Jurisprudence

I didn't understand. I brought up what you wrote in the article there, that there is also a prohibition dimension in the Torah, that is, a legal prohibition. Whereas Shai claims (to the best of my understanding, but it is impossible to understand otherwise, he repeated it dozens of times) that there is no prohibition dimension in the Torah. The Torah only defines reality, the prohibition dimension derives only from the commandments of the Torah.

I no longer remember what he writes. If that is what he writes, he is wrong. R”S clearly says that there is a prohibition dimension, and I have also proven this here on the site (for example, from his question in Rish Shaar 5: Why obey a law that is not written in the Torah? According to your thesis, there is nothing to obey here at all).

I would love to understand the question, after all, there is no meaning to a legal definition such as ‘ownership’ without a legal claim that demands it.
And this is because if there is no claim then what is included in the sentence ‘his’, and can I take from it? What is the content of ‘ownership’ if it does not demand anything? After all, the entire concept of ‘ownership’ is just a legal fiction that the uses and rights that the object provides from its reality will only apply to the owner, but it does not add a new use.
And moreover, the concept of ownership is just a relation (since there is no ontological or mystical definition, but a legal one) and if it does not demand anything, what does it mean?
What we can hear is that there is no Torah claim, but only a legal one (like morality, etc.). And this is the words of the gersh”sh.

First, ownership can be something ontological and not just a legal relation. And as can be heard from several expressions of Rabbi Shekap (see, for example, Shaarei Yosher 5, 6).
Secondly, there is a meaning to a definitional rule even if there is no conduct rule on it. For example, a minor who stole, by definition, owes money, but he is not obligated to return it because he is a minor (he has a definitional rule and not a conduct rule). However, there is a normative implication to this definitional rule: a judge can go down to the minor’s assets and return the money to its owner.

In principle, there can be a metaphysical situation without consequences, but that is not very interesting. In any case, to the point, I wrote that it is clear that according to R”sh there is a meta-halakhic (legal) prohibition.

I don't think there is evidence from a small thing, since the definition is that there is a legal claim, but the small thing is not obligated to the claims. For example, if the object is standing on the street, where there is a claim in principle that attributes the object to the owner and there is no one to respond, then the same small thing - there is a claim, and only he is considered to be a man of dalitah.

Explanation that הומה = my obligations that are based on the right of my friend; and יוד = my obligations that are based not on the right of the other but are in fact obligations on me. And it is necessary to explain why the obligation to compel the mitzvot of the יוד (preparing him until he says I want) is different from the obligation to devolve on his property, which is because in יוד the main thing is that the right of the other will not be violated, and not that I will fulfill my duty.
1. While it is true that the normative source of legal obligations (common sense, natural law, etc.) is different from religious obligations (God's command), the Torah nevertheless gave a religious seal to legal obligations. Therefore, why in the obligation to compel the mitzvot of the יוד does not prepare him until he says I want so that he can fulfill his religious duty to repay his debt?
2. I was satisfied with what the motivation should be when fulfilling a legal commandment (is it "I fulfill it to obey God," as with other commandments, or not)? On the one hand, it is clear that no motivation is needed (like someone who pays taxes to a policeman, we don't care about his motivation), and on the other hand, since there is also a religious obligation here, then maybe yes?

1. It works the other way around. Of course, they strike at home as well as at home. What they do at home is also done abroad. Only the opposite is not true: abroad they go down to assets and not at home (although see the Chiddushei Rabbi Shmuel, 22:1-10 at great length).

2. Both: This must be done because of the legal obligation and also because of the mitzvah.

1. I didn't understand why he prepares in a foreign country. He is fine in Judaism because we want him to fulfill his obligation, but in a foreign country, why should we beat him? First, the main thing is that the money be returned to the lender, and second, one way or another, we are going to get his assets!?

2. Is there a difference between the motivation that should accompany us when performing any mitzvah and mitzvahs that require intention?

1. It is clear that if there is no need to beat, one does not beat. And if they go to his property, there is no point in beating. But this is no difference between a domestic and a foreign country, even a foreign country if one must beat (for example, if he smuggled property and it is impossible to go to his property).
2. No. This is the law that mitzvot require intention. Although even for the system that mitzvot do not require intention, it just does not prevent it, but to begin with, it is certain that this is how it should be done. And there is an opposite intention among the first who wrote that prevents the law.

And beyond that, in the law of mitzvot, intention is required, we are talking about the conscious intention that accompanies the action. Motivation is something else. For example, a person arrives at the synagogue in the morning and puts on tefillin. It is clear that his motivation is to fulfill his duty. But he is not necessarily aware of this at the time of the action.

