Maimonides makes among parts of Yoreh De’ah, for example. There are laws of agricultural commandments and there are laws of oaths and vows—what’s called Hafla’ah—and things like that. All of those belong to Yoreh De’ah. What do they have in common? Different fields. Why are they both in Yoreh De’ah, along with the laws of honoring one’s father and mother, for example? And not the laws of custodians? Or damages? Or marriage and divorce? There is something about these master categories, these four great categories, that apparently is nevertheless shared by many subcategories, each one different from the next in content. So what is that shared thing? What characterizes each of these four sections?

So I want to point here to two divisions. One division of two and two, and a second division within the first division. One division is between Orach Chayim and Yoreh De’ah on the one hand, and Even HaEzer and Choshen Mishpat on the other. That’s the division we’re used to. A division between—maybe you could call it between rabbinate and judging, yes? As it’s called today in the language of the exams. There are rabbinical exams and there are judicial exams. But obviously the exams only reflect some distinction we recognize between these two areas. And that distinction, obviously the Tur didn’t invent, but it seems to me we owe him a great debt for conceptualizing it. Meaning, he was the one who put his finger on the fact that Jewish law is divided into two great master categories. Again, he didn’t invent it. Almost nothing new in the intellectual history of the world is really an invention. But copyright—

I mentioned this once when I spoke at a conference about the Pnei Yehoshua. I tried to show that in the Pnei Yehoshua there are elements of Brisker thinking, even though in his general style he’s really not like that. Meaning, he’s a classic talmudic analyst, not one of the newer, yeshiva-style analysts, all that sort of thing. But in quite a few places there really are elements of that Brisker analytic division. So of course the question comes up: then what did Rabbi Chaim do? Meaning, if the Pnei Yehoshua invented everything, then what did Rabbi Chaim do? Or similarly—on a different level—but after I published my book The Two Carts and a Balloon, then people said it’s all already in Rabbi Kook, or in Rabbi Nachman, or in Rabbi Tzadok, or in one of those founding fathers that people adopt. And in a certain sense that’s true. I’m not accusing anyone here; everyone obviously comes with his own beit midrash. And it’s true—there really are roots for almost everything you say somewhere.

Still, and now I’m no longer talking about myself, that was just what triggered my interest—but still it seems to me that Rabbi Chaim, for example, really does hold the copyright on his method, even though he didn’t invent it. Why? Because he conceptualized it. Because he defined that there are certain kinds of tools here, he distinguished them. There is some general tool here, not just some specific answer in one specific Talmudic passage, but you breathe it—it’s object versus person, or sign and cause, or all kinds of things of that sort. And once you conceptualize something—like Aristotle with logic—Aristotle didn’t invent logical argument. People made logical arguments before Aristotle too; not everyone before Aristotle was an idiot. Rather, Aristotle was the one who conceptualized it and understood that there are fixed patterns of argument here, and then he made the patterns of argument themselves into a subject of analysis. Until then, people just used different arguments because we understand that they’re correct. Aristotle suddenly noticed that there’s an independent intellectual field here. The Organon, Aristotle’s book, founded logic in its modern sense—or relatively modern sense.

So that’s why I say that Rabbi Chaim too founded yeshiva-style thinking, despite not inventing these forms of division. Almost everything he does, in all its varieties and forms, appears in earlier sources too. But he was the one who turned it into a tool, defined it, conceptualized it, formalized it. And basically, what’s the great advantage of that? Exactly like with Aristotle: now we have it in our toolbox. Now you don’t have to think and come up with some genius invention to answer some difficulty in a particular Talmudic passage. I simply sort through Rabbi Chaim’s toolbox and check which tool will serve me where I am. That’s the great advantage of conceptualization.

I think the Tur did the same thing. Meaning, his division already existed; its roots already existed earlier. The sages certainly recognized that there is judging and there is rabbinate, that there are legal parts of the Torah and religious-halakhic parts of the Torah—I don’t know exactly what to call it. But the Tur was the one who defined it, conceptualized it, and put it on the table, and after him the Shulchan Arukh. In that sense, I think this is a very beautiful intuition. It’s a step we don’t appreciate enough, how important it is for our understanding. Today it seems obvious to us. Until you conceptualize it, it isn’t obvious, even though you feel it. It’s not obvious. You can get stuck on many, many difficulties. I’ll show you today many difficulties whose lack of solution comes from not having defined for yourself, not having conceptualized for yourself, that we’re dealing here with two different wings of Jewish law. So first of all, credit to the Tur.

It seems to me that in a sense the Rif already did it by dividing the orders and omitting Kodashim and Taharot—after all he returns Chullin, so to speak. I don’t agree. I’ll tell you why I don’t agree. The division into orders—first of all, the division into orders is already Rabbi Judah the Prince’s, not the Rif’s. But okay—once I omit Kodashim and Taharot, why omit Kodashim and Taharot? Because they don’t apply nowadays. Omitting Kodashim and Taharot contains no methodological innovation. No, the orders—there’s Even HaEzer, there’s Moed in large part, which is Orach Chayim, there’s Nezikin which is Choshen Mishpat, and then there’s the order corresponding to Yoreh De’ah. Notice the language you’re using to define the Rif’s innovation—in the Tur’s terms. Notice: there’s Orach Chayim, there’s Yoreh De’ah. Meaning you need the Tur for that. But I’m saying, I think it’s very possible that the study that preceded the Tur, which was heavily shaped by the Rif, had already made this four-part division, and afterward the Tur only had to organize it. No, I really don’t agree. The Rif’s division, following Rabbi Judah the Prince as I said, is a division by content. That is like Maimonides’ division. Why go far? Maimonides was also before the Shulchan Arukh and the Tur. Maimonides made fourteen books, Mishneh Torah. Right, exactly. And Maimonides too made fourteen books. Why do I say this belongs to the Tur? Because with Maimonides, he grouped things by content. That’s a straightforward division. Again, what Maimonides did was tremendous work, but the methodological idea there is simple. Everyone before Maimonides would have understood the commonality between terumot and the Sabbatical and Jubilee years, mixed species, pe’ah, demai, and so on, because these are all agricultural laws dependent on the Land. Or Hafla’ah, which is vows and oaths and so on. That’s a division by content. I’m talking about a completely different division, one that in my view did not exist before the Tur: a division by halakhic category beyond all content. The content can be totally different, but there is a halakhic category. And that, I think, is the Tur’s innovation, not anyone before him.

