Topics in Chapter 4 of Sanhedrin – Lesson 2 – Rabbi Michael Abraham

This is an English translation (via GPT-5.4). Read the original Hebrew version.

This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.

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Defining Choshen Mishpat as opposed to Yoreh De’ah and Orach Chayim — Choshen Mishpat deals with obligations grounded in another person’s rights, not with every monetary obligation between one person and another.
Clarifying examples: charity and interest — even though they are monetary obligations between people, they belong in Yoreh De’ah because they do not stem from a claim-right of the recipient.
The distinction between a rabbi and a religious court — a rabbi answers what Jewish law says as an expert, while a religious court intervenes only when there is a claim of violated rights that requires institutional protection.
The story of the treasure and the absence of a claim — when both sides want to benefit one another and there is no claim that a right was violated, there is no place for court proceedings, only for a halakhic question addressed to a decisor.
A decisor as an expert without binding authority — a halakhic ruling is not binding in itself; what binds is the true Jewish law, and the decisor only evaluates and explains it.
Substantive authority versus formal authority — a doctor, jurist, and decisor act by virtue of expertise; a judge, district psychiatrist, and parliament act by virtue of institutional appointment.
A judge of Jewish law versus a Torah scholar — ordination includes both testing professional expertise and granting institutional permission to judge, which is the source of the obligation to obey the judge.
The passage in Sanhedrin 5: the president of the Sanhedrin and the Exilarch — a historical distinction between professional certification and governmental authority to judge and enforce.
Criticism of the Chief Rabbinate and the implications of the absence of monarchy — institutional appointment by the state as a rabbi does not necessarily confer substantive halakhic or Torah authority.
The source of formal authority in Jewish law — “Do not deviate” belongs only to the Sanhedrin; after the cancellation of ordination, what remained was mainly substantive authority and communal acceptance.
There is no formal authority over facts — one can issue normative commands despite disagreement, but one cannot obligate a person to believe a fact merely because an authority said so.
The attitude toward traditions about the Sages and their infallibility — there is no need to attribute superhumanity to the Sages in order to justify obedience; their normative authority was formal and did not depend on infallibility.
A court verdict as opposed to a general halakhic ruling — a religious court binds only the litigants in the specific case, and does not create a generally binding norm for the public.
Responsa as opposed to a law code — a responsum deals with practical guidance for a concrete case and sometimes even with deviation from the general rule, whereas a law code formulates general norms.
Within Choshen Mishpat: the distinction between civil law and criminal law — even in criminal law there is an “other side,” except that it is the public, the Torah, or the Holy One, blessed be He, rather than a private injured party.

Summary

General Overview

The lecture continues the clarification of the definition of Choshen Mishpat and deepens the distinction between the world of “Jewish law” in the sense of religious instruction, and the world of “halakhic jurisprudence” in the sense of adjudication and institutional decision-making. Rabbi Michael Abraham proposes a central criterion: Choshen Mishpat deals with obligations grounded in the rights of another person. Not every obligation between one person and another belongs to Choshen Mishpat, but only an obligation that someone else can stand opposite as a claimant and say: my right has been violated.

## Choshen Mishpat: Obligations Whose Source Is Another Person’s Right
According to this distinction, charity and interest do indeed concern money and interpersonal relations, but they do not belong to Choshen Mishpat. A poor person has no acquired right to demand charity from a specific person, and one who paid interest does not recover his money by virtue of an ordinary civil right but by virtue of coercion to perform a commandment. Therefore their place is in Yoreh De’ah. By contrast, a lender can sue the borrower, because he has a clear monetary right against him.

From this also follows the difference between a rabbi and a religious court: a rabbi answers the question, “What does Jewish law say?” whereas a religious court intervenes when it is asked to protect a violated right. The example of the treasure found in a courtyard that was sold sharpens this: even if there is a halakhic property-law question here, there is no claimant whose rights were violated, and therefore this is a question for a decisor, not for a court.

## Decisor and Judge: Expertise versus Authority
Rabbi Michael Abraham sharpens the point that a decisor is a halakhic expert, not someone with binding authority. Like a doctor: it is appropriate to listen to him because he understands the matter, but there is no formal obligation to obey specifically him. Jewish law binds, not the ruling. By contrast, a judge or judicial authority acts by virtue of formal authority: even if you think he is mistaken, you are obligated to obey because he is an authorized institution.

Hence the distinction between:
– Substantive authority — arising from expertise, like a doctor, jurist, or decisor.
– Formal authority — arising from institutional appointment, like parliament, a judge, or a religious court.

## Ordination, Permission to Judge, and the History of Authority
It is then explained that the ordination of Sages included two components: testing professional competence and granting institutional authority. The Talmudic passage in Sanhedrin 5 reflects tension between the Torah center in the Land of Israel, whose president of the Sanhedrin granted both professional and institutional ordination in the absence of a king, and the Exilarch in Babylonia, who held governmental authority to grant “permission to judge.”

From here also comes his criticism of modern situations such as the Chief Rabbinate: state appointment creates a bureaucratic-institutional status, but not necessarily substantive halakhic authority.

## The Limits of Authority: Norms Yes, Facts No
The source of formal authority in Jewish law is “Do not deviate,” but in Rabbi Michael Abraham’s view it applies mainly to the Sanhedrin. After the abolition of the Sanhedrin, there is almost no formal authority, except in cases of communal acceptance, such as the local authoritative rabbi.

Another important innovation: formal authority applies only to norms, not to facts. One can obligate a person not to do labor because the Sanhedrin determined that it is forbidden; one cannot obligate him to believe that it is now night or that the messiah will come simply because an authorized body said so. Therefore there is no point in grounding the authority of the Sages on the claim that they could not err about facts; their halakhic authority was formal and did not depend on human perfection.

## Court Verdict, Responsa, and Law Codes
A religious court does not establish general Jewish law for the public, but rather binds specific litigants in a specific case. Therefore a court ruling binds only the parties to the case. Responsa, too, usually deal with concrete cases, and sometimes even with exceptional instructions that arise from social or practical context. By contrast, a law code such as the Shulchan Aruch seeks to formulate general norms. Therefore not everything ruled in a responsum enters a principled code of rulings.

## Within Choshen Mishpat: Civil and Criminal
Finally, Rabbi Michael Abraham divides Choshen Mishpat internally into civil law and criminal law. Even in criminal law there is another side, except that it is not a private injured party but the public, the Torah, or the Holy One, blessed be He. Therefore a murderer cannot be exempted if the blood-avenger waives the claim, because “this person’s life is not the property of the blood-avenger, but the property of the Holy One, blessed be He.”

From here also come the differences between money, fines, lashes, and capital punishment. A fine, although it is money, belongs in many respects to criminal law, because it is not compensation for a violated monetary right but punishment. Therefore laws apply to it such as “one who admits to a fine is exempt,” similar to “a person cannot render himself wicked.”

## Toward What Follows
At the end, two theses were presented for continuation: in civil law the court uncovers an obligation that already exists, whereas in criminal law the court in a certain sense creates the obligation through its ruling. This distinction is meant to serve as the basis for the continuation of the discussion about capital cases, fines, and a litigant’s admission.

Full Transcript

Okay.

