Between My Territory and the Other's Territory: On Duties and Rights in Jewish Law and Their Meaning

With God's help

Meisharim – 5772

What is a yeshiva? People enter it and leave after a few years. To be sure, the head of the yeshiva is more permanent (may he live long and well), and the faculty and staff are also fairly permanent (though I personally know a few exceptions J). Is a yeshiva its students? Its alumni? Its staff? There is something in a yeshiva that goes beyond the figures who inhabit it and those who inhabited it in the past, and those who will join it in the future. The yeshiva is not even the sum of all these, nor their combination with the walls (which, with God's help, are now undergoing change).

A yeshiva is something beyond all this. It is some abstract link that mediates the connection between God and the Jewish people, and takes part in the chain between the Torah as it was given at Mount Sinai and eternity. It colors this facet and this segment of the chain in its own distinctive hues. Those colors are present in the walls, and even more in the people—those studying there now and those who have matured and gone beyond the walls (but not necessarily beyond the yeshiva). But that coloring is also blended into the entire chain, and takes part in the overall building of the tradition of the Written and Oral Torah.

I wanted to dedicate the following article to that abstract something, of which I too, small as I am, feel myself an inseparable part (and which the article itself somehow expresses), with blessing and gratitude.

Miki Abraham

Introduction

In recent generations people have spoken a great deal about human rights. Some rights are granted only to citizens, while others are granted to every person simply by virtue of being human. In these contexts people speak of rights such as the right to freedom, dignity, livelihood, privacy, health, freedom of expression, various political rights (to vote and to be elected), and more.

Precisely against this background, the fact stands out that in the world of Jewish law one generally speaks in terms of duty rather than right. Many say that in Jewish law there is no discourse of rights at all, only a discourse of duties. I do not refrain from harming another because he has a right, but because I am forbidden to do so. Many scholars of Hebrew law likewise maintain that in Jewish law there are no rights, only duties.

It seems that the main reason this dogma has become so entrenched is a view of the religious person as standing primarily before his Creator, while his moral and legal duties toward others are merely derivatives of the religious duties that God imposed upon him. A striking expression of this is Tosafot's comment (Ketubot 56a, s.v. 'Harei zo'), which sees the laws of damages as a novelty introduced by the Torah. Tosafot maintain that had this not been written explicitly, we would not have been obligated to compensate the injured party for damage we caused him. The duty to compensate an injured party is an elementary legal duty, and yet Tosafot determines that even it draws its force from the halakhic command—from the duty the Torah imposes on me.

But to the best of my judgment, this conception is mistaken, and that mistake also leads to several misunderstandings in different areas of Jewish law. Correcting it sheds light on some of the most basic foundations of Jewish law. In this article I will try to identify several contexts in which a discourse of rights emerges in Jewish law, and through that sharpen the meaning of 'right' as opposed to 'duty.' I will propose an explanation of the difference between the claim that Reuven has a right to his property and the claim that everyone else bears a duty not to harm Reuven's property. On that basis I will try to propose an interpretation of the halakhic category that today bears the title 'Choshen Mishpat' (with a note on 'Even HaEzer'), in contrast to the other parts of the Shulchan Arukh, which constitute different halakhic categories.

A. Saving Oneself by Harming Another

Saving Oneself with Another's Property[1]

The passage in Bava Kamma 60b discusses the case of David and the mighty men whom he sent to bring him water from Bethlehem. Several possible explanations are offered there for their mission, among them Rav Huna's explanation:

Rav Huna said: There were stacks of barley belonging to Israelites, in which Philistines were hiding, and he inquired: May one save oneself at the expense of another's property? They sent him: It is forbidden to save oneself at the expense of another's property, but you are a king, and a king may breach a path for himself, and none may protest him.

According to Rav Huna, David asked whether he was permitted to save himself with another's property (to burn the stack of barley in order to save himself), and he was answered that in principle this is forbidden, but a king is permitted to do so.

At first glance this is extremely difficult, for we know that there are only three cardinal prohibitions regarding which one must be killed rather than transgress. Yet here it seems that the prohibition of theft belongs to that category as well. For this reason most medieval authorities explain the passage in a rather forced way. For example, Tosafot, s.v. 'Mahu,' ad loc., wrote:

What he inquired was whether he is required to pay when he saved himself because of danger to life.

That is, they construe the doubt as referring only to the duty to pay. It was obvious to them that a person is permitted to save himself with another's property, since the prohibition of theft is not among the three cardinal prohibitions. The discussion concerns only the obligation of compensation. This is what emerges from most of the medieval authorities and decisors on this passage. As noted, this proposal sits very awkwardly with the language of the Talmud, but Tosafot apparently prefer strain in the wording to strain in the reasoning.

Rashi's view later in that passage, however, is different:

And save it—that they should not burn it, since it is forbidden to save oneself with another's property.

It is clear that he understood the discussion in the passage as concerning the rescue itself, and not only the duty to pay. If so, the halakhic conclusion of the passage according to him is that a person may not save himself by harming another's property. According to Rashi, the prohibition of theft joins the three cardinal prohibitions, and one must be killed rather than transgress even in that case.

To be sure, even according to those who disagree with Rashi, there is still room to ask what exactly the point of disagreement is. It is not clear that they dispute his principled determination. For example, Rashba is also among those who disagree with Rashi, and in his view the discussion concerns only the duty to pay and not the rescue itself. However, the reasoning he offers points us in a different direction (Rashba responsa, vol. 4 no. 17):

Responsum: What I wrote seems to me obvious, and I am close to saying that I did not need to write it at all because it is so self-evident. For nothing stands in the way of saving life except those three enumerated prohibitions. Consider: if someone were in the desert and dying of thirst, and found his fellow's flask of water, should he die rather than drink, even on condition of payment? And how could he be called a robber? Indeed, the owner is obligated to give it to him free of charge and keep him alive. This is what Ben Petora expounded in tractate Bava Metzia regarding two people walking on the road with one canteen of water in the hand of one of them: if both drink, both die; but if one drinks, he reaches settlement. Better that both drink and die than that one see the death of his fellow. Rabbi Akiva disagreed only because it is written, 'and your brother shall live with you'—your life takes precedence over your fellow's life. But where it is not at the expense of his own life, he is obligated. If so, what theft is there here, such that we should say that although he pays for the theft he is still wicked? Rather, that one may save himself on condition of payment is obvious…

Rashba indeed opens by stating that it cannot be that we are required to die rather than steal, but the reason he gives within his remarks is that the other person is obligated to surrender his property in order to save his fellow (as he proves from the case of the canteen of water). That is, there is here a legal obligation of the other person toward my rescue, and therefore I may take his property, since in light of that obligation this is not theft. This reasoning assumes that without that obligation there really would be theft here, in which case I would have no permission to take his property in order to save myself. Thus, on the level of principle, he too accepts Rashi's conception, that the prohibition of theft is not overridden by danger to life; only in his view there is no theft here. Rashi apparently disagrees with that, holding that although the other person indeed has a duty to save me, that does not permit me to steal or damage his property if he does not consent.