2. I understand, thank you

1. Sorry for the dig, but you will agree that they are two different types of enforcement: in the Jewish context, it is enforcement to ensure that he fulfills his religious obligation, while in the foreign context, it is enforcement to ensure (even if by beatings) that the right of the other person is not violated. And so, the difficulty is with the Dukhata, but the enforcement in the foreign context is not to ensure that the borrower fulfills his religious obligation (legal, i.e. to repay the debt) and only to ensure that the lender's right is not violated?

1. This was your original question and I have already answered it. The purpose of enforcement abroad is both.

According to what you explained, that the foundation of the right of another is the right of another, and therefore no one can harm him because it is the territory of the rightful owner, why is a king really allowed to use the property of another (like King David and the story in the Bible)?

Because the king has the right to do whatever he wants with his subjects?

Because a king is “one of the people”, meaning he stands at the base of the public and at the base of each of us. Just as the public is allowed to expropriate property. Rights are the result of public recognition of these rights, and in the absence of recognition there are no rights. And the public that recognizes rights can also deny them. Even the judiciary can abandon property.

You once brought a midrash with Alexander the Great visiting a king, and saw him judging two people who were suing each other in the court of law because a certain palace was not his but his friend's, and you said that this was a beautiful expression of the fact that the court of law is concerned with saving the oppressed from their oppressor and preventing someone's rights from being violated.
My question is, is it also concerned with explaining to the plaintiffs what their rights are (even if they are unaware of them)! A right is something objective and ontological, unrelated to what the owner of the right thinks. So perhaps in this case the court of law should have told the plaintiffs "Listen, you are righteous, etc., but the halachic truth is that here the palace belongs to him and not to him." In other words, the plaintiffs simply did not know who had the right and therefore wanted to act in accordance with the law, but in this case it was not up to the judge to tell them who the palace really belongs to (and besides, if the husband wanted to give gifts, that would be his right), right?

Absolutely not. That is the role of a rabbi or a teacher, but not of a rabbi. I also gave the example of the student who asked me a question about rental laws regarding a dispute he had with his landlord. When I answered him, the landlord came to me with claims that I had not heard him. I told him that I was not acting here as a judge but as a rabbi who comes to consult with him. These are two completely different roles. In a rabbi, if a person does not demand his rights, he will not receive them. If he is a citizen of the land, let him find out.

Is it possible, similar to what the Gershchek claimed regarding ownership (first of all, there is ownership, and then there are commands according to this not to steal), to say the same thing about life: first of all, there is value to life in itself, this is a concept that predates the Torah, and to this value the Torah added the prohibition of not murder (and not that there is value to life because there is a prohibition of not murder)?
And apparently such a claim may have a broader consensus than the claim about ownership (as is known, Gersh Rozovsky did not accept it, I would be surprised if he did not accept the claim about life).

You can say anything. What is the matter with May? There is evidence from Cain that he is being prosecuted for murder, even though at that stage there is still no commandment prohibiting murder.

The Rabbi wrote above that the Judiciary does not go to his assets. And this is how Maimonides wrote (Maton Anayim 57 Halacha 5) regarding charity (which is a matter of opinion): "A court of law compels him, and prepares them for a plague of rebellion until he gives what they have determined he should give. And they go to his assets in his presence, and take from him what he deserves to give. And they continue to mortgage his charity, even on Sabbath eves." Doesn't that contradict what you wrote?

See at length on this in the Chiddus of Rabbi Shmuel B.B. 9-11. Charity is an exception, and in my opinion this does not establish a compulsion to the mitzvot but rather a special regulation in charity for the benefit of the poor (and not for the benefit of the giver who will fulfill the mitzvah). But see there.

I brought up what you explained above, that הומאם = obligations that are based on the right of the other. And in your writings, you often bring up that despite the initial impression, there is a discourse of rights in Halacha (i.e., הומאם) and not only a discourse of obligations.
I wanted to ask, then, why did Halacha really choose to use normative language of obligations (thou shalt not murder, thou shalt not steal) and not normative language of rights? Why did it choose to frame the norms as obligations and not as rights?

Because Halacha deals with what we are obligated to do. The value of life is a general and abstract statement. The prohibition against murder is concrete and practical.