Maybe you can explain what you mean by a halakhic category? I mean, for example, halakhic law versus Jewish law more generally. Even HaEzer and Choshen Mishpat as against Orach Chayim and Yoreh De’ah. It has nothing to do with content; in a moment I’ll show why it has nothing to do with content. Between one person and another and between a person and God? Even that, in my opinion, is still content. And I’ll explain later what the difference is between that and the division between Choshen Mishpat and everything else, and then it’ll become sharper. That too is a content-based division. And between one person and another, and between a person and God—fine, these are commandments toward another person, those are commandments toward the Holy One. There’s no, by the way, look at Yoreh De’ah: what about charity? The laws of charity appear in Yoreh De’ah. Right? So what is that—between one person and another, or between a person and God? Also toward another person, obviously. Both. It’s between one person and another. Every commandment between one person and another is also a commandment between a person and God, but within Jewish law it’s a commandment between people. So what is it doing in Yoreh De’ah? That’s not the same division. The division between one person and another and between a person and God seems to me still to be a division by content and not by halakhic category.

More than that, there’s almost no practical implication. They’re not really two halakhic categories. Repentance helps for this, and for that repentance doesn’t help until one appeases the other person, okay, but there isn’t really a different halakhic mode of operation here, a fundamental difference. There are details, but it’s not… I’ll explain later what I mean here by law and the non-legal part, and then maybe it’ll be clearer.

Can you explain what… you said the Tur’s distinction is between law and Jewish law? Like… can you sharpen that? Because… I’ll explain, I’ll explain. I’m just getting started. Yes.

But the Rashi you brought at the beginning, who says “be killed rather than transgress” in matters between people, is basically making a categorical distinction between commandments… I’ll show in a moment: he does not mean between one person and another. He means the Tur’s distinction. I’ll explain. That’s exactly one of the gains we’ll get once we understand these divisions properly. It’s not about between one person and another. Rashi, by the way, speaks only about theft. Binyan Tziyon expands it to all matters between people. There’s no doubt that Binyan Tziyon does not mean that charity is also “be killed rather than transgress.” Obviously not. He talks about humiliation, injury, things of that sort. What characterizes those? They’re all in Choshen Mishpat. I’ll get to that in a moment.

In any case, there is here some kind of categorical division in the Tur, and the broad division is two and two. Meaning, there is halakhic law and there is the rest of Jewish law, Orach Chayim and Yoreh De’ah. What’s the difference between the two? Maybe I’ll just finish the sketch and then come back. Within the legal division, within the legal category, there is a division between Even HaEzer and Choshen Mishpat. Both belong to the legal part of Jewish law. Both are indeed studied for judicial ordination, and still there is a difference between them. Even HaEzer is personal status, and Choshen Mishpat is civil law, more or less. Not exactly, but more or less. So there is another division within the legal category of Jewish law.

Now I’ll try to explain a bit more. In what sense are Even HaEzer and Choshen Mishpat different from Orach Chayim and Yoreh De’ah, the legal sections of Jewish law? First of all, in the sense that the ones who make decisions there are not the rabbi but the religious court. You go to a religious court, not to a rabbi. In Orach Chayim and Yoreh De’ah you go to a rabbi. More than that, this isn’t only a question of whether three people are sitting there or one person is sitting there. The role or function of a religious court is not “a rabbi for Choshen Mishpat matters.” It’s not the same thing. Let me give you an example.

After I left Yerucham—I was there in the hesder yeshiva—after I left, a student of mine called me and said: look, I rented an apartment in Yerucham from someone, and now we have some disagreement. Whether I acted properly, didn’t act properly, whether I need to pay him, don’t need to pay him. So he wanted to ask me what I say—whether he’s obligated to pay or not. So I said to him: are you coming to me for a din Torah? Because for a din Torah, both parties have to come and you need a panel. Meaning… No, he said: I’m asking a halakhic question. Fine. So as a halakhic question, I answered him. But I said to him: look, a halakhic question is a legal opinion directed to you. The other side does not have to accept what I say. He wasn’t here, he didn’t hear, he didn’t… You’re asking me what to do, so I’m telling you what to do. The other side had agreed that he would go to me—he also knew me. But he wasn’t a litigant before me.

Now he went back to the other fellow. I told my student that I think he doesn’t need to pay. Based on what he described to me—I didn’t do investigation and cross-examination—but if what he described to me is accurate, then I think you don’t have to pay. The other fellow, furious, calls me and says: wait a second, but you didn’t hear me—what do you mean? How do you judge one side without the other? So I tried somehow to explain to him—he was a Jew fairly newly arrived from Russia—I tried to explain to him the difference between Choshen Mishpat and Orach Chayim. I’m not sure I succeeded, because what I did there was basically treating a Choshen Mishpat matter in the mode of Orach Chayim. That’s exactly the point. I told him: look, I didn’t say what’s right. A person came to me and asked me a question. The question was: if these are the facts, then is that the law? A good question. But the question is whether I am the judge, even if these are the facts. Is that ruling binding? So maybe he accepted what I said. You didn’t accept it. I’m not a religious court that can compel people to do what I say.

So notice that in this case, although I was dealing with a Choshen Mishpat issue, I functioned here at most as a rabbi, not as a judge. Meaning, judges are not rabbis for Choshen Mishpat matters. The function is different. When the judge says something, you have to do it. When the rabbi says something—whether you have to do it is a major question. Really, it’s a major question whether you have to do it. And even when people say that you do have to, it’s not the same kind of obligation as in a religious court. So maybe because you asked, and if one sage forbade then another sage may not permit, there are some things, some kind of status given also to rabbinic rulings in halakhic areas, but that status is post factum, to preserve halakhic order. In a religious court you don’t need to say anything of the sort. If a religious court told you that you must, then you must. No one has to tell you that you need to obey the court. That’s the whole essence of a religious court. And if you don’t obey, it will explain to you how obedience works. Meaning, it will send whoever it needs to send so that you will obey. A rabbi can’t do such a thing.