It follows that even Rashba, who disagrees with Rashi on the practical plane, agrees with him on the principled plane that there is no permission to steal in order to save oneself. It is possible that other medieval authorities who disagree with Rashi intend Rashba's reasoning as well, and do not disagree with Rashi in principle.

The question is how we can add a fourth prohibition to the three cardinal prohibitions. Where is there a source for the claim that the prohibition of theft is not overridden by danger to life? To understand this, we must enter the distinction between rights and duties.

Duties versus Rights

A priori, there are two possible ways to understand the prohibition of theft:

1. Reuven is forbidden to steal from Shimon. This is a duty imposed on Reuven.
2. Shimon has a right to his property, and from that there is derived a duty on Reuven not to steal it.

According to both possibilities, it is clear that Reuven has a duty not to steal from Shimon. The question is whether this is merely a duty, or a duty derived from Shimon's right.

There is reason to connect the second understanding to Rabbi Shimon Shkop's innovation in Sha'arei Yosher, Gate 5, where he explains that the foundation of the prohibition of theft differs essentially from all the other prohibitions of the Torah. The Torah indeed wrote 'do not steal' and thereby commanded us not to steal another person's property. However, the Torah does not define what counts as another person's property; that is, it contains no definition of property law and the rules of ownership. From this Rabbi Shimon Shkop concludes that even prior to the command 'do not steal' there exists a legal system (what he calls 'the doctrine of laws') that defines the laws of acquisition and ownership, and the prohibition of theft is defined on top of it. Whatever is determined by these pre-halakhic property laws to be mine is protected by the prohibition 'do not steal.'

But he does not stop there. He goes on to argue that this legal doctrine not only defines the concepts and boundaries of ownership and prepares the ground for the prohibition 'do not steal,' but also contains a prohibitory dimension. There is a legal prohibition (that is, prior to 'do not steal') against theft, deriving from the simple fact that the property belongs to someone else. One practical implication is that even according to those views which hold that on the Torah level there is no prohibition of 'do not steal' regarding a non-Jew, there would still be a legal prohibition against stealing from a non-Jew. Since according to all opinions a non-Jew owns his property, it is obvious that according to all opinions there will be a Torah prohibition to steal from him, even if 'do not steal' does not apply to him.[2]

It stands to reason that this is also the basis of the view that the prohibition of theft is grounded in the right of the other person. The Torah does indeed mainly impose duties upon us. But Jewish law recognizes basic rights that every person has to his property even prior to its commands. Therefore, within Jewish law there are duties imposed on us by force of those rights. The prohibition 'do not steal' is nothing but the halakhic seal placed on that universal legal duty. It is a duty imposed on me by virtue of the right my fellow has to his property. This is unlike duties such as not eating pork or keeping the Sabbath, whose basis is the command by which the Torah imposes a duty on me, and not the right of another.

Explaining Rashi's View

We can now perhaps propose an explanation for Rashi's puzzling view. If the prohibition of theft were only an ordinary duty imposed on me, it would certainly be overridden by danger to life. But the prohibition against stealing from my fellow is grounded in my fellow's right to his property. That right is unrelated to my danger to life, and therefore it is not overridden by it. What stands opposite my danger to life is not my duty, but my fellow's right. And the Torah's innovation that danger to life overrides all the duties the Torah imposes was never said with respect to a clash between danger to life and another person's rights. That rule was said only regarding a clash between danger to life and my duties, not regarding a clash between danger to life and another person's rights. If my fellow's right is not nullified even in the face of danger to life, then the duty upon me that derives from that right is likewise not nullified in such a situation.

This can be formulated differently as follows: my fellow's rights are a different territory, outside the borders of my own territory. My halakhic decisions can be made only within my own territory, that is, in matters that concern me. But there is no possibility that I, on my own, can make a decision that concerns another person's property. That lies outside the sphere within which my considerations and determinations are valid.

By way of analogy, a friend of mine once saw an interesting book in the hands of a third person. He turned to him and said this: I have two options—either to violate the prohibition against coveting and let the book remain with you, or to violate the prohibition against theft and let the book be with me. Since in any case I will be transgressing a prohibition, it is obviously preferable from my standpoint to transgress theft, so that at least in the end the book will be with me.

Even if we set aside the halakhic mistakes involved here concerning the scope of the prohibition against coveting, there is something flawed in this reasoning. The flaw is that Reuven's consideration, correct as it may be, cannot decide the matter with respect to Shimon's property. The only one who should be making these decisions is Shimon. The reason is that the issue here is not the prohibition Reuven will violate, but Shimon's right. Reuven's duty and the prohibition he will violate are derivatives of Shimon's rights, and therefore it is wrong to focus on them when making this decision. The decision should be made with respect to the right, not with respect to the duty derived from it. Reuven's consideration cannot affect Shimon's rights, but only Reuven's duties. That is the relevant territory as far as he is concerned.

If we return to the Rashi cited above, we may say the following: the prohibition of 'do not steal' is indeed overridden by danger to life, like any other prohibition. But the right of the other person remains intact. Therefore there is still no permission to take his property in order to save oneself. All duties are overridden by danger to life, but not the rights of the other person.

One may view the situation as though a wall separates these territories. I cannot extend my hands beyond the wall, even if I have every possible justification for doing so. This is, as it were, a physical barrier that creates a physical inability, and therefore the possibility of penetrating it does not depend on one justification or another for extending the hand. Even if it is justified, it is simply impossible.

As noted, even Rashba, who disagrees with Rashi, can agree with this picture. Only, according to his view there is no wall separating the parties in this case, because the Torah obligates the other person to give his property for my rescue. Therefore there is no protected territory into which I may not extend my hand, and for that reason Rashba permits stealing in order to save oneself. But as we saw, if in his opinion there were such a separating wall, then he too would agree that no justification would allow one to penetrate into the territory of another.

Taking Organs from Another Person in Order to Save Oneself

In a similar vein, we can understand why it is unthinkable that a person who needs an organ donation in order to save his life could forcibly take an organ from another person (even if that person's very life does not depend on it), on the basis of the halakhic consideration that danger to life overrides the prohibition of bodily injury. The reason is that the issue here is not the prohibition of bodily injury but the injured person's rights over his own body, and those are not overridden by the danger to life faced by the one inflicting the injury.

It seems likely that most decisors would agree with this consideration regarding bodily injury undertaken in order to save oneself. I have seen some explain it with the claim 'What difference is there between complete killing and partial killing,' that is, that bodily injury is a kind of attenuated killing.[3] But that reasoning is rather weak, for the prohibition of bodily injury is certainly not as severe as murder, and no one claims that one who wounds another violates 'you shall not murder.' So here too we still have a fourth prohibition regarding which one must be killed rather than transgress.

According to the Rashba we saw above, the explanation is simpler. Rashba made the permission to steal in order to save oneself depend on the duty resting on the other person to give his property for my rescue. But there is certainly no duty on a person to donate organs in order to save his fellow. Therefore here too it seems that even Rashba would agree that it is forbidden to take the organs from him in order to save oneself.