[Rabbi Michael Abraham] Last time we talked a bit about the definition of Choshen Mishpat, or really a few distinctions. I said that unlike the division Rabbi Yehudah HaNasi makes among the six orders and the various tractates, which is a division by subject matter, from the Tur onward we see a division of Jewish law into categories, not topics—or not only topics. And the Four Turim, which the Shulchan Aruch also follows, are basically divided into two groups of two: Orach Chayim and Yoreh De’ah are, you could say, Jewish law, while Choshen Mishpat and Even HaEzer are adjudication, or halakhic jurisprudence. And after that we went on to define Choshen Mishpat itself, and I said that Choshen Mishpat is distinguished by the fact that it is the collection of obligations grounded in another person’s rights. There are my obligations, obligations imposed on me toward someone else, and there are my obligations toward someone because he has rights against me. And therefore, for example, charity or interest are located in Yoreh De’ah. Why? Because my obligation to give charity to a poor person is not grounded in any right the poor person has to receive charity from me. The same is true of the obligation to return interest: even though it can be extracted through judges—we talked about that—but it is extracted through judges by way of coercion to perform a commandment; it is not extracted through judges because it belongs to the other party, because the other party has a right to receive that money from me. Therefore these two obligations, even though they are monetary obligations between people, and we might have expected them to be in Choshen Mishpat, are in Yoreh De’ah, because the definition of Choshen Mishpat is not monetary obligations between one person and another, but obligations grounded in the fellow’s right, in another person’s right. Obligations not founded on another person’s right will not appear in Choshen Mishpat. As a result, there is also a difference in the forum that deals with these two kinds of laws: in Orach Chayim and Yoreh De’ah, the one who deals with them is the rabbi or decisor, whereas in Choshen Mishpat and Even HaEzer, the ones who deal with them are the religious court, the judges. And there is a difference between these two categories because the judges’ role is to rescue the oppressed from his oppressor. What does that mean? If I don’t do something—say, I don’t give charity to a poor person—then what’s the problem? The problem is not that I violated the poor person’s rights, because the poor person has no rights. I have an obligation to give him charity, but he has no right to receive charity from me. So because of that, he cannot take me to court and sue me to give him that charity, right? Because his rights were not violated; he has no rights in this context. By contrast, a borrower to whom I did not repay—rather, a lender whose debt I did not repay—he can take me to court. Why? Because he has a right to receive the money from me; I owe him money. My obligation to give him money is grounded in a right he has, and therefore he can take me to court. Obligations that are not grounded in rights do not come to court. A court always protects the oppressed, rescues the oppressed from his oppressor, protects someone whose rights have been violated; it rescues a person’s rights. Therefore when I petition the court, I am basically saying to them: listen, my rights have been violated, protect me; I want my rights not to be violated. That is the cause that triggers proceedings in court. I think I gave this example from the midrash, right? With Alexander of Macedon there in Africa. I think I mentioned it—that he saw some king there, they had told him about his wisdom and justice and so on, so he went there and saw him judging cases, and two people came before him. One had sold the other a courtyard, and the one who bought the courtyard found a treasure in it. And the one who found the treasure wanted to return it to the first one, because what—I’d bought a courtyard, not a treasure. And the first one who sold the courtyard says: no, I sold the courtyard and everything in it, so if there was a treasure there, he profited. In other words, each of these righteous people wanted to give the treasure to the other. Right, so you have a son and a daughter, let them marry, and everything will be wonderful. But the question really is: what does the law say? Forget the practical solutions—what really is the law in such a situation? Why don’t we find such a law in Choshen Mishpat? The answer is because it doesn’t belong to Choshen Mishpat. No one’s rights were violated here; no one is petitioning the court and saying: protect me, my rights were violated. On the contrary: I think his rights were violated and therefore I want to give him, and he says: no, my rights were not violated; on the contrary, your rights were violated, I want to give you. No one is asking the court for protection. If no one asks the court for protection, no proceedings arise. There are no court proceedings. By the way, one can ask the halakhic question. Meaning, halakhically I can ask: if I sold a courtyard, to whom does such a treasure belong? The Talmud even deals with this in “These Found Objects,” with an old wall there and the coins of the Canaanites and all kinds of things like that. In other words, this discussion can definitely take place—not in court. It is a discussion that would take place with the rabbi, the decisor. The decisor can say who is right here. But why is this for a decisor and not for a judge? After all, this is even a question of property acquisition; apparently it belongs in Choshen Mishpat. Because there is no protection of rights here. The court deals solely with protecting a person whose rights were violated, or who claims that his rights were violated and the court has to investigate that matter. A rabbi deals with the question of what the law says, unrelated to rights or no rights. It could be a law relating to monetary law, and it could be a law relating to tithes or forbidden foods or things like that, it doesn’t matter, or the laws of the Sabbath. In other words, nobody has to be harmed by it. I come to the rabbi because I want to know what I am supposed to do. That is the rabbi’s role. The court has to decide whether rights were violated here, and to take steps so they won’t be violated, if it reaches the conclusion that they were violated. Okay? That’s a huge difference. And therefore, those who deal with problems of Choshen Mishpat are judges, the court. Those who deal with problems of Orach Chayim and Yoreh De’ah are the rabbi. In Even HaEzer too, by the way, it’s judges, because again, it has a public implication and therefore… I think I commented on that at the end of the previous lecture. One more… one more remark about this distinction: a decisor—again, I think people don’t understand this correctly—a decisor is nothing but a halakhic expert. A halakhic expert. Meaning, you want to know what Jewish law says, you’re not enough of an expert, so you go to someone who does understand and he tells you what Jewish law says in such a case. An expert of this kind has no authority. I am not obligated to obey him. He said what he said. It could be that if I don’t do it and I was mistaken, I will be held accountable in the heavenly court. They’ll tell me, “You behaved improperly, you desecrated the Sabbath, you ate something forbidden,” and so on. That’s a different issue. But nobody will come to me with the claim, “Why didn’t you obey him?” I don’t have to obey him; I consult him. It’s like when I go to a doctor and he prescribes a medication—I am not obligated to take the medication. Logic says to take the medication because he understands the matter and I don’t. But nobody can sue me for not obeying the doctor. I don’t need to obey the doctor! I come to him for consultation because he is an expert, because he understands. Okay? A rabbi who issues rulings—that’s his role. He is a halakhic expert, that’s all. Right, a halakhic ruling is not binding. Jewish law is binding, not the halakhic ruling. That’s exactly the difference. In other words, you have to observe Jewish law, but the ruling tells you what Jewish law says. If you were persuaded, do it. If you weren’t persuaded, don’t do it—but take the risk that maybe you did not observe Jewish law and you’ll be called to account for that. But they won’t call you to account for not obeying the decisor. Like with the doctor: if you didn’t take the medicine, maybe you’ll die or get sick, fine, because that’s the result of behaving irrationally or incorrectly, but no one will come to you with complaints: wait, why didn’t you obey the doctor? Okay? This is… maybe I’ll say a sentence about this: this is what I call substantive authority. Substantive authority is the authority of a doctor. He isn’t really authorized in a formal sense; rather, in the substance, in the content of the matter, he understands it. In other words, he’s an expert, so if he says it, it’s probably true. That’s all. So the reason I should do it is simply because it’s probably true, not because the doctor said it. The fact that the doctor said it is only an indication for me that it’s probably true. But I have no obligation to obey the doctor. A second opinion, right—in principle there is no problem. Right, there is no problem. Jewish law says that if one Sage prohibited, another colleague may not permit, and that’s only because of the honor of the first authority who prohibited; these are enactments, it has nothing at all to do with authority—there is no authority in the first decisor—and even around that they already made many, many qualifications; we do go for a halakhic second opinion. In any event, I want to sharpen this issue of authority a bit, because I think it is very important in this context. In concepts of authority, one must distinguish between two kinds of authority: there is formal authority and substantive authority. Formal authority is the authority of parliament. Parliament enacts a law, and that law is binding. It is binding not because parliament is wise, not because parliament is expert in one field or another. It isn’t—neither this nor that. Okay? So why is it binding? Because it’s parliament. In other words, our system says that parliament is the legislative institution, and if they legislate then it is binding; that’s how we structured the system, okay? Fine, that’s the reason why we structured it this way, but I’m saying: at the moment we’ve structured the system this way, and parliament’s authority can be called institutional authority. Institutional authority means its authority stems from the fact that it is parliament, not from the fact that it is expert, not from the fact that it is wise, not from the fact that it is righteous, and not from anything like that—none of those things are necessarily present there. Simply because it’s parliament, that’s all. Now, that doesn’t mean it wouldn’t be good if they were also wise and righteous, but what can you do? That’s formal authority, okay? Substantive authority is authority like that of a doctor. A doctor has no formal authority; I don’t need to obey him. But he is an expert, he understands the matter; if he said it, it’s probably true. Probably—a doctor can of course be mistaken—but it’s probably true, okay? That’s substantive authority. Now let’s think for a moment and return to the legal world—not necessarily in Jewish law, I’m talking about courts. Suppose I go to a professor of law; I have some legal problem, I went to consult someone who is a legal expert, a lawyer, a professor, whatever it may be. I go to consult him. Am I obligated to obey him? Obviously not, right? Like a doctor—in other words, he is an expert in the field; he will tell me what he thinks the field says, what the facts are regarding the field. I go to him for expert consultation; if I don’t obey him, maybe I violated the law and I may be sued for it, but nobody will come to me with complaints, why didn’t you obey him? I don’t need to obey him. What happens if I go before a judge, and the judge tells me something that I have to do?

[Speaker C] What happens there?

[Rabbi Michael Abraham] There I am obligated to obey him, right? More than that—even if he is mistaken, “left that is right and right that is left.” Even if he is mistaken, it makes no difference at all. I have to obey him because he said it, not because he is correct. And both of them are jurists.

[Speaker C] No,

[Rabbi Michael Abraham] I didn’t say there is no justice here, but it isn’t because he is correct. In other words, the point is that I am not going to him because he is a legal expert; I go to him because he holds the office of judge. His authority is institutional authority, not authority that results from expertise, okay? You could say that the law professor may be a greater expert than the judge—it doesn’t matter, because on the institutional level he is not a binding institution in our system. He is, at most, an advisor; you can consult him. A judge has authority because he was appointed; this is formal authority, and I must obey him. Think about a district psychiatrist, okay? If I go to a psychiatrist for consultation, do I have to obey him? Obviously not, right? But if I go to a district psychiatrist and he determines something, he can coerce me; he can have me hospitalized involuntarily under certain conditions. Why? Because he is a greater expert than that other psychiatrist who lives next door?

[Speaker C] Right, there is

[Rabbi Michael Abraham] institutional authority there. He received authority as a district psychiatrist; that authority comes from the government or from parliament. It is not professional authority; not because he is a better psychiatrist than the other psychiatrist—exactly like with the judge—but because he is appointed to that institutional role of district psychiatrist, he serves in that office, and therefore he has authority, okay? Therefore in the halakhic world too, in the halakhic world too, when we speak about the ordination of Sages, we ordain someone as a judge. Ordination of Sages has two aspects: one aspect is to verify his professional expertise, meaning to know that he knows the material. The second aspect is to give him formal authority, to appoint him as a judge. Because the fact that he knows the material—so what? He knows it, but I am not obligated to obey him. It’s worthwhile to listen because he understands it, but I am not obligated to obey him; there is no formal authority here. Once he is appointed to be a judge, he receives authorization to judge not in the sense that he is an expert, but in the sense that he was appointed to be a judge, and then he received institutional authority. Now I really do have to obey him. If he summons me or if he rules with respect to me, then I have to obey him. And in the Talmud in Sanhedrin 5, what arises there—what is revealed there—is a dispute between the Torah center in Babylonia and the Torah center in the Land of Israel. The question is: who can ordain judges? The president of the Sanhedrin in the Land of Israel, or the Exilarch in Babylonia? Okay? No, no, no, there it was not connected to the calendar. So the question is who can ordain judges. The Talmud brings there that there was a dispute between the center in the Land of Israel—no, so the Talmud says no. The Exilarch’s authorization is for the whole world, and the authorization of the president in the Land of Israel, the president of the Sanhedrin in the Land of Israel, is only for the Land of Israel. He has local authority. Yes, but now we need to understand: they didn’t use the word “ordination” there; they used the phrase “permission to judge.” What’s the difference? The difference is that ordination does both jobs. Ordination basically, when I ordain someone to judge, comes after I have examined him and seen that he knows the material, and I appointed him to be a judge. From now on he also has institutional, formal authority, okay? Ordination did both things. In Babylonia—now in the Land of Israel, at a certain stage there was no longer a king, no governing authority, and therefore what happened was that the president of the Sanhedrin did both jobs. He gave the professional authority—that is, he examined the judge in judicial examinations—and second, he also gave him the institutional authority. He was also the secular ruler, the president of the Sanhedrin; there was no king. For centuries there had no longer been a king, okay? So he did both jobs. At a certain stage, suddenly in Babylonia a secular authority emerged, right? “The scepter shall not depart from Judah” (Genesis 49:10) — these are the Exilarchs in Babylonia, who rule the people with rods. Yes, with a scepter. What does that mean? The Exilarch was considered a king. That’s why he was also from the house of David, the Talmud says, right? The Exilarch was considered a king. What does that mean? Because he was basically responsible for all the Jews throughout the world. That means that the secular authority, the governmental authority—not that this means he was irreligious, but the authority is secular in the sense that he was essentially the administrative authority, the secular ruler, the government, okay? He is the king. Fine? And therefore the permission to judge is given by the Exilarch. The ordination in the professional sense is given by the court in the Land of Israel. They can also give it in Babylonia, but it will not be ordination, because ordination is done only in the Land of Israel. But only that dimension—the dimension of professional examination. The dimension of permission to judge—that is the role of the king, and when there is no king that goes…

