Platonism – Lesson 9

Table of Contents

• Platonism in Jewish law versus teleology in law
• The source of halakhic facts and the reasoning of the Sages
• Ancient thought, metaphysics, and demons versus modern thought
• Questioning legal metaphysics and the lecturer’s response
• Indications of Platonism in moral and political discourse
• Positivism, natural law, and an intermediate model in Jewish law
• Returning lost property, morality, and Jewish law: beyond the letter of the law
• The Maharal: conventional religion versus intellectual truth
• The Ran: true justice versus the law of the king
• The possible moral superiority of gentile legal systems and the washing-machine parable
• Moral authority, enactments, and the role of the modern state
• Collision between Jewish law and morality, and a constitutional crisis
• An analogy to current events: the authority of the court versus the government
• Historical questions about the Ran and the verse “For this is your wisdom”
• Concentration of powers in exile and the example of the Exilarch

Summary

General Overview

The text presents a Platonic conception of Jewish law, according to which halakhic norms are derived from halakhic-metaphysical “facts” as an external compulsion, rather than from considerations of purpose, justice, and social betterment, as characterizes modern legal systems. It demonstrates this through the laws of returning lost property and despair of recovery, and argues that the gap between Jewish law and morality is structural: Jewish law deals with a legal truth that does not necessarily overlap with morality, while morality is universal and exists on a parallel plane that is also binding. It grounds this model in the words of the Maharal and in the homilies of the Ran as a model of two systems—the “true” law of the judges versus the political ordering of the king—and draws implications for enactments, rabbinic authority, the relationship to the modern state, and situations of “constitutional crisis” in which there is no preexisting decisive rule, only the decision of the public and of conscience.

Platonism in Jewish Law versus Teleology in Law

The text states that in ordinary law, the rules of returning lost property are designed teleologically to maximize the return of the lost item to its owner, and therefore grant ownership to the finder as an incentive tool within a time frame of “four months.” The text states that in Jewish law the reasoning is causal: after despair of recovery, “the bond is severed” between the owner and the object, and therefore as a matter of fact it is no longer his, so there is no obligation to return it, and it becomes the finder’s. The text states that in secular law, property law is “derived” from the goal of returning lost property, whereas in Jewish law it is the other way around—the laws of returning lost property are derived from property law, which determines to whom the object belongs before and after despair of recovery.

The Source of Halakhic Facts and the Reasoning of the Sages

The text asks to what extent halakhic facts originate in the Oral Torah as tradition, and to what extent they are the result of the Sages’ understanding of the structure of the world, and argues that most of them, or perhaps all of them, are of the second type. The text presents despair of recovery as an example of a metaphysical conception determined by the reasoning of the Sages, without a source in the Torah and without a “law given to Moses at Sinai,” and yet it is perceived as a factual truth from which laws are derived. The text notes the surprising fact that a system perceived as dictated by divine revelation develops binding “facts” out of reasoning.

Ancient Thought, Metaphysics, and Demons versus Modern Thought

The text argues that in the past, the view of reality tended toward metaphysical explanations and subordination to hidden entities and causes, whereas modern thought tends toward reduction to psychology and physics and toward the view that norms are human decisions. The text gives the example that the Sages attribute the deterioration of a house to the demon “Shehiya,” based on the verse “and desolation shall smite the gate,” whereas the modern explanation describes physical processes. The text gives the example of “the crush on the days of the kallah gathering,” which the Talmud explains as due to many demons among the people, whereas the modern explanation is a psychological phenomenon of stress and crowding. The text states that Jewish law preserves more of the ancient mindset of a coercive reality, whereas modern law is conventionalist and normative.

Questioning Legal Metaphysics and the Lecturer’s Response

The text raises the question of why ownership continues to be attributed a metaphysical character, similar to the mode of learning associated with “Rabbi Chaim,” if demons are already rejected as an explanation. The text suggests that if someone were to decide that there are no coercive “meta-legal facts,” he might have to change Jewish law on the grounds of factual error, and it gives the example that Maimonides changed laws derived from demons, evil spirits, and the evil eye because he did not believe in their existence. The text presents the lecturer’s position that he rejects the existence of demons but tends toward Platonism with respect to norms and legal concepts, similar to his claim about “democracy” as a concept that was discovered, not invented.

Indications of Platonism in Moral and Political Discourse

The text argues that the structure of arguments about the meaning of “democracy” indicates a feeling that the concept exists objectively and that there is a truth about its interpretation. The text argues that moral arguments assume meta-ethical truth, because otherwise the concepts “right” and “wrong” and moral criticism of Nazis would have no meaning, even when their law instructed them to murder. The text mentions a debate with David Enoch and presents agreement on moral realism even on the part of an “atheist materialist” as a basis for imposing morality and for moral judgment.

Positivism, Natural Law, and an Intermediate Model in Jewish Law

The text points to a parallel between the description of modern law and legal positivism, and to the possibility of natural law as having a metaphysical dimension. The text states that later it will discuss whether Jewish law is natural law or positivist, and argues that it contains an intermediate model.

Returning Lost Property, Morality, and Jewish Law: Beyond the Letter of the Law

The text rejects the claim that there is a distinct “halakhic morality” different from ordinary morality, and brings proof from the Talmud that “the spirit of the Sages is pleased” with one who returns a lost item even after despair of recovery, so that the Sages, too, agree that the sense of justice is to return it to the owner. The text explains that Jewish law is not determined by justice but by property facts, and therefore after despair of recovery there is no obligation to return it even if the owner is standing there proving that the item is his. The text presents “beyond the letter of the law” as a separate moral plane that is not binding halakhically but is morally binding, and adds that economic hardship can matter on that plane, and therefore “we do not compel poor people regarding conduct beyond the letter of the law.”

The Maharal: Conventional Religion versus Intellectual Truth

The text cites the Maharal in Be’er HaGolah, second well, who states that returning a lost item after despair of recovery “is not according to conventional law” in the halakhic sense, but is indeed required according to “conventional law” in the sense of social betterment. The text explains that in the Maharal’s terminology, “intellect and straight law” are the halakhic truth, while “conventional religion” is the moral-social consideration of bettering the world. The text gives an opposite example in which conventional law is more lenient: after repeated public announcement and years of waiting over vessels of silver and gold, conventional law would permit using them because the owner will not come, whereas the Torah is stricter, that “it shall remain until Elijah comes.” The text quotes the Maharal that “the Torah is entirely intellectual, and the Torah does not turn to ordinary reasoning,” and interprets this as a distinction between factual truth and considerations of what is fitting and of social betterment.

The Ran: True Justice versus the Law of the King

The text cites the Ran’s homilies, Homily 11, and presents a universal need for a judge for political order, so that “people should not swallow one another alive.” The text presents in the Ran a distinction between one matter that requires punishment “according to true justice” and another matter that requires punishment “according to the ordering of political society and according to the needs of the hour,” and God, blessed be He, assigns this to two groups: judges for true and just law, and a king for political order. The text presents the example of the warning requirement in capital cases in the religious court as appropriate from the standpoint of true justice, but unworkable for social order, and therefore the king judges “without prior warning” for the sake of political cohesion. The text concludes that appointing a king “is the same in Israel and among the other nations” for the purpose of political order, whereas appointing judges is unique to Israel in order to realize true justice that brings about “attachment to the divine matter.”

The Possible Moral Superiority of Gentile Legal Systems and the Washing-Machine Parable

The text quotes the Ran that it is possible to find in the conventions of the nations of the world something “closer to the repair of political order” than the laws of the Torah, and says that this is no deficiency, because the king completes what is lacking. The text presents this as a structural necessity: a system that seeks to achieve both divine truth and social betterment will sometimes be less moral than a system that seeks only social betterment, using the image of a washer-dryer and the image that a non-kosher restaurant is “by definition tastier” because it has a broader range of possibilities. The text emphasizes that the gap does not stem from contempt for morality but from the need to balance two goals.

Moral Authority, Enactments, and the Role of the Modern State

The text states that according to the Ran, a religious court is not authorized to improve the world but only to enforce Jewish law, while social betterment belongs to the king. The text explains that in exile, after the loss of the monarchy, the powers of the king “flowed into” the Sanhedrin and the rabbinic institution in order to prevent anarchy, and therefore enactments for social betterment appeared, along with “the court may flog and punish not according to the law,” as an imitation of royal authority. The text argues that when we return to a normal political situation, the civil government is supposed to fulfill the function of the king in the area of social betterment, and rabbis and judges are not authorities in matters of morality, and enactments of that type have no independent halakhic force. The text suggests that sections in the Shulchan Arukh dealing with community management, voting, and public order entered because of the reality of exile, in which the rabbi was the only governing authority, and that they do not belong to Jewish law in the original model.

Collision Between Jewish Law and Morality, and a Constitutional Crisis

The text raises the question of what happens when a government regulation collides head-on with Jewish law, such as an obligation to violate the Sabbath without a life-saving need. The text states that there is “great ambiguity” regarding the seam between the systems, because the Oral Torah was formulated in a period without a king, and therefore the discussion did not practically develop. The text describes such a situation as a “constitutional crisis” that has no internal halakhic solution, and warns that there is no formal rule that decides in advance between the authorities or between the categories. The text advises a person in such a case to act according to his morality, and argues that in an actual crisis “power will speak,” and the public will decide whom to follow, using the analogy of a constitutional crisis in a state and a clash between the government and the court.

