A Look at the Torah and Torah Study – Lesson 21 – Rabbi Michael Abraham

All right,

[Rabbi Michael Abraham] we’re basically at the stage where, after I tried to show that this body of Jewish law is the core of the concept of Torah, and what lies beyond Jewish law is at most Torah in the person, as distinct from Torah in the object, I’ve now moved in the opposite direction — a narrowing move — saying that even within the halakhic domain there are components you can call Jewish law but you cannot call Torah. These are things connected to Jewish law that obligate us to do or not do something, and yet they still aren’t called Torah. I said I’d bring four categories for this. One category is the area of sacrificial matters, which we did last time. Then at the end of last time we began the issue of Choshen Mishpat. After that we’ll talk about rabbinic laws, and in the end we’ll talk about reason-based conclusions. In all these categories the same phenomenon appears: there’s a part of Jewish law — it may appear in the Shulchan Arukh, for example — that is binding at the halakhic level, it’s part of Jewish law, but it still won’t count as Torah.

The first example we saw last time was the area of sacrificial matters, or worship in general, the service of God — mainly sacrificial service and prayer. And the claim there was that this has some independent standing that doesn’t depend on Mount Sinai or on a command. In fact the patriarchs, before the Torah was given, did those same things, and they had religious value; and they can also remain binding for us. And still, since we were not commanded about this at Sinai, it doesn’t enter the definition of Torah as I defined it. Torah is basically what we received at Sinai and the interpretations surrounding what we received there. That’s what I’m calling Torah for our purposes. So things we didn’t receive at Sinai, but that were already accepted before then and simply continued afterward, cannot be considered Torah even though they do obligate us at the halakhic level.

And we talked about this, for example, in connection with what the Talmud says, that in sacrificial matters we need the verse to repeat something in order to make it indispensable. The claim is that the details newly introduced in sacrificial worship are details that, if the Torah didn’t say they are indispensable, then they aren’t indispensable. Why? Because if I do it without that detail, then true, I didn’t act exactly as the Torah commanded — but I still did something with value, because I did something like what Abraham would have done before he received the Torah. So these things have halakhic standing; we are obligated to do them, and even if we did them in a way that goes against the Torah’s command, there is still value there — it still counts as worship. And yet it is not Torah, because Torah is what we received from the Holy One, blessed be He, at Sinai. So that’s the area of sacrificial matters.

Now I want to show a similar move in Choshen Mishpat. Last time I spoke a bit about the classification of Jewish law. I spoke about how the Tur introduced a classification, and the Shulchan Arukh follows it, into four overarching categories — really two overarching categories that split into four overarching categories, which then split into subject areas. The subject areas are simply determined by the content of the laws: the laws of holidays, the laws of the Sabbath, the laws of corpse impurity, all sorts of things like that. Maimonides’ books, for example, are divided according to subject matter. And the Tur, followed by the Shulchan Arukh, took that content-based division and created four umbrella categories above it, under each of which there are many content-based categories: Even HaEzer, Choshen Mishpat, Yoreh De’ah, and Orach Chayim. These are four types of categories, each containing many collections of laws classified by content.

But what’s more interesting for us are the two super-categories that stand above the Tur’s four, and we called them judicial authority and rabbinic authority. Choshen Mishpat and Even HaEzer are judicial authority, and Orach Chayim and Yoreh De’ah are rabbinic authority. Just as today, when we go to take exams for rabbinic ordination or for judicial ordination, that’s basically what is meant. And what distinguishes these two? That’s the category that interests me. Here I want to draw a distinction between the legal category and the halakhic category.

We said that the first instinct is to say: monetary law, interpersonal law — that’s Choshen Mishpat. But that doesn’t hold up against the facts. For example, interest. Interest, or charity, are monetary interpersonal laws, but they appear not in Choshen Mishpat but in Yoreh De’ah. So we need to narrow the definition a bit more and say — I talked about the relationship between duties and rights, and I said that in the legal world there’s Hohfeld’s table, which determines that right and duty are two sides of the same coin. Everywhere you have a duty toward me, I have a right against you, and vice versa. If it’s toward the state, then the state has duties toward me and I have rights against the state, and so on. There is always a duty corresponding to a right and a right corresponding to a duty.

Now in Jewish law there are those who want to claim that there is no discourse of rights, only a discourse of duties. That’s the accepted way of thinking and writing about Jewish law. And the reason is that, for example, charity: when the state gives social support to the needy, the needy have a right to receive it. Why? Because the law says that in a certain economic situation you are entitled to a subsidy, to aid from the state. Therefore you have a right; you can sue the state in court if it doesn’t give you that right. But in Jewish law, charity is a voluntary matter. I decide whether to give you charity; you can’t sue me in religious court and demand that I give you charity, even if I didn’t.

[Speaker B] As for the individual, that’s true of the individual.

[Rabbi Michael Abraham] As for the individual, and also as for the collective, for everyone. You can’t sue — I can’t sue anyone to get charity. And if someone doesn’t receive charity, it may be that I’m not okay, or society isn’t okay, and then the Holy One, blessed be He, will settle accounts with us. But the poor person does not have a right to receive charity; we have a duty to give him charity. So we see here that in Jewish law there are duties that do not have rights corresponding to them. That’s not the standard assumption in conventional legal thinking. In conventional legal thinking, there is always a right corresponding to a duty and a duty corresponding to a right. But in Jewish law there are duties without corresponding rights.

The state has no duty toward you that you cannot sue over in court if it doesn’t fulfill it — and likewise between people. There is no duty I have toward you that you cannot sue me over in court if I fail to fulfill it. If there is a duty and I didn’t fulfill it, then you have a right to go to court and sue me. There is no such thing as a duty on me without a right on your side. In Jewish law there is. The commandment of charity, for example, is a duty on me to give charity to the poor person, but the poor person has no right to demand that charity from me. Again, the implication is that if I didn’t give, then the Holy One, blessed be He, may settle accounts with me — but the poor person cannot take me to religious court and demand that I give him the charity supposedly coming to him. Because charity does not “come to him.” If something “comes to him,” that means a right. Charity is a duty on me to give him, but it’s not that he is entitled to charity. He is not entitled to it; I am obligated to give it. The one who will demand that duty from me is the Holy One, blessed be He, not the poor person.

And therefore the poor person has no standing; he cannot come to religious court and sue for it. But I said that this is exactly the reason charity, and interest for the same reason, are found in Yoreh De’ah. But what about a loan, damages, contracts, the laws of bailees, all sorts of things like that? Everything that appears in Choshen Mishpat — there, every duty I have toward you, if I don’t fulfill it, you can sue me in religious court. Say I borrowed from you and didn’t repay. I have a duty to repay you. I didn’t repay; you’ll take me to court and sue me. That’s not like a poor person whom I didn’t give charity to. A poor person I didn’t give charity to has nothing he can do. But an injured party, or a lender whom I did not pay the money I owe him, can take me to religious court and sue me. Why? Because the duty I have toward him is grounded in a right he has against me.

So it’s not just that I have a duty toward him, and if I didn’t fulfill it, the Holy One, blessed be He, will settle accounts with me — that may also be true. But besides that, he too has standing here; he has the ability to sue me because I violated his rights. It’s not just that if I fail to fulfill my duties, that’s not your business — it’s between me and the Holy One, blessed be He. But if I violate your rights, then it is certainly your business; you can sue me for violating your rights. So therefore I claim that the statement that there is no discourse of rights in Jewish law is a misunderstanding. It’s true that in Jewish law there is also a discourse that speaks about duties with no corresponding rights. That discourse appears in Yoreh De’ah, or in the area of rabbinic authority as distinct from judicial authority. But Choshen Mishpat is exactly the halakhic discourse of rights. Choshen Mishpat contains all duties that have rights corresponding to them. That is the definition of Choshen Mishpat.

Now generally duties are monetary duties, and therefore people call it monetary law. But that’s not essential, because charity and interest are also monetary, and they appear in Yoreh De’ah. Therefore the definition is not monetary law. The definition is duties that have corresponding rights. Choshen Mishpat is the halakhic book of rights. That’s basically its definition.

There’s an interesting midrash in Vayikra Rabbah, that Alexander of Macedon arrives in Africa — or Lodkia, I don’t remember, Africa, one of those — and he heard wonders about the king, or about the king’s wisdom. So he goes there and asks to watch a court case the king is handling. Fine. Two men come, and one of them claims: “I bought a house from so-and-so, and I found a treasure in that house. Since I bought the house and not the treasure, I demand to return the treasure to him; the treasure is his.” That’s the plaintiff — or call him whatever you like, the plaintiff. The second one says: “No, what do you mean? I sold him the house. If he found a treasure, that’s his profit. Whatever is in the house is his.” So the defendant argues: “What do you mean? I’m not obligated to receive the treasure. I think he should keep it; the treasure is his.” Okay?

