What Is the Difference Between an Object-Based Law and a Person-Based Law? (Column 230)
With God's help
We are still not done with Parashat Matot. This is already the third column that came to me this past Sabbath, when we read the passage about the annulment of vows.
Within the Torah tradition, it is not customary to engage in clarifying concepts and in methodological self-reflection. Learners use various concepts and principles, but generally do not deal with those concepts and principles themselves and with their precise meaning. Most of us have an intuitive understanding of these concepts, and this enables us to use them correctly. Even so, there is value in clarifying concepts explicitly, and not making do with intuition alone.[1] Examples of this can be found in several of my articles. For example, in my article "What Is 'Halut'?" (see also the discussions surrounding it in the subsequent issues of Tzohar) I tried to clarify the concept of 'halut' (the taking effect of a legal status), which also seems clear to the yeshiva student and is used quite frequently. I showed there how explicit clarification enables us to understand it better, and even to correct mistakes, improve our use of the concept, and understand its implications. I did the same in my article "On Leniency and Stringency", in which I tried to clarify the concept of leniency, and so on.[2]
These points are of course also true with respect to the Brisker conceptual system, which is used extensively in the yeshivot, but whose precise meaning few bother to analyze carefully. In this column I would like to discuss a bit a common Brisker pair of concepts: an object-based law and a person-based law. This pair already appears in the Talmud and was developed and conceptualized by Rabbi Chaim of Brisk, and here I will focus mainly on its Talmudic meaning. Therefore, before we proceed, I will preface a methodological remark.
A Note on the History of Ideas
Attributing an idea or concept to some thinker or school is a complicated matter. In general, the history of ideas shows that every idea has roots in earlier periods and among earlier thinkers, and therefore its attribution to any one thinker is not unequivocal. For example, at a conference held at Bar-Ilan several years ago I was asked to speak about the Pnei Yehoshua. The subject of my lecture was early signs of Brisker thought in the Pnei Yehoshua, and within that framework I showed that in a number of places in his writings one can find Brisker-style learning analysis of the purest sort. Even so, this mode of thought is rightly attributed to Rabbi Chaim of Brisk, because he was the one who conceptualized it. He defined this mode of analysis and turned it into a kind of algorithm. In addition, he was also the one who created his well-known conceptual system, which serves this mode of analysis very well.
The one who conceptualizes the idea or the way of thinking is the one who adds them to the general toolbox, thereby making them available for public use and allowing them to be developed and employed easily and with greater precision. Therefore it is appropriate to attribute the idea or concept to the person who conceptualized it, even if it has roots in the thought of earlier people and schools. Thus, for example, Aristotle conceptualized the principles of logic. This does not mean that before Aristotle people did not use logic. I assume that even before him people drew deductive conclusions. Even before him, people understood the argument that if all human beings are mortal and Socrates is a human being, then Socrates is mortal. What Aristotle did was to notice that this is an abstract principle that has nothing specifically to do with mortality, with human beings, or with Socrates. It is a schema, an abstract and general structure, that appears in exactly the same form in different contexts. Aristotle discerned a kind of general template that can be filled with different contents and yield valid arguments, and he showed us that discussion can advance better if we have good command of these templates. First of all, this spares us from having to rethink each time the specific contents involved. To test the argument above, there is no need to know Socrates, nor even to understand what it means to be mortal, and the like. It is enough for us to know that this is a logical pattern of a valid argument.
As noted, Aristotle's conceptualization assembled these forms of inference and created a logical toolbox available for public use. That is one advantage of conceptualization. But beyond that, Aristotle also turned logic into an intellectual field in its own right. If until his time people dealt with various fields of thought and in each of them used logical inference as an aid, then from Aristotle onward logic and its forms of inference became a field of inquiry in their own right. This is another added value of conceptualization. It is especially easy in our own time to see the enormous significance of this transformation. The world of computers and of mechanical-automatic thought (artificial intelligence) could not have come into being without Aristotle's conceptualization. It also clearly helps us examine complex inferences that intuition alone has difficulty handling (think of complicated questions such as those on psychometric tests).
Rabbi Chaim did for his Talmudic mode of analysis what Aristotle did for logic. These forms of analysis existed before him as well, but he conceptualized some of the fundamental logical principles underlying them, thereby enabling us to use them with ease and precision, and also to treat those principles themselves as an independent subject of inquiry. If until his time the distinction between object and person was made without conscious awareness, Rabbi Chaim conceptualized it and coined the pair of terms in their general meaning, which helped people use them in different Talmudic and halakhic contexts. The next natural step is to deal with this distinction itself, making it itself the subject of study and analysis.[3]
The Source of the Distinction
As noted, such distinctions do not arise out of nothing. The source of the distinction between object-laws and person-laws is the opening passage of tractate Nedarim in the Babylonian Talmud. Rabbi Chaim merely noticed the importance of this distinction (which appears in the Talmud only in passing), and then conceptualized and expanded it.
The Mishnah at the beginning of the tractate deals with incomplete formulations and substitute terms for vows, oaths, and naziriteship:
All substitute terms for vows are like vows, and for dedications like dedications, and for oaths like oaths, and for naziriteship like naziriteship…
As is known, for a vow to take effect, explicit verbal articulation is required, that is, a spoken declaration expressing the making of the vow. A substitute term is a distorted form (perhaps a corruption that became common among the public), or a special formulation instituted by the Sages, for expressing a vow/oath/herem/nazirite commitment. The Mishnah rules that when one makes a vow, takes an oath, or declares a herem by means of a substitute term, it takes effect (this counts as explicit articulation).
And the Gemara there on 2b wonders about the order in which these matters appear in the Mishnah:
…Then let it teach substitute terms for oaths after vows.
Why do oaths appear at the end and not immediately after vows? The Gemara answers:
Since it taught vows, where the object becomes forbidden to him, it also taught dedications, where the object becomes forbidden to him, to the exclusion of an oath, where he forbids himself with respect to the object.
There is something shared by vows and heramim: in both, the object is forbidden to him, as opposed to an oath, which forbids the person with respect to the object. In Brisker formulation: a vow is an object-based law, and an oath is a person-based law.
One might have understood that in essence a vow and an oath are exactly the same thing, except that vows deal with objects and oaths with actions. If a person forbids himself to eat a loaf of bread, that is a vow, whereas if he forbids himself to walk more than two hundred meters, that is an oath. According to this suggestion, there is no essential or conceptual difference between a vow and an oath, apart from the question whether an object is involved, which the person forbids to himself, or an action.