In all these cases we are dealing with a halakhic consideration that is correct within the ordinary categories of Jewish law (human life is certainly more important than money, and the prohibition of theft is certainly overridden by danger to life). And yet we do not act on that consideration, because the scope of considerations I make is only within my own territory, not within another person's domain. The halakhic consideration, correct in itself, is not applied because of territorial considerations, not because it is incorrect.

Yielding to a Threat and 'The Right to Sin'[4]

Reuven threatens Shimon that he must give him a small coin, and if not he threatens to kill him. Is Shimon permitted to kill Reuven in order to save his property, or must he hand over the coin (since money is less important than life)? At first glance this is a case of a pursuer who can be stopped by injuring one of his limbs, and therefore there is no permission to kill Reuven under the law of a pursuer. Alternatively, it could be said that Shimon must surrender all his money in order to avoid the prohibition of murder and to save Reuven's life. Yet it is clear that the law is not so. Shimon is permitted to kill Reuven and not to hand over the coin.

Let us try to understand this in light of the remarks of the author of Kli Chemdah at the end of parashat Balak, where he discusses the episode of Zimri and Pinhas. The Talmud says that if Zimri kills Pinhas (under the law of a pursuer) he is exempt. The later authorities ask why the Talmud permits this, since there is a way to save Pinhas without killing Zimri: if Zimri stops sinning, Pinhas certainly will not kill him. His conclusion there is that although Zimri could have saved himself from Pinhas if he had stopped sinning, nevertheless Zimri is permitted to turn and kill Pinhas under the law of a pursuer. The reason is that Zimri owes Pinhas no duty to stop sinning. From the standpoint of Jewish law he is indeed obligated to stop and desist from the transgression, but that is a duty toward God and not toward the pursuer, and therefore it is his 'right' to continue in his sin, even if he will be forced to kill Pinhas, who endangers him as a pursuer. Pinhas demands of Zimri that he stop sinning, but that lies outside Pinhas's territory. He cannot make decisions regarding Zimri's domain, even if those decisions are just and correct. Zimri has a 'right to sin,' and Pinhas cannot demand that he refrain from defending it.

If so, when I am threatened in order that I hand over my money, the situation is very similar. The halakhically 'correct' consideration is indeed that one should give the money in order to avoid the prohibition of murder and to save the life of the one issuing the threat. But that consideration is one that belongs to the threatened person, because it concerns his prohibitions and his money. Within his territory only the person himself can make those decisions. Therefore the person issuing the threat cannot demand of him or dictate to him that he act in accordance with the halakhically 'correct' consideration, when that consideration concerns territory that is not his.

An Expansion Regarding Interpersonal Prohibitions: The View of 'Binyan Tziyon'

In the responsa Binyan Tziyon, nos. 167–173, he discusses the words of Rashi cited above and extends them in a very significant way. As a general rule, he argues that not only in theft, but in every prohibition between one person and another, the law is that one must be killed rather than transgress.

He begins by stating that Rashi's interpretation is the plain meaning of the Bava Kamma passage (the interpretation of most of the medieval authorities, according to which the rule 'it is forbidden for a person to save himself with another's property' means that this is really permitted, only he must pay, is very forced). He then brings a parallel dispute among Amoraim in the passage in Ketubot 19, where Rav Chisda obligates witnesses not to sign falsely on a document even when their lives are threatened.

In nos. 170–171 he discusses the question whether it is permissible to disgrace a corpse in order to save the life of another person, and this is what he writes within no. 170:

Still, this requires discussion, for it is a great principle in the Torah that nothing stands in the way of saving life, and there is no distinction between certain and doubtful danger to life. But it seems to me that even for that reason one should not permit it here, for I have already proved elsewhere (sec. 167) that Rashi's opinion, based on the Talmud in Bava Kamma 60a, is that where it says there that it is forbidden to save oneself with another's property, it means that a person may not rob another's property in order to save himself from death. This is against Tosafot and the Rosh, who explained the passage there only as to the duty to pay, but not that it would be forbidden ab initio to save oneself. According to Rashi, since it is forbidden to save oneself with another's property, all the more so it is forbidden to save oneself at the cost of another's disgrace, for a person's honor is dearer to him than his money, as stated in Bava Kamma, chapter HaChovel, regarding the woman who came before Rabbi Akiva, see there. If so, how can we say that because of the danger to the sick person's life it would be permitted to disgrace and desecrate the corpse, since presumably he does not waive his own disgrace.

In no. 172 he proves that there is an obligation to be killed rather than transgress the prohibition of publicly humiliating another, and he sums up as follows:

It follows from this that if a person can save himself from death by humiliating an adult or a minor who feels shame in the presence of two Jews, he must surrender himself to death and not humiliate him. But in the case of a minor who does not feel shame, we say: let him transgress and not be killed. A sleeping person has the status of an adult, for one who humiliates a sleeper is liable, as explained in Bava Kamma and in the decisors there; and therefore the same applies regarding 'be killed rather than transgress' in humiliating him, since he will recognize his humiliation when he wakes and his color will drain away. Of all this I have not seen anything explicit in the decisors. So it seems to me, the humble Jacob.

Let us note that in the course of his remarks he cites the Talmudic statement 'It is preferable for a person to cast himself into a fiery furnace rather than publicly humiliate his fellow.' Tosafot (Sotah 10b, s.v. 'Noach lo') indeed explained this to mean that the prohibition of humiliation is one regarding which one must be killed rather than transgress. The accepted explanation of this novel legal ruling (see Bava Metzia 58b and Tosafot there) is that humiliation drains the blood from the face and is therefore a kind of death. But this is a very strained explanation. The similarity between blood leaving the face and death seems more appropriate for homily than for halakhic argumentation.

The author of Binyan Tziyon here argues that according to Rashi there is no need to arrive at that explanation, since humiliation is an interpersonal prohibition, and as such it is not overridden by danger to life. The practical implication he adduces is a sleeping person, in whose case humiliation causes no change to the blood in his face, and yet one is still liable even for such humiliation. The Talmud that states one is liable meant payment for humiliation, but he infers from Rashi's reasoning above that the law of one must be killed rather than transgress applies here as well.

What is the meaning of this? Throughout his remarks Binyan Tziyon does not explain what the reasoning is and what the source is for this astonishing law. He merely cites Rashi's words and infers a fortiori from injury to property to injury to the body. But the principled justification for this conception is unclear. Moreover, quite remarkably, he does not even think it necessary to explain it. It is fairly clear that in his view this is a simple extension of the territorial considerations of the sort we encountered above: any harm to another person lies outside my halakhic territory, and therefore it is not overridden by any consideration of mine, even if that consideration is 'correct' on the plane of formal Jewish law. This was apparently obvious to him, and therefore he saw no need to explain or justify it. A person cannot solve his own problems at another person's expense.

Two Conceptions of Commandments Between People: Is the Other Person a Bit Player?