…to the president of the Sanhedrin. But then suddenly, in Babylonia, there was a king-like figure, the Exilarch. So the sages of Babylonia say: wait, wait a second, the authority to judge reverted, it passed out of the hands of the president of the Sanhedrin, and now it moves to the Exilarch. And the Talmud rules that way. Fine, this is the Babylonian Talmud, so that is not much of a surprise, but the Babylonian Talmud ruled that way, okay? Both of them were ordained. Right? And therefore ordination was generally done—meaning, when there was a king, I think; there is no documentation for this, but apparently when there was a king, ordination was done through two channels. One channel was professional ordination, meaning to determine that he was an expert, and the second ordination was that the king appointed him to be a judge. Just like with us, they take a jurist and the monarchy or the government appoints him to be a judge. The committee for appointing judges, not the government. It appoints him to be a judge, okay? That is not a professional appointment; meaning, the professional evaluation he passed at the bar association or wherever. His institutional appointment is an appointment by the government; it is not a professional question, okay?

Now, what happened in the Land of Israel was a pathological situation, because there had not been a king for a very long time, and both functions were funneled into the president of the Sanhedrin. So he was really doing both things together. Now, the people of the Land of Israel, after centuries without a king, had already forgotten the fact that ordination actually includes two aspects, not one. From their perspective it had become obvious that the president of the Sanhedrin does everything, and that is that, and only the president of the Sanhedrin does it. Then the sages of Babylonia come and say: wait a second, you got confused. That is only from the time kingship ceased, but when there was a king, there was the secular authority, which determined who would receive the institutional authority to judge, and there was the religious authority, the Sanhedrin, which examined him and told him whether he was professionally fit to judge.

In the Mishnah and the Talmud, we know, this is already after the era when there was a king. All the sources we know are sources from the era in which there was already no king. And therefore when we look in the Mishnah and the Talmud you will not see this, because in the Mishnah and the Talmud this is already a situation in which the president of the Sanhedrin does everything, and therefore ordination is simply through the court, everything, there is no hint that the king has a role here as well. That passage in tractate Sanhedrin on page 5 is really the source for this matter. And anyone who knows Ran’s famous homilies, in homily 10 I think, or 11, he talks there about this issue, that the king has a judicial system parallel to the halakhic system, and so on. He is really talking about these two authorities, the secular authority and the religious authority, and the complex relations between them.

Yes, for example with us, say, the government appoints the Chief Rabbinate, the chief rabbi, or whatever, the institutions—the government appoints the Chief Rabbinate. What does that mean? Nothing. It only means that on behalf of the state he is the appointed official, right? It says nothing at the halakhic or Torah level. No one says he is even a Torah scholar; many times he is not. It has no connection whatsoever. He received an appointment to be an official on behalf of the state. That is all: an official on behalf of the state who is responsible for regulating, I do not know what, kashrut, marriage and divorce registration, and the like. That is all. All the shining robes around it are political theatrics.

So I am saying: here exactly the opposite exists. Here there is institutional authorization with no backing at all on the professional plane. Meaning, the religious public did not accept the chief rabbi as the leading Torah authority of the generation, the greatest scholar who on the professional level really ought to be the leader, let us call it, or the decisive authority. Obviously not. Everyone understands who is sitting there. So here the division is the opposite division. Here it is only institutional authority, with no significance at all on the content level. Okay? Therefore when people talk to me about the regulations of the Chief Rabbinate—whether to perform marriage this way or that way—it is just a joke. Meaning, who cares? Legally, the law authorized them, they are the deciding officials, okay, but what does that have to do with Jewish law? In Jewish law, what they say has no significance whatsoever. What? No, it is supposed to be that there is convergence—that when the king appoints someone, it will be after he also passes the professional filter. I said: he has the authority in the governmental sense. In the governmental sense, that is the authority. But does that mean what he says has halakhic validity? Absolutely not. Why should it? No, he receives authority to be an official, not authority to run my religious life. He receives authority to be an official, that authority he received, fine. What? Yes, but not on the halakhic plane. Meaning, if he says to do something this way, that the kashrut is this and not that, it means nothing. All it means is that a kashrut stamp that receives recognition from the state can operate only according to the rules he set. Does that mean that this is what is kosher and something else is not kosher? Of course not. I do not understand.

[Speaker E] And regulations, like regulations of…

[Rabbi Michael Abraham] Right, they really are not binding. Obviously. No, we are not—I do not know who “we” is, I am not. Not binding, no, absolutely not. Rema writes about the customs of Krakow; he brings them in in various places. I do not know if you know—like a menstruating woman may not touch a Torah scroll, or all kinds of funny inventions like that. Those are the customs of Krakow. I do not know—I have never been to Krakow, I am not a resident of Krakow, and I have no interest in what was in Krakow. Why should I care what happened there? So no, I do not accept it. That is exactly the point. It is the same lack of distinction. I also wrote about this in several places. There is some failure to distinguish that continues the misunderstanding that existed in the Land of Israel in that passage in Sanhedrin on page 5. Because people had grown used, for a very long time, to there being no secular government. Throughout our whole history we did not have a secular Jewish sovereign government, okay? So what happened was that all decisions were funneled toward the rabbinic leadership. All questions were directed to the rabbi, rightly so—there was no one else. He was the only authority there was, like the president of the Sanhedrin in the Land of Israel in the absence of a king. And then we got used to the idea that all these questions are directed, directed, directed to the rabbi, and the rabbi decides. But that is nonsense, of course. Absolutely not. There is no basis for that whatsoever.

Okay, let me go back for a moment to the concepts of authority. Maybe I will explain a practical implication, for example. I said that formal authority is institutional authority; substantive authority is the authority of an expert. So for example, where does formal authority in Jewish law come from? From “You shall not turn aside” (Deuteronomy 17:11). A positive commandment and a prohibition, no matter, but from the Torah, from “You shall not turn aside.” Okay? Fine, there is a dispute between Maimonides and Nachmanides, we will not go into details. Broadly speaking, let us say it is grounded in “You shall not turn aside,” but “You shall not turn aside” speaks only about the Sanhedrin. Therefore only the Sanhedrin has formal authority; no one else does. Fine, Sefer HaChinukh writes that the sages of every generation do as well, but that is a strange and isolated view; nobody thinks that. It applies only to the Sanhedrin.

And therefore, once ordination ceased and the Sanhedrin ceased, there is no formal authority in Jewish law. There is formal authority for what was established then by the Sanhedrin that existed then, but from that point onward there is no formal authority in Jewish law for the rulings of later sages. As for the Talmud itself, it was written that it has authority because the whole Jewish people accepted it upon themselves—not by force of “You shall not turn aside,” but because the Jewish people accepted this matter upon themselves, just as we chose the Knesset and thereby determined that this is the formal authority from our perspective; we accepted it upon ourselves. That was given to them from below, not from above. “You shall not turn aside” is formal authority given from above—God gives that authority. The authority of the Talmud is authority from below: we accepted upon ourselves what the Talmud said.

[Speaker F] With the Rabbi’s permission, I know that as far as the body called the Sanhedrin goes, there is a problem—what actually was there, we do not really know what was real…

[Rabbi Michael Abraham] I have no idea what was; I know what…

[Speaker F] I am talking from the destruction onward, the First Temple…

[Rabbi Michael Abraham] I have no…

[Speaker F] idea. I know what should have been; I do not know what was.

[Rabbi Michael Abraham] I know what…

[Speaker F] that there is a problem of what actually was, like whether there was even a Sanhedrin…

[Rabbi Michael Abraham] I have no idea. Ask historians. Why is that interesting? That is a question for historians. Why should I care? I know what… Jewish law says. I do not know what was and what was not. In any case, formal authority, as I said, really ends with the Talmud. Already in a responsum of the Rosh he writes—we will still get to this—in both a responsum and in his rulings on the chapter of Sanhedrin, he talks about the fact that there are no more authorities: after the Talmud there is no more formal authority. In principle one may disagree with whomever one wants, and this also appears in section 25 of the Shulchan Aruch, Choshen Mishpat.

