Property Law in Jewish Law and Civil Law

Shnot Hayyim – Sefer Mekor Hayyim – 2011

The meaning of ownership of property: between Jewish law and civil law

(The conception of ownership and property rights in Jewish law as compared to general law)

A. Introduction

In this article I will point to differences between the forms of reasoning used with respect to the laws of acquisition and ownership in Jewish law, and those used in civil legal systems. The root of this difference, as we shall see, lies in the different foundations that underlie these two kinds of systems.

This article combines two perspectives that were presented elsewhere, and extracts from them a general insight regarding the concepts of ownership and rights in Jewish law as compared to their conception in general law. At the end of our discussion we will examine, to some extent, whether these are phenomena that do not pertain only to questions of ownership, but to the conception of halakhic jurisprudence in general. We shall begin by presenting these two perspectives.

1. In my article ‘Regarding Liability for Damages Caused by One’s Property,’[1] I noted the fact that Jewish law’s conception of ownership (as with other legal-halakhic statuses)[2] is not exhausted by the rights it grants an owner over his property. At the foundation of these rights stands a metaphysical, factual relation, from which the existence of the rights draws its nourishment. I argued there that at times the metaphysical relation appears without the rights that are usually derived from it, but property rights never appear without a metaphysical relation of ownership at their base.

The metaphysical connection between a person and his property turns the property into the owner’s periphery. I noted there that this connection has additional halakhic implications, beyond the rights it grants the owner over his property: the commandment that one’s animal rest, the obligation to pay for damages caused by one’s animal, a person’s disqualification from testifying regarding his own animal, and more.

2. In my article ‘Is Jewish Law Hebrew Law?,’[3] I pointed to several differences between Jewish law and civil legal systems, and concluded from them that it is very difficult to classify Jewish law as a merely legal system. One of the differences discussed there is that legal systems are generally grounded in conceptions of justice, fairness, and social order, whereas Jewish law is grounded in additional principles.[4] In section 3 of chapter 2 there I brought what was described in the previous section: ownership in Jewish law is based on a metaphysical relation, and not only on principles of justice, fairness, and order. If in civil law ownership is conceived as a convention derived from legislation, then in Jewish law ownership is an objective datum, or a legal fact.

The conclusion that emerges from combining these two perspectives is that the metaphysical conception of legal status is a halakhic characteristic, one that is not expected to appear in ordinary civil legal systems. This is especially true of the status of ownership.

This article is devoted to illustrating this point through differences in the form of legal reasoning in the laws of acquisition in civil law and in Jewish law. We shall see that the halakhic reasons that arise in discussions of questions of ownership have causal characteristics, products of the existence or non-existence of ‘facts,’ whereas legal reasons often take on a teleological character (= purposive reasoning, reasoning in light of tendencies and goals). We shall see that Jewish law relates to ownership as an objective datum that is, as it were, ‘imposed’ upon it, whereas in law ownership is determined legislatively on the basis of considerations of tendency and purpose.

We shall begin with a discussion of the treatment of the laws of returning lost property in Jewish law and in civil law, primarily as these were expressed in the judgment in the appeal of Handels v. Kuppat Am Bank in the Supreme Court. There we will clearly see the two forms of approach described above. We shall then continue to discussions of copyright and intellectual property in Jewish law and in civil law, and there too we will see similar differences between these two systems. Finally, we will return to a more general perspective, and argue that these two forms of approach characterize these two kinds of normative systems by their very essence, and we will examine the matter from the perspective of jurisprudence.

B. The Handels Judgment and Its Implications: Returning Lost Property in Jewish Law and Civil Law

Introduction

The judgment to be discussed here received much attention, mainly because of the issues of Jewish law and the significance of the Foundations of Law Act that arose within it. The disagreement between Judges Menahem Elon and Haim Cohen—both of whom were motivated by a desire to incorporate elements of Jewish law into Israeli law—reflected not only a different legal conception of the laws of returning lost property, but also different conceptions regarding the place and significance of the Foundations of Law Act in relation to Jewish law.

Here we will discuss this judgment specifically from the first perspective. We shall examine the two legal systems themselves (civil law and Jewish law), that is, their respective approaches to returning lost property, without regard to the question of the validity of halakhic norms in Israeli law in light of the Foundations of Law Act. We will ask ourselves what is the root of the difference between these two conceptions regarding the laws of returning lost property, and what is the more basic and comprehensive significance of this difference.

The Lost Property Law and the judgment

Let us begin by describing the case. Eliezer Handels found, while staying at a bank, a bundle of securities on the floor of the bank’s safe-deposit room. After some time it became clear that the original owner of the bundle did not come forward to claim it. The bank claimed the securities for itself, on the ground that the securities were found in its domain, since they were found in an area belonging to it. Handels, by contrast, argued that the area was public (not in terms of ownership but in terms of freedom of access for anyone)[5] and therefore the papers should be delivered to the finder, that is, to himself. The matter reached the District Court and was subsequently heard twice on appeal in the Supreme Court.[6] For our purposes here, it will suffice to summarize the main points that emerge from the totality of these discussions.

First, let us cite the relevant sections of the Lost Property Law, 1973, section 3 of which is the focus of the disagreement among the judges.

Lost Property Law, 1973

2. Duty of the finder

(a) A person who finds lost property and takes it (hereinafter—the finder) must return it to its owner or notify the police of it as soon as possible, unless under the circumstances it may be assumed that the owner of the lost property has despaired of it because of its low value.

(b) If the finder has notified the police, he may deliver the lost property to them, and he must do so if they so demand.

3. Lost property found on another’s premises

A person who finds lost property on the premises of another must notify the possessor of the premises and deliver it to him upon demand; if the possessor of the premises takes the lost property into his possession, he shall be regarded as the finder.

4. Lost property whose owner has not been discovered

(a) If the finder complied with the provisions of section 2 and the owner of the lost property was not discovered within four months, he shall be regarded as if he had despaired of it and the finder shall become the owner of the lost property; the said period shall begin from the day on which he notified the police of the lost property, and if he was not required to notify under section 2(a)—from the day it was found.

…

The basic problem that stood for discussion in the Handels case was the meaning of the term ‘the premises of another,’ which appears in section 3 of the law. Is the bank’s safe-deposit room properly called ‘the premises of another’ (that is, of the bank), or not? If this is not the premises of another, then the legal status of the lost item is that of an item found in the public domain, and it should be delivered to the finder (Eliezer Handels).

Judge Elon argued that the term ‘premises,’ whose ambiguity of meaning lies at the basis of the discussion, was drawn from Jewish law, and therefore ought to be interpreted in the manner of Jewish law. From this he concluded that the floor of the safe-deposit room cannot be regarded as ‘the premises of another.’ The other judges in both hearings disagreed with him and held that the lost property should remain in the bank’s possession.

Judge Elon’s opinion

As noted, Judge Elon, in the reasons for his decision (see Civil Appeal), assumed that the problem should be solved by recourse to Jewish law. He cites the explanatory notes to the bill, which quote numerous biblical verses, and argues that one should learn from this that the purpose of the law is suited to the halakhic laws of returning lost property.

On the substance of the matter, Judge Elon brings (see Civil Appeal, section 14) the words of the Mishnah in Bava Metzia 26b, which states as follows:

If one found items in a shop, they belong to him; if they were found between the counter and the shopkeeper, they belong to the shopkeeper. If they were found in front of a money changer, they belong to him; if between the chair and the money changer, they belong to the money changer. One who bought produce from another, or whose fellow sent him produce, and found coins in them—they belong to him. If they were tied up, he takes them and announces them.

In the shop of a money changer, all lost items found in front of the table (that is, in the shop area) belong to the finder. That is, even though the entire shop is owned by the money changer, ‘the money changer’s premises’ for purposes of returning lost property is only the area behind his table. The area in front of the table is not regarded as his premises for purposes of returning lost property, but as a public domain. From here Judge Elon learned for the case before us: the bank area is like a public domain, and the lost property belongs to the finder.

It should be noted that Judge Elon did not merely interpret the term ‘premises’ according to Jewish law, for this term is not defined at all in the laws of returning lost property. His interpretation of the term in practice included the application of normative rules of Jewish law, and not only interpretation of terms (and he was indeed criticized for this; see the remarks of Judge Haim Cohen in the Further Hearing). In other words: he did not determine that conceptually the term ‘premises’ means what is beyond the table; rather, he ruled that according to Jewish law what lies beyond the table is given not to the shopkeeper but to the finder. The interpretation he proposes for the term ‘premises’ appearing in the statute was derived from that normative rule, and not the reverse.

The rule of the Mishnah determines that the lost item belongs to the finder, unless it was found behind the table on the money changer’s side, in which case it is likely that it fell from him himself. Why does the lost item belong to the finder in such a case? From the context of the mishnayot in the second chapter of Bava Metzia it is clear that the reason is that in such a situation the assessment is that the owner has despaired. The medieval authorities explain that because many people are present in the shop, he despairs of anyone returning the lost item to him.

We should note that the medieval authorities there disagree as to whether this refers only to a lost item without identifying marks (Rashi), or also to a lost item that does have identifying marks (Tosafot ad loc.). One may assume that in the Handels case we are dealing with a lost item bearing identifying signs, for these are a bundle of securities, and it is likely sufficiently distinctive. Therefore the normative rule does not necessarily accord with Jewish law (at least according to Rashi).

In any event, with respect to the question discussed in the Supreme Court, one may indeed learn from this Mishnah that this premises is regarded as public domain. In the Mishnah it is clear that lost items in the shop belong to the finder unless one assumes that they fell from the money changer himself. In this sense, Judge Elon’s analogy from Jewish law is indeed based on a correct interpretation of the Mishnah.