An Analogy to Current Events: the Authority of the Court versus the Government

The text argues that there is no automatic principled superiority of the court or of the legislature in a situation of overstepping authority, and criticizes the demand to commit in advance to absolute obedience to every decision of another authority. The text states that the decision as to who exceeded his authority is entrusted to the public in a moment of crisis, and that responsible leaders should prevent reaching such a crisis. The text compares this to the question of who decides between Jewish law and morality when there is no rule above the two categories.

Historical Questions about the Ran and the Verse “For This Is Your Wisdom”

The text raises doubt as to whether the Ran’s model actually existed in practice in the Bible and notes that the Ran is dealing with an ideal model, and that the biblical books describe halakhic practice only sparingly. The text presents a difficulty from the verse, “And you shall keep and do them, for this is your wisdom and your understanding in the eyes of the nations,” and brings the position of Maimonides that this requires a logic the nations will understand. The text suggests that according to the Ran and the Maharal, even metaphysical truth is grasped through human reasoning, just as the Sages determined the laws of despair of recovery by reasoning, and therefore the nations too can see wisdom in it even though it is not aimed only at social betterment.

Concentration of Powers in Exile and the Example of the Exilarch

The text is asked whether in a situation without a king the court was supposed to act “not subject to Jewish law,” and it distinguishes between being subject to Jewish law and the possibility of justified deviation when considerations of social betterment require it. The text mentions Sanhedrin 5a as a dispute about ordination between the Nasi in the Land of Israel and the Exilarch in Babylonia, and connects this to a disagreement about the restoration of the split between king and Sanhedrin, while noting that the Babylonian Talmud decides in favor of Babylonia. The text concludes with the lecture being cut off and with the blessings “Sabbath peace” and “A good year—may you be inscribed and sealed for good,” and with the quote, “As Dani Sanderson says, let’s compromise on a reasonable year.”

Okay, last time I finished the discussion of the laws of returning lost property, because we’re in the topic of Platonism, and in the last few classes I’ve been dealing with Platonism in Jewish law. And the claim is that at the basis of Jewish law there stands some kind of system of halakhic, meta-halakhic, or metaphysical facts, from which the halakhic norms are derived. And that is really exactly the meaning of a Platonic conception, as opposed to ordinary legal systems where we shape the legal norms according to considerations of justice, efficiency, legal effectiveness, and the like, but everything is in our hands. There isn’t something out there in the world that these norms represent or reflect, and that constrains our legislation or the formation of our concept of the legal system. The strongest expression of this was the different mode of reasoning in Jewish law and in the legal world. In the legal world, the laws of returning lost property are designed to achieve, in the optimal way, the return of the lost item to its loser. The loser is basically the natural owner of the lost object, and we formulate the law of returning lost property in a way that maximizes the chance of returning the object to the loser. Therefore, the laws of ownership and despair, and all the other aspects that accompany the laws of lost property, are bent toward that goal. Meaning, there is no natural ownership of the finder over the lost object; we give him ownership so that he’ll have motivation, within the four months that the law allocates, to look for the loser. And therefore, the laws of acquisition too — the fact that we give the lost object to the finder — are basically a tool to achieve the goal of the laws of lost property: returning it to the loser. By contrast, in Jewish law, we saw that the explanations actually begin from some factual conception. That is, factually, the moment the loser despairs, he loses the connection between himself and the object. So now the object is no longer his, factually — not because this achieves something useful, not because it’s worthwhile, not because it serves some purpose, nothing. It’s simply reality. Once he has despaired, the lost item is no longer his, and automatically it becomes the finder’s, and he also doesn’t need to return it and nothing of the sort. In secular law, those four months after which the lost item becomes the finder’s are a device meant to improve the benefit to the loser, because the assumption is that the loser is the true owner. There, we derive the laws of acquisition out of the laws of returning lost property. In Jewish law it works the other way around. We derive the laws of returning lost property out of the laws of acquisition. First of all we need to decide who the lost object belongs to. Before despair it belongs to the loser; after despair it doesn’t belong to him, it’s ownerless already — and from that the laws of returning lost property are derived. If it belongs to the loser, then you need to return it to the loser; if it’s not his, then you don’t need to return it to him. Meaning, the laws of acquisition are not part of the laws of returning lost property; they are the infrastructure on which the laws of returning lost property are built. Therefore the legal reasonings are teleological reasonings — reasonings based on purpose: I formulate the law according to what I want to achieve by means of the law. In Jewish law, the reasonings are causal. I formulate the law this way because these are the facts. Because this is what is true. It doesn’t matter what this is meant to achieve; I’m not showing what good results such a law or another law will produce. Rather, there are factual givens that constrain me, and I can’t do anything with them. To what extent these halakhic facts appear because this is the Oral Torah, what we understand from the Torah, and to what extent this comes from the sages’ own understanding that this is how the world is structured? I think most of it, maybe even all of it, is of the second type. And that’s very surprising. I think I mentioned this last time — for example, in the topic of despair. We say that if the loser despairs, then when he despairs the lost object is no longer his. Now, despair has no source in the Torah, and probably not even in the Oral Torah. Meaning, this doesn’t come from a source, it’s not a law given to Moses at Sinai. Sinai means oral tradition. It’s the reasoning of the sages. The sages decided that after despair there is no connection between the owner and his object. And that’s surprising. You’d expect that in the halakhic system, why is it different from an ordinary legal system? Because we were given data. The Torah reveals various data to us and we are subject to what the Torah reveals. But no. The sages, by their own reasoning, arrive at the conclusion that this is the metaphysical state — or I don’t know whether meta-legal — and from that they derive laws. And all of that is Oral Torah, but it is not tradition from Sinai. It is simply a development resulting from the sages’ own reasoning. And that really is very surprising. I completely agree, and I think that in the more distant past, in the rest of the world too, the outlook was like this. That is, the outlook on reality was that there is some kind of metaphysical reality and we are subject to it. And gradually, as the generations pass, we discover more and more — or not discover, but think; the question is what — that there are no such metaphysical things. These are our decisions. I’ll give you a few examples. I once wrote about this, because it’s a very interesting phenomenon. There are a few examples of such a change in perception. For example, the Talmud says, in the topic of “this one benefits and that one does not lose,” that if I live in someone’s house, then there is a benefit to the homeowner. Why? Because if the house is abandoned, it falls apart, it deteriorates, and if someone lives in it, that doesn’t happen. Now, how would we explain this? The deterioration of the house is, yes, the second law of thermodynamics — the world gradually moves toward some kind of disorder, something like that — and the human being is the creature that acts against, the only thing that can act against, the second law of thermodynamics, because he chooses, he decides independently, he can go against the direction. So in our view, there is no sort of external entity here; rather, this describes human actions and their consequences. For the sages, the deterioration of the house is the result of a demon called She’iyah. And the verse says: “And desolation shall strike the gate.” It pounds the gate, crumbles the gate. Meaning, there is some demon that in an abandoned house, where there are no people, demons wander around there. Yes, like in the desert, say. There are no people there, it’s not an inhabited place, therefore it’s full of demons. That was the old perception, right? That demons roam in all the places where people do not go, in desolate places. You know the movie Monsters, Inc.? Monsters, Inc. is exactly this. That’s the idea. Yes, there’s this image of demons that terribly frighten us, but actually we don’t understand that the demons are terribly afraid of us. That’s why they are found wherever we are not. Meaning, actually the child frightens the demons, not the demons the child. It’s exactly that movie. A wonderful movie, by the way. In any event, the claim there is that what underlies the deterioration of the house is a demon. There is something in reality that causes the house to fall apart. Today we don’t think that way. Right? The sensation of crowding in the “crush of the study days” — the Talmud says, yes? Why do I feel so cramped and pressed when there are lots of people on those concentrated study days? The Talmud says: because there are masses of demons among the people. “A thousand may fall at your side and ten thousand at your right hand,” because like the ditch around the stump — like those beds or water channels that surround trees and things like that. There are lots of demons, and therefore I feel a sense of crowding. How would we look at this today? It’s a psychological phenomenon, not a metaphysical one. We understand that the sense of crowding is because, I don’t know, I’m under stress, there are lots of people around me, it really invades my territory, and I develop a feeling of crowding. For the sages, it has a real source. There are entities in reality that create the sensation of crowding. It’s not specifically the sages, by the way; it’s an expression of an ancient worldview. Ancient worldviews generally understood that all the things we now call psychological phenomena are really the result of the activity of demons, angels, demons, spiritual beings. Because things don’t happen without a cause. So there has to be some cause. We don’t see the cause, so apparently the cause is metaphysical. And as the generations pass, we gradually shift our conception from metaphysics to psychology. And now these things are psychological phenomena; they don’t have some root in external reality. And this includes physics too, with the deterioration of a house and things of that kind. We don’t assume there’s some demon responsible for houses falling apart; it just happens. It happens — it’s a phenomenon that happens, and it has no metaphysical source generating it. So what I’m trying to claim here is that this conceptual shift is not just a difference between Torah and other modes of thought. There is also some difference here between ancient thought and modern thought. Halakhic thought preserves ancient thought more. And once, that’s how people perceived the world. Really, if something exists, then there is some cause, metaphysical or otherwise, that generates it, that causes it; it doesn’t just happen on its own. Therefore, when we create a law, it’s simply because it is true in reality. It’s not something we determined, some social convention; rather, it’s reality, it is imposed on us. Now, without deciding which of these two conceptions is correct or incorrect — that can be debated. Very often, when people say ancient conception versus modern conception, the first tendency is to say: then the modern conception is probably more correct, we’ve progressed. I’m not sure of that. But without entering the question of who is right, first I want to point out the difference as a matter of fact. There is such a difference. In Jewish law, the conception is like this; in the legal world, the conception is different. Meaning, here there is a metaphysical conception, and therefore the reasonings are causal, whereas in the legal world the conception is normative — yes, convention-based, if you like. We determine the norms; they are not imposed on us; they have no external truth that leaves us no choice but to follow it. And we shape them according to what we want to achieve. Therefore there is a very deep difference here between the halakhic conception and the legal conception.