Now what does the king do in a case like this? This king was apparently a pious man. What does he do? The king says: “Do you have a son?” “Yes.” “Do you have a daughter?” “Yes.” “Good. Let them marry each other and take the treasure.” He found a solution. Now you know, this is like Yonatan ben Uzziel with the bird. What does the Litvak say when he sees something like this? “These are Hasidic stories. I’m learning Torah here, not Hasidic tales. So tell me what the actual ruling is. Don’t find me solutions with the son and daughter and who will get the treasure. What’s the law in such a case? I asked you a halakhic question — why are you confusing me with weddings and sons and daughters and all this nonsense? We’re learning Torah here, not playing social games.”

You know the story where the Talmud says that Yonatan ben Uzziel was so holy that whenever he was learning Torah, a bird flying overhead would burn up? Now the Hasid who tells this story is all amazed at Yonatan ben Uzziel’s holiness. The Litvak who hears it asks: “Who pays for the damage?” It’s roughly the same thing. So here too, you can be impressed by the king’s wisdom, I don’t know, but the Litvak is not impressed by the king’s wisdom; he asks what the law is. I mean, I asked you a halakhic question, don’t tell me stories.

That reminds me of more stories; since we’re already on Litvak stories. There’s a story about Rabbi Shlomo Kluger. Rabbi Shlomo Kluger was rabbi in Brody. One day a man came to ask him a halakhic question. He sat there thinking and thinking, and said: “Listen, the truth is, I don’t know. I can’t figure it out. I don’t know the answer. I don’t know what to tell you.” So the fellow went back to his village near Brody, went into the local rabbi there, a young rabbi, and asked him the question. The rabbi went into his room, thought and thought, and came out with an answer. So the questioner was stunned, because the great Rabbi Shlomo Kluger didn’t know the answer, but this young fellow did. He goes back to Rabbi Shlomo Kluger and tells him the wonders about

[Speaker C] the village rabbi.

[Rabbi Michael Abraham] So Rabbi Shlomo Kluger was full of amazement at the wisdom of this young rabbi, and summoned him and said: “Tell me, how did you hit on that answer? I couldn’t.” So he said: “Listen, Rabbi, I’ll tell you the truth. When he came to ask me that question, my eyes darkened. I had no idea what to do with it. I prayed to the Holy One, blessed be He, in tears, that He should enlighten my eyes on this matter. And suddenly my eyes fell on some prominent book on the shelf, some book sticking out there. I opened it — boom — it opened exactly to the place that answered the question I’d been asked.” So Rabbi Shlomo Kluger waved him down the stairs and said: “I thought you knew how to learn. All you know how to do is whine.” These are Litvak stories.

Anyway, back to our point. Let’s return to Alexander of Macedon. So what really is the law in such a case? If you look in Jewish law for such a case, you won’t find it. Jewish law doesn’t tell you what the law is here. Why not? Again: what the law is about whom the treasure belongs to, if we didn’t specify what was transferred to whom — that could be a halakhic discussion. But now, given that each one demands to return the treasure to the other, the question of what the judge is supposed to do with that — you won’t find an answer in Jewish law. Why not? Does anyone have an idea why not?

Because each one grants the right to the other. There’s no one who is really liable.

Right. Exactly. The job of the religious court is to protect a person against the violation of his rights. If I’m the lender and he didn’t repay me the loan, then he violated my rights. I have a right to receive a certain sum from him, and he doesn’t give it, so he violated my rights. I go to court and petition it to protect me, so my rights won’t be violated. But in a place where each one wants to give the right to the other and the other doesn’t want to receive it, then no one’s rights are being violated. For all I care, let them throw the money into the sea. Is there anyone here claiming that his rights were violated? If so, let him come and I’ll protect him. But if not, then don’t bother me. Try to work out among yourselves what you’re going to do with this money. That’s not the court’s job.

In the case of the cloak — two people holding a cloak — you’re not saying both want to give it to each other.

Right, with two people holding a cloak there really is a violation of rights, because each says “it’s all mine,” and the other wants to take the cloak to himself, so he’s violating the first one’s rights. So then we need to clarify whether the rights are being violated and act accordingly.

Yes, but no one discusses what happens if they want to give it, one wants to give to the other and the other wants to give…

Exactly. Obviously the religious court won’t deal with that. But my claim is that in cases of that sort the court doesn’t adjudicate, because the role of the religious court is to protect a person against the violation of his rights. And therefore the concept of a religious court is essentially tied to the concept of rights. Meaning, whenever rights are violated, you go to court. When you want to ask a halakhic question, you go to a rabbi. And those are not the same thing; they’re two entirely different roles. Therefore only Choshen Mishpat and Even HaEzer are matters adjudicated in court. Orach Chayim and Yoreh De’ah are handled by a rabbi — not adjudicated, but you go ask the rabbi a halakhic question, and he tells you what the law says. But a religious court is something else. A religious court doesn’t just clarify what Jewish law says. The role of the religious court is to save a person, not to serve as an expert who tells you what the law says. Do you see?

A rabbi, in essence, is just an expert. He’s an expert in Jewish law. If you want to know what Jewish law says, you go to a rabbi and he tells you what it says. He represents God. In principle, you don’t even have to obey him. It’s just that you take a risk that you won’t act the way Jewish law actually requires. But in principle there’s no obligation to obey him; he’s a halakhic adviser, the rabbi. A judge, by contrast, you do have to obey, because the judge does not merely determine what the law says; the judge determines what you must do or what you are forbidden to do. Because the judge’s role is to protect a person against the violation of his rights — that’s a totally different role. A judge is not just a rabbi who specializes in Choshen Mishpat. The difference between Choshen Mishpat and Yoreh De’ah is not only a difference in content, where the rabbi dealing with this is called a rabbi and the rabbi dealing with that is called a judge. It’s a different type of activity. That’s why this is done in a court with three judges. A halakhic question you ask one rabbi, not a court and nothing like that.

Maybe I’ll give examples to sharpen the meaning a bit. Once, when I was in Yerucham — when I taught in the hesder yeshiva in Yerucham — I knew a man there who owned various rental apartments. A resident of Yerucham who had apartments and rented them out, and so on. I left Yerucham. A few months later, a former student of mine called me. He had rented an apartment from that man, and they had some dispute — I don’t remember anymore — about the lease agreement. He said they had agreed between themselves that whatever I said would be acceptable to them. So he asks me, all right? He asked me a certain question, and I said to him: “Look, in my opinion you’re right” — to the person who asked me — “assuming of course that all the facts you gave me are correct facts, because after all I didn’t hear the other side. But assuming the facts you gave me are correct, it seems to me that you’re right.”

A few hours later I got an angry call from the other party, the landlord. “Listen, you didn’t hear me at all — how can you issue a ruling in a case like this?” and so on. So I told him — I’m not sure how successfully I explained it to him — but what I tried to explain was that I didn’t act here as a judge but as a rabbi. Meaning, if he asked me a halakhic question, what the law is in such-and-such a situation, then I tell him: that is the law. I didn’t say that in the actual situation between the two of you, this is the situation and this is what should be done. To know that, I really do need to hear the other side, take testimony, see, clarify the facts, and then decide. And once I decide, then it really does bind both parties. But here I was only giving a halakhic opinion. To give a halakhic opinion, I don’t need to hear the other side.

Suppose the man who asked me lied, or didn’t give me the correct facts. So what? I told him: given the facts you are giving me, in my opinion this is the law. If those aren’t the facts, then I said nothing at all. I’m functioning here only as a halakhic adviser, even though the field is Choshen Mishpat. Rental law is Choshen Mishpat, but the hat I was wearing was the hat of a rabbi, not the hat of a judge. Do you understand? So there is a principled difference between the role of a rabbi and the role of a judge, and it doesn’t concern only the subject matter. Here, for example, the subject matter was Choshen Mishpat, but even in Choshen Mishpat I can go to a rabbi and ask him what the law says. That is totally different from going to court and suing someone, where if the court rules, both sides are obligated to do what the court determined. That’s not an opinion — it’s a ruling. Okay? So that’s something entirely different.

Another example that sharpens the same point: there’s a book by Rabbi Yechezkel Abramsky, a collection of essays, and in it there’s an essay on monetary law by, I think, his father-in-law, Rabbi Yerushalmsky — I think, I don’t remember anymore. There’s an essay there by Rabbi Yechezkel Abramsky himself, actually, about monetary law. He tries to explain what Choshen Mishpat is and things like that. He argues that Choshen Mishpat essentially determines the truest assessment of human intention. When the Torah says that so-and-so owes so-and-so money in a certain situation, it has in effect penetrated to the end of a person’s mind and said whether he committed himself or not, what he intended. So Choshen Mishpat is basically, let’s call it, the ultimate psychology textbook. Okay? It tells you what a person really means in every situation.