But this explanation is not plausible, since there are legal differences between a vow and an oath (such as the need to invoke God's name, and more). Beyond that, it is unclear why a halakhic duplication would be needed (two different prohibitions, and even two different tractates in the Talmud) if we are dealing with the very same principle. The medieval authorities (Rishonim) discuss what happens when a person vows using the language of an oath, or vice versa, and that discussion too hints to us that these are different mechanisms.
The Dispute Regarding All Torah Laws
It is commonly thought that Torah laws are generally object-based laws, whereas rabbinic laws, many later authorities (Acharonim) wrote, are person-based (and some defined them merely as an obligation of obedience. See, for example, Netivot HaMishpat sec. 234 and elsewhere). But in Kehillot Yaakov, Nedarim sec. 15, he cites a dispute among medieval authorities (Rishonim) over the question which of these two laws (vows and oaths) is the novel case: some of the Rishonim (such as the Rashba) hold that all Torah laws are object-based laws, and therefore oaths are the exceptional case, since they are the only law stated with respect to the person. Others (Ritva and Nimukei Yosef) hold that all Torah laws are person-based, and therefore vows are the exceptional case, since they are the only law stated with respect to the object.
The Fundamental Difficulty: How Can There Be Laws on Objects?
This distinction raises a very basic difficulty. What does it mean to say that a vow is a law on the object? Is the bread forbidden to be eaten by me? Can the bread itself be commanded in something? Laws always apply to human beings, not to inert objects that lack choice. What, then, is the difference between my saying that it is forbidden for me to eat the bread and saying that the bread is forbidden to be eaten by me? At first glance, these are two formulations with the same meaning. Especially since in both a vow and an oath, the problematic core is the violation of one's word (He shall not profane his word., 'he shall not profane his word'). I am forbidden to do something contrary to what I said. What, then, is the meaning of the distinction between a vow and an oath, or between an object-prohibition and a person-prohibition?
This is the difficulty raised by the Avnei Nezer (Orach Chaim sec. 37, subsec. 4, para. b):
And in truth, regarding the matter of a prohibition on the person or a prohibition on the object, one can say whatever one wishes about any prohibition, for ostensibly it is not understandable: every prohibition is forbidden in relation to the object, and the object is forbidden to him.
I will sharpen this through a philosophical example. As is known, Kant distinguished between the world of appearances (phenomena) and the world itself (noumena). There is the table itself, and there is its image as it is perceived by me. Hillel Zeitlin remarked that this distinction contains an internal contradiction. If we have no way of knowing anything at all about the world as it is in itself, but only about what appears to our eyes, how does Kant know that there even exists, somewhere out there, a world in itself? Put differently: the distinction between phenomenon and noumenon is itself made within the phenomenal realm. It appears to us in our cognition and thinking that there are things out there, but it is not clear whether one can infer from this any conclusion about the world as it is in itself.
Parallel to this argument (and perhaps as a particular case of it), one may say that the distinction between laws on the person and laws on objects belongs entirely to the human world (the person, or the phenomenal realm). In the final analysis, everything is realized through what is imposed on the person or what he is forbidden to do. But if everything is located in the person, what is the point of distinguishing between object-based laws and person-based laws?
The Accepted Explanation: An Object-Prohibition Is Grounded in Reality
From the words of several medieval authorities and many later ones emerges the following explanation: object-prohibitions are prohibitions grounded in something that exists in the object itself, that is, in reality itself, and the prohibition on the person is a result of that reality. By contrast, person-prohibitions are prohibitions not anchored in objective reality. There is nothing at all in the object itself that creates this prohibition; it is located entirely in the person's world. One may say that this is a 'free-floating norm'.[4]
However, according to the accepted view, dietary prohibitions, for example, are object-prohibitions, because according to the Sages they contain something that deadens the soul. If so, what are we to do with the view of the Ritva and the Nimukei Yosef, which we saw above, according to whom all Torah prohibitions, including forbidden foods, are person-prohibitions? Apparently they, at least, did not understand the distinction between object and person in that way.
And indeed, this is the question raised by the Avnei Nezer there, para. c:
Now, long ago I heard great scholars who struggled with this matter, and in the Ritva on Shevuot I saw that all Torah prohibitions are prohibitions on the person. At first glance, however, it is astonishing to say regarding a carcass, creeping things, and swarming things that they are not prohibitions on the object:
How can dietary prohibitions be person-prohibitions, when there is something in them that causes the prohibition?
Rabbi Shimon Shkop raises a similar question in his novellae on Nedarim, sec. 1:
And it seems to me that, in truth, it is entirely unclear what this idea is that the Talmud says vows are a prohibition on the object, and in what respect this prohibition differs from Torah prohibitions, which the medieval authorities (Rishonim), of blessed memory, said are prohibitions on the person. And how can a prohibition on the object apply? If we say it is because through the vow the object changes, so that some holiness takes hold in it—surely with all Torah prohibitions, such as forbidden fat and pork, there is some change in the object relative to other objects that are permitted, except perhaps in objects forbidden only temporarily, like Yom Kippur and leavened food. And if we say that there is some change in the object, like impurity or the like, where the change is not perceptible, why should we not also say that forbidden fat likewise has some change that is not visible? From where would we invent such a thing? Why is the essential change not enough for us?
The Explanation of the Avnei Nezer
The author of the Avnei Nezer, there in para. d, explains it as follows:
What appears to me in this matter is as follows: a prohibition on the person is stated regarding an act that degrades a person's stature, such as creeping things and swarming things, as it says, “Do not make yourselves detestable…” and “You shall be holy people…” and “flesh in the field…”; for in accordance with Israel's elevated status, carcasses and creeping things are not fitting for them. This is a prohibition on the person. But one who derives benefit from consecrated property, or a non-priest who ate terumah, is the opposite: he approaches something that is above his level. For how can a non-priest approach terumah, and an ordinary person sacred things of Heaven? This is a prohibition on the object, for he impairs the object. Therefore, a konam, which takes effect by attaching it to a sacrifice, and the fact that there is misuse of consecrated property with respect to konamot—this is called a prohibition on the object. But an oath: no holiness at all takes hold in the object; rather, he profanes his speech and his oath and damages his own soul—this is a prohibition on the person. And thus the words of the Ritva are well explained. And certainly, according to this, Yom Kippur as well is a prohibition on the person.