I found a nice indication of the principle of the gerashshak that in the law of the mammon, the Torah does not renew a prohibition, but rather there is a pre-Torah prohibition and it comes to add a religious layer to it. In other words, when there is a legal prohibition, then a religious prohibition can also appear.
And here it is:
I am not aware of a distinction and division between the initial and the retrospective in the law of the mammon! Do you know, perhaps? In the entire Torah, there are divisions between the initial/retroactive, except in the law of the mammon. And why? Maybe because of this, because in the law of the mammon it is not the Torah that renewed the prohibition but the Torah of the Mishpat!
What do you think

I did not understand the claim (that there is no beginning in the mammon) nor the statement that this is evidence of the principle of R”S. As a rule, in the Torah, there is no law that is only beginning, with the exception of holy things in which the scripture says that a year must be withheld.
If you would like to discuss, I would be happy if you could give an example of a law that is beginning in general, say what was supposed to be in the mammon, and then explain what you think it means.

There is a law for the initial and the retrospective in the dioreitha. See Toss. Nidda (S: ד"ה האל הראוי), who wrote that in the press (and also in the Bible Bikurim, but here ילא דזה is similar to the holy ones) the law that requires a reading from the Torah is only for the initial and retrospective, this does not prevent. And also Toss. Gittin (לא דזה הכוש) that the one who excludes the benefit from his fellow in his presence must allow him in his presence from the Torah, and this is only for the initial, retrospective if he permitted that it was not permitted in his presence. And see also Toss. Zebachim (16.) that in the court of law the addin must stand and the dayanim must sit in the Torah, and as it is said, and two people stood, but retrospectively this does not prevent.
The method that there is a division for the initial/retrospective only in the holy ones is not acceptable.

The examples of the initial are the same. And for example, the Torah does not say that a salaryman must pay by theft only for the initial and retrospective if he does not want to, then it is fine. Or does it not say that the one who takes the evidence from his partner is only retroactively, but in the beginning he must return the money. In short, there is no in the beginning and diabad in the law of the law. This is an indication that the laws of money derive from a pre-Torah legal truth, and if according to the law of the law the law is X, then the Torah cannot come and say in the beginning it is X but in retroactively Y.
If the laws of money were to come from the Torah, there is no reason why they would not have in the beginning and diabad (the Torah in the beginning wants this and in retroactively wants this), even though it only comes to add (when it wants) a religious seal to an existing legal prohibition, and therefore it attaches itself to the legal prohibition (if the law says forbidden, then forbidden, if permitted, then permitted, if in doubt, then in doubt).

The unacceptable “method” is a settled rule in the Gemara, as far as I can remember without dispute. Any exception requires explanation.
Anyway, now I understand what you meant to ask. This is not related to Rabbi Shimon’s innovation, but to the fact that in the foreign law, obligations are based on the rights of the other. If the keeper has to pay the depositor, the depositor has the right to receive money from him. Therefore, it does not belong here to begin with and to be discussed.

Let's divide the discussion
1. I have brought some sources that there is a beginning in the Torah. And even without these sources, what obliges/forces us to say that there is no beginning in the Torah? Why shouldn't there be? There is no conceptual contradiction between the Torah going back/back (and the evidence is sanctifying) so why shouldn't there be? And what's more, we also noted that there is also a qualification in the Torah (half a lesson, and about 1/3 of the laws of the impurity of a dead person)!

Just a second, the fact that in the Torah the obligations are based on the rights of the other, is not this really an innovation of Rav Shimon (that is, that he brought us to this insight, to pay attention to the fact that in the Torah the obligations are based on the rights of the other)??

Nothing obligates us. The Gemara simply says so. Is everything that appears in the Gemara a logical necessity?

This is not his innovation, but my innovation (my conceptualization). His innovation is that there are rights that existed before the giving of the Torah and that the Halacha recognizes them

Do you think that "jurisprudence" is the same as natural law? Or more precisely, do you think that the origin of jurisprudence is in natural law?
Gershak writes that jurisprudence is based on common sense and the determination of reason. In other words, logical considerations lead us to jurisprudence.
In light of this, we naturally come to the conclusion that when there is a contradiction between the laws of the Torah and the laws of jurisprudence, it follows that there is no logical consideration for the laws of the Torah (because they contradict the laws of law, and the laws of law are what common sense teaches). Is it even possible to say such a thing? Are there really no logical reasons behind the laws of the Torah (legal)? I assume so, of course, but the question is, what is the logic behind them? If common sense teaches X and the Torah teaches Y, what is the logic and considerations behind Y?