To me that statement is absurd, because if I want to study psychology I go to the psychology department; I don’t go to Choshen Mishpat. Psychology can also change from period to period, from place to place. Choshen Mishpat deals with norms, not psychologies. So I don’t accept that claim, but I’ll get back to it in a moment. In the course of the discussion he tells a story. He himself, after all, was the author of Chazon Yechezkel on the Tosefta. And he was also head of the religious court in London. London was — and still is — a city of God, with lots of Jews and several religious courts and judges, and he was head of the great religious court of London.

Now once a Jew came before him, he says, and told him: “Listen, I went to litigate in such-and-such a religious court in some neighborhood in London. I went there, and this is what happened. I borrowed from someone with interest. Then I repaid him the loan with the interest. And then I sued him in court to return the interest to me.” Now the rule in Jewish law is that fixed interest is extracted by judges. What does that mean? Fixed interest is Torah-level interest. It’s interest fixed at the time of the loan: you receive one hundred, you return one hundred and twenty. Okay? If it wasn’t fixed at the time of the loan — I gave you one hundred and afterward I said I want one hundred and twenty, or you just gave me one hundred and twenty on your own initiative — then it’s rabbinic interest. Torah-level interest is fixed interest, when we stipulate it at the moment of the transaction, at the moment of the loan. Okay?

Now the rule in Jewish law is that fixed interest is extracted by judges. Meaning, the judges compel the one who took the interest to return it to the borrower. It is extracted by judges. Non-fixed interest, rabbinic interest, is not extracted by judges. If you want to return it, fine, but the court will not compel you to return it. Okay? That’s the halakhic background.

Now the man comes and tells Rabbi Yechezkel Abramsky: “I went to that neighborhood court and told them that so-and-so lent to me and I repaid him with interest, but this was fixed interest, and therefore I demand that he return the interest and that the court compel him to do so.” The court discussed the matter and concluded that this was not fixed interest, and therefore he doesn’t have to return it — or rather, not that he doesn’t have to return it, but that the court will not intervene. So the man turned to the judges and said: “Write for me from what basis you judged me.” The Talmud says that a litigant can ask the judges to write the reasoning of their ruling. “Explain to me from what basis you judged me, what your ruling is based on.” Usually this is for the sake of appeal or to show a higher instance: “These are the reasons; tell me whether they were right or wrong.” Fine. But that’s what he asked: “Write for me from what basis you judged me.” And they told him: “We don’t want to write it for you.” So not only did he not get his interest back, they also weren’t willing to write the reasoning. He was completely frustrated and went to Rabbi Yechezkel Abramsky and told him the whole story.

And there he got the third slap in the face, because Rabbi Yechezkel Abramsky told him they were right. And then he explains. He says: interest appears in Yoreh De’ah, not in Choshen Mishpat. What does that mean? It means that when I — say I borrowed from you — and now I pay you with interest, I have no right at all to get that interest back, because I agreed. We had a contract between us, and I committed myself to give you the interest. True, it is forbidden. It is forbidden for the lender to take it, and forbidden for the borrower to give it. Fine — so the Holy One, blessed be He, will settle accounts with us. But as far as rights are concerned, I have no rights to that money. That money belongs to you. It’s just that you’re forbidden to use it, forbidden to have taken it, from the standpoint of the Holy One, blessed be He. But not because it belongs to me. You’re not a thief. It’s not my money. Therefore I have no rights in that money.

So why is fixed interest extracted by judges? Why do we go to court and extract fixed interest? The claim is that the judges here are compelling the observance of commandments. You know that someone who says he’s not going to build a sukkah is flogged to compel him to build a sukkah. Now sukkah belongs to Orach Chayim; it’s not Choshen Mishpat. Why do we go to court to compel him? Because compulsion is a judicial act. Only a court compels — not a rabbi, not a decisor, but a court. So the court has another role: it can also compel the fulfillment of commandments — not just can, must.

Now in this case of fixed interest, the court is functioning as one who compels commandments, not as one who saves a person’s rights from being violated. When I, as the borrower who paid fixed interest, go to court, I ask the court to have the lender return the interest to me. In fact, my rights were not violated, because the interest is not mine — it’s not owed to me; I agreed to this contract. Therefore, as far as monetary law is concerned, the interest is his. It was forbidden for him to take it under Yoreh De’ah, but from the standpoint of Choshen Mishpat it is his. So why does the court compel him to return it? Because there is a commandment to return it, and the court compels commandments, just like building a sukkah. The court here is not functioning as guardian of my rights, as one who protects me so my rights won’t be violated. The court is functioning as the representative of the Holy One, blessed be He, compelling the person to fulfill his duties toward God, not as the protector of my rights.

What does that mean in practice? It means that when I come to court and ask for the interest back, what is my status in court? Am I the plaintiff?

No, you’re sort of guilty too, you’re a person who sinned; you seem like the plaintiff, but really you committed a transgression.

I’m called an offender, but that’s not the point here. I’m asking that the interest be returned; fixed interest is extracted by judges. So I come to court and say: “So-and-so took fixed interest from me; please return it to me.” Am I the plaintiff?

You don’t have a right against him.

Right. I’m not a plaintiff. Once I agreed, I’m a witness. I’m not a plaintiff. I come to court and testify that so-and-so is not fulfilling the commandment to return the interest. It just so happens that I’m also the one to whom it has to be returned. But essentially I’m functioning here as a witness, not as a plaintiff. Once the court is convinced that so-and-so did indeed take fixed interest, then it will use its authority and compel him to return the interest. But I am not considered a plaintiff here. I’m a witness that there was an incident that requires the court’s intervention to compel commandments.

So if that’s the case, Rabbi Yechezkel Abramsky tells him, when you approached the court, you were approaching them as a witness, not as a litigant. True, if they had decided to return the interest, they would have returned it to you — but not because you have a right to receive the money, but because he has a duty to give you the money. You do not have a right. You cannot sue him. That is why the laws of interest appear in Yoreh De’ah and not in Choshen Mishpat, because in the laws of interest you have no right to receive it. Legally, a contract involving interest is fully valid from the standpoint of monetary law. It’s just forbidden to do it. So it appears in Yoreh De’ah and not in Choshen Mishpat.

Therefore, if you ask them, “Write for me from what basis you judged me,” Rabbi Yechezkel Abramsky says to him: “They didn’t judge you. What do you want? Are you a litigant here? Are you a plaintiff? We judge between two litigants, but you are not a litigant — you are the witness. Since when does a witness come and say to the court, ‘Write me the reasons for your ruling’? What are you even doing here? What business is it of yours? You are a witness. This trial did not concern you. The trial concerned a plaintiff and a defendant. What does that have to do with you?”

And here the person who paid the interest — his status in court is really the status of a witness, not a litigant. Therefore Rabbi Yechezkel Abramsky tells him: they were right not to write you the reasoning. They didn’t need to write it for you. You are not the relevant party here.

Now that sharpens very nicely, I think, the meaning of why the laws of interest really appear in Yoreh De’ah and not in Choshen Mishpat — even though in the end it also gets to court and the interest is extracted by judges. And still it’s in Yoreh De’ah and not in Choshen Mishpat. Why? Because I have no rights over the sum of the interest. The sum of the interest is not due to me; it is not mine. And therefore it’s in Yoreh De’ah and not in Choshen Mishpat.

So what does all this mean? Basically it means that in Choshen Mishpat there is some underlying structure of rights that people have, and when someone violates my right, or does not fulfill his duty and thereby violates my right, then I petition the court and ask it to protect my rights. Okay. Now who determines those rights? How do we know which rights belong to whom? You could say that the Torah determines which rights belong to whom. But it seems to me we talked about Rabbi Shimon Shkop with the Mahar”i Basan — was that here, or in another series? I don’t remember anymore. About the question why the burden of proof is on the one who seeks to take from another — after all, there’s a possible prohibition of theft here, so shouldn’t we be stringent? No, apparently that wasn’t here. So I’ll say it briefly.

Rabbi Shimon Shkop brings in Gate 5 the difficulty of the Mahar”i Basan. The Mahar”i Basan basically asks: why is the rule that the burden of proof is on the one who seeks to take from another? Suppose Reuven sues me. He brought no proof. So we are in doubt. We don’t know who is right. What happens in doubt? I keep the money, right? The burden of proof is on the one who seeks to take from another. Now why? There’s a possible prohibition of theft here. Why shouldn’t I be stringent to avoid the possible Torah prohibition of theft? In Torah-level doubt we are stringent.