So there is a categorical difference between law and Jewish law. Not only a difference of content—here I’m dealing with matters between people and there I’m dealing with matters between a person and God—but a categorical difference. It works differently. This is handled by a religious court; that is handled by a rabbi. A religious court has authority. In a certain sense, a religious court constitutes the law. The rabbi only reveals to you what the law is. He uncovers it; he doesn’t create the law, he uncovers the law before you.

For example, Rabbi Akiva Eiger in Makkot on page 5—although he remains unresolved by the end, but people always quote him as though he’s the central source on this point—that obligations of fines do not exist, or the obligation of the fine does not exist, until the court imposes it. Meaning, if I knocked out the tooth of a slave, or in the case of rape or seduction, or whatever it may be, if someone did something that obligates him in a fine—today we don’t have ordained judges, or then, if he hadn’t yet stood trial—so as long as he has not stood trial, he is not obligated in the fine. Not that he is obligated but they haven’t yet forced him to pay; he is not obligated in the fine. The obligation of the fine is born from the court’s ruling.

Whether that’s beyond the letter of the law or not—maybe it belongs to beyond the letter of the law—whether we split in a fine and say that even nowadays seizure works, but maybe fines are exceptional, there’s room to discuss that. But there is no obligation according to strict law. There is no obligation according to strict law in a fine before the court imposed it. What about a loan? Or theft? Or damage? If I caused damage, before I stood before a court, am I obligated to pay the injured party? Of course I am. The court is merely revealing to me what I need to do, right? So with fines, for example, you can see very clearly that the court has a constitutive role, unlike the rabbi, who merely reveals to me what Jewish law says.

Now it’s true that even within Choshen Mishpat there are fields that aren’t fines, and there apparently the court merely reveals. But even that isn’t entirely true. The court’s ruling, in some sense, creates that obligation. There is also here—a more subtle nuance—a creative dimension of the court, and not only a revealing dimension as with the rabbi. Yes.

And do we have a principled conception—it seems to me this is something the Rabbi has said before—that a rabbi in Orach Chayim reveals, while a ruling is a determination, a binding determination? There is a determination in a ruling. Also in the Talmudic conception, the general communal one, that’s how… I didn’t understand. If the rabbi tells me this chicken is non-kosher, and I disagree with him and think it isn’t non-kosher, then what? Then I won’t do it. He has no binding authority. Now, again, all kinds of things developed according to which yes, if I went to ask then I need to listen, or all kinds of things, but these are customs that developed. It’s not inherent in the institution of the rabbi. The rabbi originally is simply a halakhic consultant. A halakhic consultant. You don’t know the law, you go to him, and he tells you what Jewish law says. If you know there’s another decisor who says otherwise, for example. If you know there’s another court that rules otherwise than what your court ruled, that won’t help you at all. If a court told you that you need to do such-and-such, that’s your law, and they will compel you if you don’t, even if another court rules differently after the ruling—I mean after the ruling. It’s not the same thing.

Again, because people wanted to strengthen the status of rabbinic rulings, a sort of conduct developed that treats a rabbi’s ruling too as something binding. But it’s not the same as a court. It’s a kind of imitation whose role is to strengthen the standing of rabbinic ruling; it isn’t part of his essence as a rabbi. I’m talking about a court that has authority to judge. Not a court you go to voluntarily. A court you go to voluntarily is some kind of imitation. I’m talking about the fundamental court, the court that can drag you there if you don’t come. Yes.

There’s another side to the difference between the two categories: Orach Chayim, I keep in my private sphere, in my personal life. And Choshen Mishpat and Even HaEzer depend on the agreement of the whole community or the whole state, the whole environment where I live. If I’m the only one who keeps Choshen Mishpat and Even HaEzer, but I have no one to litigate with because they don’t believe in it or don’t keep it, then I’m in trouble. Or if I’m abroad, in a secular state, and secular people don’t go there, then I have no one. Right. I’m getting to that now. You’re absolutely right, I think. And that ties into the first difference I mentioned. Really, the basic difference—what I said until now is an indication of it, not the real difference itself. What’s the difference? The difference is that the legal sphere is a different sphere from the halakhic sphere. The legal sphere is inherently public. It’s public in the sense that it concerns relations between individuals in society, unlike Orach Chayim and Yoreh De’ah, where each person does his own thing. But excuse me, in terms of practical outcome, it’s the same outcome. In practical outcome it won’t be the same if it belongs to the halakhic category or to the legal category. Again, maybe the question is whether this is a religious inquiry or a halakhic inquiry? No, no—a halakhic inquiry. There is a religious structure that must be clarified. So why is there a difference in outcomes? Why? We’ll still discuss that. I’m just at the beginning of the road. But first I’m sketching the differences; afterward I’ll propose an explanation. Yes.

I’m missing one layer. If I think of a religious court, the Great Court, the Sanhedrin—it also had another role. It enacted enactments, and if I understand correctly, it also operated the thirteen hermeneutical principles and even defined Torah-level law. Fine, it was a legislative authority. The first point is true; the second and third are not. Meaning, the Great Court has authority to legislate, what’s called to enact enactments. As for using the thirteen hermeneutical principles and defining Torah laws, every court in every generation can do that. There is no privilege there for the Great Court. But isn’t that law? No, no. That’s Jewish law generally. What… Within that same Jewish law, it’s a legislative authority in all halakhic fields. Yes, but we said that Jewish law is basically about discovering or exposing what the law says; here they create law. Fine. Right—they create law, but that still isn’t the function a court has as a court. That isn’t to apply law to a particular person, but to establish another paragraph in the Shulchan Arukh, so to speak—to add another law to the halakhic corpus. So that’s legislative authority, yes. In the beginning of tractate Sanhedrin, if you want to get into it, the court also extends the city and the Temple courtyards with seventy-one judges—the first Mishnah in Sanhedrin. The court has many functions. In tractate Moed Katan it’s described that the court used to repair the roads before the festival. So the court was also the Ministry of Transportation. That’s simply because when there was no secular governmental authority, no king—in the Mishnah period there no longer was one—then the body that carried out the king’s functions was the court. Obviously the court does other things too, but I’m not talking about those. I’m talking about its function as a court in legal matters, in adjudicating between one person and another, okay? Obviously at least in some cases it also does other things.

