With God's help

Sefer HaChazit Sheba'Oref – 2007

A. Introduction

Joining the army involves something of leaving the hothouse of the yeshiva for the outside world. When one leaves an educational framework and moves into a framework of work or military service, various halakhic-moral problems arise with greater force. One of the most prominent among them is the problem of theft.

As is well known, to our great shame, although the Sages said that theft dances at the head of all transgressions, we find for ourselves various justifications for this prohibition. These are expressed in various terms, in the army and in civilian life: 'swipe,' 'fill in missing equipment,' 'lift,' 'take what I deserve,' 'pay back a wealthy person or institution that exploits me (= Robin Hood),' and the like. This laundering of language succeeds in making the forbidden seem clean, and helps people ignore the moral and halakhic problematic nature of their actions.

With respect to the prohibition of theft, the moral dimension stands out especially, beyond the strictly legal one. Precisely here, the various legal evasions that may perhaps have a place in pressing circumstances in other halakhic contexts are of no avail. In moral prohibitions, we must 'outmaneuver' Jewish law in the opposite direction, and at times one must be stringent even where it may not explicitly prohibit the act (for example, copyright infringement, software, disks, and the like).

Beyond the prohibition of theft itself, such evasions also involve desecration of God's name. Relevant here are Maimonides' words in chapter 5 of the Laws of the Foundations of the Torah, that there is desecration of God's name even in permitted acts, especially when they are done by someone from whom people expect otherwise (see the quotation at the end of the article).

Of course, in cases where there is no possibility at all of seeing this even as a legal evasion ('filling in equipment'), it is all the more obvious that there is no room whatsoever to follow the above laundering of language.

In the sixth chapter of Eight Chapters, Maimonides addresses the contradiction between a saying of the Sages and the position of the philosophers. On the one hand, a person should not say: “I do not desire to eat pork”; rather: “I do desire it, but what can I do? My Father in Heaven has decreed it upon me.” That is, the ideal type is one who keeps the commandments because of divine command, and not because of an inclination of the heart. On the other hand, the philosophers had already said that the self-controlled person—even though he performs good and important deeds—does so while desiring evil acts and yearning for them, subduing his impulse. But the saintly person is one who is naturally drawn in his conduct to do good, and desires and yearns for it. The philosophers agreed that the saintly person is more important and more complete than the merely self-controlled person.

Maimonides reconciles the two claims by saying that the person who masters his impulse is preferable with respect to revealed commandments (in another, slightly different formulation: between man and God), whereas the saintly person is preferable with respect to moral commandments (in another, slightly different formulation: between man and his fellow).

Thus, in the prohibition of theft, as in other moral prohibitions, we may not suffice with proper behavior. There is an additional goal: to internalize a sense of rejection and revulsion toward it even inwardly. See in this connection the words of Minchat Chinukh, commandment 224, cited below in section C.

And so too Sefer HaChinukh, commandment 229, writes:

And Maimonides, of blessed memory, wrote (Laws of Theft and Loss 1:2): Even a gentile and an idol worshiper—it is forbidden to rob him or to withhold what is due to him, and if one robbed or withheld from him, one must return it. And in the Talmud (Bava Kamma 119a) the Sages of blessed memory said that even from people whose very bodies may lawfully be destroyed, such as heretics, it is forbidden to destroy their property or to rob or steal from them. And they gave the reason for this: perhaps worthy descendants will come from them, and their property will belong to those descendants. One may further say that our Sages of blessed memory intended, through this distancing, that a person should not accustom his nature to such behavior, for the soul becomes debased when habituated to inferior and evil traits, and this is a strong rope pulling one toward sin.

The upshot of what has been said so far is that the prohibition of theft is both a moral and a halakhic prohibition. This characterization requires that we not evade this prohibition, for one who does so violates at the very least a moral prohibition of theft and desecrates God's name. Likewise, we must internalize a psychological revulsion toward this prohibition, and not suffice merely with proper conduct in accordance with the strict letter of the law.

Below we will try to examine this character of the prohibition of theft and see some of its implications.

B. The Principle of Sha'arei Yosher

The parameters of the prohibition of theft are relatively simple. It is forbidden to lay hands on another's property. Of course, one can analyze at great length the formal parameters of when the theft effects acquisition, what the difference is between theft and robbery, what the obligation of restitution is, and so forth. But the prohibition itself, as a practical matter, aside from very specific situations, has a relatively simple definition. As we saw above, there is a moral layer beyond the halakhic one, and if one takes it into account the picture becomes much simpler still. One should refrain from laying hands on any property of another person, or of the public, even when we do not have a sharp halakhic determination. Not only because a doubt in Torah law is treated stringently, but also because of the moral prohibition. As we shall now see, this picture also has a halakhic basis.