The Avnei Nezer explains that the distinction between object-prohibitions and person-prohibitions lies in the purpose of the prohibition: person-prohibitions are prohibitions whose concern is the person's benefit, or the prevention of harm to him. Object-prohibitions are prohibitions whose goal is protecting the object (usually a sacred object that the prohibition is meant to protect from damage). According to this definition, the prohibitions of carcasses and creeping things, which are commonly regarded as object-prohibitions, are not really object-prohibitions, because the question is not whether there is something in the prohibited object itself, but what the purpose of the prohibition is. Here the purpose is to prevent harm to the person, not to protect the object, and therefore this is a person-prohibition. Below we shall see that Rabbi Shimon Shkop also offers a similar explanation.
A Vow and an Oath Concerning a Commandment
One of the passages in which the distinction between vows as object-prohibitions and oaths as person-prohibitions arises is Nedarim 16, which deals with an oath and a vow regarding a commandment. The Mishnah there on 16a states:
This is a stringency in oaths over vows, and a stringency in vows over oaths. How so? If one said, “Konam, the sukkah that I make,” “the lulav that I take,” “the tefillin that I put on”—with vows it is forbidden; with oaths it is permitted, for one does not swear to transgress the commandments.
A person who swore not to sit in a sukkah – his oath is void. But if he vows not to derive benefit from the sukkah he made – the vow takes effect. The usual explanation for this (see Ran and Ritva there) is that oaths take effect on the person (a person-based law), and the person is commanded to sit in the sukkah. By contrast, vows take effect on the object (an object-based law), which is not commanded in anything, and therefore the vow takes effect.
But this explanation is not sufficient. Even if the vow takes effect, there is still a commandment incumbent on the person to sit in the sukkah; so how can the vow, which is the work of his own hands (or the product of his speech), contend with the commandment? Or, in other words, why is there a difference between a vow and an oath, when both constitute a prohibition on the person? Through the back door, the difficulty we noted above about the distinction between a law on the object and a law on the person enters here as well (after all, all prohibitions are on the person). In more formal terms, the Minchat Chinukh, in commandment 30, asks that the positive commandment of sukkah should come and override the negative prohibition of the vow. He answers that in a vow there is both a prohibition and a positive commandment, and a positive commandment cannot override a prohibition plus a positive commandment (as the Rashba also writes there). This implies that were it not for that, he truly sees no place to distinguish between an object-based law and a person-based law (at least for this issue). However, later authorities already noted that this explanation is difficult, because these are a prohibition and positive commandment that are subject to annulment through inquiry (one can petition and nullify them), and at the beginning of tractate Yevamot it is explained that a prohibition and positive commandment of that sort are indeed overridden by a positive commandment.
The Nimukei Yosef, in Nedarim on the Halakhot of Nachmanides (5a in its pagination), explains this similarly, but it seems that he is aware of the difficulty presented here. He explains that vows are an object-prohibition, and one does not feed a person something forbidden to him, for the Torah did not say to perform a commandment through objects from which benefit is forbidden. Therefore one cannot say here that a positive commandment overrides a prohibition. Rabbi Shimon Shkop, in his novellae to Nedarim there, asks against the words of the Nimukei Yosef: why should a positive commandment not override a prohibition in the object? In what way is an object-transgression different from a person-transgression in this regard? He explains that clearly the object itself is not obligated in commandments, only the person, and therefore in any case the problem is that the person commits a transgression. And if a positive commandment overrides the problematic nature of a person's transgression, then why should an object-transgression imposed on him be different? Once again, the difficulty regarding the distinction between object-laws and person-laws returns to us through the back door.
He explains this similarly to the Avnei Nezer we saw above:
I then reflected further in order to explain the concept of a prohibition on the object in conceptual terms. The whole matter of using something prohibited divides into two modes: [1] all forbidden foods, where the purpose of the prohibition is for the sake of the person, that he not be defiled by things that dull the body and the soul; and there is prohibited use whose purpose is different, as with consecrated items, which the Torah forbade to non-priests and foreigners so that the sacred not be desecrated. In such a case, the Torah distanced the object from the person; whereas in the first case, the Torah distanced the person from the object. This explains to us that all prohibitions are considered prohibitions on the person, where the person is distanced from the object, while in konamot the object is forbidden and distanced from the person. And with this one can answer what the medieval authorities (Rishonim), of blessed memory, asked concerning one who says, “The benefit of the sukkah is forbidden to me”—why should the positive commandment of sukkah not override the prohibition of “he shall not profane,” and even though there is also a positive commandment where release is possible, a positive commandment overrides even a prohibition and a positive commandment, as brought above. According to our words, one may say that just as we do not find that the prohibition of “you shall not steal” is overridden by a positive commandment—for example, if one has no tefillin, should it be permitted for him to steal in order to fulfill the commandment of tefillin?—the reason for this, in my humble opinion, is that the Torah permitted overriding a prohibition by a positive commandment only when the Torah's purpose on both sides concerns this same person, as with tzitzit and wool-linen mixture. But in theft, where the purpose is certainly twofold—that the perpetrator not become a thief, and that the other person not be robbed—therefore the prohibition of “you shall not steal” is not overridden; for although the thief's transgression may be remedied by the commandment, the purpose that the victim not suffer loss will not be remedied by the commandment. Therefore, when one forbids the sukkah or the commandment through a konam, the corruption of making the object prohibited will not be remedied by performing the commandment.
And so it seems to me that for this reason the commandment of eating matzah does not override the prohibition of tevel, for the prohibitions of terumah and tevel are prohibitions on the object, as stated above. And likewise it seems to me that the prohibition of “you shall not feed them,” by which an adult is warned concerning minors, is not overridden by the commandment of the one doing the feeding, because the Torah's purpose is for the sake of the minor, that he not be defiled by forbidden foods or forbidden sexual relations. And with this one may resolve what Rabbi Akiva Eiger asked in Ketubot 40 regarding the positive commandment of “and she shall be his wife”—how can this apply when she is a minor; see there.