Rabbi, Rabbi, Rabbi — so why is it that today we all agree that demons don’t exist, and that this has no basis, and we reinterpret those understandings in the sages as normative understandings — but on the question of ownership we continue to hold on to it, we keep studying Rabbi Chaim, and we keep speaking about some metaphysical thing that creates ownership, when maybe there really is no such thing there either? And maybe that too is a psychological matter that should be treated through a normative understanding?

First of all, as I said before, since I’m not taking a judgmental position right now about who is right and who is wrong, I didn’t enter that question. In principle, if someone reaches the conclusion that there is no such thing, there are no meta-legal facts imposed upon us, then maybe he really would have to change Jewish law, like any factual error. Just as Maimonides changed the laws that are derived from demons and evil spirits and the evil eye and all kinds of things of that sort, because he didn’t believe in the existence of those things. Back when I was a yeshiva teenager, I didn’t understand this holiness that supposedly rests on ownership. What are you talking about? Where is this written? Where did you get this from? So I’m saying: on this matter specifically, I tend to think there is something to the ancient conception. I’m not saying there are demons; regarding demons, I don’t think they exist. But regarding the metaphysical significance of legal norms, I actually do incline toward the Platonic approach, like the existence of Ideas in Platonic philosophical conceptions. Also in the legal context, I think there really is substance to halakhic Platonism, for the same reasons that there is substance to philosophical Platonism. For the same reasons we spoke about at the beginning, before I entered the halakhic section — when I said, remember Borges, that I think the concept of democracy is a concept that has some root; it’s not our invention, not our convention. We discovered it, we didn’t create it — that’s my claim. And one of my indications for this is these debates over what democracy says: should democracy act this way or should democracy act that way? If democracy is just a concept that you define however you want, then what’s the point of arguing? You say what you want the state to be, he’ll say what he wants the state to be, we’ll argue and reach conclusions. But there is some sense that the concept of democracy exists, and we just have some dispute over what it means. So that form of argument indicates that deep down we are Platonists, even if many times we won’t admit it. We do understand that the concept has some sort of existence. And when we define a concept, that is actually the result of observing the concept. It is not a convention; it’s not that we choose to define a concept this way — who cares, you can define it however you want. No, you can’t define it however you want. There is some sort of observation that tells me what it means…

We have all kinds of indications that even in contemporary modern discourse, although we really avoid the existence of metaphysical dimensions and attribute everything to norms, conventions, psychology, and so on, in quite a few areas of our lives — we don’t admit it, but it’s there. Moral arguments. Arguments about democracy too are really an example of this. Moral arguments — if morality were not some existing thing but only a convention, then if I think morality says this and you think morality says something else, then we have no argument at all. There is no right and wrong here, so what are we arguing about? If we are arguing, that means there is some truth here, someone is right and someone else is wrong, and we’re trying to argue in order to see who is right and who is wrong, trying to persuade. Now what does it mean to be right or wrong on the moral level? What does it mean that murder is really forbidden? In what sense really? If someone thinks murder is permitted, why is he wrong? He is wrong because the truth is that murder is forbidden — not because we decided that. If it were because we decided it, then he decided otherwise. What does it mean, “we decided”? It has no objective validity. If we understand that morality has objective validity, and we argue about it, that means that in some Platonic sense there is objective existence to moral norms. Meaning, when we say that murder is forbidden, that is the result of an understanding that the world tells us that murder is forbidden — the spiritual world, whatever — there is something in the objective world, and someone who does not recognize this is lacking knowledge, he is objectively mistaken. It’s not that he simply has a different moral opinion. It’s not an argument on the level of conventions, on the level of psychology, of what I think or what is agreed upon in my society. Rather, I think you are not okay, that you are acting in a way that is not correct, not true. Morally not true, yes? I have criticism of the Nazis, even though in their law it was a commandment to murder Jews. So what’s the problem? If the claim is by virtue of legal convention, then the legal convention there was different. So what is my claim against the Nazis? My claim is that your convention doesn’t interest me — murder is forbidden. Why? Where does that come from if it doesn’t come from legislation, if it isn’t convention? It comes from the fact that I understand that there is some kind of meta-ethical truth, yes? A moral truth. If any of you saw my debate with David Enoch, that was exactly on this issue. But on this point we both agreed. David Enoch is a complete atheist materialist, and he is also a moral realist. Moral realism basically means some kind of Platonism; otherwise, he himself understands that if you don’t believe in the existence of ethical norms, moral norms, then moral arguments, the imposition of morality on someone else, criticism or judgment of someone who acted immorally — all of that is meaningless. But again, all of these things I still intend to get to. I’m saying this now because Shmuel’s question here was an obvious one, so I’ve anticipated things a bit. I’ll still get to these matters; I’ve spoken about them a little already, but I will get to them.

And for our purposes, what I want to finish answering is this: the same considerations that lead me to a Platonic conception regarding philosophical concepts — that philosophical concepts too are not a matter of dubbing, as Saul Kripke describes it, but rather observation — I actually think this concept exists in some world of Ideas and I observe it, and therefore understand what it means. So the same type of reasoning, feeling, I don’t know what to call it, leads me to think that in the legal-halakhic sphere too, it is like this. And therefore, on this issue my relation to the metaphysical side of thought is not the same as my relation to demons; with demons, I too think they do not exist. But in the legal context, I am a Platonist. But as I said before, whether you are a Platonist or not — decide for yourself. But the difference between Jewish law and other legal systems, it seems to me, is very clearly around this point. One of the differences is around this point: Jewish law is distinctly Platonic, and if you are not a Platonist, then perhaps you need to change Jewish law. That is a separate discussion.

Yes, you wanted to say something?

Yes, Rabbi — the law as you’re describing it, that’s law according to legal positivism. According to natural law, maybe there is something more metaphysical there, more non-conventional.

Exactly the opposite. Why? No — you mean not Jewish law, modern law?

Right, right.

Right. That really is the difference between positivism and natural law. Later in the article I discuss the question whether Jewish law is natural law or positivist, and my claim is that there is some model in the middle there. Okay, but the distinction that, according to what you’ve described so far, is basically a kind of natural law versus positivism.

Okay. So let me show you this in two interesting sources, and then move on to intellectual property law, where I think we also see exactly the same thing. Someone once referred me to this — I think it was Rabbi Eitam from Yerucham, I spoke with him about these things — and he referred me to what the Maharal writes in Be’er HaGolah, second well. And he writes as follows.

In the second chapter of tractate Bava Metzia they said there that one need not return a lost object after the owners have despaired. Sorry — maybe one sentence before reading the Maharal. Last time I spoke about the fact that those people are mistaken who claim that there is a halakhic morality different from ordinary morality. Therefore, don’t learn about the laws of returning lost property from the laws of returning lost property among the wicked gentiles. In Jewish law there is a different moral conception, and that is expressed in a different halakhic conception. About this I said: not true. Because in the Talmud itself it appears that the spirit of the sages is pleased with one who returns a lost object even after despair. Meaning, from the standpoint of justice, the sages also agree that justice is with the other legal systems, not with Jewish law. And justice says that one should return the lost object to the loser even if he has despaired. So why does Jewish law not determine that this is what one must do? Because from the standpoint of Jewish law, forget justice — there are facts. Whom does the lost object belong to? True, the feeling of justice and fairness says: come on, you didn’t work for this object, and he did work for it and bought it with his own money and then lost it — return it to him, it’s his. True, that is the simple moral feeling, the simple sense of justice. But in Jewish law we don’t work according to that feeling. From our perspective, if it’s not his, then it’s not his. Factually it’s not his — what does that have to do with my feelings of justice? Factually, the truth is that it is not his. That is imposed on me. These are facts. Therefore the sages add: but beyond the letter of the law, if you want to behave morally regardless of the law, return the lost object even after despair. But they do not say that this itself is what the law requires — they do not make that move. And why? Because Jewish law truly does not operate, or not only operates, and in my opinion not at all operates, according to moral principles. Morality does not dictate Jewish law; rather, metaphysical truth does. And there is not always overlap between truth and morality.