So as I started saying, in the legal sphere we deal with things that are public. Things that are public, meaning things that concern relations between one person and another and not something inside one’s own home, as the woman said earlier. I think that really is the basic difference. And therefore every legal system we know, at least as far as I know, really deals with these areas of personal status and civil and criminal law. Every legal system does this; it isn’t unique to Jewish law, because that’s what law is in every society. By contrast, Orach Chayim and Yoreh De’ah are something unique to Jewish law. Other legal systems do not deal with such matters. So in that sense, Jewish law is simply another legal system, apart from its specifically halakhic parts. It also establishes a halakhic legal system. And in that sense it is not different from other legal systems, because society understands that its role is to regulate the relations among the individuals who belong to it. And that is true in the Jewish world too, and therefore in the Jewish world too, Jewish law does the work of legal systems—not only that work. And as I’ll show later, it isn’t exactly the same thing even on the legal level. But still, there are characteristics here that are simply characteristics of a legal system.

Can a non-Jew decide to litigate with a Jew according to Choshen Mishpat? Yes. In the Mishnah in Bava Kamma on page 37—we spoke about this yesterday—when the non-Jew and the Jew come to litigate before a religious court, the Mishnah says that they judge them according to the law that benefits the Jew. Meaning, if what benefits the Jew is Jewish law, then they judge according to Jewish law. If what benefits the Jew is the law of the non-Jews, then they judge according to the law of the non-Jews. Yes. No, that’s what’s called private international law. Private international law indeed, what’s called private international law, where there are people who belong to different legal systems and there’s some issue between them that needs to be decided. Even today there are such questions in private international law. Yes, and Jewish law also handles such cases.

So those two sections also belong to… in a certain sense, according to Nachmanides, Nachmanides argues that the obligation of laws incumbent on the descendants of Noah is our whole Choshen Mishpat. Not like Maimonides, who says just create order, let them establish courts that will rule… The seven Noahide commandments? So “laws” means Choshen Mishpat. Choshen Mishpat, yes. But not interest, for example. What? Interest is Yoreh De’ah. Another example like charity. And that’s exactly what I’m talking about—that’s exactly a nice example. Charity and interest are in Yoreh De’ah and not in Choshen Mishpat, even though both are monetary commandments between one person and another. So why aren’t they in Choshen Mishpat? Fine, I’ll get to that in just a moment. Okay. Are you sure that’s where they are? Yes, yes.

Okay, so one of the indications, for example—let me bring some indication of this point. In Choshen Mishpat there is a law called “that which the court declares ownerless is ownerless.” So a court can declare property ownerless and maybe even transfer it to someone else—that’s a matter of dispute—but it can deal with property in place of its owner. Meaning, it can intervene in a person’s property rights. In Even HaEzer too there is a rule: “whoever betroths, betroths subject to the sages.” And the common approaches don’t usually see the second law like the first. The law that whoever betroths, betroths subject to the sages—there’s an initial Talmudic assumption in Ketubot and elsewhere that this comes from the principle that what the court declares ownerless is ownerless, by nullifying the coin used for betrothal, but that is rejected; you can’t do that in the case of a document or intercourse. Then the conclusion comes that whoever betroths, betroths subject to the sages.

What does that mean? From some of the medieval authorities (Rishonim), it seems they understand this as a kind of stipulation. Meaning, the person can stipulate—or rather, does stipulate—when he betroths a woman that it is subject to the sages’ approval. In other words, subject to the sages. So if it depends on my intention, then I can withhold my consent and the betrothal will be void. That’s just part of the laws of conditions; there’s nothing special here. But there are quite a few indications, certainly in some approaches among the medieval authorities, that this is not it. It’s not that. And from the simple plain meaning of the Talmud it’s not that. Meaning, in any case it’s very clear that the person does not actually intend to make such a condition.

Not to mention the annulment of betrothal in the case of someone who betroths a woman against her will. What’s going on there? Is he also such a righteous fellow that he conditions his betrothal on the sages’ consent? He’s acting against Jewish law. That’s why they annul the betrothal—he acted improperly, so we act improperly toward him. So in this instance he acted improperly, but in practice he’s such a pious guy that he conditions his betrothal only on the sages’ approval? That’s a bit strange. There are several indications that this isn’t really the explanation—not a condition in the simple sense.

So what is it then? It seems to me that at least according to some approaches—and again, certainly not all approaches—but at least according to some of them, the two cases have one shared foundation, and it is precisely the legal foundation in them. Once we’re dealing with a public law that concerns relations between one person and another, it’s not your personal matter that you do at home. Everything you do there affects other people. When a couple becomes betrothed, the woman suddenly becomes forbidden to the world. Meaning, there are implications here for other matters. The same, of course, in property: if the property is mine, then it is forbidden for other people to use it. Once that is so, the one who regulates these relationships is society and not the private person in his home.

And once society is the one regulating this, then you can go one step further, as Rabbi Shimon Shkop says regarding monetary law—and I think this is a major novelty, but it seems to me it’s true also regarding personal status—that if the sages do not agree, meaning the representatives of society as Torah scholars or as legislators, those responsible for regulating the legal sphere in society do not agree—in other words, society does not agree that this thing is yours—then it isn’t yours. Because the whole meaning of your having property is that society recognizes your ownership of that property. Then we all accept that it’s yours, and no one else may touch it—that is the regulation society creates. That’s why all other societies too find this totally obvious. You don’t need the giving of the Torah for this. Every society understands that these things must be regulated by society. And if the court or the legislator suddenly determines that this is no longer yours, then no, it won’t be yours. Like the Soviet Revolution. What? Like the Soviet Revolution. For example, yes. So in the legal sense, that has validity. If society decides that property is divided among everyone, that is its right. Whether it’s right to do that or not, and how exactly to do it, is a different discussion, but it has the right. Because society can manage the property arrangements among its members. And in this matter, the sages—just one second—serve as representatives of society.