Now at the simple level that’s not hard. Why? Because usually when he sues me, he and I know the truth, even if there’s no proof, because we were there on the ground. The court is in doubt because it has no proof and wasn’t there. It doesn’t know. So if the court is in doubt, what does that have to do with me? I don’t have to be stringent because you are in doubt. I’m telling you I know: this money is mine. So what — are you going to force me to throw the money into the sea just because you are in doubt? What does that have to do with me? I don’t need to be stringent because of that doubt, because I’m telling you there’s no prohibition — I know the money is mine. Of course you won’t take the money from me because you have no proof, and you also won’t rule that the money remains with me on the basis of proof in my favor, because you have none. You simply withdraw because you are in doubt. But as for me, there is no problem in my holding the money. I can hold it because from my point of view there is no prohibition. I know this money is mine. What, you’ll force me into a possible prohibition when I’m not in doubt?

But where is there a problem? In a case of certainty against uncertainty. Why? Usually in certainty against uncertainty, certainty has the advantage. If you claim with certainty that you lent to me, and I claim maybe yes maybe no, then certainty should prevail in principle. But that’s only when there is no current possessor. If the one who claims uncertainty is the current possessor, then certainty against uncertainty does not prevail. That’s an amoraic dispute, but in practice the ruling is that it does not prevail. You can’t extract from a possessor without proof. On the basis of a claim alone you cannot extract from a possessor. So certainty against uncertainty does not prevail.

Meaning, suppose someone claims one hundred shekels from me — loan, damage, whatever. And I say: “Listen, honestly I don’t remember. Maybe yes, maybe no.” So he claims with certainty, and I, the possessor, claim uncertainty. In that case the money stays with me. And on that the Mahar”i Basan can ask: but wait, here I myself am also in doubt, right? I myself said “maybe.” I don’t know the truth. So if I don’t know the truth, then there is a possible prohibition of theft here, and in Torah-level doubt we are stringent. So how can they allow me to keep the money?

So Rabbi Shimon Shkop says that the prohibition of theft is different from all the other Torah prohibitions. In all other Torah prohibitions, the prohibition begins with the command. Take the prohibition of eating pork — where does it come from? From the fact that the Torah forbade eating pork. The commandment to put on tefillin — where does it come from? From the Torah commanding us to put on tefillin. So the Torah’s command constitutes the commandment or the prohibition.

But in the prohibition of theft, the prohibition is to steal someone else’s property. But who determines what counts as someone else’s property? First you need some prior assumption about the laws of ownership. How do you determine whose acquisition something is? How are property rights transferred? How is property distributed in the world? How do you determine what belongs to whom? Once those determinations exist — that’s what’s called the laws of property — then I can say there is a prohibition against taking money that doesn’t belong to me, that belongs to someone else. But before implementing that prohibition, there first has to be a system that clearly determines what property belongs to whom. The laws of ownership precede the laws of theft, right? Without them there can be no prohibition of theft.

Then Rabbi Shimon Shkop asks: where do we know the laws of ownership from? The Torah says לא תגזול — “do not steal” — meaning, it assumes there is already some known allocation of ownership. And it says there is a prohibition against violating that allocation, taking money that is not mine. But where does the allocation of ownership come from? How do we know what belongs to whom? The laws of property have, for the great majority of them, no source in the Torah. These are things the Sages determine. Tractate Bava Batra is a tractate without verses. And even Bava Metzia, in the sections dealing with acquisition, very rarely brings a verse or derivation as the source. Most of these things — and these are Torah-level laws — have no source at all.

So Rabbi Shimon Shkop says we must say that when the Torah says לא תגזול, it clearly assumes that there is already an existing system of property law. Once that system exists, it is forbidden to violate another person’s ownership, and that is the prohibition of “do not steal.” But the system of property law is a set of rules already present before the prohibition of “do not steal” was stated. And this is what he calls the laws of justice, or the jurisprudence of justice — the legal system. Society establishes a legal system that orders the laws of property, and once there are property laws, the Torah not only recognizes them but also establishes a prohibition against violating someone’s property.

Okay? But the system of property rights is a system of law that precedes the Torah. The Torah assumes it exists, and only because of that can it command “do not steal.” Now he says: if you ask where the authority of that system comes from if the Torah didn’t command it, then like every good Jew he answers a question with a question. He says: and from the things the Torah did command, how do you know one has to obey them? From the fact that the Torah commanded something, how do you know it is binding? Why should one obey it? Because reason says that what the Torah commands must be fulfilled, what the Holy One, blessed be He, commands must be fulfilled. Well then, reason also says this. Or in other words, you assume the Torah’s command is the most basic thing. Mistake. Reason is the most basic thing. Even the Torah’s command is based on reason; that is why it has force. So if there is a reason outside the Torah’s command, independent of the Torah’s command, it too will obligate. I don’t need a command in order to give force to reason. On the contrary, reason is what gives force to the command. That’s how he answers.

And then he says: if so, the Mahar”i Basan’s question in the case of certainty against uncertainty was why the one who claims uncertainty can keep the money. After all, there is a possible prohibition of theft. Why is he not obligated to be stringent and avoid that doubt? He answers: because “do not steal” is a prohibition that comes to give force to the property laws, or the laws of justice, as he calls them. Now if from the standpoint of the legal system the legal rule is that the burden of proof is on the one who seeks to take from another, then at the legal level I’m allowed to keep the money if the plaintiff didn’t bring proof. And if the plaintiff didn’t bring proof, then the defendant may keep the money as far as the legal system is concerned. That is the meaning of the rule that the burden of proof is on the one who seeks to take from another. Every legal system in the world works that way. Consequently there will also be no prohibition of “do not steal” here, because the prohibition of “do not steal” comes to anchor violations of the laws of justice.

That means: if the laws of justice say this money is yours and I took it, then I violated “do not steal.” But if from the standpoint of property law this money is mine, then what sense is there in saying that maybe I am violating “do not steal”? There is no need to worry about the prohibition of theft, because the whole point of the prohibition of theft is to anchor the laws of justice; and if from the standpoint of the laws of justice I may keep the money, then no problem of “do not steal” arises. That is Rabbi Shimon Shkop’s answer.

What this really means is that there is an extra-halakhic, or pre-halakhic, system that determines the laws of property, and the halakhic system simply comes to give it halakhic sanction — religious, halakhic, whatever you want to call it. Meaning, it says that whoever violates someone else’s property has violated the halakhic prohibition of “do not steal.” And where does that legal system get its authority if not from the Torah’s command? From reason. Reason says there has to be an arrangement of property law between people. Not because of the Torah’s command — because of reason.

Now I ask: if that’s so, then let’s get, for example, to — or one more step before that. How does this connect to what I said earlier? The claim is basically that the laws of justice determine the duties and the rights. This money is mine, this money is yours. If I lent, you have to return the money to me. If you caused damage, you have to pay me. That is what determines the system of rights and duties. And then the Torah comes and imposes a prohibition on whoever violates someone else’s rights, whoever doesn’t fulfill his duties and thereby violates someone else’s rights.

Now I’ll ask you a question. Suppose in the State of Israel today I deposited something for safekeeping with someone, another person. He is an unpaid bailee. Fine. Now it was stolen. According to Jewish law, an unpaid bailee is exempt in a case of theft, right? He is liable for negligence but exempt for theft and loss. But under state law, that is not necessarily so. Suppose for the sake of discussion that under state law he is liable. So what will a religious court say? I now sue him in religious court.

It will go by the law, it’ll tell you.

Right. Why?

The law of the kingdom is law. It’s reason, sort of, because it’s reason.

Yes, the law of the kingdom. The law of the kingdom is binding in monetary matters. Meaning, the king can determine people’s rights and duties, and that receives halakhic force. Okay? The king is the one who determines it. Therefore in the law of the kingdom, all monetary law is determined by the law of the kingdom, by the custom of the land; there are all sorts of external factors that determine the rights and duties in monetary law. And Jewish law gives that force, halakhic force.

So in effect, in monetary law — let’s think about the laws of bailees — if you want to know what is halakhically binding in the laws of bailees, what do you need to study in yeshiva? The law book of the State of Israel, right? The statute book of the State of Israel, or the precedents and so on, because that is the law; that is what is actually binding in Jewish law, not the Shulchan Arukh. The Shulchan Arukh is some kind of default option — if there’s no law, then you go by it; but if there is law, then you go by that.

I’ll say even more than that. The Mishnah in Bava Metzia 94 says: an unpaid bailee may stipulate to be like a paid bailee, and a paid bailee may stipulate to be like an unpaid bailee. In monetary matters, one may stipulate contrary to what is written in the Torah. We can set up a different arrangement between us: you’re an unpaid bailee but will be liable for theft and loss, or a paid bailee but exempt from theft and loss. As long as we both agree and stipulate, everything is fine. Not only that — all the decisors say this is permitted from the outset, not just recognized after the fact. There is no problem at all. You want to make a contract different from the contract the Torah laid down? Fine, make a different contract.