But Rabbi, that’s very dangerous. People can justify all kinds of actions by saying: this is what Jewish law says, without relating to morality. We see with our own eyes that things like that happen every day. Meaning, people who are very, very faithful to Jewish law sometimes fail badly in serious moral failures because they say — to themselves, not just to others — that basically, what do I care about morality? Jewish law says this and that is the truth. Or: this is our morality; we have a different morality.

My claim is that this approach too is mistaken, even though it starts from a correct premise. Why? Because it identifies Jewish law with Torah morality, and therefore says: Torah morality is different from ordinary morality. I say no. There is a complete disconnect between Jewish law and morality — in that they are right — but not because Jewish law is an alternative morality. On the contrary, morality is by definition universal. It is only Jewish law that has demands that are halakhic demands, and in addition we are also obligated by moral demands. Therefore, the fact that Jewish law allows me to be a scoundrel — yes, a “scoundrel within the bounds of the Torah,” as Nachmanides calls it — he is still a scoundrel, even though it is within the bounds of the Torah, because the Holy One, blessed be He, expects from us not only to act according to Jewish law but also to be moral people. Therefore, the conception I’m presenting here should not lead to those same moral flaws. Those moral flaws do not stem from thinking that Jewish law does not overlap with morality — that is a simple fact, you can’t argue with it. They stem from thinking that Jewish law is also Torah morality. That is not correct. Jewish law does not deal with morality. Morality is by definition universal.

This reminds me of Eichler’s gems from a few days ago, about how dare Bibi say that… that the Holy One, blessed be He, did not protect the Jewish people during the Holocaust — that wicked heretic. Well, I don’t know. The last time I counted, there were six million murdered, so if that’s the Holy One’s protection, let’s say I’d be happy with a slightly more effective protector. You can argue about why He did or didn’t do it, and whether it was justified or not justified, but how can you argue with the fact that He did not protect us in the Holocaust? That’s a fact. So here too, I have facts. Jewish law does not overlap with morality. Their determinations are different determinations, and they contradict moral determinations. That does not mean Jewish law is immoral; Jewish law is amoral. Meaning, it speaks about other principles. In parallel, we are also supposed to be committed to morality. Therefore, in the end what we do should be a combination of Jewish law and morality together. And this is exactly what you see in the laws of returning lost property, and that’s why it’s an excellent example also of this point. On the one hand, Jewish law says that after despair you may take the lost object even if the owner is standing here shouting until tomorrow and proving with signs and wonders that it is his. Once he despaired, I take the object. That is the law. Ah, that’s very wicked. Right — therefore morality comes in, and the sages say the spirit of the sages is not pleased with you. Beyond the letter of the law, you should return the lost object even though it is yours. Because the laws of acquisition reflect the truth — legal truth — and that truth is unrelated to justice, justice in the sense of morality. But that does not mean morality has no weight; it does not mean one should not act morally. Of course one should — on a second level. This can have implications, for example, what happens if you are a very poor person and the loser is very wealthy? All right? It may be that morally we would understand a poor person who does not return the lost object after despair, because after all his need for the thing is much greater than the loser’s need. And the truth is that it is his. It’s only a question of morality. So here distress can perhaps play a role. And the halakhic decisors discuss this: because this is beyond the letter of the law, there is room to say that one does not compel it — there are views that one does compel beyond the letter of the law — but we do not compel poor people to go beyond the letter of the law. And that is exactly the difference between the halakhic conception — that this is the truth, and with respect to truth there is no difference between rich and poor, that is the truth, that’s it, either it’s yours or it’s not yours — and morality, where one must judge according to the context. So there is some conception here of normative duality between Jewish law and morality, and I wanted to show this through what the Maharal writes.

In the second chapter of Bava Metzia they said there that one need not return a lost object after the owners have despaired. And this matter seems very far-fetched to people, that a person should take what is not his. Yes — what are you taking? It’s not yours. That’s exactly the natural moral feeling. So what if he despaired? In the end he is the owner, he bought it, he worked for it, and you just found it — return it to him. What is this wickedness? “And he did not labor nor toil, and he covets another’s money.” “And this is not according to a religion of convention.” Convention here means morality. “For a religion of convention requires returning the lost object even after the owner’s despair from the lost object.” And what is the reason that in Jewish law it does not work this way? “Because a religion of convention obligates what is fitting to do for the repair of the world, even though reason does not require that thing; it is only that thus the world is repaired.” Now here you need to pay close attention. When he speaks about reason, usually if I asked you which of these two things is reason, you would say morality, because morality is what we understand, whereas the truth — what I earlier called legal truth — is not what we understand, but some kind of scriptural decree. But as I told you before, what I said to Daniel earlier, that is not true. It is not a scriptural decree. The concept of despair was created by the sages out of their own understanding. Meaning, from their perspective, this is the truth. And on the contrary, morality is not related to truth. Truth is what really is correct in reality. Morality is the question of how one ought to act, for the repair of the world, and so on. Therefore, when he speaks of reason or truth, he is speaking about Jewish law. When he speaks about morality, he calls it “a religion of convention.” That is not the truth. That’s just his terminology.

In any event, he says that morality’s role is to see to it that there will be a repaired world. That’s the repair of the world, even though that’s not the truth. Meaning, returning a lost object after despair is not the truth, but still the repair of the world requires it: return it, why did he lose it, why are you not okay for taking it? But from the standpoint of the truth, after he despaired it is yours. So there is a religion of convention — morality comes to bring about the repair of the world — and there is truth, reason, yes? “And therefore a religion of convention sometimes has stringency in some matter” — morality is sometimes stricter than Jewish law — “even though according to reason and straight judgment one should not have had to do so.” For example, in our context, returning lost property — morality obligates you to return it, so morality is stricter. “And sometimes the religion of convention is more lenient.” Sometimes it’s the opposite: when the matter need not be done according to the repair of the world, even though according to reason it is not fitting, but only according to the religion of convention. And then he brings the examples. “Therefore, according to the religion of convention one should return a lost object after the owner’s despair,” and this matter is a stringency, as we saw before. “And likewise the opposite: if one found a silver vessel or a gold vessel and announced it once and twice, and no one claimed the lost object for a year or two, then he keeps it for himself and uses that vessel, because there is no repair of the world in this, after he announced it several times and waited a year or two or more, it will not come any more.” Right — I found a very expensive vessel, and it has an identifying mark, okay? Therefore I announce it for a year, for two years, enough times; the person doesn’t come. Clearly, that’s it, he’s not going to come, the loser won’t come anymore. What does the law say? The law says it must lie until Elijah comes. It remains with me, and I’m forbidden to touch it. What does the religion of convention say — morality, repair of the world? Use it. At least someone should use it. After all, in any case, it will no longer reach the loser. Morally, there is no reason in the world to keep it in such a way that neither I nor you will have it, and no one will use it. Why? He’s already not — he lost it, he won’t get it anymore, he won’t find it, that’s it, years have passed, it’s not going to happen. And I, after all, made the effort, I’m holding it, I announced it, I did everything I needed to do. What would the Supreme Court justices in the ruling we saw earlier have said? Fine, take it. Time has passed, that fellow won’t come anymore. Receive reward for the effort you put in. And the religion of convention says: give it to the finder. Here Jewish law is the stricter one, not the more lenient one. Jewish law says no, it remains with you. Why? Because factually it belongs to the loser; he did not despair. Once factually it is his, you can’t touch it. Even though from the perspective of repairing the world and the rules of morality, take it — why keep something so that no one can benefit from it? So we see examples in both directions. Sometimes morality is stricter than the halakhic rules — the truth, what happens, or reason — and sometimes the reverse.

“And this matter is not according to the Torah, for if one found a silver vessel or a gold vessel and announced it many times, they are forbidden to him forever; rather, it must lie until Elijah comes; he may never touch them. Thus they were very stringent. And all this,” says the Maharal, “all this are the words of the sages according to the Torah, for all the words of the Torah are measured by reason. And whatever is fitting according to reason, that is fitting to do. As the Torah said: ‘Observe and do, for that is your wisdom’ and so on. And the religion of convention does not set matters according to reasoning and thought. But the Torah is completely rational, and the Torah does not turn to reasoning.” Now the terminology here is very strange. Completely rational, and therefore it does not turn to reasoning. We understand reasoning to be the rational principle. What he means, in my terminology, is that “completely rational” means: these are the facts. This is what is true. “Reasoning” means what he calls morality — what is fitting to do. Okay? That’s his terminology. At the moment it doesn’t matter whether we accept the terminology or not, but that’s what he means. And what he is basically writing is exactly what we saw in the laws of returning lost property. And his example is from the laws of returning lost property. He is basically saying that when the Torah determines its rules, its legal norms, it does not go according to considerations of what will bring about the repair of the world. Law does. Law goes according to those rules, and from its perspective it is right, because that is the right way to act. If you do not accept the fact that there are legal facts, that there is some legal truth independent of you that is imposed upon you, and you are designing the laws, then design them in a way that will bring about the repair of the world. Very sensible. But if you understand that there are metaphysical dictates, metaphysical constraints — either it is his or it is not his. These are facts; I can’t determine them otherwise. These are the facts. Then it looks different. And this is exactly the root of the dispute between Elon and the other Supreme Court justices about returning lost property, what we saw there, the Hendeles ruling. The starting point is the question whether there is legal truth that precedes the rules of repairing the world. And you can see that all the judges’ reasonings are exactly opposite. Elon keeps saying: wait, but it’s not his, he lost it, he despaired. And they say: yes, but what will happen if we do this? How will lost objects be returned to their owners? You’re talking teleologically, by purposive considerations. I design the law to achieve the goal I want to achieve, which in the Maharal’s language is the repair of the world. And Elon says: wait, but the truth is that it belongs to him and not to someone else. So what the laws of ownership determine — we don’t shape the laws of ownership however we please. That, I think, is the root of the difference between them.