And the authorities that exist after the Talmud are, in my terminology, substantive authorities, not formal ones. What does that mean? There are still experts in Jewish law. So if you go to a halakhic expert and he tells you something, he is probably right, okay? So your assumption should be that he is probably right, and therefore it is worth doing what he says. But he has no formal authority in the sense that people can come and make claims against you if you do not obey him. No one has formal authority—except perhaps the local rabbinic authority. The local rabbinic authority, for his community, receives some kind of formal authority, and again this is from below, not from above. It is not “You shall not turn aside,” but more like contract law—they accepted him upon themselves. Meaning, they accept this rabbi for those matters for which they accepted him, and not for other matters. Sometimes the rabbi forgets that. And that really is formal authority. He has authority to determine things even if he is not right; that is formal authority. But again, it comes from below.

But the authority of decisors, the great decisors, whoever they may be—there is no formal authority at all, not for Maimonides, not for the Shulchan Aruch, not for anyone. There is substantive authority. We are talking about Torah scholars who understand Jewish law. If they say something halakhic, they are probably right, so it is worth listening to them, as with a doctor. But that is substantive authority, not formal authority.

Now then, maybe one more sentence on this distinction. Formal authority… substantive authority, the authority of an expert, can concern both facts and norms. You go to a jurist and ask him: what does the law say in such-and-such a case, right? If he understands it, then what he says is probably correct, okay? You go to a physicist and say to him: what will happen in such-and-such a situation? If he tells you, and he understands it, then what he says is probably correct. In other words, substantive authority can be both about facts and about norms, okay? By contrast, formal authority can only be about norms. There is no formal authority about facts.

For example, you cannot come and tell me: listen, believe in the coming of the Messiah because Maimonides determined that it is one of the principles of faith. The coming of the Messiah is a factual claim—that the Messiah will come, right? Now, it is a future factual claim; I am not saying I currently have some observational way to verify whether it is true or not, but in principle it is a factual claim. It is not like the claim that sorting is forbidden on the Sabbath. “Sorting is forbidden on the Sabbath” is a normative claim, but “the Messiah will come” is a factual claim, or that God exists, or whatever, or that He exercises providence, fine? That is a factual claim.

Now, there is no such thing as formal authority regarding factual claims, because what does formal authority mean? Formal authority basically means: you must accept this because I said so—not because you think it is true, or because I am wise and understand this and you assess that what I say is true. That would be substantive authority. Formal authority means: you must accept this even if you do not agree, because I said so. Right? Like the Knesset, a court, and so on. But obviously this cannot be said with respect to facts. Suppose I came to the conclusion that the Messiah will not come, okay? Well? Rabbi Hillel said: “Israel has no Messiah, for they already enjoyed him in the days of Hezekiah” (Babylonian Talmud, Sanhedrin 99a). He did not believe in the coming of the Messiah. So the Talmud says: “May the Master forgive Rabbi Hillel”—may the Holy One, blessed be He, forgive Rabbi Hillel for denying the coming of the Messiah, okay? But he denied the coming of the Messiah and he was still called Rabbi Hillel, by the way. Well, people have already discussed this.

What does that mean? The coming of the Messiah is a fact. You cannot come with claims against someone who reached the conclusion that the Messiah will not come. What will you tell him—that you must believe it because Maimonides said it is one of the principles of faith? Either way, if I think Maimonides really understood this and therefore he is probably right, no problem, I will accept it—but I will accept it because I was persuaded that it is true, not because Maimonides said it. The fact that Maimonides said it is only an indication, because he is an expert and understands it, so he is probably right, if that is what I think, okay? But if I say: no, I do not reach the conclusion that he is right; he understands it as much as I do, fine, and in my view the Messiah will not come. And then they tell me: yes, but you are denying a principle if you do not believe in the Messiah; Maimonides says that the coming of the Messiah is one of the thirteen principles. Okay, so I am denying a principle—what do you want me to do? I can say with my lips: look, I believe with complete faith in the coming of the Messiah—but I cannot think that I believe in the coming of the Messiah if I do not believe. I really do not believe; I was not persuaded. So what exactly do you want me to do with formal authority regarding facts? There is no such thing as formal authority regarding facts. There is no such thing. It is simply not logically defined. It is not a question of there being no source that grants such authority regarding facts; it is not a question of sources. On the logical level it simply does not exist, it is impossible. Like a round triangle. Okay?

Maimonides writes that not… Huh? Why did you mention sorting on the Sabbath? Sorting is…

[Speaker G] what is forbidden and what is permitted to do.

[Rabbi Michael Abraham] Suppose I think sorting on the Sabbath is permitted. Fine? And now they tell me: the Sanhedrin determined that it is forbidden. No problem at all: one can demand of me that I not sort even though I think it is permitted. Because the Sanhedrin has formal authority; they determined that it is forbidden. So on the normative level one can make claims against me by force of formal authority. But one cannot tell me: look, it is now nighttime because the Sanhedrin determined that it is now nighttime. I know; I see that it is daytime now. So either persuade me that I am not seeing correctly—fine, you persuaded me, and I will conclude that it is nighttime now—or, if you did not persuade me and you come at me with claims by force of formal authority, what do you want me to do? I think it is daytime now. I can say “it is nighttime now,” but I cannot think that it is nighttime now if I was not persuaded, right? It is simply not defined on the logical level. Therefore this is a very important distinction between formal authority and substantive authority.

Maybe I will sharpen this even more, because it really is an important point beyond the introduction I am giving here. People often tell us all kinds of folklore stories that everyone who appears in the Talmud could raise the dead, and other nonsense of that sort. Why do they tell those stories? Because some people think that in order to create authority or validity for what the Talmud says, you need to believe that they cannot err. Such a superhuman person cannot err; he can raise the dead; he has tremendous, infinite understanding across the whole expanse of reality. Okay? The problem is that in the Talmud there are quite a few factual errors, yes? We know there are quite a few errors, so this does not work. They could raise the dead, but happened not to know that the earth is round, even though they could raise the dead. Things of that sort. There are lots of errors there. So of course this is nonsense, the idea that they knew everything. But the motivation for producing these legends is the real problem, because the motivation is: otherwise why should we obey them? Why should we listen to them? If they can be wrong?

My claim is that their authority is formal. It does not matter whether they are wrong. What they determine—that is what… on the normative level, what they determine is what binds, not because they do not err. They were human beings like you and me. They could err just as we can err. They may have been wise, righteous, everything is fine—but they were human beings. And human beings can err. Obviously they can err. And they did not raise the dead there. I do not want to bet my life on it, because maybe afterward they will raise me, but they could not raise the dead. Just nonsense.

The point in the end is that there is absolutely no need to invent these legends. When you invent these legends you are really mixing up substantive authority and formal authority. You are trying to generate obedience to what the Talmud says by grounding it in the claim that the Talmud cannot err. But no—the Talmud can err, just as the Knesset can err. The authority of the Talmud derives from a formal basis, not a substantive one. It is not because it cannot err. It can err. But in our system, what is written in the Talmud is what binds—not because it is always correct. That is our system; that is the law, like in the Knesset, okay? Then there is no need to invent all sorts of legends of this kind in order to persuade people to obey.

Okay, so that is regarding substantive authority and formal authority. Let me return to the court. The authority of a court, as distinct from the authority of a rabbi—the authority of a rabbi is substantive authority, right? He is an expert; he is an expert advisor in matters of Jewish law. The authority of a court is formal authority. If the court determined something, I must obey, regardless of whether I agree or disagree, whether they were right or wrong—I must comply. Why? Because their authority does not derive from the fact that they are wise, but from the fact that they are the court. This is institutional authority. It is not substantive authority, authority of expertise. They are supposed to be experts too—you do not appoint judges who are not experts—but their authority does not derive from their expertise. Like judges as opposed to a law professor, or the district psychiatrist as opposed to an ordinary psychiatrist. They are also supposed to be experts, but their authority derives from having been appointed to their position. That is institutional authority. It is not because of their expertise, because there are other experts too, okay? And they do not have authority. The authority derives from the appointment.

Therefore one must understand that in Choshen Mishpat and Even HaEzer, which are dealt with by a court and not by a rabbi, the ruling is a ruling that has formal force. If the court determined that you have to pay, you must pay. If the rabbi told you: do not eat this chicken because it is not kosher, you may eat it with great appetite if you want. It could be that if you eat non-kosher food you will be punished in heaven—I do not know—for having eaten forbidden food. But no one will make claims against you for not listening to the rabbi. That is irrelevant. He is an expert advisor in matters of Jewish law, that is all.

But I will narrow this slightly: when the court determines something—when the Sanhedrin, for example, established a law, the Sanhedrin established law in various matters—when it established a law, it established a law for all the Jewish people. Such a chicken is forbidden; poultry with milk is forbidden—that is rabbinic law—poultry with milk is forbidden, fine? Suppose the Sanhedrin established it; then it binds all the Jewish people. A court does not establish such determinations. A court does not establish halakhic determinations, and by the way it does not establish legal determinations either. A court determines only with regard to the case before it. If two people came before it, okay? I borrowed, and there is only one witness, and he admitted it, and so on—all kinds of cases—and the court decided: you must pay, fine? Suppose that is what it decided. Whom does that bind? Me and the other litigant, that is all. It is not a ruling that binds the public. If another case comes before another court, the other court can rule differently; it owes nothing to this court. Not only can it rule differently, but the people themselves—even if they have no other ruling—do not need to obey that ruling. That ruling was given to particular people. A judgment is not a determination of law; a judgment is a practical instruction for a particular case to the two litigants who came before the court.

[Speaker H] Specifically a religious court and not a civil court? What? Is there a difference between a civil court and a religious court in this discussion?

[Rabbi Michael Abraham] Why, what is the difference? Exactly the same thing.