Rabbi Shimon Shkop, in Gate 5 of his book Sha'arei Yosher, notes that the prohibition of theft differs from all other Torah prohibitions. He opens with Mahari Bassan's question: why in monetary law do we rule leniently for the defendant, and do not require him to be stringent in cases of doubt, as we do with all other Torah prohibitions?

Rabbi Shimon Shkop explains that the prohibition of theft is determined by the legal regime of monetary law, and not by categories of prohibition and permission established by the Torah itself. If so, once a religious court rules, according to the legal-halakhic system, that the burden of proof lies on the claimant and therefore rules leniently for the defendant, the prohibition of theft no longer exists.

Thus, as Rabbi Shimon Shkop states at the beginning of the gate, in almost every other prohibition in the Torah the command itself constitutes the prohibition. But in the prohibition of theft, the command comes only to place its seal on a legal prohibition that was determined in a pre-halakhic human system.

Within his discussion one can see that he offers two different rationales for this:

1. The Torah commands us not to steal. But the concept of 'theft' presupposes prior concepts of property and ownership. The prohibition of theft is laying hands on the ownership and property of another. If so, a command against theft presupposes the existence of prior legal concepts. But it is not clear where these concepts are defined. We are forced to say that they are defined even before the command against theft, that is, in a pre-halakhic legal system (see folio 2a there).
2. The reason we observe the Torah is our reasoning that the commands of the Creator ought to be fulfilled. If so, when that same reasoning leads us to the legal conclusion that theft is forbidden, we must also follow that reasoning (see folio 4b there).

The first rationale leads to the conclusion that the Torah itself gives formal endorsement to the moral-legal prohibition. In the final analysis, it draws its authority from Torah law. The Torah hands over to us as a society the definitions of ownership and monetary rights. By contrast, the second rationale leads to a far broader conception: the prohibition of theft does not derive its force from the Torah given to us. God expects us to observe it even independently of the obligation to observe the Torah. Just as we are obligated to observe the Torah, so too we are obligated to follow our reasoning with respect to theft.

The second rationale leads us to the conclusion that the parameters of the moral prohibition can also be broader than the parameters of the formal prohibition of 'you shall not steal.' Situations can arise in which there is no formal halakhic prohibition of theft, yet God nevertheless expects us not to lay hands on property of these kinds.

Thus, although Rabbi Shimon Shkop introduced his principle as a leniency—namely, that the defendant need not be stringent with himself in cases of doubtful theft—the implication of this principle is usually quite the opposite: stringency.

This is probably also Sefer HaChinukh's intention, in commandment 229, where he writes:

The root of the commandment is obvious: it is something that reason strongly rejects, and it is fitting to distance oneself from it, for the one who robs someone weaker than himself knows that were someone stronger than he to come upon him, he too would be robbed; and this is a cause of the destruction of civilized society.

C. Implications

One can think of various implications of this conception of the prohibition of theft.

Rabbi Shimon Shkop himself points to several examples. For instance, according to some opinions, theft from a gentile is not prohibited by Torah law. Yet the moral-legal prohibition remains fully in force. Magen Avraham writes that one who steals an etrog from a gentile, even according to the opinion that theft from a gentile is permitted, still cannot take it on Sukkot, because it does not meet the requirement that it be his own. True, no formal halakhic prohibition of theft was violated, but the etrog is not his. See also Sefer HaChinukh, at the beginning of commandment 229. Rabbi Shimon Shkop adds here that there is also a legal prohibition on using property that is not one's own, for that is precisely the meaning of the concept of ownership, and it of course exists among gentiles as well.

At times this prohibition may be even more severe—not only from the perspective of desecration of God's name, but even within the parameters of the prohibition of theft itself.

For example, Rabbi Shaul Yisraeli, in his responsum on the Qibya operation, writes that it is forbidden to save oneself through a gentile's property, and that this is more severe than in the case of a Jew. The reason is that the prohibition against stealing from a gentile stems from the laws of civil justice, but the gentile is neither commanded nor willing to save me with his property. Therefore, even though with respect to a Jew, according to most medieval authorities (apart from Rashi on Bava Kamma 60b), one may save oneself with another person's property (and pay afterward), in the case of a gentile it is not clear that this is the law. If the permission is based on the fact that the owner is himself commanded and willing to save me with his property, then with a gentile, who does not want this and perhaps is not even commanded to save me, there is no permission to take his property in order to save myself.

We should note that Rabbi Shaul Yisraeli concludes that in an act of war the situation is different, and there it is permitted, but this is not the place to elaborate.