Meaning, there is no problem even from the outset in doing that. So why do we need all the laws of bailees that we spend our days on in the study hall? Only so that — only in a case where the law says nothing — then that will be what binds. But if the law says something, then you need to go to civil court and that is what will determine things; and halakhically too, that is what will determine things.

Now I ask: can you recite the blessing over Torah study on the study of law? Theoretically yes.

If law helps you in studying Torah, then yes.

So seemingly yes, right? More than that, I think over Choshen Mishpat you can’t recite it — because it’s no longer relevant today. What’s relevant is the law. So only over the study of law — only over the study of law should you recite the blessing over Torah study. Something here sounds wrong, right? I’ll tell you what sounds wrong. Obviously the law regarding bailees is not Torah. That is not Torah. True, it binds me halakhically. If you ask what Jewish law obligates me to do, then yes — what the law says. True, it is part of Jewish law. But it is not Torah.

Why is it not Torah? For that we need to go back and ask ourselves: then why did the Torah establish all the laws of bailees? Why do we study the laws of bailees? After all, they are no longer relevant today in terms of what binds me in practice. The answer is that the Torah established the law of what ought to be. If you deposit with an unpaid bailee, then it is fitting that he be exempt in cases of theft and loss and liable only in negligence. That is Torah justice. That is what should be. Now, if between yourselves you stipulate and want to give each other gifts beyond what justice says, that’s your right. No problem. It’s permitted to give gifts. Everything is fine. But the Torah tells us what justice says. And that remains always true regardless of what the law says.

Only that once the law is established, then it means that we act not according to justice but according to the law. Fine. But when I study Torah, I study the just arrangement. That is what it means to study Torah — to study the just arrangement. Not necessarily the arrangement that binds me in practice right now. In practice there may be another arrangement that binds me; in this case, the law. But that doesn’t mean the law thereby becomes Torah. Torah is learning a certain legal truth, what legal truth really says. And that does not necessarily mean that’s what I’ll actually carry out.

Therefore, when I study the laws of bailees, that is always Torah. It makes no difference whether there is another law, no other law, whether it is implemented or not — none of that matters. I study it because the Torah reveals to me that this is the halakhic truth. When there is a bailment contract of such-and-such a kind, these are the obligations that are called for. And that is an eternal truth. It is always true. As for practical Jewish law, if the law or custom — whatever — established something else, fine, then we have agreed that we are giving gifts even though justice is on my side and I ought to receive payment. I decided to give you a gift and waive my claim so you don’t have to pay me. Fine. If I give you a gift, that’s perfectly okay.

So I’m allowed to waive my rights, right? But it’s still my right. It is my right to receive that money; I just waived my right. That’s all. So for example, when I ask why one may stipulate contrary to what is written in the Torah in monetary matters — whereas in prohibitions you cannot — why is that? Because in monetary matters I’m not stipulating against what is written in the Torah. What the Torah says is what my rights are. And that you can’t stipulate away — those are my rights, period. True, I can come and waive my rights. Fine, so what? That’s not going against the Torah. The Torah did not say that I am obligated to actualize my rights. The Torah said those are the rights due to me. If I want, I can receive them. But if I decide to waive them, good health — that’s my right. There’s no problem; one is allowed to give gifts.

Therefore one may stipulate contrary to what is written in the Torah; in monetary matters that simply means giving a gift. Because from the Torah’s point of view, that money is due to me. But when I stipulate, what I’m really saying is: I waive it; take it as a gift. So there is no problem at all in monetary matters. But I can’t stipulate that it should be permitted for me to eat pork, right? Eating pork is not someone’s right that he can waive. That’s a duty, period. In monetary matters I have a duty that is really your right. So if you waive your right, everything is fine. No problem.

So this really means that the fact that in monetary law there is a duty corresponding to a right means I can waive those rights and it won’t count as going against the Torah. But if I waived those rights, is that waiver itself Torah? Is learning that Torah? No. Torah is what is really due to me, what justice says is really due to me. The fact that afterward I decide to waive it or give a gift — that is certainly my right, but that act of gift-giving is not Torah.

So when the law says that a paid bailee is exempt from theft and loss, let’s say for the sake of discussion, then that exemption of the paid bailee from theft and loss is not Torah. It doesn’t have behind it justice, legal truth. True, that is what binds me. Do you understand what I’m saying? Torah is the word of God. Torah is something that represents some truth, some legal truth. Now, I don’t always have to act according to the truth. I’m allowed to waive my rights, even though the truth is that those rights are due to me. I can waive that right. No problem. But the truth still remains that the right is due to me.

Yes, but Rabbi, about interest too you can say that we both agreed, I’m paying you, everything is fine — and still it’s a transgression, no?

It’s a transgression, but it’s not a right. Interest belongs to Yoreh De’ah. If interest were defined under Choshen Mishpat, then it would really mean that the interest money I paid you is not yours but mine, and then perhaps I could waive it and leave it with you, and it would resemble what I said here. But according to the Torah’s own categorization, interest is in Yoreh De’ah, not in Choshen Mishpat.

Okay, so that kind of means the transgression is in the object, whatever, like it’s…

No, it means the transgression is toward Heaven, not toward me. Toward Heaven. Meaning, you’re not allowed to agree, you’re not allowed to agree to take…

Right, but the agreement takes effect.

Yes, obviously. It’s forbidden at the level of prohibition, but monetarily the agreement takes effect; it’s a valid contract. Okay?

Let me sharpen this further. Rashi at the beginning of the chapter HaKones — well, after the beginning — on page 60, says that a person may not save himself using another person’s property. If someone threatens me with a gun, and in order to save myself I need, I don’t know, to break your chair, and for the sake of discussion you don’t agree that I should break your chair — then I must die; I’m forbidden to break your chair in order to save myself. Now that sounds strange, because all the Torah’s prohibitions are overridden…

Isn’t this a life-threatening situation?

Yes, all the Torah’s prohibitions are overridden by life-saving, except for the three severe transgressions: idolatry, forbidden sexual relations, and murder. So how does theft or damage get in here too?

So the Arukh HaShulchan and others explain it, and I once wrote an article about it, and the claim is essentially this: true, the prohibition of theft is overridden, but that chair is still yours. I’m forbidden to take that chair not because of the prohibition of theft. The prohibition of theft resting on me is overridden — it’s life-saving. But in actual fact the chair is yours. And the only one who determines your rights is you. I can’t determine anything about your rights — not because of the monetary prohibition, the prohibition of “do not steal,” excuse me, as Rabbi Shimon Shkop said — but because of the laws of justice. It is yours. So even if somehow I neutralize the prohibition of “do not steal,” and there is no prohibition of “do not steal” — fine, so there is no prohibition on me, wonderful — but in actual fact that chair is yours, and I cannot take it and make decisions about it and break it, and so on.

That is basically the claim. A favorite example of mine in this context: I have a friend in Bnei Brak, a joker, and we were sitting at a table and saw someone reading an interesting book that my friend had been looking for for a long time. So he said to him: “Look, my friend, I have two options: either take the book from you and violate ‘do not steal,’ or leave it with you and violate ‘do not covet.’ Since either way I’m violating something, at least let the book be with me — so I’ll steal it.” Now of course that’s not the correct interpretation of “do not covet,” but let’s suppose for the sake of discussion that it were. Even then, the conclusion would be wrong — and of course he knew that.

Why is the conclusion wrong? Because you explained to me why you have no prohibition, because whichever way you go there is a prohibition, so you can’t avoid violating something anyway. Let’s say I buy that argument. Fine. Wonderful explanation. But the book is mine. Keep your explanations to yourself. The book is mine. It is part of my rights; it is my property. You cannot touch the book even if there is no halakhic consideration forbidding it to you. You cannot touch it simply because it is mine. That is the point.

And the same thing here. When I break a chair in order to save my life, the logic says: what do you mean, the prohibition against damaging is certainly overridden by life-saving. True, the prohibition against damaging is overridden, but the chair is yours and not mine. I can’t take your chair without your permission. But what does “I can’t” mean? Fact is, I can. Not physically can’t — I can’t normatively. What norm? It’s forbidden. Forbidden by whom? By Heaven? Legally forbidden. A legal prohibition.

But then okay, so they’ll put me in jail because I broke his chair — where would that be?

Yes.

But there’s no such law in the world.

Why not? Everywhere — go to court and say okay, I broke his chair and saved my life — he’ll win in court.

First of all, any court will tell you fine, but pay him for the chair. But in Jewish law not only do you have to pay him; more than that, some authorities say — Rashi says — that you’re forbidden to take it in the first place, not just that you have to pay afterward. Rather, you are forbidden to take the chair; you must die.