[Speaker I] No, that…

[Rabbi Michael Abraham] No, no, exactly. In a civil court too it is like that. Again, in a civil court in terms of the law, and in a religious court in terms of Jewish law, but the analogy is exactly the same. A judgment—huh? When there is a judgment, then legal principles emerge from it. The legal principles that emerge from it do not bind me; that is exactly the point. Obviously in the course of the deliberation the judges also conduct halakhic analysis, that is obvious. But when they write the ruling, that halakhic analysis does not interest me, and it does not bind even me as the litigant standing before them. What binds me is the practical instruction: you must pay. That I must do because the court determined it. But the fact that this was based on such-and-such a rule about admission by a litigant, and two witnesses here, and they made all kinds of halakhic determinations in the middle—none of that binds me at all. I can decide whatever I want in the halakhic realm.

So one must understand that although the court indeed has formal authority, that formal authority is not to determine Jewish law. The formal authority is to give you a practical instruction about what you need to do. The laws they wrote there are not binding. Right? It is a bit similar to the difference—think of it—between a book of responsa and the Shulchan Aruch, or a law code. In a law code, the Shulchan Aruch establishes general laws, right? In various cases, what one should do, what is permitted, what is forbidden, and things like that, okay? Now, if one accepts—it does not matter—the authority of the Shulchan Aruch, if one accepts its authority in principle, then what it says is a general statement that concerns all the Jewish people: when you encounter such a case, it is permitted, forbidden, obligatory, not obligatory, and so on, okay?

Responsa also deal with various laws and halakhic analyses,

[Speaker G] but—

[Rabbi Michael Abraham] a particular case came before him, and that is what he is discussing—a particular person’s case. A particular case that happened to a particular person, and the responding rabbi answers that specific case. The conclusion of the responsum pertains to that person. It tells him: as far as you are concerned, the law is thus-and-such. Now, suppose he is my local rabbinic authority or whatever, then I need to do it if he said so. But the halakhic rulings that came up in the course of the halakhic analysis in the responsum do not bind anyone. That is not—he has no authority for that matter. It is talking about a case. A responsum speaks about a case; a law code speaks about a norm, about a principled law that is applied in cases, but it is speaking about the principled law.

There is an interesting example of this. There is a book by Haym Soloveitchik—Professor Haym Soloveitchik, a historian, yes? The grandson of… Rabbi… the grandson of… or the son of Rabbi Joseph Dov, yes, the son of the son of Rabbi Soloveitchik. And he wrote a book about interest in the Middle Ages, the laws of interest in the Middl…

two, in Ashkenaz and in Sepharad, right? Both in communities in the East and in communities in Europe. And among other things he had a very interesting comment there. He was a bit Brisker-like even as a historian, so he had a very interesting comment. He said that you can see various rulings, mainly in Ashkenaz, rulings that flatly contradict what is written in the Talmud. Flatly. The circumstances were simply such that they required some deviation from the ordinary rules of Jewish law, okay? Now, the Shulchan Aruch and the Beit Yosef gather the laws from those books, collect the laws from those books, and that is how he built the Beit Yosef and afterward the Shulchan Aruch, okay? But systematically, that is his claim, he omitted all those laws that contradict the Talmud. From those very responsa he took the relevant laws, whatever, and established them in the Shulchan Aruch, but the laws that contradict the Talmud, no. Why not? Because what he says is this: the laws ruled there in that responsum, or whatever, in that case, are laws that were said to that questioner in that particular case, and there the decisor told him: go against the Talmud. Tosafot, or whatever, medieval authorities, okay? But that does not mean that this is the law. The decisor did not establish the law there; he said what to do in this specific case. Therefore, if I am now writing a law code that speaks to the general public, not to one particular person in one particular case, that will not go in there, because it is not the correct law. It is a practical directive, but it is not the correct law. The Shulchan Aruch gathers all the laws, those that obligate everyone in every situation. Therefore, when he goes through responsa, he distills from them perhaps interpretations of the Talmud, perhaps this or that, and puts them into his book. But there will be things he will not put into his book, because they pertain only to that case and that person. That case and that person will have to obey what they were told; that is one discussion. But it will not enter the Shulchan Aruch.

[Speaker B] That means that really, learning what the law is from responsa rulings and from court deliberations is backwards.

[Rabbi Michael Abraham] I am saying, I am saying, it is not a mistake to study it; it is a mistake to rely on it. Exactly. Meaning, it does not determine. It is always worthwhile to examine it; if they are Torah scholars, it is worth checking what they said. But it does not determine. So they ruled—so what if they ruled? It is not something definitive.

[Speaker D] A lot of new laws are built on earlier responsa.

[Rabbi Michael Abraham] right. Again, what does it mean that they are built on them? If I agree with him, then I will write it, no problem. But just because he said something—so what if he said it? He has no formal authority. He is not—so he said it, so he said it.

[Speaker D] For the next formal authority?

[Rabbi Michael Abraham] No, there are no formal authorities; that is exactly the point, he has no formal authority. A judge too—when I take the court ruling he wrote, or it appears in a responsum, a ruling, whatever—he has authority regarding those people who appeared before him in the particular case he dealt with. He has no authority whatsoever with respect to me, as to his general halakhic statements. No authority whatsoever. I can study it because he is a Torah scholar, like any medieval or later authority; I will look at it too, perfectly fine. As part of studying the topic or clarifying the topic.

[Speaker J] But a ruling that apparently contradicts the Talmud can be understood as an accepted stage of legal ruling that one can come and…

[Rabbi Michael Abraham] Look, there are certain cases, true. There are certain cases in which sages felt they had to depart from the Talmud here because the circumstances required it. You can argue with them, but that is what they did. Yes, yes, regarding specific cases or specific circumstances. There is a Tosafot in Avodah Zarah, I think that is one of the examples he brings too.

[Speaker D] What about that judicial revolution in the divorce case of Tzemach?

[Rabbi Michael Abraham] No, no, that is unrelated. They claim it is according to the law. They claim it is according to the law; they did not deviate from the law. That is what they claim. I do not agree with them, but never mind, that is what they claim. Half of their ruling is based on a ruling I wrote, by the way. The correct half. The other half is not correct.

[Speaker C] Who wrote first? You?

[Rabbi Michael Abraham] Me, me. I sent one of the judges there what I had written beforehand, so that is where it came from. Because I was dealing with another case, never mind. In any event, Tosafot in Avodah Zarah. Ah yes, Tosafot in Avodah Zarah. So he says there: after all, the Talmud says that we may not sell animals to gentiles. Right? Because they may do all kinds of things with them. On their festival days, yes. So Tosafot says: but nowadays, when we do do this—how do you explain that? We do in fact do it. He says: because there is no choice. What are you going to do? There are two Jews in the village; you have no one to sell animals to, and all the surrounding people are gentiles. This law was written in a period when Jews lived together; it was possible to get by even if you observed this rule. Now, he does not give a halakhic justification for it; he did not bring a legal source saying it is permitted. He said: look, under these circumstances I think one has to deviate from the rule. Okay? But if this is a deviation from the rule, it will not enter the Shulchan Aruch. Fine. In any event, that is with regard to formal and substantive authority, and with regard to a court versus a decisor. Now I want to clarify, to make another distinction. Up to this point this is roughly what I spoke about last time; I have just expanded more on the meaning regarding authority and regarding a court versus a decisor. Now I want to enter into the court itself. Into Choshen Mishpat, into the activity of the court. There too there are two sub-divisions. Meaning, each time I am going one layer deeper inward. So we began with the general distinction between halakhic law in the judicial sense and the rest of Jewish law. Halakhic law in the judicial sense is divided into Choshen Mishpat and Even HaEzer. Within Choshen Mishpat itself, which is basically the work of the court, now I am making another division. Okay? That division is the division between civil law and criminal law. Both are carried out in court. And both belong to Choshen Mishpat. Okay? What does that mean? Say, for example, when we execute a murderer or execute a Sabbath desecrator, okay? That is done in court, right? Not by a decisor. It is done in court. And the place where this is discussed—the Shulchan Aruch does not really discuss it because it deals only with laws that apply nowadays, and nowadays a court does not judge capital cases. But at the conceptual level, say, capital law and the laws of evidence, and criminal law too, are discussed in Choshen Mishpat, not elsewhere. Now here there is some room for discussion, because in criminal law—say, when I punish a murderer, when I flog someone who ate pork, forty lashes—that too is handled in court. The prohibition on eating pork is Yoreh De’ah. So why is the flogging of someone who ate pork clarified in court? Or alternatively, I will phrase it differently: if Choshen Mishpat is characterized by the fact that the obligations there are grounded in the rights of the other side, what happens here in criminal law? Who is the other side? I flog a pork-eater, I execute a Sabbath desecrator—

[Speaker H] The Holy One, blessed be He.