Now there is another source, earlier than the Maharal. And what, really, about the seven Noahide commandments — isn’t that related to matters of morality?

The seven Noahide commandments are related to matters of morality, yes. Usually people think of them as matters of morality. Maimonides, in the laws of kings — ostensibly, then yes, morality is indeed being set. The seven Noahide commandments mean: preserve natural morality. It doesn’t determine it for them. Noahides, for example, have a commandment to establish laws, legal systems. How should those legal systems operate? There are people who want to claim that they need to study Hoshen Mishpat and take exams in rabbinical judging. But that’s nonsense. Clearly the Torah expects them to create law such that there is order and repair of the world, but they are not obligated to the truth, the metaphysical legal truth. They don’t need to study Hoshen Mishpat. They need to determine reasonable and decent rules and operate according to them. That’s all. Seven Noahide commandments.

Yes, but if the Torah gives us Jewish law and doesn’t relate to universal morality, saying that it’s already an axiom, then why for Noahides does it suddenly determine morality?

We too are told, “And you shall do what is right and good,” and we are expected to behave morally. But that is not part of the law; it is a different category. And the Torah expects us too to behave morally, not just halakhically. Regarding Noahides, the expectation is only moral. That’s what Maimonides claims, for example. I don’t know — one could discuss the prohibition of a limb from a living animal, I don’t know. But in principle, yes. In principle. Or even idolatry — who says that’s a moral problem? But that is the conception. Maimonides writes: “And these are matters to which reason inclines,” regarding the seven Noahide commandments. And those are things that reasoning says, in the Maharal’s language.

Look at Derashot HaRan, discourse 11. He says exactly the same things, and he sharpens the other side of the coin more — ordinary legal systems. He talks about “Judges and officers shall you appoint in all your gates.” And then he says: but in my opinion, the plain meaning of the verse is this. It is known that the human species needs a judge to judge among its individuals, for otherwise each would swallow his fellow alive, and the world would be destroyed. Every nation needs this for political order. Right? You need social order and a legal system, because otherwise each would swallow his fellow alive — the repair of the world. So much so that a sage said that even a band of robbers has agreed among themselves on justice. Right — even thieves have some code of ethics of thieves. Even lawyers — all the more so thieves. Every group of people has some collection of ethical rules. Okay? “And Israel need this as much as the other nations. And beyond this,” says the Ran, “they need them for another reason” — “them” meaning the judges — “which is to uphold the laws of the Torah and to punish those liable for lashes and those liable for court-imposed death penalties who transgress the laws of the Torah, even when that transgression causes no loss whatsoever to political order.” Exactly like the Maharal, notice. Meaning, some of the transgressions in Jewish law have nothing whatsoever to do with repairing the world. And still, the halakhic judicial system is supposed to see to it that they are carried out — not only the political or social order, which exists among gentiles too, in every nation.

And that is what he says now: “And there is no doubt that in each of these two sides, two kinds of matters will arise: one will require punishing a certain person according to true judgment” — remember the Maharal’s “reason”? — “and the other, that it is not fitting to punish him according to true and just judgment, but he must be punished for the sake of political order and the need of the hour.” Exactly the Maharal’s distinction. “And God assigned each of these matters to a separate group, and commanded that judges be appointed to judge true and just judgment,” as it says, “and they shall judge the people with righteous judgment.” “Righteous judgment” here is not justice in the sense we are calling morality, but true and just judgment. That is, it comes to explain what these judges were appointed for and what their power is based on, what their authority is. And he said that the purpose of their appointment is to judge the people with just judgment in itself. To judge the people with true and just judgment in itself, and their power does not extend beyond this. What does that mean? Religious courts have no authority to intervene in moral questions of political repair. They deal only with implementing Jewish law and enforcing observance of Jewish law upon the citizens. And that is only Jewish law — which is the truly just judgment or the Maharal’s “reason.” It has nothing to do with the repair of the world and morality. That is not their role, and it is not Jewish law either.

And this is what he says: “And because political order will not be completed by this alone” — after all, if we work only according to Jewish law, there will be social and moral catastrophes here; it’s impossible to run a society this way — “He completed its repair through the commandment of the king.” So because of this, in addition to the judicial system of the courts, which is responsible for implementing Jewish law, there is the law of the king, which is responsible for political order and the repair of the world. These are two entirely different systems of norms, and they have two entirely different judicial systems. Each deals with a different system. That is the Ran’s great and well-known innovation.

And he goes on: let us explain further, setting aside one of the sides for the moment. We learned in the chapter “Hayu Bodkin”: the rabbis taught — do you recognize him? Did you warn him? Did he receive the warning? Did he permit himself to die? Did he die within the time of a short utterance? And so on. Before putting someone to death, you have to clarify things that really can’t actually be fulfilled. The witnesses have to warn him beforehand; he has to say: yes, and on that condition I do it, and permit himself to die. He says: yes, and I know this carries the penalty of stoning, and on that condition I do it. And all of this has to be within a very short span. Someone who does such a thing, who permits himself to die after being warned and then goes and commits the transgression, should be exempt due to insanity. He is basically surrendering himself to stoning voluntarily. Because without this, they don’t stone him. Then he says: “And there is no doubt that all this is fitting from the perspective of just judgment.” This is the truth. The truth is that this is indeed how one should act. Because why should a man be put to death if he did not know that he was entering into something carrying the death penalty and nonetheless transgressed? The warning was given only to distinguish between accidental and intentional. One has to make sure that the person knows he is heading toward a death penalty and that he is acting intentionally and understands the sanction attached to this transgression, for otherwise it is not justified to kill him. “And for this he must accept the warning and all the other things taught in that baraita. And this is true just judgment in itself, entrusted to the judges.” Therefore the Torah truly acts this way, and this is how the courts operate.

“But if the transgressor will only be punished in this way” — if you punish no one unless all these conditions are met, then of course you punish no one, because this simply will never happen — “political order will be completely ruined, murderers will multiply, and they will not fear punishment.” They won’t fear punishment because no problem, they won’t receive warning and everything will be fine. “Therefore God commanded, for the sake of settling the world, the appointment of the king,” as it is written in this portion, “When you come to the land… you shall surely place a king over yourselves,” which is a commandment that we were commanded to appoint a king over us, as we received from our sages. “And the king can judge without warning according to what appears necessary for political society.” The king does not judge according to the truth. He judges according to morality, according to what is needed for political order, for social order, for achieving order among the people in society. But that is the king’s role, not the role of the courts.

Then he says: “It follows that the appointment of a king is the same in Israel and among the other nations, who need political order; but the appointment of judges is unique and needed more in Israel.” Why? The legal systems among the gentiles parallel our king’s law. The judicial law of our courts has no counterpart among the gentiles. Because with us it is also necessary to implement the truth, not only political and social order. Among them only political and social order is required of them — what I said earlier about the commandment of laws. As he further said: “‘And they shall judge the people with righteous judgment’ — to say that the appointment of judges and their authority is that they judge the people with judgments that are truly just in themselves. And I will explain this further.”

And I explain further and say: just as our Torah was distinguished from the legal codes of the nations of the world by commandments and statutes that have no connection at all to political repair — there is much in Jewish law that does not deal at all with political repair, and doesn’t fit the rules of political repair; sometimes it even contradicts political repair, sometimes it simply has no connection — “but what follows from them is the drawing down of divine flow upon our nation and its attachment to us.” What is the purpose of these things? It is the drawing down of divine abundance, that is, cleaving to the Holy One, blessed be He, doing the truth. The purpose of this, what does truth mean? Truth is basically to cleave to the Holy One, blessed be He. And the way to cleave to the Holy One, blessed be He, is to fulfill Jewish law, the truly just judgments of Jewish law. And that has no connection to repairing the world. “Whether the matter appears to us to be so, as with the laws of sacrifices and all that is done in the Temple, or whether it does not appear so, as with the other statutes whose reason was not revealed — in any event, there is no doubt that divine flow would cling to us and reside in those actions, even though they are remote from rational inference.” Here he is already speaking of reason in the sense of political repair. “And there is no wonder in this, for just as we fail to understand many causes of natural generation” — after all, we don’t fully understand physics or nature, the laws of nature — “all the more so it is fitting that we should fail to understand the causes of the descent of divine flow and its attachment to us. And this is what distinguishes our holy Torah from the legal codes of the nations mentioned above, for they have no involvement in this at all, but only in repairing their social order.” Exactly the Maharal’s words: truth is really the concern of Jewish law, and political repair is morality — that exists among gentiles too. For us there are both, not just the first; there are both. For the gentiles there is only the second. That is the answer I gave earlier to Daniel — obviously we too are obligated to act according to morality and toward political repair, but for us this is a separate category; the king is responsible for it. It is not connected to Jewish law and not to the halakhic courts. These are two different things.