In light of the explanation of Rabbi Shimon and the Avnei Nezer, we can now understand the words of the Nimukei Yosef. When the prohibition is in the object, a positive commandment incumbent on the person does not override it. A positive commandment incumbent on me does not license damage to a sacred object, or to another aspect of the world.[5] By contrast, in person-prohibitions there is no damage to anything apart from the person himself, and in that case his positive commandment overrides the problematic nature of such damage. This is an internal reckoning within his own world.
The Difficulty
The explanation proposed by the Avnei Nezer and Rabbi Shimon Shkop is difficult precisely with regard to vows, which are presented as the most typical object-prohibition. In prohibitions involving sanctity or terumah, their belonging to the sacred causes the Torah to protect the object from damage. But in a vow there is no dimension of sanctity whatsoever. A vow is a prohibition entirely created by the person's speech. A person decides to forbid to himself a loaf of bread or some object. How can one understand that the prohibition against deriving benefit from an object forbidden by vow is for the sake of the object and not for the sake of the person? How will the object be harmed by my deriving benefit from it? Seemingly it is clear that I am the one who will be harmed by having violated my word, not the object. It follows that this definition of object-prohibitions is problematic.
And indeed, from the words of most medieval and later authorities it emerges that they did not understand it this way. Certainly not the medieval authorities against whom the Minchat Chinukh and Rabbi Shimon Shkop raise their objections (the Ran, the Ritva, and the Nimukei Yosef), who understood as we described above: an object-prohibition is a prohibition grounded in the object itself, whereas a person-prohibition is entirely on the subjective plane and has no anchor in objective reality. And indeed, this is the accepted view among students. But now the difficulty returns for all these approaches: how can this be said of prohibitions such as forbidden foods, which are commonly thought to contain some real feature on account of which they were forbidden?
Rabbi Shimon Shkop's First Explanation
At the beginning of that section (before the explanation cited above), Rabbi Shimon Shkop explains as follows:
Therefore it appears to me that the reason vows are called a prohibition on the object is that all Torah prohibitions have a prior cause—for this reason the Torah warned against forbidding them in eating or deriving benefit. For example, forbidden fat and an animal with a fatal defect: because of that reason the Torah warned, for the will of the Giver of the Torah was that Israel should not eat forbidden fat, and so too in all such cases. But with konamot, the object itself becomes the forbidden thing, and there is no other change in this object besides this prohibition. And the Sages were certain that in vows the object itself becomes forbidden to the person, that through the konam some change is effected in this object; and since there is no other change in it except that it becomes a forbidden thing, this is what is called a prohibition on the object—that the change is the prohibition itself. For this reason, the Ran and the Ritva maintain that konamot can take effect upon existing prohibitions, because the rule that one prohibition cannot take effect upon another is a general principle of the Torah—that the Torah did not issue a warning concerning something already prohibited. But in a case like this, where a new change is added to the object, something that was not there originally, then wherever there is a new addition this principle that one prohibition cannot take effect upon another was not said; and consequently, there is also the prohibition of “he shall not profane his word,” and one is flogged for it. For whenever one prohibition does not take effect upon another and there is no flogging, that is because the prohibition did not take effect; for if it did take effect, one would certainly be flogged. What the Pri Megadim wrote to the contrary—that a prohibition does take effect upon another prohibition, only one is not flogged—is entirely implausible. And what he sought to prove from the rule that one is buried among utterly wicked people is no proof at all, for there the reason is that since the matter is more abominable, he is fit to be buried among the wicked, as stated above. But here, perforce, since there is another prohibition besides this one, there is no prohibition on the object at all, for a prohibition on the object means that the thing itself becomes forbidden to the person, and consequently one is flogged. As for Tosafot and the other medieval authorities (Rishonim) who disagree, see Tosafot to Shevuot 20b [s.v. de-khi], and the Ran there, and the novellae of the Ritva to tractate Nedarim 62; it may be that they maintain that since we hold that one prohibition cannot take effect upon another, and the warning of the Torah cannot take effect, the konam is therefore entirely nullified.
He distinguishes between a reality in the object on account of which it is forbidden to us, and the taking effect of a prohibition. His claim is that dietary prohibitions are object-prohibitions because there is something in the object on account of which we are prohibited from benefiting from it or eating it. But in a vow there is no such thing in the object. Speech created a halut of prohibition on the object, and that is the anchor for the prohibition of He shall not profane his word.. In objects forbidden by a vow (konam), there is no different physical reality, but rather a kind of spiritual reality on account of which the prohibition was created. This is unlike oaths, for example, where there is only a prohibition on the person and no fact or halut whatsoever in the object.[6]
What Is 'Halut'?
This conclusion leads us to an interesting insight. The question is: what is that 'halut' under discussion? Is it a reality or merely a legal statement? If it is only a legal statement, it is still not clear what the difference is between a vow and an oath. In both cases there is a prohibition on the person, and in both cases there is nothing at all in the object itself. Therefore it seems necessary to say that in a vow there is some spiritual or metaphysical reality in the object that generates the prohibition. This is what is called a 'halut of prohibition'.
I dealt with the question of what 'halut' is in my article in Tzohar 2. There I showed the meaning of this concept and the implications of viewing it as a reality, as opposed to the common interpretation that sees it as a 'free-floating norm', so I will not return to that here. Here I will only add that in note 4b above I presented two possible ways of understanding the concept of a 'person-prohibition': either there is something in the person that generates the prohibition (the person is the 'object' of the prohibition), or it is a 'free-floating norm', that is, a norm that does not arise from any reality whatsoever. Again, if halut were only a 'free-floating norm', there would be no real difference here between an object-based law and a person-based law. And certainly, if the difference were due to some physical fact (and not to spiritual-metaphysical 'halut'), it would also be difficult to speak of person-laws in that sense.
Rabbi Chaim's Expansion
Up to this point I have dealt with the meaning of the Talmudic distinction itself. As noted, Rabbi Chaim of Brisk conceptualized and expanded this distinction and made varied use of it in many passages. For example, he speaks about the 'object of prayer', even though prayer itself is an action and not an object. This is a clear extension of the Talmudic concept (indeed, almost the opposite of the Talmudic meaning, which contrasts and severs actions from object-laws). What does he mean by this?
He is referring to an abstract spiritual object, and yet from his perspective this is still a kind of object. When a person prays, something comes into being here (= prayer), and one can discuss it itself and not only as the person's action. One can speak about the meaning of the thing that has been created, and not only about its consequences for the person who prayed.