Behind the discussion we have held up to this point lie two conceptions regarding commandments between one person and another. Some see the other person as part of the circumstances surrounding me within which I act. As it were, I stand alone before God, who imposes duties and prohibitions upon me, some of which are directed toward other people. The other person is a bit player standing in my environment so that I can implement with respect to him the duties imposed upon me. He is something like a dummy on a target range at which I am supposed not to fail (this world is a corridor before the banquet hall). He is merely the object of my halakhic actions, and my fundamental goal is not to benefit him or avoid harming him, but to discharge my own obligation toward God (= to arrive safely at the banquet hall).

According to this conception, when I refrain from harming another person, it is not because of him, but because I am obligated to guard myself against committing transgressions as part of my service of God. When I give gifts to the poor on Purim, I look for an 'especially choice poor person.' From my standpoint, the more miserable he is, the better, since my commandment will thereby be more excellent. I stand at the center of the picture, facing God. Everything else in my environment—the inanimate, the living, and the human—is no more than the totality of circumstances in which I live, act, and serve God.

By contrast, what emerges from our discussion up to this point is a different conception. The commandments and prohibitions between one person and another are intended for the sake of the other person, not for my sake. My goal is to benefit him, not to discharge my obligation toward God. I would be very glad if on Purim I found no poor person at all, whether especially choice or not, even though I would then be unable to fulfill the commandment of gifts to the poor. That is because my goal is not the commandment, but improving the poor person's condition.

From this conception follows the picture described above. When I am forbidden to harm another person or steal from him, this is not merely a duty imposed upon me by God, but first and foremost his right. Out of recognition of his right, I understand that a duty is imposed on me as well. My duty is to preserve his right. When I weigh whether to take his property, or his organs, in order to save myself, I do not see only God standing before me (for in such a picture I face only the prohibition of bodily injury or theft against danger to life, and clearly the balance from my standpoint favors saving my life), but I also see the other person and his rights. He too is part of the picture, and even if my considerations before God allow me to harm him, I am not the only one standing here.

Internal Halakhic Limitations: Territorial Considerations[5]

What our discussion has meant up to this point is that there are two kinds of considerations that can limit the applicability of any given law. There are external limitations, in which there is a conflict between two duties imposed on me, and one of them limits the other. Danger to life overrides the Sabbath, or a positive commandment overrides a prohibition—these are two rules that belong to that type. By contrast, the limitation we have presented here is an internal limitation. Here the law is not limited because it conflicts with another duty imposed on me, but because it itself has a radius that defines its field of application, and beyond that radius it does not apply. As we saw, my halakhic considerations are relevant only within the radius of my own territory, and not beyond it.

Several examples of such limiting rules can be found in my article in Meisharim 4, where I dealt with internal limitations on the duty of honoring parents. There I showed that the duty to honor parents is limited not only because of opposing duties (as in a situation where parents instruct us to commit a transgression), but also by internal limitations. Honoring parents applies only within a defined sphere, and outside that sphere it has no force. This is a limitation arising from within itself, and not because of some external force. I further showed there that decisors tend to view every limitation as an external one, although that is not necessarily the case.

There are additional examples of limitations arising from territorial considerations. In my aforementioned article on killing a thief, in Techumin 28, I show the principle that if a person uses Jewish law as a cynical shield in order to commit transgressions, Jewish law strips away all those protections. For this reason it is permissible to kill a burglar who enters by tunneling, since he is using the halakhic protection that forbids murder to shield himself while he steals. In such a case Jewish law strips away that protection, and with respect to him there is no prohibition of murder. The same applies to prohibitions of labor on the Sabbath (therefore it is permissible to kill him even on the Sabbath, although one could save him and oneself even without killing him; see there). These prohibitions do not lapse because there is an opposing duty to them, but because there is an opposing right to them—and in those cases it is my right to defend my property. That right stands even against human life.

Another example of internal limitations arising from territorial considerations is the rule that a person cannot render forbidden something that is not his. I discuss this subject at length in my article on parashat Chukat mentioned above, and there I show that at least according to some views, in that passage too the basis is a person's inability to enter another person's domain.

A Guilt Offering as the Crossing of a Territorial Boundary

Another example I will mention here in order to present territorial considerations is the guilt offering. In my article 'The Nature of the Guilt Offering,' Magal 15, 5767, p. 1,[6] I pointed out that a guilt offering is usually brought for a prohibition involving the crossing of a halakhic boundary (that is, an impermissible move into territory that is not mine, or into another person's territory), even where there is no formal halakhic transgression involved. For example, a person who has relations with a designated maidservant does not, according to strict law, violate even a prohibition, and yet he is required to bring a guilt offering. A person who committed a doubtful act for which, were it certain, he would have to bring a sin offering, must bring a suspended guilt offering, even though according to Maimonides he did not violate a Torah prohibition (since according to Maimonides, a Torah-level doubt is treated leniently on the Torah level). The same applies to the guilt offering for theft. As we already saw above, the essence of theft is intrusion into another person's territory, and therefore the guilt offering for theft is also brought for a territorial offense. There I showed this to be true of all guilt offerings: they are not brought for a sin (as a sin offering is), but for the act of crossing into territory that is not one's own.

If so, sin offerings express the transgression of the duty imposed on me. Guilt offerings, by contrast, express the intrusion into a domain that is not mine. The distinction between a guilt offering and a sin offering reflects the distinction between two kinds of transgression: disobedience to duties, versus violation of the rights of another person (or of consecrated property, and the like).

B. Between 'Choshen Mishpat' and 'Yoreh De'ah'

Introduction

In this chapter I will try to sketch the categorical boundary between 'Choshen Mishpat' and the other parts of the Shulchan Arukh. At first glance this is a completely different question, but as I will try to show, it is nothing but a reflection of the division between duties and rights that was presented in the previous chapter.

Charity or Interest

Above we learned from the words of Binyan Tziyon that all prohibitions between one person and another are not overridden by danger to life. We can now ask ourselves whether a person is obligated to give up his life for the commandment of charity. Alternatively, is a person obligated to sacrifice his life in order not to take interest (we are speaking about taking interest with the borrower's consent, for otherwise there is theft here, which was already discussed above)? It seems highly likely that even Binyan Tziyon did not mean to say this. He too would not argue that one must sacrifice one's life for the commandment of charity or the prohibition of interest. Clearly the difference between interest and charity, on the one hand, and humiliation or theft, on the other, is not the difference between a prohibition and a positive commandment, for charity too—and certainly interest as well—also involves a prohibition. What, then, is the difference between these two prohibitions and humiliating a person, theft, or desecrating a corpse?

Here we return to the distinction between duties and rights. Not all our duties toward another person derive from that person's rights. There are duties toward another person that are merely duties, like the rest of the halakhic duties. Duties of that kind are certainly overridden by danger to life, like all halakhic duties. Only duties that derive from another person's rights are not overridden by danger to life, because only such duties are rooted in territory that is not mine, and therefore they are not overridden by considerations of my own danger to life, as we explained above.

The first indication that emerges regarding the distinction between charity and interest, on the one hand, and theft, damage, and humiliation, on the other, is that the laws of charity and interest appear in the Yoreh De'ah section of the Shulchan Arukh, whereas the laws of damage, murder, theft, and humiliation appear in its Choshen Mishpat section. Why, in fact, is there such a division? Are charity and interest not monetary duties toward another person, just like overreaching, lending, or the laws of bailees? What is the difference between these two categories, and how is it connected to the question of territory and to being overridden by danger to life?