The majority opinion:[7] the purpose of Israeli law in the laws of returning lost property

Against Judge Elon, the other judges argued that the term ‘premises’ used by the legislature was indeed employed in the sources of Jewish law, but it is the way of Israeli law to draw its terminology from Jewish law, and that does not show that the Lost Property Law should be interpreted in accordance with the principles of Jewish law. They offered several reasons, into which we will not enter here. The basic one among them is that according to the Foundations of Law Act one turns to the principles of Israel’s heritage only in a case of a legal vacuum (= lacuna). But in their view there is no lacuna here that requires application of Jewish law, because the statute explicitly sets forth the normative rule. The problem here arises not because of a legal vacuum but because of ambiguity in the meaning of one of the terms of the legal directive. In such a situation we are dealing with statutory interpretation, not with filling a legislative gap, and therefore the interpretation may be carried out in a way detached from the sources of Jewish law (see Judge Barak’s remarks in the Civil Appeal, and Judge Elon’s response to them in the Further Hearing).

After this preliminary argument—which, as noted, is what usually constitutes the center of analysis in this judgment—the majority judges turn to the question of how, nevertheless, the term ‘the premises of another’ is to be interpreted in relation to the case before us. The majority judges argue that the purpose of the Lost Property Law in Israeli law is to enable optimal return to the owner (= the person who lost it). All the details of the law and its interpretation are meant to be subordinate to this overarching principle.

In Judge Barak’s remarks (in the Civil Appeal) we find support for this assumption drawn from American law. He himself adds there (and so too Judge Haim Cohen in the Further Hearing) an additional reason, derived from the very name of the statute: ‘Lost Property Law’—literally, a law of returning lost property (even though that very name is itself drawn from Jewish law, as Judge Elon remarks in the Civil Appeal).[8] This is apparently a simple assumption of the majority judges, even though its source is not entirely clear, and it is evident that these two reasons come only as after-the-fact confirmation. Some of the majority judges did not even trouble to justify this determination. This is a puzzling fact. Even if there is no obligation to resort to Jewish law, why must we reject its assumptions out of hand? In what way is it inferior to American law? These matters are especially difficult when we note that Judge Haim Cohen was one of the leading voices in the effort to restore Jewish law to the legal arena of the state. Below we shall describe the basis that most likely underlay this interpretive determination, and we will see that it is planted squarely at the center of our topic.

According to the majority judges, the distinction between another’s premises and the public domain is also rooted in this objective. As Judge Barak writes (in the Civil Appeal),[9] in order to increase the likelihood of returning the lost item to its owner, it should be left in the premises where it was found, since it is likely that this is where the person who lost it will turn in order to look for his lost property. Naturally, the finder is not known to the person who lost the item, and therefore giving the item to the finder reduces the chances of returning it to its owner. In addition, Judge Barak writes (in the Civil Appeal), the owner of the place where the item was found will feel a greater responsibility to safeguard movable property found on his premises as part of protecting his reputation. Elon, however, disputes these considerations as well (in the Civil Appeal).

According to this interpretation, the majority judges argue, it is clear that the bank’s safe-deposit room constitutes ‘the premises of another’ for purposes of returning lost property. After all, the person who lost the item does not know Mr. Handels, and at most he may recall that his lost property disappeared from him in the bank’s safe-deposit room. Therefore, the chance that he will turn to the bank is far higher than the chance that he will turn to Mr. Handels, and thus the lost property should remain in the bank.

They add that the halakhic interpretation proposed by Judge Elon, according to which the safe-deposit room is considered public domain, is derived from the purpose of Jewish law in the laws of returning lost property, and that purpose differs from the purpose of the statute. Therefore, in the view of the majority judges, it cannot be learned from for the interpretation of Israeli law. The purpose of Jewish law will be discussed below.

From here the majority judges continue the interpretive move one step further. We have seen that according to the statute the finder is the bank, not Mr. Handels. From this they derive that if the person who lost the item did not turn to the bank, the lost property belongs to the bank itself. That is, the likelihood of returning the property does not determine only the identity of whoever will hold the lost property until the owner appears (= the finder); it also dictates ownership if the person who lost it does not seek to receive it. In other words, if considerations of returning the lost property instruct us to leave it in the bank’s possession, then even after the period has passed (four months) during which the owner could have turned and demanded the return of his property, it passes into the bank’s ownership.

One should note that this is a far-reaching application of the purpose of the statute. The finder was Eliezer Handels. Nevertheless, because of considerations of increasing the chances of return, we instruct him to leave the lost property in the bank. Then, when the original owner does not appear, we also deny Handels the possibility of becoming owner of the lost item he found, since ownership of the item is a derivative of who handles its return, and not of who actually found it.

It has already been noted that the consideration underlying this determination is also derived from the purpose of the statute. If after a fixed time the finder will acquire the object, this will give him motivation to keep the lost property on behalf of the person who lost it. That is, even the finder’s ownership is derived from the consideration of assisting the return of the lost property to the one who lost it. Therefore, the one who holds the lost property is the one who becomes its owner, even if he was not the person who actually found it. Indeed, this appears explicitly in the explanatory notes to the bill in section 4, which provides that vesting ownership in the finder after the fixed period (three months according to the bill) is intended to encourage the return of lost property. For this reason it is granted to the finder only if he did what was imposed on him by law in order to return it to the person who lost it. If he did not do so, the lost property passes to the ownership of the state.[10]

It would seem that the wording of section 4 of the law, which sets a fixed time limit until the owner’s rights expire, should also be interpreted in light of this purpose. Since a limit must be set to the duty of return, after four months ‘he shall be regarded as if he had despaired of it.’ It is quite clear that there is no genuine assessment here that after four months owners actually despair; rather, this is a normative determination intended to place a boundary and limit on the finder’s duty to search for the owner and safeguard the lost property for him.[11]

It is reasonable to assume that this determination too is derived from the general purpose of the statute. The explanatory notes cited above show that the time limit was also set out of a desire to ease the burden on the finder, in order that he should have motivation to take and hold the lost property (since he has a chance of becoming its owner), and thus make it possible for the person who lost it to receive it if he comes within the period specified by law.

It is interesting that Judge Elon (see Civil Appeal, at the end of section 3) interprets the section of the law (4(a)) that grants the lost property to the finder as an encouragement to the upright finder who fulfills his legal duty. The resemblance to the majority judges’ interpretation is only semantic. They speak of considerations of encouraging return from the outset, whereas he speaks of a reward for one who fulfills his duty (as an arbitrary determination of to whom the lost property should be given, in the absence of any other legal criterion). And in section 7 there, when he relates to Judge Barak’s remarks, Judge Elon adds that even if the purpose of section 4(a) had been to encourage return of lost property to its owners, it simply does not do so (at least according to Barak’s own interpretation of section 3, which directs the finder to give the lost property to the bank). See also Elon’s remarks at the end of the Further Hearing, where he explicitly challenges the claim that section 4(a) of the law, which grants the lost property to the finder after the fixed time has elapsed, is intended to improve the chances of return.

What emerges from the foregoing is that the purpose of the Lost Property Law is to restore the previous state of affairs by returning the lost item to the person who lost it. As we have seen, all the details of the law are derived from this purpose.

The halakhic purpose in the laws of returning lost property

By contrast, in Jewish law the basic purpose is different. As Judge Elon repeatedly says, it is clear that Jewish law too frames the laws of returning lost property in order to return the lost item to its owner. The difference lies in the question: who is this owner to whom it should be returned? In the statute there is an assumption that the person who lost the item is the owner, and the basic duty is to return the lost property to him; as we have seen, all the details and sections of the statute are derived from this. By contrast, in Jewish law the ownership of the person who lost the item is not self-evident. If he despairs, he ceases to be the owner, and there is no duty at all to return the lost property to him, even if he arrives and demands it a short time later. Moreover, according to Jewish law the determination that the owner despaired is made on the basis of the best possible assessment of the real situation (= whether he in fact despaired or not), and not in order to ease the burden on the finder, and certainly not on the basis of considerations of streamlining the process of return.

For example, in a place where return is impossible—such as a place where the majority are gentiles, or an item swept away by the sea, or an item without identifying marks—Jewish law assesses that the owner despairs immediately, and therefore according to Jewish law the lost item is acquired immediately by the finder. In such situations, even if the owner sees the item the whole time (being swept in the sea), if he despairs of saving it, the finder may rescue it and take it for himself before the owner’s eyes. By contrast, in a place where the owner does not despair, Jewish law has no time limit after which the lost property passes into the finder’s ownership. At times Jewish law says ‘let it remain until Elijah comes,’ that is, forever (see the sources cited by Judge Elon in the Civil Appeal, section 13).

The other differences between the rules of civil law and Jewish law are also to be interpreted against a similar background. As we have seen, Jewish law distinguishes between the area outside the table and the area from the table inward. We have already mentioned that this distinction too should be understood against the background of the different purpose of the laws of returning lost property in Jewish law. Jewish law does not establish these laws with a view to optimal return to the person who lost the item, but on the basis of an a priori theoretical determination of ownership. According to Jewish law, ownership is not determined as a derivative of the party obligated to return it, but by ‘objective’ considerations of property law. Ownership belongs either to the person who lost the item or to the finder, depending on whether there was despair or not (which itself depends on the location of the item and the character of that place), and nothing more, without any considerations of goals and purposes whatsoever. Therefore, according to Jewish law, throughout the shop area the lost property no longer belongs to the person who lost it (since many people pass there, and therefore he despairs). Even if he comes and asks for it, Jewish law does not obligate the finder to give him his lost property. The only question that arises is whether it should be given to the finder or to the money changer, and on that we have already remarked above.

Summary: the differences between the two approaches

As we have seen, in Jewish law despair is the foundational plane of the discussion. It is what determines who the owner is, and from that the duty of return is derived. By contrast, in civil law despair appears only incidentally. When we wish to transfer the lost property to the finder, we make a normative determination that ‘the owner is regarded as if he had despaired’ (and in the bill even this does not appear). In Jewish law despair is a legal fact, and it is the point of departure of the discussion. The ownership that terminates by virtue of it is likewise a legal fact: if in fact there was despair, then there is here a ‘factual’ determination that the person who lost the item is no longer its owner.