Perhaps this can be illustrated through a remark Rabbi Chaim makes in his well-known passage on Maimonides' Laws of Prayer. As is known, Maimonides' position (Book of the Commandments, positive commandment 5) is that the commandment of prayer is Torah-level, except that on the Torah level a person must pray once a day, while all the other laws of prayer (the text, the timing, and so forth) are rabbinic. Nachmanides, by contrast (in his glosses there), holds that the entire commandment of prayer is rabbinic.[7] But Rabbi Chaim (Laws of Prayer 4:1) remarks:
And although this may be so even without that reason, one can add further that according to Maimonides, the obligation and commandment of prayer are of Torah law; and even according to those who disagree with Maimonides, that is only regarding its obligatory status, but its fulfillment and essential nature are, according to all opinions, matters of Torah law..
He writes that the Patriarchs also prayed, long before the giving of the Torah and certainly before the Sages instituted the commandment of prayer. He explains that even Nachmanides agrees that before the revelation at Mount Sinai there was an 'object of prayer', meaning that when a person prayed, his prayer counted as prayer.
At first glance this is a tautology. Obviously, if he prayed, then he prayed. His point is that that person's prayer counts as prayer; that is, he is discussing that abstract thing called prayer, and not only the action of the person who prayed. In the second part of my book Shtei Agalot I explained that even regarding concepts one can distinguish between the entity itself and its characteristics. That is, a concept like 'democracy' is not merely a collection of characteristics (free elections, civil rights, separation of powers), but a concept or idea that exists in some sense (in Plato's world of ideas), and the characteristics are attributed to it.
[1] Whoever wishes can see in my remarks here a correction or supplement to the series of columns on statistics in law and shadow concepts, where I specifically spoke in praise of intuition. Intuition is an excellent source (and apparently the only one) for our insights, but here I add that it is important to develop and conceptualize our intuitions rather than leave them in a raw state.
[2] In fact, nearly all of my Midah Tovah articles for the year 5767, which deal with Talmudic ways of thinking, aim to clarify forms of thought rather than any substantive topic.
[3] See on this in the Midah Tovah 5767 article for Parashat Naso, here (article 36).
[4] Two comments.
A. In this sense of object-prohibitions, one could discuss the naturalistic fallacy. How does some fact in the object generate a norm, a prohibition on the person? But that would be a mistake. The intention is not that the reality in the object itself creates the prohibition. God's command created the prohibition, but it is anchored in the reality in the object. There is a reason on account of which it was forbidden.
B. In my aforementioned article for Parashat Naso (part 2), I point to two possible ways of understanding the concept of a 'person-prohibition': a prohibition that has no anchor in reality, but is rather a norm imposed on the person; or a prohibition that does have a real anchor, except that the anchor is not in the object but in the person (the person is the 'object' on which the prohibition is imposed).
[5] A clear example of this idea is the rule that a person may not save himself at the expense of his fellow's life, that is, a person may not steal or damage another's property in order to save his own life. This is Rashi's view in Bava Kamma 60b, and it points to the force of the consideration I presented here: when things concern someone else, the relation between the gravity of the prohibition and the intensity of the compulsion has no significance. There is no justification for entering the other's territory. That decision is entrusted to him, not to me. I have discussed this in several articles, chiefly in that same series of Midah Tovah mentioned above (see, for example, lesson 32 and 40).
[6] What I write here perhaps depends on disputes among medieval authorities regarding a vow expressed in the language of an oath (when a person imposes by oath a prohibition on an object), whether this is a vow or an oath. This is not the place to elaborate.
[7] See on this matter in my article on 'The Verse Repeated It to Make It Indispensable' in column 83.
Discussion
So it turns out that there really is no dispute among the Rishonim whether other prohibitions are cheftza or gavra? That is, the Ritva was speaking on the plane of sanctity and elevation, which are in the person and not in the object, and therefore said that other prohibitions are on the gavra; whereas the other Rishonim were speaking on the plane of whether there is something in the object because of which I am forbidden, or whether it is some external arbitrary factor that depends only on me, and therefore said that it depends on the cheftza. They were simply speaking about different concepts using the same terminology?
In principle that is possible. See the Kehillot Yaakov, Nedarim sec. 15, where he claims that a prohibition of cheftza is a prohibition grounded in the name/status of the thing (and not necessarily in reality). That is a somewhat different definition from mine, and perhaps implicitly he means what I am saying.
One has to go through all the places where this is discussed by the Rishonim and see from the context what they were talking about.
Rabbi Michi, what is the problem with arguing that there is a real difference in the object itself? If a person can act upon an object through his deeds and change its form (sew, shape, smash), why shouldn’t a person have the power to change its halakhic status as well? (to consecrate, to desacralize, to prohibit)
Who said there is any problem with claiming that? Do you mean to ask whether a person’s speech changes the physical object? That is indeed implausible (and also contradicts the laws of physics). Even in the Talmud we find that intrinsic sanctity does not simply lapse on its own. So a physical change in an object certainly does not happen just like that. If a person performs an action, that can certainly change reality, but here we are talking about speech.
Regarding your difficulty with the Avnei Nezer’s approach, that it does not fit with vows, one could answer that indeed vows really do create a reality of sanctity in the object. In one place Even HaEzel (I don’t have it in front of me right now and I don’t remember the exact reference) argues that the laws of vows are a subcategory of the laws of offerings; that is, in a vow too I create a reality of sanctity just as when I consecrate an object to the Most High. One can bring support for this from the fact that in analogical attachment in vows, one can attach it to a sacrifice, but one cannot attach it to ordinary other prohibitions such as pork. Another proof can be brought from the view that there is misuse of consecrated property with konamot. Admittedly, one must ask in what sense the object made subject to the vow is holy, but in my humble opinion the explanation for this approach could be that one can create sanctity that is channeled through the altar, but one can also create a legal effect or reality of sanctity in the world without channeling it through the altar—and that is vows.
Seeing a vow as a kind of consecration is common among the Acharonim, but in my humble opinion it lacks logic. Misuse of consecrated property with konamot was explained in my article on the guilt offering. Rabbanu V’s statement is about anything vowed and not something forbidden, and not specifically about sanctity.
The change does not have to be physical in order to have halakhic status. A person’s speech affects reality, even if it cannot be quantified in protons and neurons: after all, the force of speech between you and me is not contained in the electrons running across the screen. They are only a means of conveying the idea itself.