[Rabbi Michael Abraham] Right. Meaning, the assumption is that here too there is another side. The other side is the Holy One, blessed be He. Or if I look at it in legal language, in the legal world, then the difference between civil law and criminal law is that in criminal law the plaintiff is the state, whereas in civil law the one who sues is the very person who filed the claim in court, okay? Say they prosecute a murderer. The murderer harmed someone else, meaning he killed him, but the prosecution is a prosecution by the state; the state is the plaintiff. Meaning, the state places itself in the shoes of the murdered person and says: we, society, are the one that was harmed; society is the one suing you. And therefore in the criminal context too this requirement that I mentioned is fulfilled: that there is some obligation on one party by virtue of the right of another. The other in question is society, the Torah, the Holy One, blessed be He, or whatever you want, but in any case it is some other collective party. Meaning, civil law is law between two individual parties. You borrowed from me, you are not paying, I sue you. I have a right to get the money from you, you have an obligation to pay me the money. Your obligation is grounded in my right. In criminal law, the right and obligation of the state is to execute you, okay? And now you have an obligation, yes, to be executed, if you want to put it that way. Meaning, you are basically required not to violate the rights of society, of the public, of the Torah, of the Holy One, blessed be He—it does not matter, call it whatever you like—but here too there is another side. That is also the accepted conception in the legal world. And still, this belongs to Choshen Mishpat. It belongs to Choshen Mishpat because there is another side here, okay? It belongs to Choshen Mishpat. The question whether it is forbidden or permitted to eat a non-kosher chicken—there is no other side there. That is an offense between a person and God, but there is no injured other side here who can sue you for it. I can sue you when I prosecute you in criminal law and want to flog you for having eaten the non-kosher meat—then it really does move into Choshen Mishpat. But the question whether it is forbidden or permitted to eat this chicken is Yoreh De’ah, because there is no other side in that discussion, okay? When you go to a rabbi, there is no other side. When you go to a judge, it is always when there is another side. In criminal law too there is another side. The other side is the Torah, society, the Holy One, blessed be He—it does not matter what you call it, okay? Now I will show you a few examples of this. Can you see? Can you see? Yes, enlarge it a bit. Ah, enlarge it, okay. Can you see, though small. Yes, you can see. All right? And the court is warned—Maimonides, Laws of the Murderer: “The court is warned not to take ransom from a murderer, even if he gave all the money in the world, and even if the blood-avenger wishes, even if the blood-avenger wanted to exempt him.” Meaning, “You shall take no ransom for the life of a murderer”—that is written in the Torah, okay? What does that mean? He is liable to death, and you cannot exempt him in exchange for any compensation at all, that he pay a ransom instead or something, because ransom is always in place of something. So instead of dying he wants to pay ransom—no. “You shall take no ransom for the life of a murderer.” He must be executed. And if the blood-avenger says, “Leave it, I—”

[Speaker C] Forgive him?

[Rabbi Michael Abraham] No. No, he cannot forgive him. “For the life of the person killed is not the property of the blood-avenger, but the property of the Holy One, blessed be He,” as it says, “And you shall take no ransom for the life of a murderer.” “And there is nothing about which the Torah is more stringent than bloodshed,” as it says, “And you shall not pollute the land, for blood pollutes the land.” How does Maimonides explain this? Maimonides says: the plaintiff here is not the blood-avenger. The plaintiff here is the Holy One, blessed be He. Now murder, ostensibly—you might come ask me, my dear fellow, what is the difference between robbery—who is the plaintiff in robbery? I robbed you; who is the plaintiff? You, right? The one robbed, he is the plaintiff. So why when I murdered you are you not the plaintiff, or your blood-avenger not the plaintiff? The blood-avenger is the relative. Why is he not the plaintiff? Because this is criminal law. In civil law, the injured party is the plaintiff: his rights were violated, so he sues. In criminal law, the plaintiff is the Holy One, blessed be He, or the Torah, society—not the injured party. By the way, in Israeli law it is also like that. When someone is prosecuted for murder, the family of the murdered person can say, “We forgive him, one has to understand him”—it does not matter, they have no standing. The court determines, and the state is the plaintiff. The other side to this claim is the state, not the injured party. And what Maimonides says afterward—”And there is nothing about which the Torah is more stringent than bloodshed”—people think that it is because it is severe that one does not forgive. No, one does not refrain from forgiveness because it is severe; one refrains from forgiveness because you are not in a position to forgive. You are not the litigant here. Why does the Torah not forgive? Because it is severe. But the reason you cannot forgive is that you are not the litigant here. The one who sues here is the Torah, not you, the blood-avenger. The Torah does not forgive because it is very exacting about this, and there is no transgression more severe than this. What Maimonides says afterward is not an explanation for why the blood-avenger cannot forgive, but rather why the Torah cannot forgive. But why is it the Torah’s mandate in the first place and not the blood-avenger’s? Because in criminal law the one who sues is the Torah, not the injured party, not the blood-avenger. Now, one could have said that maybe it is because the murdered person is no longer among us, he is dead, so there is no plaintiff. So society, or the court, steps into his shoes and sues in his name. But no, this rule is true for all criminal law. Even when you are punished with lashes, okay? You are punished with lashes, still, okay? It is not—say even if I took interest, fixed interest. Fixed interest is recoverable by judges, okay? Now they compel me to return the interest. If the other fellow says, “Forget it, I do not want the interest,” the one who paid it, the borrower who paid it—that makes no difference at all, nobody asks him. You can give it back to me afterward as a gift; nobody can tell you no. But you cannot object to receiving the interest back. Meaning, nobody asks you; you are not the plaintiff here. We spoke about this in the previous class with the example of Rabbi Yechezkel Abramsky, if you remember. In the Guide for the Perplexed he also writes: “The commandments included in the sixth group”—this is some new translation like that—”the commandments included in the sixth group are punishments, and their benefit is generally known, and we have already pointed it out. Hear now the detailed explanation of the matters and the law of every exceptional thing said concerning them.” Yes? The basic principle is measure for measure. “In general, the punishment of everyone who attacks another is determined such that there be done to him what he did, equally. If he injured the body, his body shall be injured; if he injured property, his property shall be injured. And the owner of the property may waive and forgive.” Yes? If you harmed me, I may waive and forgive the compensation due to me. “But regarding a murderer, because of the gravity of his crime, there can be no waiver in any way, and no life-ransom may be taken from him”—exactly what he wrote in the legal code, he repeats it here—yes? “And no atonement can be made for the land for the blood that was shed in it, except by the blood of the one who shed it.” Therefore, even if the murdered person remained alive for an hour or several days—look, he solves the practical problem for us—the murdered person stayed alive for several days, and still managed to murmur, “Forgive him, I waive my claim against him,” and then breathed his last a moment later, okay? It will not help him. Even the murdered person himself cannot forgive, okay? “When he is speaking and of sound mind, and said, ‘Leave my murderer alone; I have forgiven and pardoned him,’ we do not listen to him. Rather, a life for a life, necessarily, small and great alike, slave and free man, sage and fool, because in all human crimes there is nothing more severe than this.” Fine. Here this is a more complicated question; maybe we will discuss it later. What? There?

[Speaker D] Yes, well, that is another law, there is no…

[Rabbi Michael Abraham] It is not that the request—the question is whether it is permitted, yes, whether it is permitted to do this at his request or not, that is a major question. The accepted view is that it is not. Meaning, it is forbidden to do it without his request, but it is not the case that if he does request it then it is permitted. Simply speaking, no. Meaning, there are situations in which, if he is suffering terribly or things like that, there are decisors who permit it, but even then it is only at his request. But it is not that his request itself permits it. Okay, so this basically means—we see here—that the Torah enters as the other side in criminal law, and still there is another side here. The other side is the Torah, or society, okay? Therefore it belongs

[Speaker E] to Choshen Mishpat. Fine, so the court is responsible for determining whether it is permitted or forbidden—what does that mean?

[Rabbi Michael Abraham] That is in every law, in monetary law too,

[Speaker E] also

[Rabbi Michael Abraham] in fines, also in every law. In the end there are also halakhic clarifications within the law. But with respect to the case before us, the court has formal authority even over halakhic determinations. With respect to this case! If you now take their determination and apply it to another case, you are not obligated. They have no authority with respect to that. With respect to this case, whatever they determine is binding. Yes, that is the mandate given to them. The same thing appears in the Radbaz. The Radbaz is well known. Maimonides writes—Maimonides writes: “It is a decree of Scripture that the court does not execute and does not flog a person on the basis of his own confession, but only on the basis of two witnesses. And the fact that Joshua killed Achan, and David the Amalekite convert, on the basis of their own confession—this was a temporary ruling, or the law of kingship. But the Sanhedrin does not execute and does not flog one who confesses to a transgression.” Yes? A person does not render himself wicked. Why? So here is the famous Maimonides: “Perhaps his mind was disturbed in this matter. Perhaps he is one of those embittered in soul who long for death, who stab swords into their bellies and throw themselves from roofs. Perhaps thus he comes and says something he did not do, in order that he be executed.” So Maimonides explains: why does a person not render himself wicked? Because you fear that perhaps he has gone mad and wants to commit suicide, so he confesses to something he did not do so that the court will kill him with capital punishment. Okay? Very strange. It goes against the Talmud; Maimonides himself says otherwise elsewhere. And he also continues afterward: “And in sum, it is a decree of the King.” Simply speaking, the rule that a person does not render himself wicked is not because we are concerned that he is not telling the truth and wants to commit suicide, but because it is a rule of admissibility. A person’s confession is not admissible with respect to himself—a criminal confession. A monetary confession, yes: the confession of a litigant is like a hundred witnesses. If I confess that I owe you one hundred shekels, it is like a hundred witnesses—I owe you one hundred shekels. If I confess that I committed a transgression, we do not accept it. A person does not render himself wicked. Okay? So what is this decree of the King? So the Radbaz says there—there is a very well-known ruling in the United States, the Miranda ruling. Today in movies you can hear the Miranda warning. Anyone who has seen a movie knows it, right? When they arrest someone they say: you have the right to remain silent, you can have a lawyer, and only speak under such-and-such conditions—all that is called the Miranda warning. The Miranda warning stems from the Miranda ruling, and the Miranda ruling cites this Maimonides. This Maimonides says that a person does not render himself wicked. Meaning, when a person confesses that he committed an offense—

[Speaker C] we do not accept it.

[Rabbi Michael Abraham] Now what? Rather, what the judge explains there in the Miranda ruling—look, it is because of the concern that perhaps his mind was disturbed. He also extends it and says that there is concern that the police pressured him and extracted the confession by force, and therefore one cannot believe this confession. And of course that does not fit what Jewish law actually says. Jewish law does not say that this confession is untrue; Jewish law says that this confession is inadmissible. Not that it is untrue—it may well be true. The confession of a litigant is like a hundred witnesses. It is just inadmissible. What Maimonides says here really requires great examination, but Maimonides himself says otherwise elsewhere. Now, the Radbaz here indeed wonders about this matter, so he says: it is a decree of Scripture. And the Radbaz says: “It was taught,

[Speaker C] one who comes to… what?