And therefore the sages can declare property ownerless, meaning they can refuse to agree that this property is yours, and the sages can also annul betrothal. They can annul betrothal, and in my opinion this is the same mechanism. To annul betrothal means that personal status too belongs to the legal sphere. Therefore if you want to be a married couple, you need public recognition that you are a married couple. And if the public does not recognize that, then you will not be married—even though you gave her a ring in the presence of two valid witnesses. Since the sages do not agree that you should be a married couple, and since being a married couple is a social status, a public status, society has to recognize that you are husband and wife. “I now pronounce you husband and wife,” as they always say in the movies, right? So what does that mean? It means that society is the one that gives the stamp of validity both to property law and to personal status. And because it gives that stamp, the mouth that forbade is the mouth that permitted. And since the sages do not agree, then it will not be.

Can that also be retroactive? Yes. That’s annulment. I’m claiming more than that. There are places where you can see prospective annulment of betrothal. No, retroactively is simple—retroactively works through the mechanism of condition. I’m saying the opposite: prospectively. Meaning, the sages annul the betrothal now. The betrothal may have taken place ten years earlier, but they annul it now—from today she is not betrothed. Not from then—from today she is not betrothed, without a bill of divorce. From today she is not betrothed. There are a number of sources from which you can see that this works—not according to all approaches. She was betrothed until now? Yes, until that point. Without a bill of divorce? Yes. Wait, one second—you wanted to say something.

I wanted to ask: if, say, a judge erred in the law and took money from one person and gave it to another, is he a robber? Because really that doesn’t belong to the area at all. Doesn’t belong to the area? Yes—we’re saying there’s no issue of robbery once he is a representative of society, so on the face of it, is he a robber? A robber even though he acted as a representative of society? A court can err. No, if the Sanhedrin had decided to change the law, no problem. But if you act against what the Sanhedrin established, then that isn’t you. You’re not the relevant authority, so you’re a robber. Yes.

But isn’t there a substantial difference between what you mentioned regarding taxes and money, in the sense that even when we say society can indeed decide to take your property from you and give it to someone else or confiscate it—even in the modern world everyone agrees that before it was yours and now it isn’t, because the law was changed. With marriage it’s something else: we want to come and say that from then it wasn’t yours, so to speak. No, and that’s what I’m saying. I said it. To say that from then it wasn’t mine is actually the simpler thing, because the mechanism of condition can explain that. Yes, but you wanted to say that we’re not talking there… The novelty I’m saying is that the second mechanism can do it even prospectively. Beyond that, when you speak of a condition, at least some of the medieval authorities—and clearly when they speak of condition—they say this is a condition imposed by the Torah, not a condition imposed by the groom. Then it doesn’t matter even if he’s wicked. That’s simply part of the concept of betrothal. The concept of betrothal is conditioned by the sages’ consent from the Torah itself. Yes, that’s the concept. In other words, that is the definition of the concept of betrothal. Just as it obligates food, clothing, and conjugal rights, so too it is done subject to the sages. No, it’s what you said: society determines—so society doesn’t necessarily legislate. I used two formulations. Some of the medieval authorities are prepared to accept even prospective annulment. No, I was asking based on what you said, that the framework of marriage and intimacy is something public and determined by society, so why do rabbis have to determine it? No—again, of course society does, but the Torah gives halakhic validity to what society determines. The Torah established that this is entrusted to society. The Torah could have said no, it isn’t entrusted to society. But in the end the source of authority is always the Torah. The source of authority is the Torah. The Torah says: this thing is a social regulation. Now the sages, who are representatives of the public or representatives of the Torah—they are agents of Heaven or our agents—but in either case they are the ones entrusted with this determination, receiving their power from the Torah’s determination that this depends on them.

There’s a dispute whether if a couple lives together without betrothal that counts. So what does that mean? So without a condition, and therefore what? Because we recognize them as a married couple, therefore they’re a married couple. The question is whether one side recognizes it or the other side doesn’t. If they recognize it, that’s exactly what I’m saying. If they don’t recognize it, then there’s room to discuss it. If they don’t recognize it, okay, that too can be explained. The exact boundaries of the rabbis’ authority in Choshen Mishpat and in marriage law are completely different. In marriage law it’s much smaller than in Choshen Mishpat. The tools they have in marriage law are maybe smaller, maybe not. In Choshen Mishpat they can declare property ownerless; they can annul betrothal. There’s also this rule that whoever betroths, betroths subject to the sages, in several places. As for whether they have actual authority from the Torah to do that, or there are all sorts of things—I don’t know, that’s what it seems to me. No, there are rules how to betroth, just as there are rules how to acquire. That’s obvious, but it’s not the point. It’s not that everything is determined by the sages, but the sages have veto power. They can declare ownerless; they can consent. I think, by the way, that the requirement of two witnesses for the existence of the matter in family law—whereas in business custom, in a commercial matter, you can’t say that in family law if the custom in this city is to betroth in such-and-such a way… That’s a major question whether you can’t say that. Maybe you can’t. I’m not even sure of that. I’m not even sure of that. But let’s leave it, because it really takes us too far afield. Fine.

It seems to me that with the distinction you’re making between personal and public, the boundaries are very blurry. For example, take the law of the Sabbatical year. That’s personal, right? But if I’m a farmer it has major public implications. Why public implications? Because I can flood the market with something that’s forbidden to everyone. That’s like terumah—take pork. If you give someone something to eat, you cause him to sin. But the prohibition of pork itself is a personal prohibition. The fact that you can cause someone else to sin—fine, but that’s not… No, but when I betroth a woman, that inherently has significance for others. Right. Also when I separate terumah from my produce, that inherently has implications. The thing itself is property and not prohibition. But there’s also the commandment of terumah in relation to its belonging to a priest; maybe that really is monetary law. That’s another question. But the prohibition in terumah is a personal prohibition. No, just to note what he said: in the Sabbatical year there is also the commandment that the land shall rest. It isn’t tied to you personally; it’s connected—you need the land to rest. If a non-Jew works there, then he works there. It still depends on you. Commandments are always to human beings; there are no commandments on the land. The question is whether the commandment concerns what to do with the land, but the commandment is always to a person.