The Categorical Division of the Tur

Today we relate to the juridical part of Jewish law as a self-evident category. Already in the Sages we find a different attitude toward monetary law and prohibitions (one does not derive monetary law from prohibitory law; in cases of doubt in monetary law one is lenient for the defendant; and so on), but we do not find there explicitly the categorical distinction between the juridical part of Jewish law and its prohibitory parts. Although this distinction seems self-evident to us, it is very subtle, and it is not always easy to define it. It seems to me that in its modern sense it belongs to the Tur, who was the one that first introduced and conceptualized it. Maimonides divided the halakhic categories into fourteen books, but none of them gathers together different juridical laws merely because of their shared categorical character. For him the laws of bailees form a category of their own, the laws of loans a category of their own, the laws of claims and counterclaims a category of their own—just like the laws of prayer or the laws of the Sabbath. There is no indication that he saw all of these as different facets of a broader halakhic category.

The Tur was the first to gather together the laws of loans, bailees, agency, witnesses and judges, damages, overreaching and commerce, and the like, into one distinct category, and to call it 'Choshen Mishpat.' The Shulchan Arukh followed in his footsteps, thereby fixing this distinction. Needless to say, the Tur did not invent this division, but only discerned it and conceptualized it. It is likely that even before him sages were aware of it, though not in an explicit and conceptualized way.

As noted, the Tur is also the one who decided to place the laws of charity and interest in the Yoreh De'ah section rather than in Choshen Mishpat, apparently because he saw some difference between these laws and the laws included in Choshen Mishpat. If the definition of Choshen Mishpat is monetary commandments between one person and another, it is not clear why the laws of testimony and adjudication are included there, and why interest and charity are not. Before we explain this, let us clarify more fully the nature of the juridical category.

The Difficulties Concerning the Juridical Category

Let us begin with several difficulties that exist with respect to this category. We find several characteristics unique to Choshen Mishpat that do not exist in the other parts of Jewish law. First, as a matter of law, one may stipulate away a monetary matter, something that is not true of the other parts of Jewish law (which one may not stipulate away, for that would be a stipulation against what is written in the Torah). For example, the Mishnah in Bava Metzia 94a states:

Mishnah. An unpaid bailee may stipulate to be exempt from an oath, a borrower to be exempt from paying, and a paid bailee and a renter to be exempt from an oath and from paying. Anyone who stipulates contrary to what is written in the Torah—his stipulation is void; any stipulation in which the act comes first—his stipulation is void; and any stipulation that can be fulfilled in the end, and that he made from the outset, is valid.

If so, all the laws of bailees are default rules (what our cousins, the jurists, call a 'dispositive arrangement'). A person may stipulate and define the contract of safekeeping differently, and he is not bound by the Torah's laws in this matter. This is true with respect to all the laws included in Choshen Mishpat.

The Talmud there finds this difficult and says:

Talmud. Why? It is a stipulation against what is written in the Torah, and anyone who stipulates against what is written in the Torah, his stipulation is void! Who is the author? Rabbi Yehuda, who says: In a monetary matter, his stipulation is valid. For it was taught: One who says to a woman, 'Behold, you are betrothed to me on condition that you have no claim upon me for food, clothing, and conjugal rights'—she is betrothed, but his stipulation is void; these are the words of Rabbi Meir. Rabbi Yehuda says: In a monetary matter, his stipulation is valid.

The Talmud explains that in a monetary matter there is no impediment to acting against the Torah's laws. It does not find it necessary to explain why this is so (nowhere in the entire Talmud is a source brought for this law, and it apparently follows from reasoning alone). How can Rabbi Yehuda determine that one may stipulate away a monetary matter, and this without an explicit source in the Torah? In what way is a monetary matter different from all the rest of the Torah, which cannot be stipulated away?

It is important to emphasize that the overwhelming majority of decisors hold that there is absolutely no problem with such a stipulation. If a person wishes to stipulate with his bailee that even though he is being paid he will not be liable for theft and loss, he is permitted to do so from the outset. There is not even any preference, from the outset, not to do so. This is not merely a recognition after the fact, but a permission ab initio. How can the Torah allow us to disregard its laws, and not even see anything problematic in that?

Moreover, in the monetary context Jewish law treats custom as binding like law. The scope of monetary obligations is determined by custom. This may be connected to stipulation, since custom is an implicit stipulation. But it is still not clear why monetary laws are exceptional in this matter.

Jewish law also recognizes the authority of government, whether a king or the town leaders, to establish monetary ordinances and rules that are binding in Jewish law just like a Torah determination. The modes of acquisition of objects, as well as the scope of the liabilities of bailees (contract law), and more, are all determined by the laws established by the monarchy or the town leaders. Why do they have such authority, which is not granted to them in any other field? As is well known, the decisors write that a king has no authority to establish a law against Torah law (that is, a law involving a prohibition). In that sphere the rule 'the law of the kingdom is law' is not said. In what way, then, are monetary laws different from the rest of Jewish law?

The question can be sharpened even further: if what is actually binding is the law in force and not the Torah's monetary laws, then why does the Torah bother to write these laws at all? Why does it not simply leave us to do what it expects of the Noahides (at least according to Maimonides), namely, to establish for themselves a legal system that will regulate the monetary relations among citizens?

Furthermore, in what sense is the study of the laws of Choshen Mishpat Torah? Why do we recite the blessings over Torah study over it, and not over the study of law in the university? After all, what is practically binding is the law set by the legislature, not the laws that appear in Choshen Mishpat; so apparently we ought to recite the blessings over Torah study over legal studies. That is the law that is more correct and more binding in practice.

Additional differences may also be discussed. Why in monetary law do we go to a court and not to a rabbi or halakhic authority? How does this category differ from Orach Chayim or Yoreh De'ah? If a person violated the prohibition of theft, he violated a prohibition. So why should a halakhic authority not rule that the act is forbidden and compel him to return the stolen item to its owner? What is the authority of the court, as distinct from that of a halakhic authority? What is the meaning of the injured party's claim? Why does the court not initiate legal action without a claim?

We also find a difference with respect to coercion. The Talmud in Ketubot 86b (and Hullin 132b) states:[7]

Rav Kahana said to Rav Pappa: According to you, who say that repaying a creditor is a commandment, if he says, 'I do not wish to perform a commandment,' what then? He said to him: We have learned: When is this said? Regarding prohibitions. But regarding positive commandments—for example, if they say to him, 'Make a sukkah,' and he does not, or 'Take a lulav,' and he does not—we beat him until his soul departs.

And yet, the decisors write that in monetary matters (such as the repayment of a debt) coercion differs in essence from coercion with respect to commandments. In monetary law, coercion is effected by going down to the property of the debtor. When a person does not repay a debt that he owes, the court does so in his place. Coercion regarding commandments, by contrast, is not done in that way. We compel him to perform the act, but we do not do it in his place. Why, indeed, is there such a difference between Choshen Mishpat and Yoreh De'ah or Orach Chayim?