I think so, at least partially. He assumes that there are natural laws that determine the laws of ownership, and his innovation is that they are also binding according to the Torah. Although beyond them there are the laws of the Torah that can qualify or cancel them.
Regarding the decision of reason, I am not sure that he meant that the laws themselves are logical. It is possible that he meant that obedience to them is from the decision of reason, because there should be a legal regulation of property laws. The content of the regulation could also be arbitrary. I did not look into his language now.
Therefore, your question is basically nonsense. But beyond that, where do you get the idea that the laws of the Torah should be logical? On the contrary, in my opinion, the law of property is no different in essence from the rest of the law, and it is based on religious values (see column 15). There may be logic or reason in them, but not legal logic. It has been argued in the past that according to the laws of the Torah, it is not really possible to run a company.

If so, his intention is that only obedience to them is a matter of reason, then it follows that he can also belong entirely to legal positivism. Because even according to their system, the first obligation, the basic norm, is binding by virtue of the power of reason.
What do you mean when you write "and its novelty is that they are also binding according to the Torah," because I understood it exactly as if its novelty was that even without the Torah, the law of the law would still be binding.
I didn't understand the ending. The laws of the Torah are not logical??? There is no reason in them (perhaps hidden, but still..).
Incidentally, this brings me to a question that I would like to ask you: Is God subject to reasons, and to things that are logical? On the face of it, it can be rightly said that he acts according to reason, and that God does not act simply arbitrarily. Does it follow from this that there is a logic that stands above God? He wants to achieve it, which is a sign that logic is above him. No?

By the way, I number my questions 1 2 3 etc and they ignore it when the response appears in the thread. Maybe there is a problem.

In our case:
So it's 1)
What do you mean it's 2)
I didn't understand the end it's 3)

No. The laws were created without legislation, and in this sense they are natural law. But it is possible that they do not have logic in themselves, except that there would be such a system of laws.

He assumes that they are binding even without the Torah, but the main innovation in my opinion is that they were created and are binding even after it (meaning that it did not abolish all the law that existed before it).

I explained that the laws of the Torah apparently have a purpose and a reason, but these are religious values, not legal ones. I referred you to column 15, p. s.

For your last question, see column 457 (dilemma A and Tifron).

I'll see where it goes.

According to the natural law approach, where does a law actually bind me? Ostensibly, a law binds if there is legislation, and this is an a priori conceptual consideration. How can you disagree with that? It's like disagreeing with the fact that a single person is not married, right?

This is just a problem with the natural law thesis, and has nothing to do with me. In my opinion, there really is no basis for it if you are not a religious person. But for someone who is not religious, there is also no basis for positivism, because the obligation to fulfill a contract and commitment is also a moral obligation, and without God there is no morality. See column 456.

Why do you assume throughout this entire issue that the poor have no right to receive charity, why shouldn't it be a right as a citizen of a democratic country where the constitution states that the poor should be allowed to live with dignity?

What is the difference between charity in which the owner has the ability to choose who to give to, and a sleight of hand and a wig in which he cannot keep something for a particular poor person, since in both cases we are dealing with obligations on the owner and not the right of the recipient?

I don't remember what went on here before. But the poor have no right to receive charity, but I have an obligation to give it to them. I'm talking about the law, not about states and democracies.
From the state's perspective, if the law states that the poor deserve support, then they have a right that the law has granted them. But if there is no law, then they have no right.
I didn't understand the question. The Torah stated that in gifts from the poor, I have no beneficial interest as the owner. The definition is simple: a collection, a forgetfulness, and a fa'ah, these are well-defined objects. What is left in the field is a certain amount of money that is intended for charity. Therefore, from the moment it remains in the field, it is no longer mine but belongs to the tribe of the poor. Therefore, I have no beneficial interest. There, it is not about the obligation to give a certain amount, but the specific grain that is left in the field belongs to the poor. But charity is about the obligation to give an undefined amount of money, not a specific object. In fact, I also have no obligation to give a certain amount. Therefore, it is clear that the decision whether and how much to give and to whom is mine.

According to the Greshshak, and in particular in your opinion, ownership is not just a right of use for me and the absence of a right of use for others, but ownership has a metaphysical dimension of a connection between the owner and the object.

Did Hopfeld disagree with this in his table, which defined the right as a prospectus of its results?

I haven't gone through this entire thread again and I don't remember what was said in it. I didn't understand your question.

Of course, there's no need to go through the entire thread. I'm just asking a question about legal theory, so I asked here.

My question is, according to Hoffeld, is a right only what it entails obligations to others, or does he agree with your thesis that there is a Platonic metaphysical connection behind ownership/right?

I don't see a connection. He emphasized the connection between right and duty, and didn't address the metaphysical question.