There’s one more subject that doesn’t fit the category: conversion. Conversion requires a religious court. Rabbi Yisraeli, at the end of a long responsum to Rabbi Binyamin, says it’s because they represent the public, because society has to accept the convert, and it appears in Yoreh De’ah. Right. And in Maimonides it appears in the laws of forbidden sexual relations, which fits Even HaEzer better. Right, which is Even HaEzer. There’s Tosafot in Gittin on page 88 discussing the law of “acting as their agents.” And Tosafot says there: how do we perform conversions nowadays, since only something common qualifies? Then Tosafot says yes, obviously we also perform conversions. And that’s because of this. Even though it doesn’t fit the definition. What Rabbi Steinberg asked is that the laws of conversion are apparently an exception, because conversion straightforwardly means judging a person’s personal status, and the implication is whether one may marry him, and all kinds of things of that sort, with prohibitions in relation to him. So in principle it should have belonged in Even HaEzer. And it appears in Yoreh De’ah according to my definition. Fine?

And it’s also done in a religious court, and the court here even has a constitutive standing, meaning that without a religious court he is not a convert at all. You’re absolutely right, and here I really don’t know what the Tur and the Shulchan Arukh thought, but there are definitely quite a few sources—I don’t know if everyone agrees—that it should have been in Even HaEzer. I don’t have a good explanation for what the Tur and the Shulchan Arukh thought. Because of the word, no? Yes, the association is clear. But still, if we’re making an actual conceptual division— No, sometimes arrangements really are associative. Sometimes things are arranged by placing them near the issue they connect with, for reasons of clarity, where it’s easiest to look. It’s right next to the laws of slaves in Yoreh De’ah. Ah, fine—slaves too are like that. Slaves are also connected to circumcision, same issue. Slaves and conversion are similar; maybe that too is another reason. Anyway, also in the laws of slaves, buying the slave is Choshen Mishpat; his halakhic status is Yoreh De’ah. So here indeed, yes. But it still has public significance. In a certain sense a person is determining status for himself—or for another.

In any case, the point is that the sages can regulate—or not just can, but it is their authority to regulate—the relationships of personal status and property among the parts of society. And therefore, I think—one of the indications, for example: witnesses to establish the existence of the matter, at least in sexual-status matters, although that is learned by analogy from monetary law, but in sexual-status matters you need witnesses for the existence of the thing, not just witnesses who tell us that this is what happened, who bring us the information. Rather, without the presence of two witnesses at the act of betrothal, there is no betrothal. Or in divorce. Fine, it doesn’t matter whether the document does it, that’s not the point, but in principle two witnesses are required. Why? Because those witnesses are representatives of the public. They give the stamp of approval that the public agrees to this matter. That’s what the Pnei Yehoshua writes, for example, about witnesses who establish the matter in betrothal.

That’s the reason we go to a religious court and not to a rabbi. A religious court, straightforwardly, has to consist of three or more—depending on the area—but three or more. Why? Because they function there as representatives of the public. They are not functioning there as people giving an opinion about what Jewish law says, like a rabbi does. A rabbi is an expert. You go to an expert and he tells you what Jewish law says. But judges are the ones who give the public or social stamp to what you are seeking, whether in monetary law, betrothal, divorce, or all those things. Therefore it is done in a religious court. A religious court acts here as—just one second—a governmental authority, not merely as a halakhic expert. A rabbi has no governmental authority. Meaning, he is an expert in matters of Jewish law. Fine. And why? Because all the topics with which a religious court deals are public topics. What did you want to say?

It’s not necessarily the stamp of approval of what the rabbi said. What do you mean? The religious court. Yes. It gives society’s stamp of approval, but not necessarily to what the rabbi determined. The rabbis themselves also sit in the religious court; they’re not employed by the rabbi. These are different spheres. In the sphere with which the court deals, the court is rabbinic, yes, but it isn’t the institution of the rabbi as we know it in Yoreh De’ah and Orach Chayim. Rather, the religious court has a governmental role. It’s a governmental authority, not a professional expert.

So all these indications show that Even HaEzer and Choshen Mishpat—wow, our situation is dire—Even HaEzer and Choshen Mishpat are the legal wing of Jewish law, and Yoreh De’ah and Orach Chayim are the halakhic wing. Let me maybe give just one example that sharpens this further. I once wrote an article following a series of articles I read about the Kovno Ghetto. There was a Jew there named Rabbi Gibraltar, who later became a rabbi in Italy. He survived the Holocaust there, and afterward his son—who has already passed away—wrote a series of articles about his father’s adventures in the ghetto and about the ghetto generally. He described there truly horrific situations, and his father’s consistent position was that there was no monetary law in the ghetto. None. All property there was ownerless in that situation.

After that series of articles ended, someone who deals with monetary law responded. He explained that this certainly was not correct—not that he judged him, because he was there in the ghetto and so on—but it certainly wasn’t correct, because it doesn’t fit here and it doesn’t fit there and so on. So I wrote an article trying to explain why it does indeed fit, and the basic claim was exactly this claim. In a place where there is a society in which the fact that something is property or not-property has no significance at all—any Ukrainian kid can walk in, take your property, shoot you in the head, and go home, and there’s no one to complain to—there is no social regulation of property relations, there is no functioning society. In such a place there is no monetary law. There isn’t any theft, there isn’t anything. He said that if, for example, someone had borrowed money from someone else, and after the war came to repay him, he would say: it’s ownerless, you don’t have to return the loan to me, it isn’t mine.

He thought that in principle one could take things when it was literally a matter of life and death. For example, a person’s food—one may not take it, because that’s murder, not theft. This is the well-known Chazon Ish on two people walking in the desert: why can’t I steal his flask? After all, danger to life overrides everything. I can steal his flask in order to save myself, to save my life. According to the Chazon Ish, that isn’t theft, it’s murder. When someone needs this water in order to live, then you’re no longer coming from property law. So here, when you said there’s no monetary law—everything there was murder. What does “there is no monetary law” mean? That it permits theft between one person and another? Yes. In principle, when everyone was starving for bread, theft is murder, so what practical difference is there? Fine. So the practical difference is the principled determination. If someone had some extra bread he didn’t need. It was a principled determination; it doesn’t matter right now how much practical expression it had. But the point in itself is that in a place where there is no court ruling regarding monetary law, our default reverts to what… The concept of ownership was abolished—not that so-and-so’s money was confiscated from him, but the concept of ownership was removed from the law book. There is no such concept. In the law book of the Kovno Ghetto there is no concept of ownership of property. Not that it functions differently because the usual laws are such-and-such but here the custom is different. I’m not talking about that. That’s exactly the point I wrote there: they abolished the legal concept, not someone’s money. The concept itself was erased from the book; it doesn’t exist.