It is worthwhile to cite here as well the words of Minchat Chinukh on commandment 224, section 4, who writes as follows:

But it seems to me, prima facie, that even according to those who hold that robbing a gentile is rabbinically prohibited, nevertheless stealing from a gentile may possibly be prohibited by Torah law. For according to those who hold that even stealing with intent merely to vex (by way of jest, or with intent to return or repay) is forbidden by Torah law, it follows that the Torah did not prohibit this only as a matter of monetary law, but prohibited this bad trait itself. Accordingly, with robbery, where the Torah only prohibited another person's property, one could say that perhaps it did not prohibit a gentile's property, because according to those views his money is ownerless with respect to this. But with theft—where even stealing one's own property is forbidden, so that one not learn this bad trait—then even from a gentile it is forbidden, so that one not become habituated to this; and on this the Torah was particular. But prima facie, according to these views, even for less than a perutah one transgresses this prohibition, because one is habituating himself to this, and not because of the rule of half a measure…

Minchat Chinukh implies that the basis of the prohibition of theft lies in psychological habituation, and this itself is one basis for the Torah prohibition. A bit earlier there (section 2), he notes that there is a prohibition against stealing even one's own property, that is, stealing one's own item back from the thief.

Of course, in this context the issue of desecration and sanctification of God's name also arises. The Talmud says explicitly that theft from a gentile constitutes desecration of God's name (and from Tanna Devei Eliyahu it appears that the entire prohibition of theft from a gentile exists only on that account), and therefore in certain respects it is prohibited more severely than theft from a Jew. Bava Kamma 113b states that even if a gentile's lost object may be kept, if this involves desecration of God's name then even his lost property may not be kept (see also Jerusalem Talmud Bava Metzia 2:5).

D. Several Practical Examples

As stated, the halakhic parameters of theft, and especially the moral ones, are not difficult to define, since in almost every case one should be stringent. Yet precisely for that reason it is sometimes harder to live by them.

• It is clear that it is forbidden to steal private property, and also—and perhaps even more so—public property. Generally there is no permission to harm someone who harmed us by taking his money, unless special circumstances are present here (preventing the harm, or taking the law into one's own hands where that is permitted under the rules governing that).
• The Torah prohibition applies even to less than the value of a perutah (a minimal coin) in robbery. With respect to theft, the medieval authorities disagree; see Minchat Chinukh, commandment 224, section 3. True, in such a case there is no obligation of restitution, since people waive amounts that small. One should note that such waiver does not permit the prohibitions of theft and robbery themselves.
• It is forbidden to misappropriate even intangible rights, such as computer software and the like, even though at times it may seem that no one loses thereby (certainly not the army. And as for exploitative Microsoft, surely there is a Torah commandment to plunder it—especially since they are gentiles). The formal halakhic definition is not entirely clear, but morally there is no doubt at all.
• Permission to use property permits its use, but one must note that the permission must be given by the owner of the property. For the sake of a commandment, there is reason to say that a person is pleased to have a commandment performed with his property, and then one may use it even without permission. But there are people for whom this may not be agreeable, and there one must be careful. By the same token, clear willingness permits use even when it is not for the sake of a commandment.
• With private property the situation is simpler, but with public property the situations in which permission is granted can be quite complex.

For example, when the responsible commander gives permission to use something, one must clarify carefully for what purposes the permission was given, and not expand it beyond what was said.

When a commander tells me to use some object (telephone, pen, computer, and the like), one must consider whether this is permission for my private needs or for the needs of the army. In both cases, even if permission was granted, the authorization is not self-evident. It depends on whether this permission is within the authority of the commander who gave it. Is he authorized to direct such use for army needs and/or for private needs?

For example, a platoon sergeant can direct the use of platoon property for the needs of the unit. But he cannot permit me to make private calls on the army telephone, since he is not the one who pays the bill or the one who will have to balance the unit's budget deficit by cutting elsewhere.

• A commander who may grant permission to use property is the one to whom the army entrusts the discretion to allocate the budget, and who can decide to devote something from the budget to the welfare of the members of the unit.
• Incidentally, even when a commander is fully authorized, if his order is unreasonable it does not constitute permission to use. For example, a battalion commander can authorize the use of battalion property for certain private purposes, for instance when in his judgment soldiers need to contact home for the sake of unit morale. But even if the budget is entrusted to him, he cannot direct soldiers to take a vehicle from the base for private recreation (of course, planned recreation of the unit may be different). The situations are complex, and precisely in such situations it is important to remember that the prohibitions of theft are not only a formal question, but also a moral one. In cases of doubt, there is room to be stringent.
• Making use of a 'pull' that someone has in the quartermaster's office or in maintenance in order to obtain equipment that has not been allocated to him lawfully is also problematic.
• The prohibition of theft is a negative commandment linked to a positive obligation. One who has stolen is obligated to restore the stolen property. Care must be taken about restitution even when the theft is not of a specific object, but consists of waste or use of army property. The same applies when the stolen item has been lost: one must reimburse its value in money.
• Care must be taken that the restitution be made to the same fund from which the money or property is missing. For example, unauthorized use of the telephone requires returning the cost of the call to the unit's budget. One must ensure that it goes to the fund of the level that pays the telephone bill (not returning it to the petty cash of the platoon or the section when the branch is the one that pays the telephone bill).
• When returning property to the army, this must be done in a way that ensures it truly returns to the army itself. For example, one should not return it to the quartermaster if there is concern that he will not record the return, but instead use it to cover shortages for which he himself is responsible.
• During my military service, it was customary among us that every soldier being discharged received from his friends whatever equipment he was missing, and thus he did not have to pay for the shortages. The assumption was that such a situation could continue from one soldier to the next, and in the end 'the last one will turn off the light.' When they shut down the army (!) there will no longer be any need for that equipment.