There is no better summary than Judge Barak’s own words (in the Civil Appeal), where he writes as follows:

An examination of the policy of the Lost Property Law leads to the conclusion that the decision as to whom ownership in the lost property shall be granted—whether to the original finder or to the owner of the place where the lost property was found—ought not be made solely according to the degree of justice involved in granting ownership to this one or that one. According to such standards, it is possible that in every case ownership should be granted to the finder, who in his great fairness took the trouble to take the lost property, notify the owner of the place, and deliver it to him. But this was not the legislature’s approach. More than that: justice may perhaps require dividing the ownership between the two. There will certainly be cases in which justice requires that ownership not be granted to anyone. Indeed, the legislature itself anticipated this possibility when it provided that ‘the Minister of Police may, in consultation with the Minister of Justice, provide by regulations that the provisions of this section shall not apply to valuable lost property, or property that may reasonably be assumed to have special sentimental value to its owners, or to other special kinds of lost property, or that they shall apply with extension of the periods therein provided or with other changes prescribed in the regulations’ (section 4(c) of the law). It follows that the determination of the question of ownership is merely a means of realizing the principal purpose of the law, namely, returning the lost property to its owner.

From this a further conclusion follows. It seems to me that in deciding whether lost property was found on another person’s premises or not, there is no room to resort to the question whether that other person is regarded in the eyes of the law as having possessed the lost property even before it was discovered by the finder… This approach—who was the first possessor—does not seem to us relevant to the principal purposes of the Lost Property Law… Indeed, it seems to me that the legislature did not adopt the test of possession as a standard for deciding whether lost property was found on another person’s premises. ‘Premises’ and ‘possession’ are not one and the same. Whatever the laws of possession may be… another person’s premises for purposes of the Lost Property Law are not to be determined by them, but by the principal purposes of the law—returning the lost property to its owner.

We should note that Judge Elon (at the end of the Further Hearing) disputes this interpretation of section 3 by Judge Barak, and interprets this section (and apparently section 4(a) as well, which determines the finder’s ownership of the lost property) as coming to determine ownership according to possession, that is, according to property law. This is in direct opposition to Barak’s remarks, in which he refuses to see any implication of the laws of possession for the Lost Property Law.

Implications regarding differences in the character of the reasoning

As a consequence of the distinction between these purposes, there is also a difference in the character of the reasoning that arises with respect to questions of ownership of lost property and its relation to the duty of return. In the statute, the reasoning is purposive (as can be clearly seen from Judge Barak’s quotation above): what will help the purpose of making the return of lost property to the person who lost it more efficient, and what will hinder it. In Jewish law, however, the reasoning of the decisors in these questions is never purposive. In Jewish law, the laws of returning lost property are part of property law. The decisors discuss to whom the lost property belongs, and from that is derived the duty to return it, or the absence of such a duty. These are causal arguments, not teleological ones. The duty to return, or the exemption from that duty, arises from causes (= there was or was not despair; the lost property belongs to the finder or to the owner who lost it), and not from purposes (= goals and tendencies). Hence Judge Elon in the Further Hearing determines that the laws of possession are what underlie section 3 of the statute.

Judge Barak, by contrast, in the quotation above, states explicitly that possession and its laws are irrelevant to the definition of ‘premises’ and to ownership with respect to lost property. Judge Barak raises various considerations for determining ownership, and none of them concerns property law; all concern only the purpose of the statute. Ownership of the lost property too is subordinate to purpose and end. All his considerations are teleological alone, and he rejects other considerations out of hand.

To summarize: in Jewish law ownership is a legal fact, not subject to considerations of tendency and purpose. It is what determines the existence or non-existence of the duty of return, which is derived from it. In the statute, by contrast, the situation is the opposite: ownership is a derivative of the duty of return. The assumption is that the person who lost the item is the owner, but at times we can determine a change in ownership out of considerations of efficiency in returning it.

On the underlying difficulty

We shall now ask ourselves why there is indeed such a difference of purpose between Jewish law and the statute. Is this difference accidental, or is it connected to deeper and more general differences between these two disciplines?

As a point of departure for the discussion, we should note that considerations of justice and fairness apparently lead specifically to the legal conception of returning lost property, and not to the halakhic conception. The person who lost the item is the lawful owner of the lost property. He is the one who labored over it, and he is the one who acquired it. The finder wants to acquire it as ownerless property, without any real justification.

We should remark that the Sages themselves recognize that one who returns lost property to the owner after despair has done something good. That is, even the sages of Jewish law point out that justice and fairness lead to the legal conception and not to that of Jewish law. These matters arise from the Talmud in Bava Metzia 24b and are ruled by Maimonides, who writes as follows (Laws of Robbery and Lost Property 11:7):

If most of the city are gentiles, then if one found it in a place in the city where the majority of those present are Jews, he must announce it. But if he found it on a major thoroughfare or a large plaza, in synagogues or study halls where gentiles are constantly present, and in any place where the public is commonly present, the lost item is his—even if a Jew comes and gives its identifying marks, for the owner despaired of it when it fell, because he says, ‘A gentile found it.’ Even though it is his, one who wishes to follow the good and upright path and act beyond the letter of the law returns the lost property to a Jew when he gives its identifying marks.

And in Tosafot, s.v. ‘lifnim,’ in the passage there, it is explained that this is because the finder loses nothing. In other words, considerations of justice clearly instruct us to return the lost property to the person who lost it, who labored over it and lawfully acquired it. It does not properly belong to the finder, and he loses nothing by returning it. Some decisors go even further and rule that if the finder is a wealthy person, he is compelled to return the lost property even in a case of despair (see Rema, Hoshen Mishpat 262:5, and Darkhei Moshe and Shakh there in the name of Ravyah and Ra'avan).[12]

If so, the question now arises: why not change the halakhic formalism in order to adapt it to principles of justice and fairness? Moreover, why was Jewish law not framed differently from the outset? Why should the fact that the owner despairs terminate the finder’s duty of return? Why should we not obligate the finder to return the lost property to the one who lost it (within the limits of efficiency, as is accepted in civil law)?[13]

From this it clearly follows that in Jewish law there are additional considerations, beyond those of justice and fairness, that guide it in its approach to returning lost property. What are these additional considerations that cause Jewish law to be shaped in so different a way, and seemingly also in an unreasonable and unjust fashion?

From what we have seen thus far, it appears clearly that Jewish law does not formulate property law teleologically. These laws are not determined on the basis of tendencies and for the sake of attaining ends. They are objective determinations, ostensibly determinations of reality: either Reuven is the owner, or Shimon is the owner. If there was despair, Reuven’s ownership terminated, and Shimon consequently acquired the lost object. The considerations are formal legal considerations, not considerations of justice.

Jewish law views ownership as a matter of fact. Therefore, it does not think that the determination of ownership is entrusted to it. Even considerations of justice and fairness do not lead the sages of Jewish law to shape property law differently. The reason is that facts cannot be changed. Principles of justice and fairness can, at most, constitute an additional layer of demands, but cannot define the laws of ownership themselves. Civil law, by contrast, sees ownership as a normative-conventionalist (= consensual) determination entrusted to the legislature, and determined by it according to considerations of justice and fairness. There are no ‘facts’ here that cannot be changed.

A first proposed explanation for these differences: who is the ‘legislator’?

One might have attributed the difference between these approaches to a structural distinction that clearly exists between Jewish law and civil legal systems. In Jewish law, the legislator is the Holy One, blessed be He, and the law is what He wrote in His Torah. The Sages are interpreters, and at most they enact ordinances that qualify Torah law. The basic purposes were established in the Written and Oral Torah, and they are imposed upon the sages of all generations. At the level of Torah law, the role of the Sages is exhausted in interpretation—creative or not, but always interpretation. Interpretation, by its very nature, if it is honest, must fit the text being interpreted and not alter its spirit.

By contrast, in every civil legal system there is a legislative authority empowered to enact laws and amend existing laws according to the accepted mechanisms of that system. Here there are no given purposes, and the legislator is subject to nothing, except general principles of justice and fairness. Whatever it decides, it can also carry into effect.

Thus, a civil legal system can shape laws as it sees fit. If there is something that in the legislator’s eyes does not conform to principles of justice and fairness, it is in its power to change it, and this is indeed what it seeks to do in all proper legal systems. In Jewish law, by contrast, even if we discover that something does not conform to principles of justice and fairness, it is not in our power to change it (except perhaps through creative interpretation or by means of rabbinic ordinances). The purposes are dictated to us from above.

This difference apparently explains the distinction we noted regarding the laws of returning lost property. It is clear that Jewish law cannot adapt itself to considerations of justice and fairness, since its principles are given to us from above. This explains why the considerations that arise in halakhic discussions are not teleological but causal. Jewish law does not determine a ruling because of the benefits it brings, but because of halakhic factors and causes. In Jewish law, the question whether the finder is the owner or whether the owner who lost it remains the owner is not determined by considerations of justice and efficiency of return, but by the question who really is the ‘true’ owner. The basic question is what the Torah determined with respect to such a situation. Therefore ownership, which is a legal fact, is the cause of the duty of return, and not that the duty is the cause of ownership. The directives of the Giver of the Torah constitute the cause of halakhic reasoning. The halakhic decisor may not rule according to purposes that seem good to him, however worthy they may be, but according to the directives of the Torah (if there are such directives). Of course, within the framework charted by Jewish law, the decisor can maneuver quite a bit and bring the law as close as possible to justice and moral fairness.[14]

Yet even so, despite this difference—which is certainly correct—the question still remains: why indeed does Torah law, as determined from above, have a purpose that does not accord with justice and fairness? Even if we cannot change it, why is there any need for change in the first place? Were justice and fairness not important to the Holy One Himself? The question that arises here concerns the purpose of the Torah itself, and not only our ability to change the Torah’s purposes.

Moreover, the halakhic purpose as we have described it is not explicitly written anywhere in the Torah. The concept of despair is an innovation of the Sages (and the commentators have greatly disagreed regarding its precise meaning, for example regarding its relation to abandonment and the like, and this is not the place to elaborate). The determinations of ownership were, almost entirely, made by the Sages, in light of their interpretation of the Torah and mainly on the basis of reason. The purpose of the laws of returning lost property too was determined according to the interpretation of the Sages, and apparently according to rational-moral-legal principles that seemed to them correct and to arise from the Torah. If so, the question now sharpens: why indeed did the Sages find the halakhic, causal purpose to be the correct one, rather than the legal, teleological purpose, which is apparently more decent and fitting? Why should they not use purposive-teleological interpretation of the principles of the Torah, on the basis of principles of justice and fairness? To this there is no answer in the distinction, correct though it is, that we presented above.