“Therefore I hold, and it is fitting that one should believe, that just as the statutes that have no role at all in political order” — these statutes that are truth independent of morality and political order and the repair of the world — “are the proximate intrinsic cause of the descent of divine abundance, so too the laws of the Torah have a great role, and are as though shared between the cause of divine influence in our nation and the repair of our social order.” He says there is some part of Jewish law that deals only with the descent of divine influence — not eating pork, for example, has nothing to do with repairing the world or order between one person and another. But there are things like do not murder, do not steal, honoring parents, and the like, which are also related to repairing the world — though in my personal opinion they are not, but that is another discussion — and he says that besides that, even in these there is also the dimension of the descent of divine influence. This exists throughout Jewish law. They are also truth, because if they were not truth, they would not enter into Jewish law. In these cases, the truth happens to include partly also rules of repairing the world, but only partly, and there are parts that don’t. And even in the parts where it does fit the repair of the world, there is also the dimension of the descent of divine influence. “And it is possible that they incline more toward the matter that is loftier in rank than toward the repair of our society.” Truth is more important than reasoning, and so on. “For that repair, the king whom we appoint over us will complete.” If there is a moral problem, the king will handle it already. Jewish law does not feel exempt from dealing with morality because the king will handle it. And the king does not work according to the rules of Jewish law; the king works according to the rules of morality. And therefore a Jewish king is supposed to work exactly like a gentile king. There is no difference. According to moral rules. And morality is universal. There is no Jewish morality, no Torah morality; there is morality. Jewish law is not Jewish morality. Jewish law is another category that speaks about truth. But sometimes it harms morality, and there the king intervenes. “For that repair, the king whom we appoint over us will complete; but the judges and the Sanhedrin — their purpose was to judge the people with true judgment just in itself, from which the attachment of the divine matter to us would follow, whether from it the order of their masses would be fully repaired or not.” Whether it fits morality or not.

Now look at this wonderful sentence: “And because of this, it is possible that in some of the judgments and laws of those nations mentioned above, there will be something closer to the repair of political order than in some of the judgments of the Torah.” He says explicitly that foreign legal systems are more moral than the halakhic legal system. More moral. And there is no need to be alarmed by this. That is the truth, that is a fact, and one need not be alarmed. He says: “And we are not lacking anything because of this.” Why? “Because whatever is lacking in the said repair would be completed by the king.” If there is a moral problem, the king will handle it. True, Jewish law is not moral, but the king will force us not to act according to Jewish law in certain cases because it is not moral. “But we had a great advantage over them” — on the other hand we have an advantage over the gentiles — “for insofar as they are just in themselves” — meaning the law of the Torah — “as Scripture said: ‘And they shall judge the people with righteous judgment,’ it follows that divine abundance will cleave to us.” Meaning, in halakhic law, it is not simply non-moral because we felt like being non-moral, but because that is the truth. What can we do if in this particular case the truth does not overlap with the rules of morality? So we, who keep it this way, will succeed in attaching to ourselves the matter of divine abundance — yes — doing the truth so that it cleaves to us, cleaving to the Holy One, blessed be He. That is our advantage. And from a moral standpoint one need not be alarmed, because if there is a problem, the king will intervene and fix it.

So this is exactly, I think, what we saw in the Maharal, but more explicitly and more unequivocally. That is, he even puts on the table the idea that in Jewish law, by definition, Jewish law will be less moral than other systems. By definition. It has to be that way. That is not troubling; it is not a difficulty against Jewish law. On the contrary: if it were fully moral, that would be a difficulty against Jewish law. You know, if there is a machine that is both a washing machine and a dryer, it will usually wash less well or dry less well. Otherwise no one in the world would buy just a washing machine or just a dryer. Everyone would buy the machine that does both — unless of course it is much more expensive, meaning there has to be some trade-off in price. Okay? Or restaurants, yes? I’ve said this a few times in the past. A non-kosher restaurant is by definition tastier than a kosher restaurant. This is simply a statement in mathematics. It has nothing at all to do with the evil inclination or with jokes about religious people. Why? Because if kosher food happened to be tastier, then the non-kosher restaurant would serve it. It doesn’t care about serving kosher food. But if the non-kosher food is tastier, then it will serve that. The kosher restaurant is obligated to serve only kosher food. Therefore, by definition, the non-kosher restaurant will always be tastier, or at least the same, as the kosher restaurant. Meaning, when you want to achieve two functions, there’s no way around it: you will fulfill each one less well than someone who wants to achieve only one function. It’s just mathematics. There is no escaping it. The same thing with the Torah system, which wants to achieve both morality and Jewish law — it will generally be less moral than systems that want to achieve only morality. Therefore, for example, in the laws of returning lost property there are aspects of Jewish law that are less moral than the laws of returning lost property in Indonesian law, I don’t know, in other systems. Why? Because we have another goal that we want to achieve as well: the descent of the divine influence, and not only the repair of the world. And whoever wants to achieve only the repair of the world will usually achieve it better. So one should not be alarmed by this; it is a simple mathematical fact.

One just has to understand that this does not stem from the fact that we don’t care about morality. We care very much about morality, but we also care about the descent of divine influence, and we care about both. And we need to behave in a way that optimally achieves both things. And if one comes at the expense of the other, then one has to know how to maneuver, but one must try to achieve the two goals in the optimal way.

But there’s something a bit missing in the Ran. That is, he ties morality to the king. Not to each individual, but specifically to the king.

No, the king is the one who enforces morality.

Well, we are supposed to behave morally, and we are also supposed to behave halakhically. If we behaved in a non-halakhic way, the court will deal with us. If we behaved in an immoral way, the king will deal with us. Or ordinances, for example — ordinances you enact for the sake of morality, not for the sake of Jewish law — that is the king’s business. Ordinances whose purpose is for the sake of Jewish law — that’s the court, the Sanhedrin. Meaning, you’re saying he’s only speaking about the enforcement of morality.

Exactly. Meaning, which system manages that framework. But clearly every citizen in Israel is obligated to both systems; it’s only that each of the two systems has a different institution that handles it. Okay? Enforces it, sets the rules, and things of that kind.

Look, this has several implications. I have two minutes, so I’ll stop here. I just want to mention a few implications briefly so you understand the significance of this. First of all, it means that all the aspirations to try to explain why Jewish law is more moral than other systems, or how it actually better captures real morality even though on the surface it seems not moral — that is a misunderstanding. It’s simply not true. Jewish law does not capture morality more correctly than other systems. On the contrary, it is less moral. It’s just that this is not a flaw. It’s the result of a constraint. Therefore there is no need to look for excuses. And the excuses people usually find are generally problematic excuses.

And in my opinion — as I hinted before, but that’s a topic for other talks — I claim that Jewish law and morality are two independent categories altogether. Jewish law is not interested in morality at all. In the Ran it sounds as if some of Jewish law is interested in morality, but also in divine influence. I claim not at all: Jewish law deals only with divine influence, and morality is something parallel. But that’s something that requires separate justification. For example, I claim that even the moral prohibitions in Jewish law, such as do not murder, do not steal, and so on, are also not defined by morality. Look and see: someone who murders by indirect confinement, by causation, by this or that — he is exempt under Jewish law. Now what is that? Morally, that murderer is a murderer exactly like someone who shot another person in the head. What difference does it make if you did it with your left hand this way? In the end you performed an action as a result of which the person died. But halakhically you are exempt. Morally you are a murderer. So the king will kill you, but not the court. Meaning, I’m talking here about the prohibition of murder, and the prohibition of murder clearly belongs to the moral wing of Jewish law — yes, to what fits the moral rules within Jewish law. So this is one indication, but this could be expanded on greatly.

Another important point, which I think many people are mistaken about: notice that we read in the Ran that the Ran says it is not the court’s role at all to worry about repairing the world — that is the king’s role. But today the situation is different, right? Today the court enacts ordinances for the repair of the world, already in the Mishnah. What does that mean, today? All kinds of ordinances for the repair of the world. You see there’s a moral problem, you enact an ordinance. Why? Isn’t it not the court’s role? The court deals with Jewish law, not morality. The answer, of course — and this is what confuses many people who don’t understand this Ran — is that the Ran is speaking about the ideal system, when there was a king and there was a court in the ancient period, assuming that this ever existed — it doesn’t matter — but that was the pure law of the Torah, how it ought to be, our utopia. That utopia is a duplication between authorities, a duplication between categories: Jewish law and morality. In that state, no court can enact any ordinance for the repair of the world. That is only the king. What happened? At a certain stage we lost the monarchy. Right? Somewhere around the end of the First Temple period we lost our kings; we no longer have kings. What happens in such a state? What happens is that the king’s powers are concentrated into, or transferred to, the Sanhedrin. Think, for example, what happened in Poland some years ago when the plane with the government crashed. So what did they do there? The government’s powers passed to another branch of government — I don’t know, maybe the court or what remained of the Sejm, their parliament, I don’t know exactly — until they reorganized and reestablished the government and went back to functioning with three branches. But if something happens and one branch disappears, we don’t allow anarchy. So one of the other branches will take it over. And whoever draws conclusions about our situation today is doing so correctly: one of the other branches will take to itself the powers of the missing branch.