In a case where I cursed another person, even if the material situation remained unchanged, human speech changed reality.
I lost you. That is exactly what I wrote.
You did not answer Hillel Zeitlin’s question:
Hillel Zeitlin points out that this distinction contains an internal contradiction. If we have no way of knowing anything about the world as it is in itself, but only about what appears before our eyes, how does Kant know that there even exists, somewhere out there, a world as it is in itself?
Despite the explanation regarding the cheftza, it does not help with his question.
The question is not really a question. Indeed, it is possible that this distinction is made entirely within the phenomenon. And still, from the standpoint of my cognition, there is the thing in itself and there is what appears before our eyes.
Rabbi Michi, hello,
I was given your list on the topic of cheftza and gavra, and I would be glad to hear your understanding of this issue in R. Shkop’s writings (this is a bit of a digression from the article, but from one topic to another within the same topic).
In his novellae to tractate Yevamot at the beginning of sec. 13, it seems that he follows the naturalistic approach (therefore it is forbidden to feed prohibited foods to a minor who is exempt from the commandments and upon whom no personal obligations rest). Do you understand his view that way as well (this is somewhat different from what you quoted regarding his view resembling the Avnei Nezer)?
I had difficulty understanding his words in Sha’arei Yosher, Gate 6, ch. 13, in the first passage in the last third, beginning with the sentence: “And according to this, the Torah’s commandment regarding the law of returning a lost item is that one should return only through clarification, and this matter is among the commandments to Heaven, like the laws of prohibitions, and not among the civil laws, etc.”
R. Shimon Shkop sees the law of returning a lost item as a law of cheftza and not of gavra. Does this fit with his classification in Yevamot (it also does not fit so well with the Avnei Nezer, for in returning a lost item, the lost object itself is not the issue; the owner who lost it is the issue, and therefore in certain situations it is enough to return the substitute for the lost item and not the lost item itself).
Nor is there in a lost item any prior essence in the object itself that gives rise to the law, as with other prohibitions.
And finally—I do not understand R. Shimon Shkop’s answer to his question of how the obligation to return a lost item overrides the law of theft. According to the classifications you mentioned in your article, I do not see how he escapes the problem he himself raised. (After all, there is also a second party here—the person from whom it was taken—and how is a lost item different from stolen property, which has a law requiring its return, and yet one still cannot fulfill a positive commandment through it?)
Sorry for the digression from the article, but your article prompted me to check into R. Shimon Shkop.
Best regards,
D', hello.
What I brought from his words in Nedarim, in line with the Avnei Nezer, is only one of the two approaches presented there. It is entirely possible that elsewhere he adopts the second approach (actually, the first one; the Avnei Nezer is brought as the second approach).
But I checked there. At the beginning of the section I did not find at all what you cited in his name. But I did see that at the start of paragraph 5 there he is careful to write according to the subjective approach and not the naturalistic one (that is, yes, like the Avnei Nezer):
“And the difference in this, in my humble opinion, lies in the two names of the prohibitions, prohibition of cheftza and of gavra. The prohibition of forbidden fat and other prohibitions is a prohibition of cheftza, for the will of the Torah is that Israel should not be defiled by this object, and therefore the Torah forbade feeding forbidden fat to a minor; that is, even though there is no prohibition of gavra here, for the Torah did not warn him about this, nevertheless the Torah’s will is that even the body of the minor should not be defiled by forbidden things, and therefore the Torah commanded not to feed him.”
As for the whole matter of returning a lost item, I have not checked his words there, and I am answering only on the basis of what you wrote here. This is clearly a law of cheftza and not of gavra according to the Avnei Nezer’s definition, since the goal is not to improve the condition of the person returning it but to care for the one who lost it (who in this case is considered part of the cheftza, for the commandment is incumbent on the finder in relation to the object and in relation to the loser. The loser is the “world” and not the person in this case). In cases where one returns the substitute for the lost item, that too is because we want to care for the loser. Therefore this can certainly be part of defining the commandment as a law of cheftza (and not necessarily as a law of gavra as you assumed).
As for his answer, let me first say that if one returns a lost item without clarification, one does not avoid the prohibition of theft, since perhaps he returned it to the wrong person. Conversely, regarding return on the basis of identifying marks, according to the view that identifying marks are not biblical proof, the Gemara itself says that we do this despite the theft involved, because the usual loser is pleased that it be returned on the basis of identifying marks even if this is not full clarification (like witnesses), and he waives any theft there may be, because otherwise most people who lose things would lose their property (when they have no witnesses).
But regarding your basic question: when there is a Torah prohibition, it certainly overrides theft. His argument throughout Gate 5 is that theft at the legal level is a basic layer upon which the Torah’s prohibitions and obligations are built, and therefore there are legal obligations even where, from the standpoint of halakhah, there is a lacuna. But there can certainly be situations in which a Torah prohibition overrides the prohibition of theft (there the Torah has spoken, and there is no lacuna). For example, prohibitions of benefit, according to at least some of the Rishonim, remove the property from its owner. The prohibition on eating pork applies even though the pig belongs to me on the proprietary level. The obligation to separate terumot and ma’asrot or to bring first fruits also tells me what to do with my property. Even in rabbinic law there is the court’s power of confiscation, as in the ordinance of the beam, even though theft is involved here. So can a command of the Torah itself not do what even the Sages can do?!
Therefore there is no problem with there being a halakhic prohibition that overrides the prohibition of theft. That is his whole answer: even if from the perspective of the prohibition of theft itself, on the plane of civil law, we should have returned the lost item, the Torah imposed here a prohibition against returning it without clarification, and with that we moved from the plane of civil law to the halakhic plane. On the halakhic plane, the Torah’s definitions are what determine matters.
Thank you for your detailed answer. I would appreciate clarification of two points:
First, what you quoted emphatically from R. Shimon Shkop actually points specifically to a naturalistic approach, since he attributes objectively harmful qualities to forbidden fat. I did not understand how you see in this quotation a non-naturalistic approach.
Second, returning a lost item after lifting it is a positive commandment and not a prohibition. R. Shimon Shkop, who asks his question there, does not accept the analysis you offered regarding the presumed consent of the potential loser.
The case he is speaking about is one where a person makes a definite claim that the lost item is his, and then according to monetary law, where there is certainty versus uncertainty, certainty has the advantage, and therefore the lost item belongs to the claimant who makes a definite claim. About this he asks: how can the finder, in order to fulfill a positive commandment, steal the lost item from the one to whom it belongs according to monetary law?