By the way, I once had a real case where they wanted to sell a Torah scroll belonging to a community secretively in America, and someone from the community objected and said it was like rescuing from a lion and so on. I went to check in the Responsa Project; they told me that with an individual, maybe a person despairs because he was rescued from the Nazis, but with a community there’s no such thing. Even in a community there is no despair, and therefore you have to return it. It’s not clear that there is such a law of despair. I assume there would be for individuals, but not for a community. I assume there is a concept of despair even for a community if the community holds a meeting and decides that it despairs. But the fact that various people despair doesn’t mean the community despaired. It isn’t that there is no despair in a community, but that despair is determined through a public process and not through a process of a collection of individuals each having his own despair. Say, even if most of the community despaired, that doesn’t mean the community despaired of this scroll. There’s a passage in Bava Batra about a Torah scroll stolen from a city and how one testifies about it. There in the ghetto there was no public body that decided—rather, it was abolished by the very situation itself. But there was a community. But the question is whether the situation itself can only be described and determined according to what the rabbi testifies. He argued no—you can argue, but he argued no. He said that in such a situation this isn’t relevant. And what if the representatives of the public decide? Representatives for what? There are no representatives regarding property here, so the whole mechanism never gets off the ground. He says the concept doesn’t exist.

And did he rule like that as a religious court? No, no. He wasn’t the court there. There was the Devar Avraham, and there was a dispute with the other sages of the ghetto; the others didn’t agree. There were fascinating things there, by the way, in that dispute, and in my opinion it ran like a thread through several issues on which he disagreed with others. It was a principled conception, not only in monetary law. But that’s for another lecture; I’ll speak about it sometime.

In any case, that’s the indication. It means that basically we have the legal field—between Choshen Mishpat and Even HaEzer—and then Choshen Mishpat and Even HaEzer over against Yoreh De’ah and Orach Chayim, where Choshen Mishpat and Even HaEzer are the legal part of Jewish law, meaning a public matter determined by society. Sometimes society’s agreement is even required in order for it to exist at all. The Torah said this, but you can already begin to see where the possibility of stipulating against what is written in the Torah comes from—but I’ll come back to that in detail later. That’s the major division.

Now between Choshen Mishpat and Even HaEzer there is also a division, and here I’ll only have time to begin. Usually people think that in Jewish law there is no discourse of rights, only a discourse of obligations. That’s commonly said by researchers of Jewish law and Hebrew law, and maybe also within the halakhic world itself: in Jewish law, you don’t have a right to honor; rather, I have an obligation to honor you. So supposedly I stand vis-à-vis the Holy One and not only vis-à-vis you. That’s what people usually think. But that is completely mistaken. In Jewish law there definitely is a discourse of rights. It’s called Choshen Mishpat.

Choshen Mishpat is the collection of halakhic rights that Jewish law gives a person. And I’ll try to explain. In legal philosophy it is common to speak about what is called Hohfeld’s table. Hohfeld’s table is a table that translates one person’s rights into another person’s duties. If you have a certain right, then I have a duty toward you not to infringe that right, and vice versa. There are, of course, different kinds of rights. There are rights inherently vested in you, meaning the law gives you these rights. There are contractual rights. Contractual rights are rights vis-à-vis a specific person, not rights you have in general, but rights established in a contract with someone else, giving you rights with respect to him or him rights with respect to you. Those are rights directed toward a specific person, not general rights. But the common denominator of these two kinds of rights is this: what is the difference between them and a duty? In the end, at the bottom line, what matters there is my duty not to infringe your right.

What practical difference does it make that you have a right, and not just that I have an obligation? He can claim it in court. Exactly. Meaning, the difference between a right and an obligation is that there are two kinds of obligations. There are obligations rooted in the other person’s right. I owe him because he has a right. And there are obligations that are my obligations not because he has a right. That’s not the same thing. Let me give you an example—or a few examples—so you can see that this is exactly the definition of Choshen Mishpat. Choshen Mishpat—maybe I’ll just finish the definition—Choshen Mishpat is the collection of obligations that arise from rights. That is the definition of Choshen Mishpat. Obligations arising from rights, as distinct from obligations that stand on their own, not because of another person’s right.

Now look: two examples were raised here when I ask what the definition of Choshen Mishpat is. Maybe we would define it as commandments between one person and another that concern money. That’s how we might define it. But then of course the question comes up: what about interest? What about charity? Both are found in Yoreh De’ah. Those too are monetary commandments between one person and another. Why are they in Yoreh De’ah? Because there is no monetary right. Exactly. Because these are two monetary obligations toward another person that do not begin with his right. The poor person does not have a right against me to receive charity. I have an obligation to give him charity. A halakhic obligation to give him charity, not a legal right of his—a halakhic obligation of mine. He cannot sue me in court to give him charity if I don’t want to give it, even though I’m a sinner and maybe the court will force me. We compel giving charity; the court will force me under the law of compelling fulfillment of commandments. But he cannot sue me for it, because it is not his right; it is my obligation.

What about the right to pe’ah? Same thing. A priest cannot sue you—certainly not a specific priest; the tribe of priests is another discussion—but a specific priest certainly cannot sue, because he has no claim perhaps. In any case, take government compensation, for example; whoever is entitled to compensation sues. Fine, because he has a right. The law established that he has a right, no problem—that’s a right. If you can sue for it in court, that’s a right. That’s exactly the point. You cannot sue a philanthropist to make him give you charity. Even if he’s extremely wealthy and you’re on the verge of death, they can’t force… And with pe’ah, can’t the poor force a person to leave pe’ah? No. They cannot sue. The court will force me to fulfill the commandment, but the court will make sure I don’t remain a sinner. But the poor person has no standing, as it’s called. He cannot come to court and say, “Gentlemen, extract the pe’ah from him; he didn’t leave me pe’ah.” Even a representative of the poor as a group cannot do that. He has no standing in court? Yes. He has no standing in court.