The Uniqueness of the Juridical Category: Rabbi Yechezkel Abramsky's Proposal

Rabbi Yechezkel Abramsky, in the pamphlet Dinei HaMamonot,[8] determines that monetary laws are nothing but an expression of a person's wishes. The default rules established by the Torah are merely deep psychological assessments, along the lines of 'the Torah penetrated to the end of a person's intention.' If a person deposits an object with his fellow without payment, the Torah assesses that their intention is that he should not be liable for theft and loss, and therefore the law is that he is exempt. If, however, they explicitly stipulate otherwise, they have revealed that their intention is different, and therefore the law will be different. But as long as they have not expressed a different intention, the Torah defines their optimal presumed intention.

This thesis leaves most of the problems standing:

• It does not explain why this presumption is Torah. What we have here is a collection of psychological facts. Now the question would no longer be whether to recite the blessings over Torah study on the study of law, but whether to recite them on the study of psychology.
• Nor does it explain why the Torah bothers to write this. Could it not have left this default determination for us to decide?
• Moreover, this explanation is also insufficient with respect to the question why custom or the law of the kingdom determine these laws, and why one may stipulate regarding them.[9]

From the difficulties in the third point it clearly emerges that there is an additional assumption here, namely that monetary laws deal with the rights one person has against another. When Reuven has some right against Shimon, he can of course waive that right, and that is the meaning of the ability to stipulate in monetary matters. When the king, or custom, or the town leaders establish a monetary ordinance, there is here an implicit stipulation, and therefore it is as though the parties themselves had so stipulated. If so, one unique feature of juridical laws is that they establish rights and not duties. The depositor who entrusts an item to a paid bailee has a right to receive liability for theft and loss, and the duty imposed upon the bailee is derived from the depositor's right. This is certainly correct, and we will return to it below.

But the difficulties in the first two points still remain in force: it is not clear why these determinations are Torah. Alternatively, why are the facts studied in the department of psychology or law not Torah? Likewise, it is still not clear why the Torah bothers to write this at all, rather than leaving it for our social determination.

The Uniqueness of the Juridical Category

The root of the matter is that the Torah is concerned with norms, not facts. Already Rashi's very first comment on Genesis asks why the Torah did not begin with 'This month shall be for you,' but with 'In the beginning God created.' His simple assumption is that the Torah establishes normative instructions—laws—and not facts. Hence, when Jewish law establishes the presumption that a person does not repay within the due term, its intention is not to make a factual claim. This human trait can change over the course of times and places.

What is eternal and universal in the passage concerning the presumption that a person does not repay before the due date? What is eternal there is the normative determination that when there is a clear presumption, it is sufficient to extract money. The content of the presumption in itself is not Torah, and there is nothing sacred about it. It can change according to different cultures and customs. What does not change is the normative determination, not the factual one, and therefore that is the 'Torah' in that passage. To understand the normative part of the passage, however, we must also enter the Talmudic reality—that is, the facts—and understand within what reality the Sages were operating and what their psychological assumptions were; otherwise we will not be able to extract the eternal normative part from their words. But the goal of study is the norm and not the fact. That is also the 'Torah' in the study, over which we recite the blessing over Torah study.

If so, when the Torah determines that a paid bailee is liable for theft and loss, it is not making a psychological determination. It is making a normative determination: what is due to the depositor in exchange for payment is liability for theft and loss. That is the divine truth, and it is eternal. This is not connected to the presumed intention of the parties to the contract, but to what is truly due in such a contract. This is the proper and just consideration from a legal standpoint in an objective sense. This is God's will, and therefore it is Torah.

To be sure, as we already noted, if the parties wish to give gifts to one another, there is no problem at all with that. A person can waive his rights and not receive what is due to him, or give more than he is obligated to give. This is a simple derivative of the concept of property ownership, or of the concept of right.

If so, the entire body of laws in Choshen Mishpat is the collection of rights that a person has in halakhic society. This collection is eternal and unchangeable, and over it we recite the blessing over Torah study. It is God's will, for He is the one who gave us these rights, not the wishes of the parties involved. To be sure, if people want to give gifts or waive rights that they have, the Torah has no problem with that. Therefore a stipulation against what is written in the Torah requires no source. For Rabbi Yehuda it seemed entirely obvious that in a monetary matter one's stipulation is valid, since a person can waive rights that he has. Rabbi Yehuda understood that all juridical laws express rights that belong to Reuven and not duties that belong to Shimon. In place of the accepted assumption that the bailee bears a duty to provide liability for theft and loss, I propose an alternative conception according to which the depositor has a right to receive liability for theft and loss from the bailee. The bailee's duty is derived from the depositor's right. Since, by the very nature of a right, it is obvious that it can be waived. A right is that which stands at my disposal if I want it; but if I do not want it, there is no problem in waiving it.

The factual determinations established in legislative institutions or in psychological research are facts. As such they have no dimension of Torah, and it is not relevant to recite over them the blessing over Torah study. When the legislator, or custom, determines that a paid bailee is liable not for theft but only for loss, that is a determination of binding custom, but not of a fundamental right. There is no change here in God's will, but rather an implicit waiver by all of us of rights that have been granted to us.

A Note Regarding Even HaEzer: The Halakhic Public Domain and Private Domain

From here we can also understand the role of the court and how it differs from the role of the halakhic authority. The halakhic authority determines what a given person is obligated to do according to Jewish law in any given set of circumstances. The court, by contrast, determines what rights one of the parties has against the other. The court will not act without a plaintiff, because its role is to compel the other party to fulfill his duties and not to infringe the rights of his fellow. As long as I do not insist on my rights, the court will not enter into the matter. Its role is not coercion regarding commandments, but ensuring that my rights are realized. When I feel that one of my rights has been infringed, I turn to the court so that it will extract from my opposing litigant the rights due to me. I can, of course, also waive my rights and not turn to the court. In that case they will not act, for a person may waive his rights. By contrast, a person cannot waive his duty not to eat pork or to keep the Sabbath. Therefore, in such cases the court intervenes in its capacity as the body entrusted with coercion regarding commandments (= duties).

As we saw, the role of the judge, or of the court, is a public role. Society appoints it in order to manage the monetary and civil relations among its members. By contrast, the role of the halakhic authority is not really a public role. He is an expert in matters of Jewish law, and his role is to provide me with information concerning the duties that Jewish law imposes upon me—what I am obligated to do and what I am not. He provides services to the private individual and not to the public. To be sure, coercion regarding commandments is also carried out by the court and not by the halakhic authority, because that is a public function. Supplying information to the private individual is the role of an expert. But coercing the observance of Jewish law in the public sphere is a public role, and its purpose is public. Therefore that is the role of the court.[10]

From here we can understand, in brief, the status and character of the Even HaEzer section in Jewish law as well. The laws of personal status (Even HaEzer) are usually connected to the juridical part of Jewish law. True, there we are not dealing with rights of one person against another but with duties, yet we are dealing with the public dimension of Jewish law. The regulation of personal status is part of every legal system in the world, and therefore in Jewish law the one who handles it is the judge and the court, not the halakhic authority. For this reason Choshen Mishpat and Even HaEzer are both included in the study of rabbinical judgeship, whereas Orach Chayim and Yoreh De'ah are included in the study of practical halakhic ruling.