Again, I don’t want to get into that whole topic — it’s a heavy topic. I only want to show you the two sides of the distinction I made here between Choshen Mishpat and Yoreh De’ah. I said that Yoreh De’ah contains duties that have no corresponding rights. In Choshen Mishpat, every duty has a corresponding right and vice versa. Okay? Now this has two sides. On the one hand it is the easiest thing in the world; on the other hand it is the most severe thing in the world.

It is the easiest thing in the world in the sense that one can stipulate around it. The things in Yoreh De’ah, you cannot stipulate around. Right? You can’t stipulate to permit eating pork. But concerning monetary law I can stipulate. So in that sense it is the most flexible domain in Jewish law. You can stipulate about it; you can do whatever you want. On the other hand, I have to die rather than violate it — which is not the case with pork. In theft I have to die rather than violate theft. With pork, obviously I eat pork to save myself. So it is both the strictest and the least flexible thing in the world.

How do you understand the fact that on the one hand it is the most flexible, and on the other hand the most rigid and inflexible? The answer is simple. My duty not to steal from you is grounded in your right. And since that is so, two opposite sides of the same coin emerge. If you waive the right, there is no problem; you waived your right, everything is fine. But if you did not waive the right, then I cannot violate it in any way in the world. No justification I may have can justify violating your rights. In other words, the distinction that there is a duty corresponding to a right has two sides: one side stringent, that if you did not waive the right then it is the most rigid thing in the universe; and the other side lenient, that if you did waive the right, after all it is your right, and if you waived it, you waived it — everything is fine.

Maybe I’ll give you another illustration. There’s a Talmudic passage in tractate Bava Batra on page 5. The Talmud says there: there is a presumption that a person does not repay before the due date. What does that mean? Suppose I borrowed money from you and you sue me for the money. The loan was for thirty days. So if I sued you — sorry, if you sued me — after a week, before the due date arrived, then I could have said to you: “Fine, wait till the end of the month and I’ll pay you.” But I didn’t say that. I said: “I already repaid you. What do you want? Yesterday I was by you and returned the money.” So the Talmud says there is a presumption that a person does not repay before the due date. You still have three more weeks to hold onto the money. It’s not reasonable for a person to give up the money before he has to. A person doesn’t repay before the due date. If you have time for a month, you’ll hold the money for a month. And if you claim that you repaid before the due date, the burden of proof is on you.

But today there are exchange-rate differences, between the dollar and this and that, so maybe he wants to prepay.

Fine, so there may not be such a presumption there. I’m talking where there aren’t such differences. Then the burden of proof is on him.

The burden of proof on him so that afterward they won’t ask him again for the note.

No. Why does he have to prove that he…

The burden of proof is on the defendant. The defendant…

Because afterward they’ll ask him again for the note.

What note? A person comes and says…

The loan note. The money, not the note.

The money. They’ll ask again.

No, they won’t ask again — they’re asking now. What do you mean? No — he took money; if he returned it before the time…

Didn’t return — again. Let’s say I borrowed from you, okay? Now you come to sue me a week after the loan, and the due date is in three weeks, after a month. Okay? You come to sue me and I say: “What do you want from me? I repaid you.” And you claim: “No you didn’t repay me.” We have a dispute. So certainly the burden of proof is on him. Wait, wait. Who has to bring the proof?

The plaintiff.

No.

No. He already brought the proof — that’s different proof.

Usually the plaintiff has to bring the proof. Here the defendant has to bring the proof. Why? Because I am making an unreasonable claim. Right? I’m saying I repaid you, but a person doesn’t repay before the due date. That’s not a reasonable claim. So you need to bring proof for what you’re saying. Okay? That’s what the Talmud says.

Now I come back to Chaim’s earlier point. Suppose that because of exchange-rate differences and so on, in our conditions today people do repay before the due date. You have a mortgage with the bank, okay? A big inheritance falls into your lap and you want to close the mortgage. You paid the bank before the due date, before the mortgage’s due date arrived. But the plaintiff should bring…

Now the bank comes and demands the money from you, and you say: “What do you want? I paid.” They say: “No you didn’t.” What would we rule? The Talmud says there is a presumption that a person does not repay before the due date. What will we rule?

That he doesn’t have to repay.

Why not?

Because according to state law, it’s reason, sort of.

No, forget state law. Suppose the reasoning changed, the common sense changed now because the conditions changed.

Right. In our circumstances now, a person does repay before the due date. There is no presumption that a person doesn’t repay before the due date. So this is not like what is written in the Talmud. It’s a different situation, right?

Okay. Now, can I tear page 5 out of Bava Batra and throw it in the trash? It’s no longer relevant. It may not be relevant now, but tomorrow it might be.

Fine, so that’s the same as the law book; the law book could also be relevant the day after tomorrow.

No, because it’s a way of Torah — that’s what they teach us.

What do you mean? I absolutely do need to keep page 5 of Bava Batra. Why? Because page 5 of Bava Batra is Torah, even though the law is not relevant today. And the statute book is not Torah, even though the law there is exactly what is relevant today. Why? Because what does the Talmud in Bava Batra page 5 teach me? Not, as Rabbi Yechezkel Abramsky said, not the psychological claim that a person doesn’t repay before the due date. For psychology I go to the psychology department, not to Choshen Mishpat and not to Bava Batra.

What it teaches me is a halakhic principle. And the halakhic principle is that when there is a presumption against you, if you are the defendant and there is a presumption against you, the burden of proof shifts onto you. And that is always true. True, in the situation we have today there simply is no presumption against you, so the Talmud’s rule is not relevant to our situation today. But the principle that appears in the Talmud — that when there is a presumption against the defendant, the burden of proof shifts to him — is an eternal principle. It never changes. Changes in circumstances do not alter it at all. What changes from one set of circumstances to another is the question whether there is a presumption or not. Human psychology can change, or people’s incentives can change. But the halakhic principle that says that if there is a presumption against you, then the burden of proof is on you — that is Torah. And that is the only thing that is Torah.

The psychological assessment that a person doesn’t tend to repay before the due date is not Torah. That is just a factual psychological determination, which can also change from place to place. It’s a psychological claim, not Torah. Torah deals with Jewish law, with halakhic guidance. So what halakhic guidance do we learn from the Talmud in Bava Batra? That if there is a presumption against the defendant, the burden of proof is on him. Whether there really is such a presumption or not — go ask the psychology department whether there is or isn’t. That is not of interest here. Jewish law merely says that if there is such a presumption, the burden of proof is on him. And that determination is purely halakhic. It has nothing to do with facts as such. It’s an eternal law.

It may be irrelevant in our situation today because in our situation there is no presumption that you didn’t repay before the due date, so page 5 of Bava Batra isn’t relevant to us today. Okay, so what? It is still Torah. The Torah says that if there is a presumption against you, the burden of proof is on you, and that is always true; it is eternal and doesn’t change. And that is what is called Torah. And what does the law say? The law merely determines whether there is a presumption or not; it determines the factual situation. That is not Torah. Torah is always halakhic determinations, not factual determinations.

Obviously, in order to apply the halakhic determinations we need to decide what the factual reality is. That’s clear. Once we decide what the factual reality is, we apply the halakhic instruction to it. But the determination of what the factual reality is — that is not part of Jewish law. There is nothing sacred about the psychological principle that a person does not repay before the due date. If someone studies the psychological principle that a person does not repay before the due date in the psychology department, would he need to recite the blessing over Torah study? No. They’ll teach him there that people like to hold onto money as long as they can; they don’t repay early. I assume we’d agree he wouldn’t recite the blessing, right? So why would I have to recite it if I learned the same thing from the Talmud? It’s the same thing. Just because it’s written in Rashi’s script, so what?

And the answer is that there too I’m not reciting the blessing over Torah study on that. The Talmud in Bava Batra is not teaching me the psychological fact that a person does not repay before the due date. The Talmud in Bava Batra is teaching me the halakhic principle that if there is a presumption against you, the burden of proof is on you. Is there a presumption or not? Go to the psychology department and check — that’s not the point. The Torah in this matter is only the halakhic determinations.

Now, of course, in order to apply it practically, you need to examine the factual circumstances and determine the facts. But that is only a means for fulfilling the commandment; it is not the Torah itself. In order to know what to do, I need to clarify the facts. But the Torah in the matter is only the halakhic principles that apply to those facts. That is the Torah in the matter. Therefore it makes no sense to recite the blessing over Torah study either over the psychology department or over the law school. Because in law school, the Torah in the matter is that the law of the kingdom is law. When I study the principle that the law of the kingdom is law, I recite the blessing over Torah study. But when I study the law of the kingdom itself — meaning what the king decreed, what the law is here and there — obviously I do not recite the blessing over Torah study. Even though I need to study that in order to know what to do halakhically today.