There is something distasteful about such an arrangement, but it seems that it involves no real prohibition, and there is room to permit it. It seems permissible for a soldier to transfer his own equipment to another soldier, so long as the shortage is not concealed from the military authorities and is not filled in unlawfully. Of course, if the shortage causes an operational problem it must be reported immediately, though that is not a matter of theft law.

• If there is concern that the generous giver will use improper methods to make up his own shortage, it is not permissible to accept from him. The recipient violates 'do not place a stumbling block,' desecration of God's name, and perhaps also moral theft.
• Bava Kamma 118b says that it is forbidden, by rabbinic law, to buy from a thief, because this strengthens the hands of transgressors. So too, anything that is presumed stolen may not be purchased.
• There is room for caution in the use of equipment, even when this is not outright theft. Taking more food than is needed in the unit, something common among sergeants and sergeant-majors (and they even feel that this is for the good of the collective, and not for their personal benefit), is highly problematic. Beyond theft, there is also wasteful destruction here, and perhaps all the more so in light of the commandment of returning lost property.
• Such caution is required doubly when what is at issue is damage to property, and not the laws of theft. This is not the place to clarify the relation between theft and damage. One should remember: a person who causes damage is liable even in cases of accident.
• The commandment of returning lost property also requires that one not stand idly by when another person's property is at stake. When one sees property that is about to be lost, or to be wasted for nothing, one should try to prevent this. One who does not do so generally violates the commandment of returning lost property. This requires us to think about efficiency, our own and that of our surroundings.

Such situations place the soldier in no simple dilemmas. At times his environment expects him to act this way, and when he is in a role (sergeant-major, sergeant) it is perceived as disloyalty to the unit. It seems to me that if we are careful about proper and principled conduct in all spheres of life, such conduct too will be received with greater understanding by the environment, and perhaps we will even merit to influence it somewhat.

E. Conclusion

Military service is an opportunity for us to come into contact with different populations who generally do not encounter yeshiva students. This has several important aspects: first, sanctification and desecration of God's name, in terms of what people will think of us. But perhaps even more important than that, it is an opportunity to instill in a broader public norms of whose existence they are usually entirely unaware.

People who are considered highly moral, and truly are so in most areas of life, are not careful about the use of public property, or about various harms to the property of others, sometimes only because they have never been confronted with the demand to meet such a standard, and have never considered that there is any problem here at all. As we have seen, sometimes there is even an ideology that affirms the legitimacy of such acts. Shared service is a golden opportunity to educate the broader public—together with ourselves—to uphold more fitting standards with respect to public and private property.

In conclusion, we have seen that the prohibition of theft is unique in that it touches a moral layer that not only is added to the Torah prohibition, but even stands at its very basis. We have seen several implications of this. We mentioned the concept of desecration of God's name that is bound up with the offense of theft. And perhaps at this point we should also conclude.

Maimonides, in Laws of the Foundations of the Torah 5:11, writes as follows:

There are other things also that are included in desecration of God's name: when a person great in Torah and renowned for piety does things because of which people speak critically of him. Even though they are not transgressions, he has desecrated God's name. For example, if he takes something and does not immediately pay the purchase price, when he has the means and the sellers come demanding payment while he keeps putting them off; or if he indulges excessively in jesting, eating, or drinking among the unlearned masses; or if his speech with people is not gentle, and he does not receive them pleasantly, but is quarrelsome and angry. And similar matters—all according to the stature of the sage—require that he be exacting with himself and act beyond the letter of the law.

And likewise, if the sage is exacting with himself, and his speech with people is gentle, and he is sociable with them, and receives them pleasantly, and if they insult him he does not insult them in return; he shows them honor, even to those who treat him lightly; he conducts his business faithfully; he does not spend excessive time in the company and gatherings of the unlearned masses; he is seen constantly occupied with Torah, wrapped in tzitzit, crowned with tefillin; and in all his deeds he acts beyond the letter of the law—provided that he does not withdraw too far from people or become aloof—until everyone praises him, loves him, and longs to imitate his deeds: this person has sanctified God's name, and of him Scripture says, “And He said to me: You are My servant, Israel, in whom I will be glorified.”