As an aside, I would add that in these two public fields we find extraordinary authority entrusted to the court: to uproot the legal situation and change it without the will of the parties. In monetary law we find the rule 'what the court declares ownerless is ownerless,' that is, the court can remove property from its owner without an act of acquisition and without the will of the parties. In Even HaEzer too we find a similar authority: 'the Sages annulled his betrothal from him.' The Sages can annul an act of betrothal against the will of the parties.

From what we have said above, one can suggest a simple explanation for this. The Sages are the ones responsible for the public domain. Just as in monetary law they can legislate ordinances that actively uproot Torah law, unlike the rest of the fields of Jewish law, so too in the laws of personal status. The determination that two people become a married couple is a determination of social status. It is the public that recognizes them as such (and this has social ramifications: the woman becomes forbidden to the world, and so on). This is one possible reason that two witnesses are required for the validity of betrothal. The witnesses represent the public and give the marriage its seal in its name. Therefore they do not testify like all other witnesses in Jewish law, but merely give the betrothal legal force. They have a statutory role and not a role of legal proof.

In this light we can understand a puzzling passage concerning the annulment of betrothal. In several places the Talmud discusses this authority of the Sages and wonders how it is possible. For example, in Ketubot 3a we find:

And is there such a thing—that by Torah law it would not be a valid bill of divorce, yet because of modest women and wanton women we permit a married woman to the world? Yes: anyone who betroths does so subject to the Sages, and the Sages annulled his betrothal from him. Ravina said to Rav Ashi: that works if he betrothed with money; but if he betrothed through intercourse, what can be said? The Sages rendered his intercourse an act of promiscuity.

The Talmud wonders how it can be that the Sages uproot a Torah matter, and answers that one who betroths does so subject to the Sages. In the case of betrothal by money this is clear, since the Sages have authority to declare property ownerless, and if they render the coin of betrothal ownerless it follows that the betrothal did not take effect. But the Talmud does not understand how this can happen also in betrothal through intercourse. Can they somehow annul the intercourse? The Talmud's answer is not at all clear: 'The Sages rendered his intercourse promiscuous intercourse.' But how do they do that? Seemingly there is no answer here to the question that was asked. Some of the medieval authorities explain that every betrothal is conditional betrothal, since anyone who betroths does so subject to the Sages (= on condition that the Sages agree). But that explanation is difficult in several respects:

1. The language of the Talmud does not indicate this. 2. There are cases where it is clear that the man does not grant the Sages this authority (for example, one who betroths against her will and whose betrothal the Sages annulled; he is certainly not so righteous a man that he willingly hands such authority to the Sages).

Therefore it seems that the explanation is different. It is the Torah that made betrothal dependent on the agreement of the Sages, and not the man who betroths. The reason is that betrothal is a social act and a social status. The Sages are the ones entrusted with regulating social relations, and the court is their representative (see Rashi, Bava Metzia 96b, s.v. 'Nim'alu'). Therefore the Sages have authority to annul betrothal just as they remove property. Incidentally, according to this explanation there is room to understand what we find in several later authorities—that the Sages can also annul divorce and not only marriage—something that many have wondered about. Moreover, there are situations in which the Sages annul prospectively,[11] that is, from this point onward and not retroactively. Here too it is not clear how this could be done according to the mechanism of condition. But according to our approach they can fully control the laws of personal status, and therefore all these annulments are possible.

We thus find that Even HaEzer and Choshen Mishpat join together and constitute the juridical part of Jewish law. The juridical part is its public-social component. One part of this juridical category is Choshen Mishpat, which deals with the rights each person has vis-à-vis his fellow (which are in essence a social arrangement, since they concern relationships between people). Another part is the regulation of personal status, which is likewise, of course, a public social part of Jewish law, and therefore it too is entrusted to the court.

Back to Charity and Interest

After we have understood the essence of Choshen Mishpat as the collection of the halakhic rights that each of us possesses, we can now return and understand why the Tur chose to place the laws of charity, the laws of interest, and honoring parents in Yoreh De'ah and not in Choshen Mishpat. Although here too we are dealing with monetary commandments between one person and another, these certainly are not rights that the other person has against me, but duties of mine toward him. The simple indication of this is that the poor person cannot sue me in court that I give him charity, even though I bear a full and absolute duty to give it. The reason is that this duty is not derived from a right of his, but is a duty upon me. The same applies to the return of interest, which indeed is extracted by judges, but under the law of coercion regarding commandments and not under the law of repayment of debt. That is, it is an operation of Yoreh De'ah and not an operation of Choshen Mishpat. The borrower cannot sue for the interest; rather, the court compels the lender to return the interest under the law of coercion regarding commandments. The borrower is not the plaintiff here. The same holds regarding honoring parents, even according to the view that there is an obligation to honor them out of one's own funds. This is not a duty that categorically belongs to Choshen Mishpat, since parents cannot sue me for it in court. At most, the court can compel me to honor my parents under the law of coercion regarding commandments (even though this is a commandment whose reward is stated alongside it—'so that your days may be long'—and according to strict law one does not coerce in such a case; see Hullin 110b).

We can now see an implication of this distinction with respect to the extraction of interest by judges. Rabbi Yechezkel Abramsky recounts (in that same pamphlet Dinei HaMamonot, in the note on pp. 7–8) a ruling that he issued as head of the London Beth Din regarding the law of interest. The borrower appealed to the first court to compel the lender to return to him the interest he had taken, arguing that this was fixed interest (which, according to Jewish law, is the only kind that may be extracted by judges). They rejected his claim and ruled that this had not been fixed interest. He demanded reasons from them ('On what basis did you judge me?'), and they refused to give them. When he appealed to Rabbi Abramsky against that first ruling, Rabbi Abramsky held that regarding the return of interest there is no claim of 'On what basis did you judge me?' The explanation is that the return of interest is a prohibitory duty (which belongs to Yoreh De'ah and not to Choshen Mishpat) that falls upon the lender who took it. The borrower is not a party to the matter, and therefore he is not the litigant here; hence they did not 'judge him,' and therefore he cannot demand reasons explaining on what basis he was judged.

The starting point is that the return of interest is a matter between the lender and the court, not between him and the borrower. The borrower is not his litigating opponent, and he cannot sue him in court for the return of the interest. The court is the one that compels the lender, on its own initiative, to return the interest under the law of coercion regarding commandments (although if the borrower does not want this, it seems that he can waive it and say 'it is as though I received it.' But this is not a waiver of a right, since he has no rights to the interest; rather, it is the giving of a gift). And since he is not a litigant, he has no right to demand 'On what basis did you judge me?' This is a sharp and clear implication of the determination that interest belongs to Yoreh De'ah and not to Choshen Mishpat.

