On the Nature of Choshen Mishpat

The rabbi’s opening post

On the Nature of Choshen Mishpat

Posted on 16/2/2007

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On the Nature of Choshen Mishpat

The title displayed above can branch out in several directions. I will propose here two of them, which are related to one another but not identical, and I would be happy if we focus on both (I very much ask that, in the discussion, you note which of the two you are referring to, since it is very easy to mix them up).

I would appreciate an orderly discussion from the public, since the questions here are related and similar, and therefore it is very easy to get confused among them. Please state explicitly (after thinking it through for yourselves) which question you are addressing. Thank you.

The two topics are:

A. The relation between Choshen Mishpat and other legal systems, or: is Choshen Mishpat part of Jewish law?

B. The relation between Choshen Mishpat and other parts of the Shulchan Arukh, or: between a right and a commandment/transgression.

A. The relation between Choshen Mishpat and other legal systems, or: is Choshen Mishpat part of Jewish law?

As a matter of law, it is accepted that one may stipulate regarding any monetary matter. From the unqualified language of the halakhic authorities, it appears that this is permitted from the outset, and not only after the fact. Two conclusions follow from this, and they are related to one another:

1. Seemingly, today the Israeli legal system is what is binding even under Torah law, rather than what appears in Choshen Mishpat.

It should be noted that the reason Israeli law is halakhically binding can be explained in several ways (the third and fourth may be explanations of the second): a. the law of the kingdom is law. b. communal enactments. c. they accepted it upon themselves (= an implicit stipulation). d. a binding commercial custom (see Mishnah, beginning of Bava Batra: “everything follows local custom”).

2. With respect to the individual, there are two layers in which Israeli law is relevant to him: I. He is bound by Israeli law, for the reasons above. II. He himself acts on the assumptions of that legal system; that is, this is the reasonable interpretation of his intent. This is a custom or an implicit stipulation that interprets his intent.

Whether on the first level (public, binding) or on the second level (private, interpretive), the result is that Choshen Mishpat is nothing more than a default regime (a dispositive arrangement) in the absence of prevailing legal assumptions or specific stipulations.

My questions:

A. If so, what is the halakhic status of Choshen Mishpat? Why is Choshen Mishpat included in Jewish law at all? Seemingly, any legal system we decide upon, or any decision of the two parties (in the case of contract law), can replace it from the outset, and there is no problem with that.

Put more sharply: why does one recite the blessing over Torah study when studying Choshen Mishpat? Alternatively: why does one not recite the blessing over Torah study when studying ordinary law?

B. Are there rules that are genuinely part of Jewish law and cannot be stipulated away? If so, what are they? And after we identify them, is there a criterion common to all of them?

C. What is the connection between this distinction and the well-known view of R. Shimon Shkop, according to which there is a binding juridical layer prior to Jewish law (= “the theory of law,” in Sha’arei Yosher, Gate 5)?

B. The relation between Choshen Mishpat and other parts of the Shulchan Arukh, or: between a right and a commandment/transgression

In a nearby thread, a discussion arose between me and Meitzitz regarding the concept of a “right.” The discussion there concerned humiliating a person. Meitzitz argued that a person has a right to dignity, and therefore he can claim that he not be humiliated. I, however, argued that this is not so: a person has no right to demand that he not be humiliated; rather, I have an obligation not to humiliate another person. That is, this belongs not to the laws of Choshen Mishpat but to the laws of Yoreh De’ah.

In the course of the discussion, we distinguished between humiliation for which compensation may be claimed (= shame damages) and humiliation for which there are no shame damages (by words alone, in private, etc.).

My question is: what lies at the root of the difference between the laws in Yoreh De’ah and the laws in Choshen Mishpat? In other words: what is the difference between the Torah’s legal system and the other parts of Jewish law? One must also ask how this relates to the distinction between criminal and civil law. In criminal law, the assumption is that the person committed an offense, and the injured party is not a party to the claim (at least here in Israel, though even that is not always so). In civil law, the assumption is that the person did not commit an offense at all, but only infringed another person’s right, and therefore the opposing party is not the state but the injured party (the victim of damage, the other signatory to the contract when the contract was not honored, and the like). Seemingly, this is precisely the difference between a legal right and a commandment in Jewish law.

My questions:

A. What defines the distinction between another person’s right and a commandment incumbent upon me? When should we define a given commandment of Jewish law one way or the other?

B. Are there interpersonal commandments that are not another person’s rights (interpersonal matters that belong to Yoreh De’ah)? If so, what are they? And if so, what is the criterion for distinguishing them from the commandments of Choshen Mishpat?

To indicate a certain connection between the two parts of the thread, I will add the following remark:

Both parts deal with the question of the relation between rights and commandments/transgressions, and I will now explain.

It is fairly clear that a person can stipulate with respect to his rights, and therefore a commandment that is another person’s right can be stipulated away. By contrast, a person cannot stipulate away the commandments of the Torah (“one who stipulates against what is written in the Torah, his stipulation is void”). However, if a person says that he is not harmed by some act of another, then even if this is a transgression and not an infringement of a right, apparently the offender will not transgress. This is not because they stipulated against what is written in the Torah, but because when there is no harm there is no transgression, and the one who determines whether there is harm is the injured party himself.

Is this always true? Is it permitted to waive every harm that is an interpersonal transgression?

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Source (“Stop Here, Think” forum): http://www.bhol.co.il/forums/topic.asp?topic_id=2150735