And then what happens is that once we lost the king, the Sanhedrin took for itself the king’s powers, because otherwise there would have been anarchy, and began to deal also with the repair of the world and with moral matters. By the way, that is why the head of the Sanhedrin had to be from the house of David. There is no such law in Jewish law. There is no real source for that in Jewish law. But because they were the continuation of the king, he was in a sense also the king. And therefore the head of the Sanhedrin was considered both a king and the head of the Sanhedrin, because there was no king. And then we got used to the fact that the court deals also with moral questions, also with halakhic questions, also with the repair of the world — everything gets directed to the court, or in our language today, to the rabbi or halakhic decisor. But that’s not exactly right. “A court may flog and punish not according to the law” — where does that come from? A court has no authority to punish not according to the law, even though that is a section in Shulchan Arukh, Hoshen Mishpat, section 2. There is no source for such a thing; they have no authority. The authority of a court to flog and punish not according to the law, or to enact ordinances for the repair of the world, stems from the fact that today they function in place of the king. But that is an artifact — meaning, it is an artificial result of an accident, that we lost the king. It is not supposed to be that way.

Therefore, for example, now we have returned to Israel, yes, to the State of Israel. We have a state, we have some kind of secular government — and by “secular” I don’t just mean that it doesn’t observe commandments; I mean secular government in the sense that it is not the halakhic government — and that is perfectly fine. That is what it should be. The rulers should observe commandments, but the government is supposed to be a secular government, not a religious one. Because there are two authorities that are supposed to function. And whoever is responsible for the repair of the world, and for ordinances, and for enforcing them, is the government and not the court. Therefore, to direct moral questions or questions of repairing the world and so on to the court is simply a category mistake. It’s a mistake. It’s a mistake that arose because we got used to the fact that for many years the rabbi was the only authority, so all questions came to him. He ruled on morality, he ruled on Jewish law, he ruled on everything. But once we return to a normal state, we return to the Ran’s utopian model, where there are two systems here, and the rabbis and judges have nothing to say regarding morality. They have no authority whatsoever regarding that; it is not their role, they are not supposed to manage it, and they are not connected to repairing the world. And no ordinances that are enacted in that sphere have any validity. The whole part — the whole part in the Shulchan Arukh, in my opinion, that deals with the question of how a community is run — right? How a community is run, how voting is conducted, and so on. There are sections about this in the Shulchan Arukh. It has no connection to Jewish law at all. You can erase it from the Shulchan Arukh. It got in there because we lived in a period in which the rabbi was the only governmental authority that existed throughout the years of exile. That is not the case today, and there is no reason whatsoever to resort to it. It is not Jewish law.

A huge number of things entered into Jewish law because we got used to the idea that Jewish law includes everything and has to handle everything. But that is not true. In the original model, Jewish law does not deal with morality. These are two different categories, and sometimes morality will force us to deviate from Jewish law — and that is what is expected of us. And if we don’t do that, the king will force us to do it, to deviate from Jewish law for the sake of morality. Okay.

Rabbi, Rabbi.

Yes.

Wait, one second. What happens — “to deviate from Jewish law” is kind of a vague phrase. What happens if the king, or the government, whatever, enacts an ordinance that collides head-on with violating the Sabbath? Violating the Sabbath. We are obligated to violate the Sabbath, that’s the law, that’s it. So what do we do now?

There is a great deal of ambiguity in Jewish law regarding the seam between the two systems. The Mishnah in Sanhedrin discusses “the king does not judge and is not judged,” and regarding a king of Israel yes. There is very great tension, but also very great ambiguity, regarding the relationship between the systems. Why? Because the whole Oral Torah, when it was formulated, was formulated at a time when there was already no king. It wasn’t practical. It doesn’t deal there with questions that actually arose in practice, only with certain theoretical questions that came up. This issue did not really develop, and therefore I don’t think anyone knows how to answer you about what to do in such a case. There are situations in which the king can instruct people to violate Jewish law in a place where a clear and distinct moral value is harmed. How severe the harm must be, and how much harm to Jewish law is possible — not a simple question. How much you can do on your own without the king having determined it — also not a simple question. I don’t know how to answer that.

Who decides what is moral and what is not moral? The king issued an instruction that plowing on the Sabbath is obligatory because, I don’t know, because he felt like it. And it’s a Torah prohibition. Do it or not do it?

What you are describing, in contemporary language, is what is called a constitutional crisis. We know this very well. A constitutional crisis means that the king claims it is very moral to plow on the Sabbath, the Sanhedrin thinks there is no moral basis for it whatsoever and that it carries a heavy halakhic cost, and now there is a dispute between the authorities because each one is appointed over a different sphere, and they have a dispute over what belongs to the other sphere. Who will decide that dispute? What am I supposed to do now? Well, when the Supreme Court strikes down a Basic Law and the government says that the Basic Law is in force because the Supreme Court has no authority to strike down a Basic Law — or the Knesset says that — what are you supposed to do? I don’t know. I have no answer. That’s a constitutional crisis. The hope is — no system is immune, and no system can avoid bugs that can lead it into crisis. Responsible people need to run the various branches of government in such a way that it does not reach a constitutional crisis. If it does happen, then power will speak. What would you advise me to do as a citizen? The law says one must plow on the Sabbath, and it is forbidden by Torah law to plow on the Sabbath. What should I do? I’m asking your advice.

I advise you to do what your morality tells you.

My morality tells me not to plow on the Sabbath.

Fine, then don’t plow. In Kibbutz Saad they plowed on the Sabbath in accordance with a halakhic ruling, and that’s what will happen in a crisis — you will basically go with whoever you think is right, not according to the formal authorities. That is what will happen in practice. Meaning, if the public is convinced that the government is right and the court exceeded its authority, then the public will listen to the government and the court can go to hell. And if the public decides the opposite, then the public will go with the court and the government can go to hell. And that’s perfectly fine, because in the end the public is what is supposed to decide. The rules function so long as there is no crisis. When there is a crisis, the rules have to be changed — like Thomas Kuhn on a paradigmatic crisis in science.

Yossi, did you want to comment on something?

Rabbi, Rabbi.

Wait, Yossi Leor commented on something earlier.

In Kibbutz Saad they plowed on the Sabbath because it was before — the Six-Day War. Rabbi Meir Schlesinger ruled that way after consulting with several rabbis, I don’t remember the story with complete accuracy, but religious people, including my father-in-law, got on tractors on the Sabbath.

That doesn’t answer my question. It’s obvious that if there are pressures of saving life and so on, then you plow on the Sabbath. But I’m saying there are no such pressures. The law simply passed a law: every Sabbath, everyone must plow. Whoever has a plow plows, period. What do we do then? The distinction you’re talking about — what do I do then?

The distinction you’re talking about is exactly that. Meaning, if you plow because of saving life, then the halakhic determination itself says to plow, so there is no problem. It’s not a clash between the authorities. When there is a clash between the authorities, that is a constitutional crisis. Meaning, that thing cannot have a halakhic solution. By the way, from the perspective of the halakhic decisors, they write that when the king enacts a law that plainly contradicts Jewish law — not in monetary law, but something else — it is invalid. I don’t agree. I don’t agree because that determination is a halakhic determination. But when there is a constitutional crisis between Jewish law and another categorical system, the halakhic decisor cannot determine what to do. That is the same mistake of directing all questions from all categories to the decisor. That’s not correct.

So who is supposed to say what I should really do when there is such a clash? I’m confused.

Well then, what? Ask you?

Yes.

Not ask me — ask yourself. If you want, ask me, I’ll be happy to answer you, but what I mean is: ask yourself. A person will have to decide which of the two sides is right, because here there are no rules. Do you understand? In a discussion between morality and Jewish law, it cannot be that Jewish law decides when Jewish law prevails and when morality prevails.

I understand that.

No, it’s the same thing. It’s exactly the same thing. What you are describing here is exactly that same conflict. It has to be a determination from outside the two conflicting categories. And that determination is entrusted neither to the king nor to the judge, because the conflict is between them. That’s exactly what is happening in the state today, exactly. So that determination is entrusted to each person with himself. And what power decides. Power will speak. Meaning, the majority of people who decide that the king is right or that the court is right — I keep shifting to our current affairs — that’s what will happen. And therefore the people who are supposed to see to it, wise leaders, are supposed to make sure that we do not reach a constitutional crisis. And not always do the sides conduct themselves wisely, by the way, both sides are not conducting themselves wisely in this context. But if we reach a constitutional crisis, the one who will decide is neither the court nor the government. The public will decide.

And all these criticisms saying that Bibi didn’t say that he would obey the court — he is right. He is right because he cannot commit himself to always obey the court. If, in Bibi’s view, the court clearly exceeds its authority, he should not obey it. And we, as citizens, will have to decide whether Bibi is right or the court is right. But to say automatically that I will accept the authority of the court — why? Did the court say that it will automatically accept the authority of the legislature? After all, it is now considering striking down a Basic Law. So why is Bibi forbidden to say that he does not accept the authority of the court? What sort of nonsense is that? It’s the same mistake as those who say that when there is a clash between Jewish law and morality, then Jewish law will decide when morality prevails and when Jewish law prevails. Not true.