We can now understand why Binyan Tziyon did not mean to say that one must sacrifice one's life over the prohibition of interest or the commandment of charity. We saw that in his view the rule of one must be killed rather than transgress applies to all prohibitions between one person and another. But we explained this by saying that prohibitions between one person and another are not merely duties imposed on Shimon; rather, those duties are derived from rights that Reuven has against him. For this reason, as we saw, they are not overridden by Shimon's considerations of danger to life. However, the second kind of monetary duties toward another person—such as interest, charity, and honoring parents, all of which appear in Yoreh De'ah and not in Choshen Mishpat—are duties that have no basis in the right of the other person (as we saw, he cannot sue for them in court). This is precisely the reason they do not appear in Choshen Mishpat. Therefore, in these cases we are dealing with the considerations of the transgressor himself, and if he is in danger of death, he is permitted not to fulfill these duties, because they are overridden by his danger to life. There is no violation of another person's right here, only a failure to fulfill his duty. These are ordinary laws, and like every other law in Yoreh De'ah they are overridden by danger to life.

Summary: The Paradox of Rights

The conclusion that emerges from our discussion is that Choshen Mishpat is nothing but the collection of rights that Jewish law grants to every person. That is what distinguishes this halakhic category, which the Tur created and conceptualized. From those rights are derived duties that are imposed on the other person, but it is their status as rights that distinguishes them and that causes them to be included in Choshen Mishpat.

If so, the conclusion is that there is a discourse of rights in Jewish law, indeed a very broad discourse. All of Choshen Mishpat is the halakhic discourse of rights. As we saw, the reason is that the juridical duties should not be seen as duties imposed on us by the Torah's command and its demand of us; rather, they are rights that the Torah grants to every person, and the duties imposed on us are derivatives of those rights.

This does not mean that the other parts of Jewish law, which also include commandments between one person and another (such as interest and charity), really rest on an egocentric conception of the service of God. Once we have learned that the other person too has a place in the picture of the world that stands between me and my Creator, we can broaden that and say that the duty of charity and the prohibition of interest are also duties for the sake of the other person and not for my sake. True, these are my duties and not rights of the other person, but even so there is no necessity to view the other as a bit player. The goal is not only to discharge my obligation (in terms of the duties imposed upon me), but to assist the other person (even if in these cases he has no rights). If we return to the words of Tosafot in Ketubot, which see the laws of damages as a novelty introduced by the Torah, we can now understand that the meaning is that the Torah gave a right to the injured party and did not merely impose a duty on the damager (their terminology is that damages are 'a loan written in the Torah,' that is, like a loan, and therefore it is clear that we are dealing with the right of the creditor and not the duty of the debtor). Tosafot do see this law as a novelty that we would not have known without the Torah's command, but that does not mean that the novelty is my duty. It is entirely possible—and as we saw, this even seems to emerge from the language of Tosafot—that the novelty is the right of the other person.

We can now point to the paradox bound up with the concept of right. As we saw, a right is such a solid concept in Jewish law that there are views according to which it is not overridden even by danger to life. There is no justification for violating another person's right, and I do not even have a mandate to determine anything regarding it. A person's rights are entrusted only to him himself. But it is interesting to note that this is true both stringently and leniently. On the one hand, these rights (and the duties derived from them) are not overridden even by danger to life. On the other hand, they do not bind the person himself. He can waive them if he wishes. There is here both very great stringency and a unique leniency.

The solution to this paradox is that we are not necessarily dealing here with a greater stringency of these laws, but with a different halakhic category. Duties derived from rights are not necessarily more severe than other halakhic duties. The duty not to desecrate a corpse is not more severe than the duty to keep the Sabbath (whose punishment is stoning). Desecrating a corpse is a duty of a different kind, since it is a duty derived from a right (the right of the dead person to honor). As such, it can be waived (and that is its leniency), but by virtue of its being a right, the possibility of waiving it is reserved exclusively to the owner of the right, and to no one else (and that is its stringency). This is the meaning of this paradox: on the one hand, monetary laws are the easiest, since they can be waived and altered with great ease; on the other hand, according to some decisors the law requires one to be killed rather than transgress them. The misunderstanding stems from the fact that we are not dealing here with leniency and stringency, but with a different category: duties derived from rights, and not mere duties. That is precisely the essence of the juridical category in Jewish law, and that is the meaning of the concept of right with which I dealt in this article.

[1] On this, see my article, 'Contemporary Aspects of the Problem of the Individual and the Collective and the Defensive Shield Dilemma,' Tzohar 14.

[2] On this matter, see my article 'How Can I Curse Whom God Has Not Cursed?—Monetary Law in the Kovno Ghetto,' Tzohar 20, 5765, p. 9. There I also pointed out that there are two distinct innovations in Rabbi Shimon Shkop's words, something that not a few of his interpreters err about.

[3] See, for example, the responsum of Radbaz, vol. 3 no. 627, and Shakh, Yoreh De'ah no. 157, subsec. 3; and the Chatam Sofer, in his novellae to Ketubot 61b, s.v. 'Ve'amnam,' already points to the connection between the Shakh and Radbaz. See also Sanhedrin 10a, 'lashes stand in place of death,' and compare Tosafot s.v. 'Chavlei,' Gittin 42b, and elsewhere.

[4] On this, see my article, 'Killing a Thief for the Sake of Defending Property,' Techumin 28, 5768, p. 174.

[5] On this, see my articles on parashat Chukat and on parashat Acharei Mot-Kedoshim, in the book La'asot Mitzvotekha, 'Midah Tovah,' Kfar Hasidim, 5770.

[6] See also in my aforementioned book, La'asot Mitzvotekha, in the first article (for parashat Lekh Lekha).

[7] See also Bava Kamma 28a, and Moed Katan 16a, and elsewhere. Among the decisors, see Ketzot HaChoshen, Netivot HaMishpat, and Meshovev, Choshen Mishpat no. 3. Likewise in Shulchan Arukh, Choshen Mishpat no. 421 sec. 13, and Yoreh De'ah no. 151 sec. 1. See also Igrot Moshe, Even HaEzer vol. 4 no. 61, and Yoreh De'ah vol. 1 no. 72; B'Tzel HaChokhmah vol. 1 no. 27; and Heikhal Yitzchak, Orach Chayim no. 42; and much more.

[8] See in his booklet, Kovetz Ma'amarim, Jerusalem 5760 (third edition).

[9] One might also ask how he would explain the laws of damages. Does human presumed intention determine the law of damage compensation? But there one could perhaps respond that the fundamental law is based on human presumed intention, as though there were an implicit agreement that if one person harms another person's property he must pay such-and-such. A stipulation changes that presumed intention and expresses a different position.

[10] To be sure, there are decisors who hold that every individual is commanded to enforce the observance of commandments and to separate others from transgression, but this is done by delegated authority from the court (for technical reasons: he is the one present at the scene, and bringing the matter to the court is far too cumbersome and would not really make it possible to prevent the transgression. Exactly as in the law of a pursuer).

[11] On this, see in detail the article by Avishalom Westreich, "Annulment of Betrothal' in the Talmudic Sources: On the Roots of a New-Old Polemic,' which is about to be published in the journal Sidra.