Against this background let us recall what we already mentioned: in Israeli law there is almost no hint that the purpose of the Lost Property Law is efficiency of return.[15] We noted that some of the majority judges adduced proof of this from the term ‘Lost Property Law,’ but that is at most begging the question. After all, this terminology is halakhic, and in Jewish law, as we have seen, the purpose is different.[16] Some did not even trouble to bring proof of this, apparently because of the fairness considerations mentioned above. Judge Barak, by contrast, chooses to bring proof of it from American law (see the Further Hearing), and draws from there (and not from Jewish law, as Judge Elon does) the rationale of the Israeli statute.

It follows that the majority judges’ very interpretive choice (with which Elon also agrees), according to which the purpose of the civil statute is efficiency of return, is itself at bottom nothing but a result of those same considerations of justice and fairness. The reasons are merely an after-the-fact justification of that obvious rationale. This fact throws into even sharper relief the question why the sages of Jewish law did not choose this interpretive path, and why the Torah itself did not determine the purpose of this commandment in that way.

A second proposed explanation: metaphysics and justice at the root of the normative plane

We arrive here at a different proposal. From the picture we have presented thus far it emerges that although the Torah and its sages fully recognize that justice and fairness require giving the lost property to the person who lost it even after despair, Jewish law does not establish a duty to do so. The reason for this, as we have already noted more than once, is that Jewish law regards ownership law as an objective fact, not subject to purposive interpretation. Even if there is a purpose, positive in itself, of efficient return to the owner who lost it, this cannot change the principles by which ownership of property is determined. The fact that there was despair leads us to the conclusion that the object no longer belongs to the owner who lost it, since despair severs the connection between him and his property. Consequently, in such a situation the duty to return the lost property to him lapses. Why not determine that despair does not remove the lost property from the owner’s possession, as the statute does? The answer is apparently that the Sages’ view is that this determination is not entrusted to us.

The fact that despair terminates ownership is a description of legal reality, and not the result of one purpose or another. We already mentioned that in Jewish law ownership is a metaphysical relation between a person and his acquisitions. Despair severs this metaphysical bond. That is a fact, not an arbitrary determination that can be altered according to tendencies and ends.

Similarly, the fact that the lost property was found on a particular person’s premises grants it to him after the owner has despaired, even if this does not improve the chances of return. What determines the matter here are the laws of possession and acquisition, not considerations of return.

The statute, by contrast, tends to see the determination of ownership as a question entrusted to society and to the legislature, and therefore as a question that can and should be determined according to considerations of justice and fairness. There are no ‘facts’ here that bind the legislature. It is the legislature that creates the legal facts as it sees fit. The statute does not recognize an ‘objective’ metaphysical plane underlying the laws of acquisition, ownership, and possession, and therefore it permits itself to shape them subject to principles of justice and fairness as they appear to it.

For this reason we see that the majority judges determine ownership of the lost property—both for the finder and for the owner of the premises—according to teleological considerations, and not according to the laws of possession or acquisition. The ownership of the person who lost the item, by contrast, appears at first glance to be an ‘objective’ datum even according to civil law, for it does not change even after despair. But if we look carefully, we shall see that it too changes on the basis of considerations of efficiency of return. Section 4(a) determines that after four months the lost property passes to the finder (provided he fulfilled his legal duty and made the required effort to return it to the person who lost it), even though the latter is the owner, since ‘he is regarded as one who has despaired.’ As we have seen, this ownership too is determined on the basis of considerations of the likelihood of return.

This difference also radiates to the character of the reasoning used in the two systems. The reasoning in the statute has a purposive character, since even the facts are determined according to the purposes regarded as proper by the legislature. The norms of the duty of return determine the ‘facts’ with respect to ownership. In Jewish law, by contrast, the reasoning has a causal character: the legal facts, which are an objective datum that must be taken into account, dictate the normative conclusion regarding the duty of return.

The picture that emerges from all that has been said thus far is that in Jewish law the norms reflect a factual-metaphysical plane, whereas in the statute they reflect only principles of justice, fairness, and social order and the like (that is, norms existing only in the legal-social sphere, and not in reality itself. In other words: this is not metaphysics but law). That is precisely what we stated above, in the introduction to this article.

We now turn to see the appearance of this same distinction in the context of copyright and intellectual property. There we will see similar differences between the types of argument employed by Jewish law and by civil law, and we will ground them too in the difference in the infrastructure on which the norms are placed: metaphysical (in Jewish law) or moral-social (in law).

A note from the Maharal

After writing all of this, I was directed to the Maharal’s remarks in Be’er HaGolah, the second well (pp. 31–32 in the edition of Sifrei Maharal), who also struggles with this very point:

In the second chapter of Bava Metzia (21b) they said there that one need not return lost property after the owner’s despair. This seems far-fetched to people—that a person should take what is not his, though he did not labor or toil for it, and covet another’s money. This is not in accordance with civil law, for civil law requires returning lost property even after the owner has despaired of it.

The reason is that civil law obligates whatever ought to be done for the betterment of the world, even if reason does not require that thing, but only because that is what improves the world. Therefore civil law is sometimes stricter in a matter, even though according to reason and straight judgment it would not have been necessary to do so. And sometimes civil law is exceedingly lenient when that act is not needed for the betterment of the world, even though according to reason it would not be proper—only according to civil law.

Therefore, according to civil law, one must return the lost property after the owner’s despair, and this is a stringency. And conversely, if one found silver vessels or gold vessels and announced them once or twice, and no one sought the lost property for a year or two, he keeps them for himself and uses that vessel, because there is no further betterment of the world in this after he has announced it several times and waited a year or two or more; the owner will no longer come.

But this is not according to the Torah, for if one found silver vessels or gold vessels and announced them many times, they remain forbidden to him forever. Rather, they must lie until Elijah comes; he may never touch them. Thus they were very stringent.

And all this is because the words of the Sages are according to the Torah. For all words of Torah are measured by intellect, and whatever is proper according to intellect is proper to do. As the Torah says (Deuteronomy 4): ‘Observe them and do them, for that is your wisdom…’ It is not a civil code that sets matters according to opinion and thought; rather, the Torah is entirely intellectual and does not turn to mere human reasoning.

The Maharal writes that ‘civil religion’ is the system of laws that strives for the betterment of the world. But the Torah proceeds according to intellect (= the legal facts), and not according to improving the world. This yields stringencies (when use of an object is forbidden because its owner had not despaired before it was taken, even though he will apparently never come to claim it) and leniencies (that it need not be returned after despair). In both cases we are dealing with a ruling according to ‘intellect’ that contradicts the betterment of the world.

The Maharal then explains why the Torah indeed behaves in this way, and argues that property is connected to its owner by a metaphysical bond, and after despair that bond is severed. In other words, despair in Jewish law is not a criterion of efficiency, or an exemption from return when there is no chance the owner will come, but a metaphysical criterion expressing a severance between the person and his property; such a severance terminates ownership, and therefore also the duty of return. Let us add again that, beyond the letter of the law, the Sages do recommend returning lost property even in such situations, and this is where the betterment of the world enters.

And these are precisely our words. The statute aims at improving the world, and therefore operates according to civil religion. Jewish law, however, reflects a legal reality that precedes the rules of fairness and justice, and therefore it does not necessarily accord with justice and fairness. The Maharal refers to this metaphysical reality as ‘intellect,’ in contrast to ‘reasoning,’ which is more closely tied to civility and to improving the world.

C. Intellectual Property in Jewish Law and Civil Law

Introduction

The laws of intellectual property also express sharply and clearly the difference we noted above between Jewish law and civil legal systems. Closer examination shows that this distinction is not so simple, but it certainly exists.

Intellectual property and copyright concern the rights of a creator over his creation. We are not speaking of a physical object, such as a book or a work of art, but of the idea or information embodied in it. Copying a book or another work of art does not harm a person’s ownership of the book as a physical object. But it does harm the author’s rights over the content of the book or work: both moral rights (that his name be mentioned on the work) and property rights (receiving payment for purchasing or using the content of the book or work).

Thus, the creation that constitutes intellectual property is not a tangible object. It is generally anchored in such an object (the content is printed in a book or painted on canvas), but the issue in intellectual property concerns the content and not the physical object.

These questions became far more relevant from the invention of printing onward, both in Jewish law and in general law, since printing is a very powerful instrument for reproducing works in mass quantities. Before that time, the possibility of trading in another person’s work was very limited, and therefore discussion of such acts was sparse.

Precisely because of this historical fact, the laws of intellectual property can serve as a very powerful indicator of the ways legal systems deal with a new issue. As we shall see, not surprisingly, Jewish law confronts these questions in ways that attempt (without great success) to anchor the right in property law, and when no choice remains it uses side mechanisms, such as moral duties, dina de-malkhuta, rabbinic ordinances, and the like. Law, by contrast, constructs the laws of intellectual property ex nihilo according to the needs and purposes that guide it.

Anyone who reads the halakhic discussions can easily identify a certain distress, since the anchors proposed for these rights in Torah law are unconvincing. By contrast, in legal discussions it is difficult to discern such distress because of problems originating in property law. At most there are questions as to how best to shape the system of intellectual property law. Jewish law tries to find property-law ‘causes’ for a right in intellectual property, whereas law shapes these property laws in light of the needs and ends it sets for itself.

Here too one can explain this by saying that, at least at the Torah level, the sages of Jewish law, unlike civil legislators, are not legislators but interpreters. But here we again ask: how is it that the Torah itself did not anchor copyright in property law? The question passes to the court of the Giver of the Torah. Is there really no justification, at the level of Torah law, for applying property law to copyright? Justice and fairness certainly instruct us that there is. If so, why do we not find a clear source for this in the Torah? And why are teleological considerations (purposes and tendencies), of which the sages of Jewish law are surely aware as well (as we shall see below), not sufficient to create fitting property laws as needed, even by way of interpretation?