[Rabbi Michael Abraham] that we do not accept it—not because it is untrue. Like the testimony of relatives. Two relatives come and testify about something, and the assumption is that they are telling the truth, they are not lying, but the testimony is inadmissible; we cannot accept the testimony of relatives. It is a decree of Scripture. The Radbaz says: “It was taught: one who comes to court and says, ‘I ate forbidden fat,’ we do not flog him. And this is what we say everywhere: a person does not render himself wicked. And the reason our Rabbi wrote does not apply regarding lashes.” Yes? If the person wants to commit suicide and die, then he goes and confesses to something punishable by death. But what about someone who confesses to an offense punishable by lashes? What, he wants to be flogged and therefore he comes? This reason does not apply to lashes; it applies to capital punishment. Well, but even in the case of lashes a person does not render himself wicked. So therefore it is clear, says the Radbaz, that this reason of Maimonides is not really the substantive reason for this law. So why indeed does a person not render himself wicked? “Therefore he wrote: in sum, it is a decree of the King, and we do not know the reason.” And one can give a bit of a reason, says the Radbaz. What is it? “Because a person’s life is not his property, but the property of the Holy One, blessed be He, as it says, ‘The souls are Mine.’ Therefore his confession is ineffective regarding something that is not his. And lashes are half of death,” yes? Lashes are half of death. “But his money is his, and therefore we say that the confession of a litigant is like a hundred witnesses. And just as a person is not permitted to kill himself, so too a person is not permitted to confess regarding himself that he committed an offense punishable by death, because his life is not his property. And nevertheless he admits that it is a decree of the King of the universe and one should not question it.” What is he saying? He is saying: why is the confession of a litigant like a hundred witnesses, on the one hand, but a person does not render himself wicked when he confesses that he committed an offense? He says: simple. Because when you confess that you owe money, the money is yours. If you confess that you owe it, then please, pay it. Money is your property. So if you confess that you owe it, pay. Remember? The court does not deal with someone who does not claim that his rights were violated. If you say, “I do not have it; that right is not mine”—if you do not want that right, we will not give it to you, okay? So if you confess, please, then pay; it is like a hundred witnesses. But if you render yourself wicked, your body is not yours. You cannot confess that your body should die or suffer or whatever else, because your body is not yours; it belongs to the Holy One, blessed be He. You cannot confess concerning someone else’s property, right? I confess that his property belongs to so-and-so—I cannot confess that. I can confess concerning my own property, not someone else’s property. If I waive my own rights, then I am believed. But if I waive someone else’s rights, I cannot be believed about that, okay? Therefore he says: since a person’s life is the property of the Holy One, blessed be He, therefore a person does not render himself wicked in the whole area—in lashes, in death, in everything. Ah, what happens in the case of theft? What

[Speaker B] does

[Rabbi Michael Abraham] that mean?

[Speaker B] He confessed that he stole. So?

[Rabbi Michael Abraham] So with respect to the principal he is believed, but with respect to the fine he is not believed. A fine is a punishment. In a moment we will get to fines.

[Speaker D] Ah, is he believed concerning a fine? One who confesses to a fine is exempt. Right. Obviously.

[Rabbi Michael Abraham] So he is not—he is not believed. He wants to obligate himself to a fine, and he is exempt. We do not accept his confession regarding the fine. We do not believe him that he stole for purposes of the fine. We do not impose the fine on him. Ah, the principal. What? We believe him that he stole. We believe him regarding the principal, but not regarding the fine. That is exactly the point. We do not accept his testimony regarding the fine. So this—this Radbaz is often used, for example, with organ donation. The question is whether one can donate—can I donate my organs to someone else? So there are people who claim on the basis of this Radbaz: no, it is not yours. You cannot injure yourself; it is the property of the Holy One, blessed be He, you cannot injure yourself. After death it is a different issue, but say, donation while alive. Yes, all sorts of things like that. In any event, for our purposes, here too what is written is basically the same idea. What is written here is basically that if you harm someone else, and this is criminal law, not compensation—if it is criminal law then the plaintiff is the Holy One, blessed be He, not the injured party, okay? This is basically another aspect ofOf that same, yes, same principle. And by the way, we see that what he says here is not talking only about capital cases. Maimonides spoke about a murderer, but the Radbaz is talking not only about a murderer; also about lashes, about anything. Later on we’ll see that this also speaks about fines: one who admits liability for a fine is exempt as well, exactly like the rule that a person cannot make himself into a wicked person. Why? After all, in monetary law, a litigant’s admission is like a hundred witnesses. So why, in the case of a fine, is someone who admits liability for a fine exempt? The answer is that a fine is a punitive obligation. In that sense, a fine is similar to lashes and execution, not to ordinary monetary payment. In Torah law there are two categories within monetary law. There is a category of compensation, and there is a category of fine. What does that mean? Say, for example, a thief, okay? A thief has to pay double, right? If he slaughtered or sold the animal, then fourfold or fivefold. The principal he pays as ordinary monetary liability in the Talmud, right? You took 100 from me, give me back 100 shekels. Okay? It’s my money that is in your possession. That is called compensation. You owe me the money because my money is with you. It’s my money; give it to me. The double payment is a fine. What does that mean? I receive the double not because I’m missing it; he didn’t take double from me. That isn’t money that is owed to me. It is a punishment imposed on him; it is not my right. It is a punishment on him. He has to pay double in order to be punished, not because I deserve to receive double. Do you understand? A fine is really something like ritual law, not civil law. In civil law, the principal, that is something where he owes me 100 shekels and I have a right to receive 100 shekels from him because he took them from me. The double payment: he has an obligation to pay me the extra 100 shekels, but I have no right to receive them. It isn’t mine; he didn’t take 200 from me, he took 100. In principle that belongs to ritual law. But no. Why not? Because here the Holy One, blessed be He, is the one claiming against him, not I. The Torah is claiming against you. In criminal law, the one standing opposite you is the Torah, not the victim. And the Torah claims from you the additional 100 shekels, and says: give it to so-and-so; the Torah has no use for 100 shekels. Give it to the victim, but it does not really belong to the victim, okay? In principle they could also have told you: throw it into the Dead Sea; the main thing is that you are punished and don’t have those 200 shekels. But there is no point just throwing away money, so give it to the injured party. But not because it really belongs to him; it doesn’t belong to him, okay? That means that payment of a fine is basically punitive payment. In that sense, a fine is no different from lashes and execution; all of these are punishments. And all the laws connected to punishments also apply to fines. Just as a person cannot make himself into a wicked person, a person also cannot obligate himself to pay a fine. Let him admit the act and repent.

[Speaker B] Let him admit the act and repent…

[Rabbi Michael Abraham] Let him admit the act and repent, but we still will not obligate him to pay the fine. So then what does that mean?

[Speaker E] No, he is saying the opposite.

[Rabbi Michael Abraham] He is saying the opposite. He is asking a question: he says, why don’t we obligate him to pay, after all payment is part of repentance? He told him, no, you’re saying something else. So, I have a long article about this. The claim is that if someone admits liability for a fine and afterward witnesses come, he is exempt, because the admission is repentance. Once he has repented, he is exempt. It’s not because I don’t believe him; if witnesses came afterward, then obviously he stole, obviously he is liable. Doesn’t matter; he is exempt because he repented, and therefore he is exempt. Right, that is not what he said. He is talking about something else. There are two laws regarding one who admits liability for a fine. There is one law that he is not liable; that is like the rule that a person cannot make himself into a wicked person. And there is a second law: that it also exempts him. For example, if someone admits liability for a fine and afterward witnesses come, he is liable—that is a dispute between Rav and Shmuel. According to the one who says that if someone admits liability for a fine and afterward witnesses come, he is liable, he still agrees that one who admits is exempt. But if witnesses come afterward, then he is liable. What is the difference? Because he has the first law, but not the second. The first law is that you cannot obligate him on the basis of his own admission; that is like the rule that a person cannot make himself into a wicked person. Rav adds another law: that your admission also exempts you, and therefore even if witnesses come afterward, we will not obligate you. That is repentance! And according to Rav, the admission is repentance; according to Shmuel, it is not.