Do you see that once again we’re encountering a category that is binding Jewish law but not Torah, exactly as we learned in sacrificial matters? Right? The determinations of the government, or of the psychology department, or of the law department — whatever you want — are not Torah. Even though they are very important in order to apply Jewish law in practice. I absolutely need to know them in order to know what Jewish law requires in practice. That is the law; what is written in the law book is the law. But it is not Torah. Torah is what the law ought to have been. Torah is not what the law is in practice.

Rabbi, that’s a very powerful insight. I’ll tell you, you really changed everything for me just now. When you asked this at the beginning, I always understood it as the Talmud teaching human psychology. But now you changed it for me, and it’s really a major illumination.

Okay, I’m very glad. I gained big just now. Because I really always looked at the psychology they were searching for.

No, it’s important to clarify the psychological aspects, but that isn’t the Torah in the matter. You need to clarify the psychological aspects because without them you can’t understand the Torah. But that is only a means to the commandment; it is not what is called Torah in the sugya. It’s not what they’re really teaching you.

Right.

I’ll give you an example. The Torah says ככל היוצא מפיו יעשה — “he shall do according to whatever comes out of his mouth” — a positive commandment and a prohibition, that one should not profane his word in connection with a vow. If I made a vow about something, I need to fulfill it. Okay? Now suppose I vowed not to eat bread. Then I’m forbidden to eat bread. So the halakhah is that I’m forbidden to eat bread, right?

Now I start clarifying what a person means when he vows not to eat bread. Does pita count? Matzah? Pretzels? Caraway bread? Challah? I don’t know. Meaning, which kinds of things are included in the term “bread”? To figure that out, I need to go out to the marketplace and see how people actually speak, right? When they say “bread,” what do they mean? This clarification is very important in order to know the law, because otherwise I may violate a Torah prohibition — I may violate my vow. Is that clarification Torah? No. Why not? Because it is only a means to fulfilling the commandment. It is a way for me to be able to keep the law. But Torah is only the law itself. Clarifying the facts or the contextual background needed to apply the law — that is not Torah.

When the religious court investigates whether you borrowed or didn’t borrow, it is not engaged in Torah. After it has clarified that you did borrow and now rules that you must repay — there it is engaged in Torah. But clarifying the facts to which the halakhic instructions will apply is not Torah; it is a means to fulfilling the commandment. Okay?

Therefore the claim I want to make is that just as we saw with sacrificial matters, so too we see in Choshen Mishpat — or in the law of the kingdom, if you want — and enactments of the townspeople, all these things. They are indeed binding according to Jewish law, but they have no connection to Torah. Studying them is not Torah; one does not recite the blessing over Torah study on them. And conversely, one does recite the blessing over Torah study when learning all those laws that one may not follow today at all, because today one must follow state law. And only over that does one recite the blessing over Torah study. Why? Because there is a difference between Torah and Jewish law. Jewish law is what I have to do. Torah is what it would have been fitting for me to have to do. Okay?

A person gets up in the morning, doesn’t wash his hands, and starts learning Choshen Mishpat…

I don’t understand. If it’s not Torah, and you’re not allowed to study Torah before the blessing over Torah study and before prayer, then if a person gets up in the morning and starts learning all these laws…

So I’m saying: it depends which part. If he studies the psychological principle that a person doesn’t repay before the due date, there’s no problem at all. But if he studies the law saying that because a person doesn’t repay before the due date, therefore the burden of proof is on him, that requires the blessing over Torah study. Okay? That’s a practical difference. We always deal with all of this together, but still, on the essential level it’s important to distinguish. When we deal with all this, some components are Torah and some components are only means to fulfilling the commandment. They are means that enable me to engage in Torah, but they themselves are not Torah. Okay?

Now I want to make a similar move…

Sorry, Rabbi, is this your own idea, or is this distinction generally accepted?

This distinction is mine, but anyone who disagrees with it is disagreeing with the Divine Presence.

No, but someone will come along, I don’t know, and say no, there’s some deep insight here into human beings and human foundations and all that…

That’s what people usually say. That’s why we’re here.

Okay.

So now I want to move to the third example. The third example is rabbinic laws. And I’ll already give away the end: I’ll show you that this follows exactly the same pattern we saw in sacrificial matters and in Choshen Mishpat or the law of the kingdom, and so too in rabbinic laws.

What do I mean? My claim will be that when I study the prohibition of eating poultry with milk, I have not studied Torah. The prohibition of eating poultry with milk is a rabbinic prohibition. Okay? Now obviously I’m forbidden to eat poultry with milk, because I have to obey rabbinic prohibitions. So if you ask me whether I studied Jewish law, the answer is yes. But in my opinion one does not recite the blessing over Torah study on that. And you don’t hear that from anyone — or almost anyone, going back to the previous question. But in my opinion that’s how it is. One does not recite the blessing over Torah study on that. It is not Torah. In a certain sense it’s like the law of the kingdom. The law of the kingdom says that what the king says is halakhically binding. Right? So what did I say? Is learning what the king says Torah study? The answer is no. You need to learn what the king says in order to know what to do. But the Torah in that is only learning the principle that the law of the kingdom is law, learning the idea that what the king says is binding. But when I then go study what the king actually said in the law faculty — that is not Torah.

I claim the same about rabbinic laws. Rabbinic laws are like the law of the kingdom. The Torah said that what the Sages said is binding. When I study the parameters of לא תסור — “do not turn aside” — then I studied Torah. But when I study the parameters of poultry with milk, I did not study Torah. I studied Jewish law. I study it in order to know what to do, but it is not Torah study. It’s like what the king said.

If the Torah itself had forbidden poultry with milk, then presumably there would be something essentially problematic about poultry with milk. But the Torah did not forbid it. The Sages forbade it lest one come to eat meat with milk. That means poultry with milk in itself is not problematic. There is nothing to learn there, no deep ideas as to why poultry with milk is problematic — because there are none. It is not problematic. True, I am forbidden to eat poultry with milk because the Sages said so, and therefore I need to study it in order to know what to do, but that study is a means to fulfilling the commandment; it is not Torah study. It is a required means so that I know what to do in practice, but it is not Torah study. That is the general claim.

Now let’s spell it out a bit more. So that is the third category. Look at the… wait, I’m sharing the screen for a second. But one who sells his fellow something… This is Shulchan Arukh, Choshen Mishpat 232. “But one who sells his fellow something whose eating is prohibited by the words of the Sages — if the produce still exists, he returns the produce and takes back his money. And if he ate them, then he ate them, and the seller returns him nothing.” Meaning, if I sold you something prohibited by the Torah for one hundred shekels, and now you ate orlah — okay? — I have to return your money, even though you ate it. Because you paid me for something without value. But if I sold you rabbinically prohibited orlah, a rabbinic prohibition, then if you haven’t eaten it yet, you return it to me and get your money back. But if you already ate it, then nothing happened and the money stays with me. That is what the Shulchan Arukh says.

So the Netivot there, in the Be’urim, explains like this: “And the seller returns him nothing. In Shakh, Yoreh De’ah, it is ruled that even the amount above its market value he need not return. And at first glance this is difficult to understand. Since the sale is void, it is like one who damages or one who consumes without a sale. So why should he have to pay more than its value?” Why should he have to pay more than its value if the sale is void? “And perhaps, although in Torah prohibitions, even if one ate them unintentionally he still needs atonement and repentance to protect him from the prohibitions, nevertheless with a rabbinic prohibition he needs no atonement at all, and it is as though he did not transgress.”

What is he saying? Since the prohibition is rabbinic, and you transgressed it unintentionally, because you didn’t know it was a rabbinic prohibition, then nothing happened. It is as though you ate something permitted. Therefore the money stays with me if you already ate it.

And he brings proof from a passage in Eruvin: “Know that in Eruvin 67 we say, regarding a rabbinic prohibition we first let the act be done and only afterward raise the objection. And if he would be punished for unintentional violation, how could they let him transgress and receive punishment? Rather it is certainly the case that one is not punished at all for unintentional violation of a rabbinic prohibition, and it is like one who ate kosher food, and he derived benefit just as from kosher food. And therefore he must pay for all the benefit he derived, as in a case where one benefits and the other suffers little. Which is not so in a Torah prohibition, where he receives punishment even for unintentional violation, and his loss is greater than his benefit.”

What is he saying, basically? He says there is a passage in Eruvin dealing with someone who sees his teacher about to violate a prohibition. If his teacher is about to violate a Torah prohibition, you’re supposed to stop him and say, “Didn’t you teach us, our teacher, that such-and-such is forbidden?” Why? In order to prevent him from violating the prohibition. But if it’s a rabbinic prohibition, then with rabbinic prohibitions, first we let the act happen and only afterward raise the objection.