Intellectual property and copyright in Jewish law[17]

As stated, there is considerable perplexity in Jewish law surrounding the subject of copyright. As we mentioned, here too the basic problem is rooted in property law, since it is accepted among decisors that ownership cannot exist with respect to abstract entities. Maimonides writes this as follows (Laws of Sale 22:13–14):

A person cannot transfer ownership, whether by sale or by gift, except of something that has substance. But something that has no substance cannot be acquired. How so? A person cannot transfer ownership of the fragrance of this apple, or the taste of this honey, or the appearance of this crystal, and likewise anything similar.

The plain meaning of Maimonides’ language indicates that there is no ownership over entities lacking physical substance. As noted, the question of intellectual property concerns ownership over information or an idea, that is, over an abstract entity. Therefore the basic problem with which Jewish law grapples regarding intellectual property is how, if at all, such rights can be anchored in the creator’s property rights in his creation.

The assumption underlying this is that protection of a person’s intellectual property must be based on the laws of theft. Theft, by halakhic definition, is an infringement of a person’s property. For that reason all eyes turn to property law. There we encounter the state of affairs described in the halakhic ruling above from Maimonides, and we thus find ourselves before a broken halakhic trough.

There are several attempts to deal with this difficulty. Some are based on rabbinic law, and some technically cover only part of the problems that arise in this context (for example, a proprietary right but not a moral right; or injury to a durable object containing a work, but not injury to the proprietary right in the work; injury to earning power but not ownership of an idea; and so on). To illustrate the matter, let us bring several of the central proposals:[18]

Some tried to anchor the matter in the rule of encroaching on another’s trade and in boundary infringement. It is quite clear that one cannot arrive through these mechanisms at a Torah prohibition (even though boundary infringement is a Torah prohibition, it was said regarding changing land boundaries, and only in the Land of Israel, so it is difficult to derive from it a Torah prohibition against violating copyright rights).
The more serious problem is that this rule does not deal at all with copyright but with the right to earn a livelihood. This rule protects tradesmen, not ideas. There is no contact here at all with the originality of the idea or with its connection to the first person who conceived it. Therefore it is clear that one cannot derive from here a right of intellectual property in the desired sense.

Some brought a source for the duty of payment for infringement of copyright from the law of benefit. As is well known, Jewish law determines that in a case of ‘this one benefits and that one loses,’ the beneficiary must pay the one who incurred the loss for his loss.
This mechanism too does not provide a complete answer to the problem of copyright. First, it grounds the duty of payment according to benefit, and certainly does not provide an answer to a moral right. Second, it does not define ownerships or prohibitions, but only establishes a duty of compensation. Third, it concerns injury to the owner of the object, not necessarily to the originator of the idea. The very application of the rule ‘this one benefits and that one loses’ to a situation of infringing copyright is problematic. A substantial number of decisors require that the benefit be derived from a durable object. But the main point is that even in this mechanism, the basis of liability is not the author’s ownership of an original idea that is the fruit of his spirit, but ownership of an asset. Benefit from another’s object, even if he is not its creator, likewise obligates payment. Conversely, benefit specifically from an idea or work in its abstract sense, in the straightforward reading, cannot be subsumed under this duty.

Some proposed the mechanism of ‘acting contrary to the intention of the householder.’ Here too we are speaking of a tangible object, for a ‘householder’ (= ownership) is required.
Some have raised vague claims regarding a right, based on reason alone, of a person over his creation. Some have even gone so far as to define this as Torah-level theft, but without any explanation.[19] It is unclear how this can be reconciled with Maimonides’ determination above that Jewish law does not recognize ownership over abstract entities.
As stated, these claims are unreasoned, and therefore their halakhic status is unclear. Some decisors rely on the fact that among the nations of the world it is obvious to all that a creator has a right over his creation, and therefore it is obvious that Jewish law must be the same. Here a substantial halakhic argument is lacking, and it is therefore difficult to judge the quality of these reasons.[20]

Some relied on the custom of craftsmen. Here too the status of this halakhic rule is unclear. Beyond that, we are not dealing with a defined guild of craftsmen. As for agreement regarding ownership in something lacking substance, it is quite unclear whether such agreement is effective (there is a dispute among the medieval authorities regarding the validity of a custom to transfer something not yet in existence. It is not clear that such a custom is halakhically effective at all).
Some grounded intellectual property in dina de-malkhuta. Here, of course, we are not dealing with primary Jewish law, but with a side solution, not a substantive one. On the contrary, there is here an implicit admission that Jewish law does not find a way to prohibit infringement of intellectual property.
Some brought here the rule of ‘and you shall do what is right and good,’ but even if we agree that protecting copyright can be included in this rule, it is clear that it belongs to the realm of morality and not to the realm of formal Torah law. It is certainly difficult to derive from this a duty of compensation.
In my article in Tehumin I suggest a source for the claim that Jewish law indeed does not recognize ownership over abstract entities, but information is an exception. Information is owned even according to Jewish law, and the basis of the matter lies in the prohibition of deception. To the best of my knowledge, this is the only line of reasoning that offers a Torah-level basis for a proprietary right in intellectual property.
The common denominator of all these reasons is that they try to anchor intellectual property in Torah property law, and once they fail they turn to other technical channels. There is not even one teleological argument here. No decisor raises arguments of the type we will generally encounter in the next section, when we discuss the approach of civil legal systems to this issue, such as: it is proper to establish a right in intellectual property because otherwise society will not progress. Therefore the laws of theft should be interpreted in a way that grants the creator rights over his creation.

We should note one exception, namely the Hatam Sofer, who raises such a consideration when he says that creators’ rights should be protected because without such protection Torah scholarship would suffer loss (people would not publish the fruit of their labor, and perhaps they would also produce less in the realm of Torah).[21] But here too it is quite clear that this is a matter of good policy, or at most a contemporary ordinance, and certainly not a Torah prohibition.

For purposes of comparison, let us now turn to a brief survey of legal discussions of this issue.

Intellectual property and copyright in general law[22]

In this survey we will not deal with the full scope of the subject, but will bring an eclectic collection of sources that raise teleological arguments as a basis for intellectual property and copyright. Naturally, we will focus on Israeli law and case law, while approaches current in the world at large will be brought mainly as general background.

At the outset we should note that in general legal sources one can also find causal arguments for copyright, of the type we saw in the previous section (that is, arguments based on property law). But usually the arguments are teleological in character (below we will see exceptions and discuss them briefly). In Jewish law, by contrast, as we have seen above, the reasoning is causal only.

The point of departure for our survey is that the difficulty with which legal sources grapple differs in essence from that which troubles halakhic decisors. As we have seen, Jewish law begins with the assumption that the only possible anchor for copyright is the prohibition of theft—an assumption that immediately channels the discussion into intellectual property and property law in general, and there lies the ‘mine’ that according to Jewish law there is no ownership over an abstract entity. In legal systems, by contrast, this problem does not exist. They do not come to solve a theoretical problem, but a practical one: how to define the laws of copyright and intellectual property from the outset in a way that suits social purposes and goals. There is no a priori restriction there confining the discussion specifically to property law, nor is there any a priori problem that prevents applying property law to entities of this kind. More than that: the very discussion whether to channel the matter into property law is itself conducted by teleological tools (that is, whether this will serve the purposes or not).

By way of paraphrase, one might say that the impression one receives from reading the legal material is that we are not dealing here with a difficulty but with a question. In Jewish law, by contrast, we are dealing with a difficulty. More than that: to this day no adequate theoretical solution has been found for this difficulty. In law, the problem is how to define the statute so that it accords with the desired purposes. In Jewish law, however, the question is factual in character: do creators have rights over their creations (or intellectual property) or not? Is there a source for this? And if not (and most decisors indeed think not), then how can life nevertheless be conducted in a proper and orderly fashion?

It should be noted that in legal theory there are two principal approaches to the question of copyright: 1. the social-utilitarian theory; 2. the property theory.[23]

The social-utilitarian theory (also called the consequentialist approach, or in our terms: teleological) sees the improvement of society’s condition as its principal goal. Human progress and culture require, on the one hand, recognition of creators’ rights, and on the other hand their limitation for the sake of the development of social creativity on the basis of earlier works. Broadly speaking, this approach holds that creators’ rights should be recognized only in those cases in which this benefits society as a whole. It views the creator’s proprietary right merely as a means to promote public welfare, not as respect for him as an individual himself (is one not naturally reminded of the similar approach regarding returning lost property described above?). Not surprisingly, this approach characterizes American law (pragmatism—that is, reasoning about what is proper and true on the basis of the benefit arising from it—characterizes American thought in general, dating back to the ‘Founding Fathers’).[24]

English law, by contrast, is also based on considerations deriving from another approach, namely the property theory. According to this theory, the creator’s right over his creation is derived from a natural right, which the legal system merely recognizes de facto and anchors in law.

If in the utilitarian-consequentialist approach the reasoning is teleological—that is, the creator’s property in his creation is the result of considerations of utility and social purposes—then in the proprietary approach the reasoning for copyright is manifestly causal. According to this approach, creators’ rights are based on a natural right, quasi-proprietary in nature, over their creations, exactly the opposite of the teleological reasoning that characterizes the previous approach.

Not surprisingly, the accepted grounding for the proprietary approach is in the labor theory of the English philosopher John Locke, which has a distinctly religious coloring. Locke opens his discussion by arguing that the earth was given to human beings by God, who also gave a person ownership over the products of his body and spirit. There is here a religious grounding for property law in general more than for intellectual property in particular. From here it is easy to arrive at a conception according to which the laws of acquisition and ownership are ‘objective facts’ that precede legislation.

Viewing property law in general as a layer that exists prior to statute and legislation (see our remarks in the previous chapter regarding returning lost property) apparently requires some religious coloring. From a secular perspective, it is unclear who could determine ownership apart from an agreement of society expressed in legislation. In such an approach, naturally, metaphysics is not part of the world-picture. It should therefore not surprise us to discover that Jewish law’s own approach to property law—likewise a system with a religious orientation and root—is very similar to the one described by Locke. ‘Legal facts’ that precede legislation are not easy to digest from a secular legal point of view.