Since according to R. Shimon Shkop cheftza is a naturalistic matter, as is actually proven by the passage you quoted, it is not understood why a lost item is cheftza and not gavra—and this is indeed unlike the Avnei Nezer.
If R. Shimon Shkop had accepted your answer, he would simply have said that even if returning a lost item is an obligation of gavra, the Torah is entitled to tell a person not to return it to the owner.
The fact that he does not answer that way, and the very fact of his question, shows that he is really asking about Torah law as a second-order enterprise: how can the Torah command a person to perform a commandment in a situation of theft?
And his own answer is that if it were an obligation of gavra, then indeed the Torah would not so command, because it does not command the performance of commandments through another person’s property; rather, this is an obligation of cheftza. The question then is: what cheftza is there here, and why is the cheftza argument better than if this were gavra, in light of the very way he frames his question?
Thank you.
There is no statement there about prohibitions of cheftza. He says that the forbidden fat defiles the soul of the eater, and therefore the prohibition is for the eater’s sake and not for the fat’s sake (gavra in the Avnei Nezer’s terms). One may indeed ask why forbidden fat defiles the soul of the eater. It could be that this has to do with something in the fat itself, or that it is a value-laden matter (perhaps in light of what the fat symbolizes). In any case, there is no legal prohibition taking effect upon the fat here, but at most something in its chemical structure. I explained in the column there that a law of cheftza is a legal effect of prohibition, not something in the object’s physics.
As for a person making a definite claim regarding a lost item, it should first be noted that it is not at all clear that this is not taking from someone in possession (the finder is holding it for the true loser, or for the class of all potential losers). In certainty versus uncertainty, when seeking to extract property, certainty does not necessarily prevail.
As stated in the previous passage, cheftza is not a naturalistic matter, especially in the case of a lost item, where it is a law of cheftza concerning the loser and not the object itself.
The Torah is entitled to say anything, but one must explain why it says what it says. The claim that this is a law of cheftza (= of the loser) is made in order to explain why the Torah says what it says. It does not want the other person’s interest to be harmed for my sake. That is what I explained in the previous comment.
Thanks again.
When you say that there is something in forbidden fat that defiles the soul—even of one who is not personally obligated—that is a naturalistic approach.
Perhaps you define the term “naturalistic” differently, but the plain understanding is that it is like poison: there is something in nature there, and it is not merely normative.
In Sha’arei Yosher, R. Shimon Shkop takes the position that prohibition is like poison, and he himself asks how this fits with the principle that in a case of doubt concerning a biblical prohibition we rule leniently, and his view is that a person is genuinely taking a risk.
His approach always puzzled me: why does he cling to the conception of prohibition as poison (like Ramban’s view), and because of that get pushed into explaining the laws of doubt this way? Why does he not see it as merely a normative matter, in which case, in situations of doubt, the norm permits?
We always thought this stemmed from a certain religious stringency that he could not free himself from despite being a pronounced rationalist. It was a real puzzle in decoding R. Shimon Shkop’s character.
Even Yishai Akiva Wozner, who wrote a doctorate on him, could not crack this puzzle.
Specifically after reading your post, and inspired by it, the idea occurred to me that R. Shimon Shkop adopts the naturalistic conception because of the cheftza and gavra discussions.
In other words, not stringency and not mysticism, but a position that arises from the conceptual Talmudic world.
Best regards.
I do not see any connection to religious stringency. This is his conception, and he brings proofs for it (Wozner discusses this at length in his book).
What I wrote about forbidden fat is not necessarily naturalism. Let me clarify again. First, as far as I am concerned, a law of cheftza is a legal effect on the object and not a reality in the object (whether present or absent). Therefore even if one understands a law of cheftza not like the Avnei Nezer, there is still no naturalism here in your sense. Incidentally, even when R. Shimon Shkop says that a prohibition is like poison, that is not necessarily a statement about the cheftza itself. Perhaps spiritual harm should be related to like poison, but the spiritual harm is not caused by something in the object itself (see below the example of the pig).
True, one can also wonder, even according to the Avnei Nezer, how acting upon the prohibited object affects the gavra if there is nothing at all in the thing itself. But this can be answered in two ways: 1. Either there is something in the thing itself (what you call naturalism, but that is not necessarily what I called a law of cheftza, i.e. a legal effect of prohibition, but rather a component in the physical reality of the object). 2. There is symbolism or an effect on the person because of circumstances and not because of something physical in the object. For example (just to illustrate the logic), the pig is a filthy animal, and therefore the Torah wants us not to eat it so that it not influence our soul to live in filth. There is nothing in the pig itself as a cheftza, and still eating it affects the soul.
Rabbi Michi, hello,
I completely agree with rejecting the stringency explanation, because that is what I wrote. In the past (until this week and until reading your article), I thought that R. Shimon Shkop’s attachment to the naturalistic approach was a matter of religious stringency, and inspired by your article, “the penny dropped” for me—that the issue of cheftza and gavra is what compelled him toward the naturalistic conception.
R. Shimon Shkop’s attachment to the naturalistic approach is puzzling and does not suit a rationalist like him. See Sha’arei Yosher, in the Gate of Doubts, beginning of ch. 4: R. Shimon Shkop shares with us a problem that troubled him—how can it be that according to Rambam, in a case of doubt concerning a biblical prohibition we rule leniently, and then a person will eat forbidden food when before Heaven it is clear that he stumbled in eating forbidden food? This is a problem only according to the naturalistic approach, for if we see prohibitions as normative determinations and not ontological ones, then there is no problem at all in saying that the norm that prohibited also permitted in cases of doubt. Only if it is a poison can the laws of doubt not bring about a chemical change in the food and remove the poison from it.
When one sees the deliberation and difficulty R. Shimon Shkop faced on this issue (and this is not the only place where he struggled with it), the difficult question arises: why did he not solve the problem by the simple statement—which would also suit him—that Torah prohibitions are devoid of ontology and exist only in the normative realm? This is a major puzzle in deciphering R. Shimon Shkop’s world. (This problem arose in full force even at the launch event for Wozner’s book at Tel Aviv University, and he tried to offer answers not found in his book and drawn from other disciplines, but they were not convincing.)