Now the Netivot asks: why? Does a rabbinic prohibition not need to be avoided? Shouldn’t you try to prevent your teacher from violating a rabbinic prohibition? Maybe he didn’t notice. And from here, says the Netivot, there is conclusive proof that a rabbinic prohibition that one violates unintentionally is as though one did not violate any prohibition at all. Therefore there is no reason to prevent your teacher from violating it. You only need afterward to ask him the question in order to know for the future whether it is really forbidden or not. But you have not caused him to violate any prohibition, because he violated the rabbinic prohibition unintentionally.

By contrast, in a Torah prohibition, even if he violates it unintentionally, he still violated a prohibition. Therefore you need to try to stop him, not wait until after he acts and only then ask. Why really is there such a difference between rabbinic and Torah prohibitions?

Usually it’s explained like this: a rabbinic prohibition — this is the dispute between Maimonides and Nachmanides, but let’s say according to Maimonides — gets its force from לא תסור, right? The verse says I have to obey the Sages. So if the Sages forbade something rabbinically, then I’m obligated to obey them. Suppose the Sages forbade eating poultry with milk, so I’m forbidden to eat poultry with milk. Now suppose I ate poultry with milk. What problem did I violate? What was the problem here? Poultry with milk is not in itself problematic food. The Torah does not forbid it, right? The whole problem was that I did not obey the Sages — I violated לא תסור. Right? There is no prohibition of poultry with milk as such; there is a prohibition of disobeying the Sages. Okay? So the problem is that I didn’t obey the Sages, not that I ate poultry with milk. They could have obligated me to eat poultry with milk, and then if I didn’t eat poultry with milk I’d be violating a rabbinic command. There is nothing essential in the thing itself. The Sages determined something, and the Torah says one has to obey them. So if I didn’t listen to them, the prohibition is, let’s call it, in the person and not in the object. The poultry with milk I ate is not problematic food, but I as a person did a problematic act because I acted against the command of the Sages. Okay?

Now then — I’ll formulate it this way. In a Torah prohibition, when I eat pork, for example, there are two problems. One problem is the pork itself. Eating pork is a problematic thing. I don’t know, it damages something, however you want to explain it, but it is a problematic act in itself, a problem in the object. Besides that, I also failed to obey the Torah’s command not to eat pork. So there is both a problem in the person and a problem in the object.

What happens when I did it unintentionally? Then there was no disobedience to the Torah’s command, right? I didn’t know I was violating the Torah’s command. But I still ate problematic food. So there is still a prohibition here, because true, there was no disobedience to the Torah’s command, but I nevertheless ate problematic food. That is what is called unintentional violation.

What happens if I ate poultry with milk unintentionally? Well, there was no disobedience, because it was unintentional. And there is no essential problem, because poultry with milk has no essential problem in itself, in the object. So nothing happened. If I ate poultry with milk unintentionally, nothing happened — neither in the person nor in the object. That is what the Netivot claims.

Therefore, says the Netivot, if you see your teacher doing a rabbinic prohibition unintentionally, you can leave him to do it; nothing happens. Because he will not violate any prohibition even if he eats it. Afterward ask him, so that for the future you know the law — then ask the question to clarify. But you are not preventing him from any prohibition. In a Torah prohibition, when you see him about to transgress, you must stop him. Why? Because although there will be no disobedience, he will still commit the prohibition; there is a problematic act in itself. And therefore you must try to stop him first.

From this, says the Netivot, is the proof that if I eat a rabbinic prohibition, it is as if I ate something permitted. So the money I paid for the prohibited item I bought remains with you, because in the end I benefited — I ate, and I ate something permitted, as it were. So I paid for it; everything is fine; the money stays with you. Why should you return it to me? In a Torah prohibition, if I ate it, then I really ate something without value. I bought something without value; you have to return my money. You took money from me in exchange for nothing. True, I got stomach benefit, because I filled my stomach and ate it. But that doesn’t matter; it was filled with prohibition, and that doesn’t count as benefit. Therefore you have to return the money.

So again, the difference — this is what the Netivot says — from the passage in Eruvin about what I’m supposed to do when I see my teacher violate a prohibition, I understand the difference between a rabbinic prohibition and a Torah prohibition. And from that he also explains the Shulchan Arukh: why in a rabbinic prohibition the money need not be returned, and only in a Torah prohibition it must be returned.

What does this teach us? It teaches us that a rabbinic prohibition is really a prohibition on the person, not on the object. In other words, the act in itself is not problematic. I’ll now translate that into the language that has been accompanying us here: the prohibition of poultry with milk is not Torah. When you study the parameters of the prohibition of poultry with milk, that is not Torah. There is nothing problematic there, no spiritual or fundamental idea that, when you study it, you have studied Torah. True, halakhically you are forbidden to eat poultry with milk. And you need to clarify the boundaries of the prohibition so you know not to stumble into it. So at the halakhic level, poultry with milk is part of Jewish law. But it is not Torah. Okay? That’s the point I want to make.

One last example to illustrate this. The Talmud in Sabbath, in the second chapter — really the first chapter — says that Rabbi Yishmael read by candlelight. And the rule is that on the Sabbath it is forbidden to read by candlelight lest one tilt the lamp. Because if the flame starts flickering, you’ll adjust the flame so it gives better light and you can read properly, and then you’ll violate kindling or extinguishing — there are different disputes there — but you’ll violate a prohibition. Therefore they forbade reading by candlelight.

Now Rabbi Yishmael said to himself: “I will read and I will not tilt it.” What’s the problem? The concern is that perhaps I’ll tilt it? No — I’ll read, and I know, I’m an important person, I’m righteous, I’ll be careful, I won’t tilt it. Then he read, and he was about to tilt it, or he actually tilted it — there are two versions in the Talmud. Either he actually tilted it or he was about to and then stopped. And he said: “How great are the words of the Sages, who said one should not read by candlelight lest he tilt it.”

Now notice: first of all, the question is why did he permit it to himself in the first place? There is a rabbinic prohibition. What difference does it make that you say you won’t come to tilt it? Fine — but now the Sages forbade reading by candlelight. It’s forbidden. What, are you expounding the rationale of the decree? Second, notice that even when he retracts, he doesn’t retract from that point. He says, “I didn’t correctly assess reality. The Sages were right and I was wrong. Here — even I almost came to tilt the lamp.” But if it were the case that I were certain I would not tilt it, then he remains of the view that really it would be permitted to read. He only says: you can’t rely on yourself — and how great are the words of the Sages — because look, even I almost failed. But theoretically he does not retract from the principled statement that if I truly came to a situation where I knew I would not tilt it, then I could read by candlelight even though the Sages forbade it.

Why? The answer is that in rabbinic prohibitions, the act itself is not a problem. There is no problem with reading by candlelight, right? The whole problem is only the concern that you might tilt it. But if I know with certainty that no problem will arise, then what difference does it make — then I’ll read by candlelight. Why not? In a Torah prohibition there is a problem in the act itself. If you expound the reason of the verse, “fine, I’ll do it and make sure I don’t get to that” — with a Torah prohibition, we don’t make those calculations. Why? Because once the Torah forbade it, the act itself became forbidden; I don’t care right now what purpose it serves.

But in a rabbinic prohibition, this is exactly what’s written here: in a rabbinic prohibition the act itself is not forbidden. The whole problem is just the concern lest you come to do some other forbidden thing. But if there is no such concern, then I’m prepared even to violate the words of the Sages — it doesn’t matter. He doesn’t rule that way in practice; that’s not the point. But here he brings it as an idea, as further proof of what we saw before: in rabbinic prohibitions, the thing itself is not a problematic act. There is no intrinsic problem.

And therefore there is no point in learning the prohibition of reading by candlelight — not that there’s no point in learning it; there is a point, in order to know what is forbidden and what is permitted — but it is not called Torah study. One does not recite the blessing over Torah study on it. My claim is that for rabbinic commandments and prohibitions, one does not recite the blessing over Torah study if one is learning rabbinic law. In the next lecture I’ll moderate that a little. I’ll distinguish among several kinds of rabbinic laws. But let’s stop here.

So what we basically saw are three categories: sacrificial matters; the law of the kingdom and Choshen Mishpat, the laws of justice; and rabbinic law. And in all of them what we saw is that there are rules that bind us in Jewish law, but they are not Torah. Okay? Thank you very much.

Can we continue my question — can one think about this in the bathroom?

Half a thought, because it might spill over.

In principle yes.

Thank you very much. All right. Rabbinic commandments like, say, reading the Scroll of Esther and Hanukkah?

We’ll talk about that next time. That will be a bit different. Thank you very much — that was a fascinating lecture.

Thank you very much. Thanks. Thanks.