And yet, even in England, with its proprietary orientation, the primary basis for copyright is the Statute of Anne (enacted in 1709 and named after the Queen of England of that period), whose preamble states that the law is intended for ‘the encouragement of learned men to compose and write useful books.’ That is, even the view of intellectual property as part of property law is grounded in teleological reasoning. Here we see that the distinction between the two approaches is almost empty of substantive content.

In Israeli law there is no rationale or statement of purpose in the text of the statute itself regarding copyright law; these were shaped mainly in judicial decisions (which quite often resort to other legal systems as well). One can discern a tendency in both directions, the utilitarian and the proprietary, though in recent years there has been a clear dominance of utilitarian (teleological) reasoning. It should be noted that even the combination of the two approaches is based on considerations of utility and purpose, and therefore the difference between the civil legal system and Jewish law on this point is unequivocal.

In a number of judgments we find distinct proprietary formulations (for example, the judgments in Almogor,[25] Hershko,[26] Goldenberg,[27] ACUM,[28] Walt Disney,[29] and Strausky[30]). In the Strausky judgment, for example, there is a distinctly proprietary determination, in these words:

The various copyright laws are intended to protect one who has created an original work from competing copiers. English common law recognized already from the beginning of the fifteenth century that an exclusive right should be granted for a defined period to the original creator to reproduce and sell copies of his works—namely copyright—for if others were permitted to do so, they would be robbing the fruit of his talents and efforts.

It is interesting to note that the judge ignores the social-utilitarian foundation that is explicitly and declaredly set at the basis of the Statute of Anne. We see again that even the proprietary approach, in its appearance in civil law, is grounded implicitly or explicitly in considerations of utility and is argued teleologically.

In 1989 the Interlego judgment was handed down,[31] and it is considered a turning point in the approach of Israeli case law to copyright, setting its direction from that time onward. President Shamgar in Interlego determines that the purpose of copyright is to encourage diversity in expressions and in the existing body of knowledge and to enrich the world of expression, while ensuring their widest possible dissemination to the public. Copyright law is intended to create an incentive for the private production of public goods, that is, goods for which market forces alone do not provide sufficient incentive for their creation. In addition, copyright law seeks to create a balance between protection of the creator’s original work and encouragement of the development of new original works built around the idea underlying the protected work (a purpose that leads to a relaxation of the creator’s right).

Shamgar refers explicitly to the tension between the proprietary conception and the utilitarian conception, and challenges the labor theory on grounds of free competition and limitation of the ability of future creators to continue developing society. Here we see in the clearest way that the attitude toward the proprietary right, even if its existence is recognized, is not as toward an ‘objective fact.’ This right draws nourishment from considerations of social utility, and is even limited and qualified by them. The balancing between the two approaches is itself done on a utilitarian-teleological basis. These considerations appear in many judgments and in legal articles as well.[32]

Birnhack (in his aforementioned article, p. 387) states that in recent years a clear trend has crystallized in Israeli case law, according to which the justification for copyright is in the social-utilitarian spirit of American law. The expressions of this approach can also be seen in various details and qualifications that developed in judicial decisions with respect to copyright, but this is not the place to elaborate.

Summary: Jewish law and civil law

In summary, one can see differences between Jewish law and civil law with respect to copyright and intellectual property on several planes:

A. Jewish law seeks a grounding in property law, and its reasoning is causal rather than teleological. Civil law, by contrast, is based chiefly on purposes, and the arguments it raises are likewise teleological.

B. Civil law does indeed also raise causal-proprietary arguments, but chiefly teleological ones. Jewish law, by contrast, raises only causal-proprietary considerations and never teleological ones.

C. As stated, even in law there arise property-law arguments, but their foundation in Locke has a religious coloring. And indeed, in legal case law—at least Israeli case law—they are not mentioned. Even where proprietary rights are involved, they are shaped and grounded (and even qualified) by considerations of tendencies and purposes, and not by objective legal facts.

D. The overall impression is that the law is searching for its way in order to shape intellectual property law according to its purposes and according to what seems to it just and fair. Jewish law, by contrast, is in distress, twisting itself in order to overcome the ‘objective’ constraints imposed upon it, according to which there are no proprietary rights over abstract entities, and yet to try to act in accordance with justice and fairness.

Once again we see that according to Jewish law the laws of ownership are ‘objective facts’ not entrusted to our hands (at least at the Torah level). Even the Holy One Himself, as it were, ‘cannot overcome them,’ and therefore the Torah does not formulate ownership according to purposes. It relates to ownership as a metaphysical reality. More than that, the Sages too understand the Torah’s approach this way, and therefore they do not change it even in their interpretation of the Torah and its laws. Even the Oral Torah, from which the vast majority of property laws are produced, consistently preserves this tendency. Law, by contrast, conceives ownership as a convention that has social and moral purposes entrusted to the legislature, and therefore permits itself to formulate them as it sees fit. The laws of intellectual property too are not conceived in the legal sphere as ‘facts,’ and they are certainly not imposed on the legislature in any way whatsoever.

D. The roots and scope of the distinction between law and Jewish law

Introduction: on legal metaphysics and its meanings

In the previous chapters we pointed to a distinction between Jewish law and civil legal systems with respect to the laws of ownership. Jewish law sees the laws of ownership as objective facts, and moral purposes cannot shape them, even if the price is a deviation from morality and fairness. Law, by contrast, sees the laws of acquisition as part of the social agreement that forms their basis, and therefore can also shape, change, and qualify them as it wishes.

In our discussion in the previous chapter of John Locke’s proprietary approach, we hinted at the root of this difference. Seeing ownership as an objective fact that no one can change (and, as it were, not even the Holy One, blessed be He) stems from conceiving it as a metaphysical reality. This stands opposite the legal approach, which sees ownership as a social convention.

The reason for this seems self-evident. The legislator cannot determine facts but only conventions. Facts in reality are the concern of the Holy One Himself. He determines the laws of nature, the nature of being, and of course also metaphysics. In a secular legal world there is a clear tendency not to recognize metaphysical realities. It is therefore obvious that there is no possible source for the emergence of ‘legal facts’ imposed on the legislature and on society.

The Oral Torah, too, is nothing but an interpretive act applied to the Written Torah.[33] As such, it reveals and exposes the metaphysical reality latent within it. Therefore the Sages cannot change the legal ‘facts’ on grounds of tendencies and purposes. Even purposive interpretation cannot change reality.[34]

From this argument it clearly follows that this distinction between the different approaches of Jewish law and of law is not accidental. Law, if it does not wish to resort explicitly to religious-metaphysical roots, can hardly relate to legal norms as facts. With respect to Jewish law, however, our claim is empirical. By its very nature it could have been purposive and teleological rather than causal, but we discover that at least with respect to the laws of acquisition and ownership it is not. What about other areas of Jewish law? Do we find in them too a similar metaphysical position?

In this chapter we will try to broaden the picture and understand the significance of the distinction described above from the perspective of jurisprudence. After that, we will turn to examine the metaphysical root of Jewish law in general. We shall ask ourselves whether in additional areas of Jewish law there are also metaphysical halakhic facts.

Each of these topics requires extensive treatment, and we cannot do that here. We will only try to hint at the principal implications that arise from the discussion we have conducted thus far.

Is Jewish law ‘natural law’?[35]

A discussion similar to the one we have conducted here takes place in jurisprudence. Some wish to view the legal system as the product of some objective reality. This is the approach called ‘natural law,’ and its roots are distinctly religious. Its most prominent representative is Thomas Aquinas, an important Christian thinker of the early Middle Ages. The alternative, which has been more dominant in recent generations, is the conception of law as the product of social agreement through legislation. This second approach often leads, though not necessarily, to what is called ‘legal positivism.’

Many legal norms are related, or even overlap, with moral norms or some natural order (natural = external to the legal sphere). Morality, for example, is a primary source of content for the system of legal norms. Does the morality of a norm constitute a condition for its legal validity? Is there any connection at all between the sources of content of a legal norm and its validity? Can one examine a norm belonging to the legal system against some natural law and say that it is right or not right?

Apparently not. At least according to the prevalent approach, the validity of a legal norm derives from its being such, and not from any other source external to law. But as we already mentioned, the natural-law school disputes this. It sees the morality of a norm as a condition of its legal validity, at least as a negative condition. That is to say: a norm that is not moral will not be valid even legally. According to this approach, the distinction between legal validity and moral validity becomes very blurred. The positivist school, by contrast, disconnects the question of legal validity from the question of morality. Positivists distinguish quite sharply between the question whether a law is valid and the question whether it is moral, and perhaps even the question whether one ought to obey it. In their view it is possible that a law be valid, yet there be no obligation to obey it, or at least there be legitimacy for not obeying it (everything depending on the formulations of different thinkers). Natural-law jurists tend to blur the distinction between these two questions.

In general terms, one can say that according to positivism there is no connection between the content of a law and its validity. Validity depends only on the sources and procedures of legislation, and not on comparison with any external source, moral or otherwise. There is no meaning to the claim that a given law is ‘correct’ or ‘incorrect.’ We do not compare law to any external measure, but examine it only according to the procedure of its enactment: was it legislated properly or not?

In another formulation, one may say that positivism distinguishes between the desirable and the actual, whereas natural law does not tend to do so. According to natural law, law is situated in correspondence with some external order, moral or otherwise. Therefore one can examine a law by standards of fit to that order, and if there is a substantial mismatch, then even if it was duly enacted it is regarded as null law. It should be noted that according to most proponents of natural law, law is subject not only to the categories of good and evil but also to those of truth and falsehood.