In every democracy the court has the last word.

Not true. Absolutely not true. When the court exceeds its authority, then the people need to…

But who decides that it exceeded its authority?

The public, the public, the public.

Then that’s anarchy. What do you mean?

Fine, true. The public — the governing branches are leading us into anarchy, and there will be anarchy. That is what one must beware of. But not always are there responsible people standing there. My criticism is not of Bibi and not of the court. It may be that both are acting excellently. I am only claiming that on the principled level, to say that I commit in advance that whatever the other says I accept — that is mistaken. Not true. There are limits.

But what limits? Limits such that according to your interpretation of the law, or because it’s immoral to the point that a black flag flies over it?

Both. Why not? If everyone just decides that he doesn’t like some law…

Even if it exceeds the law.

So then everyone will decide that it exceeds the law?

Not that everyone will decide, but that what is correct will decide. If everyone decides, that’s anarchy, but what can we do? We’ve been led to a place…

So why does the Rabbi call it that? If every individual…

I think that the court has, in a democratic state…

So that not everyone decides, the court will decide? So that Bibi doesn’t decide, Bibi will decide? The default is that the court decides, unless the citizens feel that this exceeds it, that a black flag flies over it.

Why? That’s not correct. The Knesset decides. Simply not correct. The Knesset decides, not the court. Again, I’m not taking a position in the current dispute. I’m talking about the theoretical structure. But Rabbi, you said in class last week that there is always a creative element in legislation, in a court ruling, so you can always say that you can never truly separate between one thing and another; you can always say…

But that won’t always be true. The fact that I say there is a creative element does not mean there is no truth or falsehood. Those are different things. Truth and falsehood just aren’t tested by rigid logic.

Okay, but that’s only in very exceptional cases. I’m not one of the great fans of Bibi and this coalition, really not, but on the principled level demands are being made of them that are unreasonable. When you are genuinely convinced — not manipulating — that the court has exceeded its authority, you are one of the branches of government, and the struggle between branches of government is a struggle between equal branches as much as possible.

Fine, I’m a defendant. I’m a defendant, and like all defendants I’m sure that I’m right and that the court, the judge, judged unjustly and didn’t understand the law, didn’t understand the facts, and exceeded his authority.

Shmuel, we’re not talking about a defendant. Leave me with a defendant. I’m talking about a prime minister or coalition or government or Knesset versus the court. On the principled level, leave me with a defendant. My attitude toward a defendant is like yours. I’m not talking about that. I’m saying that in the principled structure, there are different branches of government here, and the branches of government are clashing. There is no superiority of one over the other — that’s the whole idea of balance between branches — and therefore they need to behave in a way that doesn’t lead to a clash. But if they don’t do that, then there will be a clash, and in that clash it is not correct to determine in advance who prevails. That is simply not correct. The question is who exceeded authority and who didn’t.

So what do we do then? The whole thing will probably fall apart.

Rabbi, can I ask two other questions?

Yes.

One: historically, I’ve never heard and never found anywhere in the Bible, in the Five Books of Moses or in the period of Joshua or the Judges, that anyone implemented this nice theory of the Ran. That’s the first question. Second, it says: “Observe and do, for that is your wisdom and your understanding in the eyes of the nations, who shall hear all these statutes and say, surely this great nation is a wise and understanding people.” If this has nothing to do with morality but with fixing eternity in the divine attribute of glory — then no wise and understanding person would buy that, because it makes no sense to say it. And when you come and say “a wise and understanding people,” according to your view, according to their view, the nations have only morality, so to say that the Torah is not moral — that doesn’t hold up.

Two good questions. I’ll answer them one by one. The first question speaks about the historical facts, and I noted this during the class, if you noticed, that I’m not sure this ever actually was. There is a book by Aharon Shemesh where he argues that, for example, the laws of capital punishment were never actually practiced; they are only theoretical discussions. I don’t agree with him, by the way. It seems to me — I haven’t checked his argument — but at first glance I think he is wrong. But beyond that, the claim is on the principled plane, not about what actually was in the past. And on the principled plane, the Ran argues that this is the legal or governmental system of the Torah. One just has to remember that you will not necessarily see this system written in the Bible, because there is also Oral Torah. In the Bible you almost don’t see Jewish law in general, not specifically this division between morality and Jewish law. Even Jewish law itself appears only sparingly in the Bible; all the halakhic conduct doesn’t really appear there. So it’s not clear that everything that was there is also reflected in the Bible. Accordingly, it is possible that there was some sort of duplication there. After all, there was a king and there was a Sanhedrin — that certainly existed, right? King David consulted with the Sanhedrin and so on. There really were two such authorities. What exactly the relationship between them was is a very difficult question. But in general I would not rule out the possibility that what the Ran describes did exist in practice too, in one way or another. But for our purposes that doesn’t matter, because the Ran is talking about the ideal model. Even if it was never implemented, this is basically what the Torah dictates or instructs us.

As for the second question, it really is a question that comes up when you read the Ran. The Ran uses “for that is your wisdom and your understanding” in exactly the opposite way from Maimonides. Maimonides uses “for that is your wisdom and your understanding” to show that what we do is supposed to be very intelligible in the reasoning of every person in the world, because otherwise how would “for that is your wisdom and your understanding in the eyes of the nations” be fulfilled? How will the nations understand that we are so wise if it doesn’t fit their logic at all? Therefore Maimonides says that obviously these things have a rationale a person can understand. The Ran writes the opposite. The Ran writes that “for that is your wisdom and your understanding in the eyes of the nations” means that we do the truth, and what is the truth? Some kind of metaphysics or abstract truth that does not fit justice and morality and repairing the world. So how will all the nations see our wisdom? It seems to me — and this is a point that needs much elaboration, but we’re already getting a little late — that we have the possibility of understanding truth in this area too. For example, what I answered Daniel earlier: how did the sages reach the conclusion that after despair the object is ownerless? They reached it by reasoning, not from a verse. That means that human reasoning also grasps metaphysical truth. Here too, we see that someone behaves correctly or incorrectly. We have the ability to grasp it that way. I don’t know if this applies to everything, but certainly in some aspects it does. And what the Ran is speaking about, and the Maharal too, is apparently that. They are speaking about the fact that this is reason, not a scriptural decree from the Torah. If it is reason, then a person in the world too ought to understand that this is intellectually correct behavior, even though it does not bring about the repair of the world. Because they should understand that if there was despair, then we are no longer owners of the object, because it can’t be otherwise — there was despair. To us today that sounds strange because we try to reduce all these things, as I said before, to moral rules and repairing the world and so on. But at least in the ancient perspective, it really wasn’t like that. People truly perceived truth that way. That’s how they saw it. So that’s a short answer; this really needs much more elaboration, but this is not the place.

Okay, one more question.

I wanted to ask whether basically in the situation where the authority of the king — when the king was already gone in exile and there was no king, and then his powers were concentrated in the court or the rabbinic institution — then in an ideal situation in that setup, were they supposed to operate in a way not subject to Jewish law?

Subject to Jewish law, but up to the point of considerations that justify deviating from it. The king is subject to Jewish law. It’s not that he is not subject to Jewish law; rather, he is not constrained by Jewish law. If he has sufficiently good reasons, he can deviate from Jewish law.

And it seems that that did not really happen that way, but that the repair of the world that was done was more restrained, more bound, not with the freedom the king has, right?

First of all, that’s very natural, because this isn’t really the system that truly has the authority to do it; it was being done by the court. And second, I think that even the king, all in all, is also supposed to try not to deviate from Jewish law. Only in places where there is a very great necessity would he deviate. So I don’t know what would have happened if there had actually been a king here. I don’t know. But he certainly needs to make sure that there is no constitutional crisis. He needs to make sure there is no disproportionate harm to Jewish law when there is no reason that justifies it. The king too is supposed to be concerned about that, because then the clash is created.

By the way, I spoke about this in the past. There is a passage in Sanhedrin 5a. The Talmud discusses there who is responsible for ordination: the head of the Sanhedrin in the Land of Israel or the exilarch in Babylonia. That Talmudic passage is a reflection of the same dispute we’re talking about here. Because the Babylonians argued: we now have a king, the exilarch. The situation has returned to a split between religious authorities and secular authorities — king and Sanhedrin. And the sages of the Land of Israel argued: what do you mean? The head of the Sanhedrin is also the king. That’s what we got used to over generations. And they did not recognize that the situation had reverted to a split between the governmental authority and the judicial authority, and therefore, from their point of view, the exilarch was not a king. The Babylonian Talmud — again, obviously this is circular — ruled in favor of the Babylonians, meaning in favor of the exilarch against the head of the Sanhedrin in the Land of Israel. Now go decide whether that ruling is valid, since the Babylonian Talmud ruled in its own favor in its dispute with the Jerusalem Talmud. So that’s not a great piece of wisdom. In the halakhic decisors, in any case, this is how it is brought.

Okay, let’s stop here because it’s really late. So, Sabbath peace.

Sabbath peace, thank you very much. A good year, may you be inscribed and sealed for good. A good year, health. As Danny Sanderson says, let’s compromise on a reasonable year. Be well.