Now, if we return to the issue of gavra and cheftza, it seems that R. Shimon Shkop does not abandon the ontological conception in order that the distinction between cheftza and gavra retain its place and not be emptied of content. That was my point.
As I recall, Wozner does not bring any actual proofs for the naturalistic approach, but rather sources that can be interpreted as a naturalistic approach (such as the rule that one prohibition does not take effect upon another), but that is not a “proof,” since the concept can be interpreted otherwise, not according to the naturalistic approach, as Wozner himself notes, and rightly so.
Therefore all the “proofs” are merely things that can be interpreted according to the naturalistic conception, and in themselves they do not require it!
On the other hand, we see that in his line of thought about analyzing the concept of cheftza and distinguishing it from the concept of gavra, he builds the naturalistic foundation.
I again thank you for your time, and I would be glad for any further comment on the above.
Shabbat shalom.
As I wrote, as far as I remember there definitely are proofs for his conception. Even if not from the Talmud itself, certainly from some of the Rishonim. I do not have time now to get into finding the proofs, but I am almost sure that several appear in Wozner’s book as well (I no longer remember).
It is important to note that rationalism usually means denying mystical matters. But rationality is something else (simply thinking logically). When there is evidence, there is no rational reason to be a rationalist and deny mysticism. In such a situation, rationalism is not rational (and I have already pointed this out in several places). The term “rationalism” can express either this or that, and people tend to confuse them.
Rabbi Michi, hello,
I think you mean the three examples quoted in the name of Justice Silberg as proof for his claim about the existence of naturalism in halakhah (pp. 98–104 of Wozner’s book). The examples are: the rule that “a promissory note with which one borrowed and then repaid cannot be used again for borrowing, because its lien has already been cancelled”; the rule that “a person cannot transfer ownership of something that has not yet come into the world”; and the rule that “one prohibition does not take effect upon another prohibition.”
Wozner himself offers for each of these rules a different explanation that does not require use of the naturalistic theory.
Or perhaps you mean the Tanhuma, which compares the Holy One, blessed be He, to a doctor, and says regarding the nations—whose lives He does not desire—that He permits them to eat everything, whereas regarding Israel, whom He desires, He is careful that they not render their souls abominable (and in Pesikta de-Rav Kahana the same idea appears; p. 152, Wozner).
Here too, these midrashim—which are midrashim—are open to various interpretations, and there is no necessity whatsoever to interpret them on the naturalistic plane, for one can easily say that this is only a metaphor (quite apart from deriving halakhah from a midrash).
Therefore there is no necessity in any of these “sources” to adopt the naturalistic approach.
R. Shimon Shkop had two interpretive options before him: one, to follow the mystical conception (and adopt the naturalistic approach), and the second, to follow a non-mystical conception.
As a rational person or a rationalist, we would expect him to choose the non-mystical approach.
I agree that denying mysticism is not rational, but choosing mysticism when there is a non-mystical alternative that explains the same phenomenon or statement is not rational.
With appreciation and thanks.
At the moment I do not have time to get into the issue. I will only note that, as I wrote, the proofs may come from the views of Rishonim even if not from the Talmud itself. And of course, even if there are several interpretive possibilities, the question is which of them is more plausible. I myself have several proofs for this, but this is not the place.
What meaning is there to a vow taking effect on someone else’s object? I am already prevented from using it; what legal effect is appearing here?
That is, when I prohibit myself from his object.)
Indeed, by plain reasoning it does not seem that there is a legal effect on the object there (a person cannot prohibit something that is not his). Perhaps there is a legal effect on the one making the vow.
This of course has nothing whatsoever to do with the prohibition of theft. The vow prohibits even when he agrees.
And when there is a command to fulfill a mitzvah, why should we allow a legal effect to take place that contradicts that possibility?
By the way, I didn’t really understand that legal effect. Is a chalut like the way we perceive morality? That the legal effect says: this = the thing that one may not do? Why? Because there is a chalut.
Is this a new question? This is not a matter of allowing it. The legal effect takes hold because that is what a vow does, and there is nothing to prevent it. There is no prohibition in making a vow that forbids the sukkah.
Chinese.
I am asking what the legal effect tells me. In the context of a vow, does it tell me that the reason not to touch the vowed object is that there is a legal effect saying not to touch it?
That is, is that my relation to that object?
But seemingly, when I told you to sit in a sukkah, I said that the sukkah is the place designated for sitting, and now the legal effect says that this is not the place designated for sitting?
I asked for a translation into Hebrew, not into Turkish.
You are just being stubborn. I do not engage in far-fetched “forced objections.”
I don’t recall such a request. I’m only asking what the legal effect does. When I make a vow, a legal effect takes hold, and then what? One may not act against what it says. Why?
I don’t understand what is unclear.
And even so, why is what I wrote incorrect?
If I understood correctly, R. Shimon Shkop explains that the reason all Torah prohibitions, such as forbidden foods, are prohibitions of gavra according to the Ritva is that these prohibitions stem from a factual-physical state and not from an abstract legal effect of prohibition. This is unlike vows, which impose a legal effect of prohibition on the object (that is, they create for it a new halakhic status), and therefore are called prohibitions of cheftza. That is, according to him, a prohibition of cheftza is a prohibition that stems from an abstract legal effect of prohibition that takes hold on the object, and not from its physical condition.
My question is: according to this, would Torah prohibitions that stem from a halakhic legal effect and not from a physical reality also be considered prohibitions of cheftza? For example, the prohibition of a married woman, which stems from the legal effect of marriage, or the prohibition of theft, which stems from the legal effect of ownership, and the like?
That is really not R. Shimon Shkop’s explanation at all. His explanation is that the question is what the purpose of the prohibition is: whether it is meant to care for the person (that he not eat such foods) or to care for the object (such as the prohibition against desecrating consecrated property).
Both are found in his writings.
The legal effect of marriage defines the marriage and not the prohibition of a married woman. Even if there is a legal effect of “married woman,” that legal effect is the basis for her being married. But the prohibition can still be defined as a prohibition of gavra, because there is not necessarily a legal effect of prohibition here. In that sense, the legal effect of “married woman” is similar to a reality on top of which a prohibition is defined (as with forbidden fat or creeping creatures), and not to a legal effect of prohibition. By contrast, in a vow the legal effect is the basis for the prohibition. That is a legal effect of prohibition, and therefore it is defined as a prohibition of cheftza.
More power to you, and this requires further study.