The main criticism of the natural-law approach rests on the fact that it derives evaluative conclusions from factual data. Natural order is a kind of fact, and it is examined in terms of truth and falsehood. But facts do not generate norms, which are examined in terms of good and evil. The normative dimension of law cannot be only the product of some natural fact, and therefore in the background there must be a process of legislation and normative determination. The proponents of natural law claim that there are norms that are facts, and that they are discovered by means of a certain kind of ‘observation.’ We ‘see’ that a certain act is evil, and this is an empirical fact.[36]

Positivism grew against the background of the optimism of the Enlightenment, which trusted in the human spirit and intellect and in its ability to reach nearly unequivocal conclusions in almost every sphere on the basis of reason alone. The human being as a rational and thinking creature can arrive at a clear conclusion concerning every question by means of necessary rational considerations. Natural law, by contrast, at least in its ancient forms, places God—not man—at center stage. Its most prominent representative in legal literature is Thomas Aquinas (= Thomas of Aquino), an important Christian philosopher and theologian of the thirteenth century. Positivism, at least in its contemporary form, is a new approach whose banner was borne mainly by thinkers of the twentieth century (= the positivist century).

Thus positivism places man at center stage, whereas natural law places God—or some objective authoritative factor—at center stage, whose creations (the truths, both normative and evaluative) are the sources from which we derive laws.

In a formulation that does not concern the sources of law, one might say that the dispute between these two approaches parallels the general philosophical dispute between empiricism and rationalism.[37] Natural law advocates a legal empiricism, that is, an approach according to which ‘observation’ of some order in nature yields the laws. Positivism, by contrast, advocates rationalism, that is, the creation of laws on a normative-human (or social) plane that is rational-scientific in essence, detached from every observational element (thus rationalist in character). There is here a kind of division between a conception of judging as legislation (= positivism) and a conception of judging as cognition or observation of facts of some sort (= natural law).[38]

The case of Jewish law is more complex. At first glance, Jewish law is presented here as natural law, that is, law based on facts that are external to and prior to the legal sphere. On the other hand, Jewish law specifically creates a gap between moral instructions and halakhic instructions, something that usually characterizes positivist approaches rather than natural-law approaches.

The root of this confusion lies in a hidden assumption of the analysis presented here. The assumption is that ‘facts’ prior to the legal process can only be moral ‘facts.’ There is no other kind of fact with objective pre-legal validity. But that is precisely what we sought to show in all the analysis we conducted here of the concepts of ownership. There are facts belonging to halakhic-legal metaphysics, and they do not necessarily have moral characteristics. On the contrary, at times they contradict principles of fairness and morality. But because they are facts, we cannot prevent this contradiction by changing property law, and we must take it into account. As we have seen, at the basis of property law stand metaphysical facts of connection between a person and property. This connection is expressed in the legal sphere by norms that determine various property rights. But those norms are only the legal result, or legal expression, of a metaphysical reality.

Thus we are proposing here a characterization of Jewish law that lies between natural law and positivist law. It is a natural law whose basis includes a factual infrastructure of a metaphysical-legal character, and not only moral facts.

Against this background one must add that identifying Jewish law with natural law is mistaken in another respect as well. In Jewish law, the validity of any particular rule derives from the commandment concerning it in the Torah, and not from its being factually true or morally proper. Even ownership obligates because the Torah commands it, and not because of the mere factual existence of the metaphysical connection between a person and his property.[39] In that sense too Jewish law is a system with a positivist character, and not a system of natural law.

Nominalism and realism

Until now we have dealt with the meaning of the distinction we presented with respect to the laws of ownership. We proposed a possible expansion of it to additional halakhic planes, and it is indeed reasonable to expect such planes to exist, but we did not yet see whether Jewish law in fact relates in this way to other aspects as well (apart from property law). This question leads us to the problem of nominalism and realism, that is, to the question whether Jewish law is based on some meta-halakhic reality (= realism), or whether it is a conventionalist system, that is, the product of normative determination (= nominalism).[40] The terminology ‘nominalism’ and ‘realism’ is borrowed from the articles of Yohanan Silman,[41] who dealt extensively with this question. This topic is broad and requires extensive study, but we cannot address it here except in the briefest way.

The foundation of the matter lies in the Talmud’s determination at the beginning of tractate Nedarim that oaths are a law pertaining to the person, whereas vows are a law pertaining to the object. In the accepted conception,[42] a vow is the imposition of a prohibition whose basis is a legal status that inheres in the object itself, and from this there is created a prohibition upon the person, a norm that forbids deriving benefit from the vowed object. This is a mechanism of metaphysical reality (incidentally, not necessarily moral) from which norms are derived. In oaths, by contrast, the prohibition rests only on the person, and has no source in objective reality (= in the object). In Silman’s terminology, one would say that the prohibitions of oaths are nominalist in character, that is, positivist, whereas the prohibitions of vows are realist in character, that is, natural-law like.

Thus, already here we have found at least one additional halakhic context that has a realist character: the prohibitions of vows, which are derived from a metaphysical reality that applies to the object. Here too, if a conflict should arise between them and moral or other principles, we will be unable to do anything. The facts are imposed upon us, and cannot be changed at will.[43]

What about the rest of the commandments of the Torah? The commentators agree that the laws of holiness are also realist (and some viewed them as part of the laws of vows). Regarding the other halakhic contexts, the author of Kehillot Ya'akov, Nedarim, no. 15, wrote that the medieval authorities disagreed on this point from one extreme to the other. Some medieval authorities held that oaths are the exception, and that all Torah prohibitions are realist. Others held that vows are the exception, and that all Torah prohibitions are nominalist.[44]

I have now found in the novellae of R. Shimon Shkop to Bava Metzia 3b, where he wrote:

For the prohibition is a reality within the object, even though it is not perceptible to our senses, and this is the truth for those who know.

In any event, the possibility of a realist conception of Torah law is certainly proven from here. What its scope is, and how broad it is, requires clarification that is not our concern here.[45]

[1] Mishpetei Yisrael – Laws of Damages, ed. Shlomo Grintz, Mishpetei Yisrael Institute, Petah Tikva, Tevet 5763, pp. 95–131. See also my article ‘What Is a “Legal Status”? Jewish Law, Logic, and Cleaving to God,’ Tzohar 2, pp. 71–86, and the references there; and also in my book Two Wagons and a Balloon, Beit El 5762, note 3.

[2] See on this the continuing polemic with Rabbi Kehat in the subsequent issues of Tzohar.

[3] Akdamot 15, pp. 141–163.

[4] On the relationship between Jewish law and morality, see also the response of Rabbi Yaakov Ariel in issue 16 there, and my response to that response.

[5] Some of the judges raised the consideration that the safe-deposit room is leased to customers, and therefore even ownership of it is unclear. For our purposes this is a marginal point.

[6] Civil Appeal 546/78, Bank Kuppat Am v. Eliezer Handels et al., PD 34(3) 58. Hereinafter: Civil Appeal.

Further Hearing 13/80, Handels v. Bank Kuppat Am Ltd. et al., PD 35(2) 785. Hereinafter: Further Hearing.

[7] I am not entering here into detail regarding the differences in reasoning among the majority judges. Their views are very similar, especially with respect to the issue before us (that is, the interpretation of the Lost Property Law).

[8] Elon argues there that the purpose of Jewish law too is to return the lost property to the owner. The question is who the owner is. See further on this below.

[9] The matter is anchored in the explanatory remarks of MK Bibi, who presented the bill on behalf of the Constitution, Law and Justice Committee for second and third readings.

[10] Judge Barak (in the Civil Appeal) also anchors this determination in the remarks of MK Bibi cited above.

[11] It should be noted that in the bill the addition about despair does not appear at all. There the wording is that after the fixed period, if he acted as required by law for the sake of return, ‘the finder shall become the owner of the lost property,’ with no reference at all to the despair of the person who lost it.

[12] See Judge Elon’s remarks, Civil Appeal, section 13, where he shows that this already appears among the Geonim of Babylonia and the earliest medieval Ashkenazic authorities.

[13] Even one who is exempt from returning, such as an elderly person for whom it is beneath his dignity, and who nevertheless does so beyond the letter of the law, is looked upon favorably by the Sages (see Maimonides, Laws of Robbery and Lost Property 11:17). But there the question does not arise why they did not determine that he is obligated in the first instance. There we are dealing with the finder’s rights (not to degrade his dignity) as against the rights of the person who lost the item. Here it is clear that one cannot obligate him to return, and the decision must be left in his hands. If he nevertheless returns it beyond the letter of the law, the Sages praise him. The fact that this is defined from the outset as a non-obligatory act is very logical.

By contrast, with lost property after despair, there seems to be no evident reason why the laws of returning lost property should not have been framed such that returning it would be obligatory as a matter of law itself. Here, apparently, there is no clash between opposing rights and interests.

In light of what we will explain below, it emerges that even in such a case there is a clash: between the property right of the finder, who according to Jewish law is the true owner, and the moral right of the person who lost the item, who labored over that property and lost it. This, precisely, is the explanation we shall propose for the phenomenon of Jewish law’s apparent deviation from the justice and fairness presented here.

[14] Situations of ‘a scoundrel within the bounds of the Torah’ can even lead to uprooting the law, for the Torah itself commands us to be vigilant about this (see Nachmanides at the beginning of Parashat Kedoshim, and much more). But in our case, where Jewish law requires that after the owner’s despair the lost property be given to the finder and not to the person who lost it, this is certainly not an act of villainy, and the Torah itself directs us to do so. Therefore here it is clear that there is no room to change the purpose of Jewish law.

We do know of exceptional cases in Jewish law in which ‘we compel against the trait of Sodom’ (see Babylonian Talmud, Bava Batra 12b). In such cases the Sages saw fit to introduce the moral dimension into monetary law itself. But the exception proves the rule that this is not generally so. The rule of compelling against the trait of Sodom is an exception that certainly requires analysis, but this is not the place to elaborate.

[15] The only hint we found to this is section 4 in the explanatory notes to the bill cited above, according to which ownership of the lost property is vested in the finder after the fixed time, in order to encourage the return of lost property. From this it quite clearly follows that according to the statute ownership of the lost property is a derivative of the purpose of return, and not the reverse (as we saw in the approach of Jewish law).