Look at an interesting example of a practical implication. Mishneh LaMelekh in the Laws of Murderer, chapter 1. Maimonides is speaking there about the law of a pursuer. So the Mishneh LaMelekh says as follows: “If one pursues another to kill him, and one could have saved him but did not save him, this person has nullified a positive commandment,” and so on. “I was uncertain regarding an accidental killer, whom the blood-avenger has permission to kill: if the killer exerted himself and killed the blood-avenger, is he executed for killing him?” Yes? The blood-avenger is chasing the killer and wants to kill him. The killer turns around and shoots the blood-avenger in the head. The blood-avenger is a pursuer; true, he wants to kill the killer. Is the killer allowed to turn around and kill the blood-avenger under the law of a pursuer? So the Mishneh LaMelekh is uncertain about this. And he says: “And it seems that he is not executed for killing him, and there is support for this from the case of Zimri. For we say in Sanhedrin 82: if Zimri had turned around and killed Pinchas, he would not have been executed for it.” I spoke about this in the previous class. If Zimri had turned around and killed Pinchas, he would not have been executed for it… and killed Pinchas, he would not have been executed for it. So Zimri could have turned around and killed Pinchas and he would have been exempt, because Pinchas was a pursuer—he was about to kill Zimri—so Zimri could defend himself and kill Pinchas. “And still, I do not have conclusive proof for this.” It is an interesting question why not; why isn’t Zimri conclusive proof for…

[Speaker D] For… that too is not… No, also in the case of the blood-avenger there is no judgment that he is liable to death. Right, also with the blood-avenger there is no death penalty…

[Rabbi Michael Abraham] He is not liable to death. An accidental killer is also not liable to death by a human court. And the blood-avenger comes to kill him—how is that different from Zimri? Hm? Never mind, kill whoever is pursuing you, yes? So then kill the court? Kill the court’s agent? That is exactly what I want to ask; that is exactly where I’m heading. In another moment we’ll see. So he says, he says: “And similarly I was uncertain regarding one who pursues another to kill him, and likewise one who pursues a forbidden sexual relation, where he may be saved even at the cost of the pursuer’s life: if the pursuer exerted himself and killed the rescuer, is he executed for it?” Okay? Now, Reuven is chasing Shimon, okay? Levi comes and stands ready to kill Reuven under the law of a pursuer, doing a great commandment, right? Now Reuven turns around and kills Levi, because Levi is pursuing him. So he kills Levi; is he liable to death? Is he a murderer? So he was uncertain about this, the Mishneh LaMelekh. “And it seems that in these cases he is executed for it.” Yes, he is executed—why? “Because specifically in the case of Zimri, there is no commandment in Pinchas’s act, only permission.” Pinchas was not doing a commandment; it was permission. “One who has relations with an Aramean woman—zealots may strike him”; but that is not a commandment, it is permission, okay? “We say, if Zimri had turned around and killed Pinchas, he would not have been executed; but with one who pursues another person, or a forbidden sexual relation, where there is a commandment to save him”—he is doing a commandment—“as our teacher wrote: if the pursuer killed the rescuer, he is executed for it,” as our teacher wrote: “if a pursuer killed the rescuer, he is executed for it.” Once the rescuer is doing a commandment, the pursuer cannot turn around and kill him. But if what he is doing is permitted, even though it is a positive act—the act of Pinchas—but it is only permission, not a commandment. If it is permission, that is your choice, and I can turn around and kill you. “And so too this may be inferred from the words of Rabbeinu Yerucham”—never mind. No, no, it’s not important.

So in the initial assumption he says that the injured side can always kill, whether it is a commandment or not a commandment, he can always kill the assailant. Afterward he says: if it is a commandment, then no; if it is not a commandment, then yes. Okay? Before he reached that conclusion, I now want to ask the question that you asked earlier: what happens with an agent of the court? A court sentences someone to death. Now they sent an agent to carry out the sentence, okay? To kill the convicted person. Can the convicted person turn around and shoot the court agent in the head under the law of a pursuer? Yes, he is going to kill him. A real Socratic question like that. Yes? After all, Socrates was offered the chance to escape prison; he said: no, if they sentenced me to death, I stay here and let them kill me. Hm? No, no, it’s not the same thing. I only brought it as an example. It isn’t clear that fleeing would even be permitted—at all not clear. In my view, no. Hm?

[Speaker D] Like the judges, who issue a death sentence against him—can he kill them?

[Rabbi Michael Abraham] Same thing; one can ask the same thing. Anyone who would save him, in short. I think that even in the initial assumption, when the Mishneh LaMelekh thought there was a case to say that one really can kill the blood-avenger or the pursuer or the rescuer, sorry, or whoever it may be—he did not raise the question about the court’s agent. There he did not even have such an initial assumption. Why not? I’ll tell you why not. Because when a person is sentenced to death, on whom is the obligation to kill him imposed? On the court. On the public. The court is the agent of the public; the court is the institution appointed to carry this out, but really it is the whole public, right? If a minor is eating forbidden carcasses, the court is commanded to separate him from it. What does it mean that the court is commanded to separate him? The whole public. The court is simply the body that is supposed to ensure that this is carried out. But when we say that the court is obligated in something, the intention is that it is an obligation of the public. The court is the implementing body. That means that the entire public is really obligated to kill him, including he himself. He too is part of the public. If there is an obligation to kill him, he too is part of the body that is bound by this obligation—to kill him. Okay? That does not mean he has to jump off a roof and commit suicide, but clearly there is, in essence, an obligation on him to allow the court to kill him, because the obligation applies to him too. Therefore here, in my opinion, the Mishneh LaMelekh did not even entertain the possibility that he could turn around and kill the court’s agent. In the Mishneh LaMelekh’s conclusion we do not need to get to this, but in the initial assumption, when he thought there was such a possibility, he still did not raise the possibility of killing the court’s agent. Why not? Because it is an obligation upon the public as a whole. This is an illustration of what I said earlier. The one standing opposite you when you murdered and are liable to death, or desecrated the Sabbath and are liable to death, is the public—including you yourself. The public is the other side standing opposite you in this trial.

Okay, so now I want to—where is this issue? I’ll just summarize and we’ll stop here, because now another short section begins, and we won’t get to it. So basically, this is what we have come out with: we divided Jewish law into two categories, law and ritual law; within law, family law and civil law. Within civil law there are two subdivisions: criminal law and civil law in the modern sense. What characterizes civil law is that opposite every obligation there is a right, and vice versa; in both criminal law and civil law in the modern sense this exists. In civil law in the modern sense, the two sides are the litigants: one has an obligation and the other, corresponding to it, has a right, okay? In criminal law, the other side is the public. The rights of the public, or the obligation of the public, stand opposite the right or obligation of the individual person. Okay? And therefore the pattern is preserved despite all the distinctions. This characteristic of civil law is preserved both with respect to criminal law and with respect to civil law in the modern sense.

Within criminal law there is a division between life-and-death matters and monetary matters. Now I am making another division. Within criminal law, which is within civil law, which is within the legal part, which is within Jewish law—okay? Within criminal law there are life-and-death matters and monetary matters. Capital law has special rules. That is what our Mishnah deals with. What is the difference between—at the beginning of the chapter—what is the difference, what are the differences, between capital cases and monetary cases? There it lists them all: that there is no inquiry and interrogation, and all sorts of things like that; a court of twenty-three, whereas here it is a court of three. There are various differences. Our Mishnah begins with this distinction. What is the difference between capital law and monetary law? And all of this is really within civil law.

When we speak about monetary law, we need to understand: are we talking about compensation, or perhaps also about fines? There are certain things in which a fine will specifically resemble capital law. There are certain things in which a fine will resemble monetary law. Where is the difference? If we are speaking about the distinction between criminal law and civil law, then a fine belongs with capital law, because it is criminal law, it is punishment. It is not compensatory payment; it is not money owed to you. If we are speaking about the level of severity between capital law and monetary law, then a fine belongs with monetary law, because we are talking about money, not killing someone. Okay? And of course this also raises the question of what happens with lashes. Lashes are less severe than capital punishment; in that sense they are like fines, okay? But on the other hand it is clear that they belong to the criminal sphere, right? You get lashes because you committed an offense. So therefore fines, lashes, and capital punishment belong to criminal law. Compensation—laws of loans, damages, and the like—belongs to civil law.

Within criminal law itself there are also differences between money and life: money in the form of fines, as opposed to life in the form of capital law. So there are differences between money and life that are differences between criminal law and civil law, and there are differences between money and life that exist within criminal law itself: criminal law regarding money—fines—and criminal law regarding life, namely capital law. Okay? Every time we see a difference between monetary law and capital law, we will have to ask ourselves: is this a difference of the type of criminal law versus civil law, or is it a difference between lighter and more severe? Between money and life? And the practical implication is for fines, and perhaps also for lashes. Okay?

Now, we will discuss two differences—this will already be next time. We will discuss two—I want to discuss two differences between criminal law and civil law, even before capital law and so on. These are differences between criminal law and civil law. One of them is what we discussed about admission: in criminal law a person cannot confess—one cannot make oneself into a wicked person; in civil law a person can admit liability. In that sense fines are like capital law, because that is criminal law. Okay? This is exactly a difference where fines belong to the side of capital law, not to the side of monetary law. Okay? A second difference is the question whether the court creates the ruling or reveals it. In criminal law the court creates the ruling; in civil law the court reveals the ruling. I’ll just explain what that means, and with that we’ll stop.

When the court determines—say someone borrowed from someone else and the lender sues him: “Repay me the debt,” okay? Is the borrower obligated—assuming there was a loan, okay?—does the borrower owe him the money even before the court ruled? Certainly yes, right? By virtue of the loan itself he is obligated. When the court rules, it merely reveals an obligation that already exists; the obligation is not created by the court’s ruling, right? It exists even without that. This characterizes monetary law. In monetary law the obligation is created by the court’s ruling—sorry, revealed by the court, not created. In criminal law, straightforwardly—as we will see next class—the law is created by the ruling. That means that if someone desecrated the Sabbath, and today there is no ordained judiciary and no capital law, nobody judges him, he desecrated the Sabbath in the presence of witnesses and after warning, okay? Does he need to throw himself off a roof and commit suicide? We said earlier that killing him is an obligation on the whole public, including himself. No. Why not? Because if the court did not issue this ruling—even though you desecrated the Sabbath in the presence of witnesses and after warning, from the standpoint of the facts everything is in place—you are not liable to death. You are not liable to death. The death penalty is created by the court’s ruling; it is not that the court reveals it, the court brings it into being. Unlike the obligation of a borrower, the borrower’s obligation is not created by the court’s ruling. The court reveals that such an obligation exists, but it does not create it. Okay? So that we will see next time, and some implications of it.

[Speaker D] And if, according to the borrower, there was never any loan at all?

[Rabbi Michael Abraham] No—assuming as a matter of fact there was a loan, he owes it even if there is no court, even without a court ruling. If he thinks there was no loan, then fine, obviously not.

Topics in Chapter 4 of Sanhedrin – Lesson 2 – Rabbi Michael Abraham

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Table of Contents

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General Overview

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