So this means that both charity and interest—even fixed biblical interest, which is extracted by judges, biblical interest that the judges make one return—still belong to Yoreh De’ah. It’s Yoreh De’ah because when the court takes the interest from me, it’s not because you have a right to get the interest back, but because of compelling fulfillment of commandments. It’s just that instead of compelling him physically, they compel him financially. But basically this is compulsion regarding commandments; it is not the realization of the other person’s rights. By contrast, everything that appears in Choshen Mishpat consists of things that you can come to court and sue me for if I don’t give them to you. You have a right from which my obligation derives. As distinct from charity and interest and the like, where it is a monetary commandment between one person and another but a duty on me and not a right of his.

Let me give you one example, and with this I’ll finish. I’ll develop it further later, but I’ll finish with a nice example brought by Rabbi Abramsky. He has a pamphlet called Monetary Law, and he was the head of the religious court in London. He tells there a Kafkaesque story. He says that there was a Jew who sued another to return fixed interest. Meaning, he borrowed with interest, paid the interest, then went to court and asked them to make the lender return it. The greatest trick in the world: sign a contract with fixed interest—make sure it’s fixed, because then you can extract it by judicial process. Then you’re a terrible sinner, but the money is yours. Then afterward you go to court and say, “Gentlemen, he took fixed interest from me; make him return it.” The court says to him, “Go away; this isn’t fixed biblical interest, we don’t extract it.” It was only rabbinic interest, not fixed biblical interest. So he says to them: “By what reasoning did you judge me? Give me the reasons!” They don’t want to give him reasons. What is going on here?

So he goes to Rabbi Yechezkel Abramsky, who was head of the London court. He says to him: listen, I went there and they told me this wasn’t fixed biblical interest. First of all they’re mistaken, and besides, they won’t even give me their reasoning so I can come to you with the reasoning and, say, appeal to you—right? The right of appeal. So Rabbi Abramsky brushed him off too, and he went on his way. And that’s how the pathetic Kafkaesque case ended. But still, he explained it at least to us. I don’t know whether he explained it to him, but he explained it to us. And he says like this: that’s exactly the point. He says, interest belongs to Yoreh De’ah, not to Choshen Mishpat. So when you come and ask for the fixed interest back, you are not claiming your rights. You are a witness. You are testifying before the court that someone took fixed interest. You are not a claimant. You are not entitled to the fixed interest; it is not your right. That may sound extreme, but he says: you are a witness. Okay? So you testify before the court that he took fixed interest. Very nice, thank you. But now the question of what we do about it is our decision, because this is a halakhic question and not a legal one. We determine whether this is fixed biblical interest or not.

When you asked them, Rabbi Yechezkel Abramsky says to him, when you asked them “By what reasoning did you judge me?”, they weren’t willing to tell you. Why not? Because you are not a litigant. A litigant can ask: give me your reasons, why did you judge me this way? But who judged you at all? You’re a witness here, not a litigant. Who judged you? You can’t ask “By what reasoning did you judge me?” And that’s why they didn’t answer you, and that’s why I won’t answer you either. Because the issue of interest really is not a dispute between you and the lender. Interest belongs to Yoreh De’ah and not to Choshen Mishpat.

And that is exactly the point where we see the difference: obligations whose basis lies in the other person’s rights are obligations that the other person can sue me for. He is the party, the plaintiff. Then the court decides whether he is right or not. But my obligations toward someone that do not begin with his rights, but are simply my obligation to do a commandment for him—give him charity or something of that sort—you can’t sue for that. At most you can come and say that I did not fulfill my obligation, and the court will compel me to fulfill the commandments.

Is this the Tur’s interpretation, or is this what they already intended in Bava Metzia when they say the court extracts it from him? It seems that… at least that is how the Tur interprets Bava Metzia. You can say maybe he’s wrong, fine, but that’s the Tur. Yes, yes—the Tur interprets it as meaning he is not even a party at all. And that’s the claim; therefore he placed it in Yoreh De’ah. Notice, something very sharp lies behind this. And until we define very carefully the difference between these sections and conceptualize them—not just vaguely understand them—we won’t understand why interest is in Yoreh De’ah.

But if the situation were the opposite, right? Meaning he really exploited him, “you shall not oppress,” and he was really destitute—then could it be determined that he has to return the interest? A rabbi can’t do anything. He can say that the lender should return the interest. But a court—meaning if the situation were the other way around—a court could decide that yes, we do hear this and that he really… It’s not because of how oppressed he is. It’s because this is fixed biblical interest. Because it’s fixed biblical interest. Meaning, if this interest is Torah-level interest, then it is extracted by judges. Only he… If it was oppression, he could sue him under Choshen Mishpat, under contract law, he could sue him under… There’s no choice. A rabbi has no power of coercion in any area, however justified it may be. Coercion is the role of the religious court, even in Yoreh De’ah. Compelling fulfillment of commandments is done by the religious court. Meaning there are commandments—maybe… not there are, maybe… All commandments in Even HaEzer or Yoreh De’ah, say, are enforced in the court of Choshen Mishpat. And who determines the laws of that court? The opening sections of Choshen Mishpat. Choshen Mishpat also has the role of compelling observance of the commandments of Yoreh De’ah. But to compel, not to determine. To compel the commandments. And why? Because the institution of coercion, again, is governmental authority. The court does not determine what is right and wrong there; it has governmental authority to enforce what Jewish law says upon someone who is not fulfilling it.

Since that is governmental authority, it is done in a religious court and not by a rabbi. So why did the London court first have to dismiss him, but afterward should have required him to return it? Fine—it thought this was not fixed biblical interest. The court ruled that this was not fixed biblical interest. He only asked for the reasoning. But you aren’t entitled to reasoning, because even if it is fixed biblical interest, you are not the litigant here. And that is the point.

So that, I think, is a nice example showing that before the Tur, it would have been much harder to answer this question. People surely understood this even earlier; this distinction isn’t the Tur’s innovation. But once that conceptualization entered—that we understood that there is such a concept as law, or rights as opposed to obligations not derived from rights—now it becomes very easy to explain. And that is the advantage of conceptualization in this matter, and its implications in…