[16] They could, however, have brought proof from the change in the law’s title. In the bill it was called the ‘Law for the Handling of Lost Property,’ whereas the enacted law is called the ‘Lost Property Law.’ This change does contain a hint (though no more than that) of this purpose. See Judge Elon’s remarks, Civil Appeal, section 13, where he notes this.

[17] I will cite here several principal sources for this issue: Emek HaMishpat, vol. 4 (Copyright), Rabbi Yaakov Avraham Cohen; Nahum Rakover, Copyright in Jewish Sources, Hebrew Law Library, 1991; ‘Copyright,’ Rabbi Ezra Batzri, Tehumin 6, 1985, p. 179; ‘Copying from a Cassette Without the Owner’s Permission,’ Rabbi Z. N. Goldberg, Tehumin 6, 1985, p. 185; ‘Copyright in Jewish Law,’ Rabbi Haim Navon, Tzohar 7, Summer 2001, p. 35; ‘Copyright in Jewish Law,’ Rabbi Shlomo Ishon, Tzohar 7, Summer 2001, p. 51; ‘Deception and Intellectual Property,’ Michael Abraham, Tehumin 25, 2005, p. 350. See also the bibliographies cited in these sources.

[18] For detail and halakhic bibliography, see the sources cited in the previous note.

[19] These are generally statements of contemporary decisors, brought as oral reports in Emek HaMishpat by Rabbi Cohen.

[20] Rabbi Cohen tries to argue in his aforementioned book that, contrary to the common view, there is no obstacle to defining ownership over abstract entities, but see the critique in my article cited above. In any event, it is clear that this opinion is not accepted among decisors, and there is weighty evidence for rejecting it.

[21] See ‘Whence Copyright?,’ Michael Shapira and Ronen Kritenshtein, Notes on the Path of Intellectual Property, 2004, p. 162. Regarding the words of the Hatam Sofer, see there at p. 164.

[22] On intellectual property in law, see Tony Greenman, Copyright, 2004; Ofer Tur-Sinai, ‘Intellectual Property Law—Marching Toward a New Millennium: Trends and Innovations in Israeli Law,’ Kiryat HaMishpat 5, 2004–2005; Guy Pesach, ‘The Theoretical Basis for Recognition of Copyright,’ Mishpatim 31(2), 2001; Daphna Abraham, Theories, Principles, and Limitations in Copyright Law (for full disclosure: my wife), seminar paper submitted to Adv. Ofer Tur-Sinai, Ono Academic College—Haredi Branch, 2006, and the references in the bibliography there.

[23] There are additional shades, such as the personality theory, which grounds the creator’s right in the fact that the work is an expression of his personality and spirit. We will not enter these shades here.

[24] On this see my book Two Wagons and a Balloon, Beit El, 5762, at the sixth gate, and the sources cited there.

[25] Civil Appeal 559/69, Dan Almogor v. Giora Godik et al., PD 24(1) 829.

[26] Civil Appeal 23/81, Hershko et al. v. Orbach et al., PD 42(3) 756.

[27] Civil Appeal 15/81, Goldenberg et al. v. Bennett et al., PD 36(2) 813.

[28] Civil Appeal (Tel Aviv) 779/77, ACUM Ltd. et al. v. Aharon Berman, Argaman Ltd., PM 1980(A) 441.

[29] Leave to Appeal 2687/92, Geva v. Walt Disney Co., PD 48(1) 251.

[30] Civil Appeal 360/83, Strausky Ltd. et al. v. Whitman Ice Cream Ltd. et al., PD 40(3) 340.

[31] Civil Appeal 513/89, A/S Interlego v. Exin-Lines Bros. S.A. et al., PD 48(4) 133.

[32] See for example Y. Weisman, ‘Constitutional Protection for Property,’ HaPraklit 42, 1995, pp. 258, 275, and much more.

Weisman states there, as a point of departure for the discussion, that a person’s property serves two purposes: one—to ensure the freedom of the individual; the other—to serve the interests of society. This is plainly teleological reasoning regarding property law. Weisman does not suffice with the principled statement, but derives from it operative conclusions: different kinds of assets carry different weights with regard to the role they play in society, and therefore real estate and intellectual assets, which play a decisive social role, will merit broader state intervention to ensure the public interest.

[33] In this context, however, see an interesting and original approach in the book of R. Eliyahu Benamozegh, Introduction to the Oral Torah, in the edition of Rabbi Eliyahu Rahamim Zeini, Yeshivat Or VeYeshua, Haifa 2005. Benamozegh argues there that the Oral Torah is not an interpretation of the Written Torah, but broader than it. The Written Torah is a summary of the Oral Torah that was given to Moses at Sinai. In any event, these remarks do not necessarily contradict our claim here, since the Holy One can give us the ‘factual’ data orally as well. The interpretation of the Sages, whether of the Written Torah or the Oral Torah, cannot change these ‘facts,’ but only expose them.

[34] Beyond all this, in Jewish law there is a problem with purposive-teleological interpretation, since as a matter of law we generally do not expound the reason for the verse (see on this Encyclopedia Talmudit, vol. 20, entry ‘Ta'ama de-Kra’).

[35] This topic will be discussed at length in the fourth volume of the quartet Two Wagons and a Balloon.

[36] This question is discussed at length in the third book of the quartet Two Wagons and a Balloon.

[37] This parallel is the main subject of the fourth book in the aforementioned quartet.

[38] When we say ‘observation’ or ‘cognition,’ we do not refer only to the relation of the sages of Jewish law to the Torah, but also to the character of the Torah itself, which is a reflection of a factual metaphysical system and not merely normative determinations. In this sense even Torah law itself is natural law and not positivist.

In the two previous chapters we presented two planes of difference between Jewish law and civil legal systems:

1. The sages of Jewish law are bound by the Torah and are not free to legislate.

2. The Torah itself reflects a system of metaphysical facts, and is not merely a collection of normative determinations.

These are the two planes to which we referred in this note.

[39] R. Shimon Shkop, however, in his book Sha'arei Yosher, gate 5, proposes a different view. In his opinion, the validity of the monetary part of Jewish law derives from a social-legal agreement that precedes the halakhic command, and not from the command itself. The command merely adds another normative layer. Yet if we broaden the definition from ‘Torah’ to ‘the will of God,’ we will quickly discover that obligation still derives not from the legal facts themselves but from God’s will, which also has a normative layer. In any event, even according to R. Shimon there appears to be a layer that precedes the halakhic-normative layer and underlies it. In that sense, his remarks accord well with the picture described here.

On the method of R. Shimon Shkop, see Avi Sagi, ‘The Religious Commandment and the Legal System—a Chapter in the Halakhic Thought of Rabbi Shimon Shkop,’ Da'at 35, 1995, pp. 99–114; and from a different angle, Shay Akavia Wozner, ‘Faithfulness to Jewish Law—What Is It?,’ Journey to Jewish Law, ed. Amihai Berholz, Beit Morasha, Yediot Aharonot and Sifrei Hemed, Tel Aviv 2003, pp. 83–101.

[40] Admittedly, we are not speaking here of an intra-social agreement, but of an agreement between the Holy One, blessed be He, and the people of Israel and the whole world.

[41] Yohanan Silman, ‘Halakhic Determinations Between Nominalism and Realism—Studies in the Philosophy of Jewish Law,’ Dinei Yisrael 12, 1984–1985, pp. 249–266. The same, ‘A Divine Torah that Is “Not in Heaven”—A Typological Inquiry,’ Bar-Ilan Annual 22–23 (Moses Schwartz volume), Ramat Gan 1988, pp. 261–268. The same, ‘Commandments and Transgressions in Jewish Law—Obedience and Rebellion or Repair and Corruption,’ Dinei Yisrael 16, 1991–1992, p. 183ff. The same, ‘The Basic Norm in Jewish Law in Light of the Sugyot of the Deaf-Mute, the Imbecile, and the Minor,’ Dinei Yisrael 18, 1995–1996, p. 23ff.

[42] There are additional explanations of this distinction, and this is not the place to enter them. We are using here the explanation commonly found among the commentators.

[43] It may be possible to connect this to the difference between vows and oaths with respect to their application to a commanded matter (whether to fulfill or to nullify), but this is not the place to elaborate.

[44] Many later authorities assume as self-evident that all Torah prohibitions are realist, and do not address this dispute among the medieval authorities at all. For example, the author of Netivot HaMishpat in section 234 determines that one who unintentionally violated a rabbinic prohibition does not require atonement. His reason is that the essence of rabbinic prohibitions is purely normative: the duty to obey the Sages and the prohibition against rebelling against them. This is unlike Torah prohibitions, whose basis is in reality (realist prohibitions), and the norm is derived from that reality. The difference concerns one who transgressed unintentionally. In rabbinic prohibitions nothing happened, since there was no disobedience, for he did not even know of the command. In Torah prohibitions, however, even if there was no dimension of disobedience, a flaw in reality was created. Therefore atonement is required for unintentional Torah transgressions, unlike rabbinic ones.

We should note that even those who disagree with the author of Netivot HaMishpat usually attack him from the opposite direction: in their view, rabbinic prohibitions too have a root in reality, that is, they too are realist. They generally do not argue that Torah prohibitions lack such a root (for if that were the case, then indeed it would be reasonable that an unintentional transgression should not require atonement at all).

A similar approach appears in the article of Rabbi Elhanan Wasserman, of blessed memory, ‘An Essay on Repentance,’ Kovetz Ma'amarim, ed. Rabbi Elazar Simhah Wasserman, Tel Aviv 1984, pp. 23–26.

[45] See on this, among other places, the aforementioned articles of Silman, and also the following articles: Rabbi Yoel Bin-Nun, ‘The Search for Truth versus Halakhic Formalism,’ Derekh Eretz, Religion and State, ed. Amihai Berholz, Beit Morasha and the Ministry of Education, Jerusalem 2002, pp. 195–214; David Henshke, ‘On Legal Reality in the Thought of Maimonides,’ Sinai 92, 1983, pp. 228–239; Prof. Moshe Zilberg, Sinai 42, p. 10ff.; and also my article ‘On the Nature of Concepts in Jewish Law and in General: Between Philosophy and Jewish Law,’ submitted to Akdamot.