Means and Ends – Lesson 7

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[Rabbi Michael Abraham] A divorced woman is also forbidden, and nevertheless the kiddushin takes effect. But here we’re talking about a kind of prohibition that does not allow kiddushin to take effect. With consecrated property too, if you misuse it incidentally, you take it out into the ordinary domain. In a moment we’ll see that this is also actually connected to misuse of consecrated property. So the Pnei Yehoshua says: that’s a mistake. In the case of a married woman, the kiddushin does not take effect for two reasons. One reason is because of the severity of the prohibition, like all forbidden sexual relations. The second reason is because she is someone else’s wife. She isn’t available to receive kiddushin. And if that’s so, he says, then with a designated maidservant, the prohibition as prohibition is not the issue; there’s no problem on that score. You could perform kiddushin. But she is someone else’s woman already, she is already attached, she isn’t on the market. So the kiddushin doesn’t take effect, and therefore there is no “wife of two dead men.” That’s basically his claim. It’s really a classic two-law distinction; it’s a real Brisk-style idea. What this claim is really saying is that the problem of relations with a married woman is a double problem. It’s also a problem of violating a prohibition, like any other forbidden relation, and it’s also a problem of entering some domain that is not relevant to you, not fit to be accessible to you. You are intruding into a place that is not in the territory relevant to you. Okay? You’re overstepping your bounds. Fine. About the second thing I claim that one brings a guilt-offering. Now, with an ordinary married woman one does not bring a guilt-offering, only with a designated maidservant. So that is clear. With an ordinary married woman, if you do it, you are liable for the regular punishment, so that already addresses both the problem of the result and the problem of the prohibition. Where can you isolate only the dimension for which a guilt-offering is brought? Only the dimension of intrusion into a domain that is not yours, without the criminal dimension of the halakhic transgression? In the designated maidservant. In the designated maidservant only that aspect appears, without the aspect of forbidden relations. It’s like Maimonides, by the way; he has some expression regarding the people of Shechem, meaning Dinah and Shechem, where Maimonides writes that Shechem robbed her from her father, Dinah. So everyone comments there: what do you mean, robbed? It’s adultery, not robbery. Does she belong to her father? The point is that taking a woman who cannot be your wife contains an element of robbery. You are taking something outside your domain, not just the problem of the halakhic prohibition in the matter; it’s an intrusion into a domain that is not yours. And in fact you see it written that if a woman had relations, if she committed adultery and had relations, then she becomes forbidden to her husband. The wife of a priest even in a case of coercion, but the wife of an Israelite only if it was done intentionally. What does the Torah say about that? What’s the wording of the verse? “And she committed a trespass against her husband.” “And she committed a trespass against her husband”—so therefore, the point is that a woman who commits adultery is like misuse of consecrated property. Meaning, misuse here means it’s not only the prohibition of a married woman; rather, you are intruding into another domain, like consecrated property, like taking something. It’s exactly the same idea. There is the Maharik; the Maharik is brought by the Rema in the Shulchan Arukh. The Maharik says that after all, a woman who committed adultery unintentionally does not become forbidden to her husband. A priest’s wife does, but an Israelite’s wife who did so unintentionally or under coercion does not become forbidden to her husband. But the Maharik claims that it depends what kind of unintentional act it was. The Mishnah at the beginning of the chapter Kelal Gadol in tractate Shabbat distinguishes between two kinds of unintentional error. There is someone who acts unintentionally because he doesn’t know that today is the Sabbath—an error about the facts—and there is someone who acts unintentionally because he doesn’t know the law, he doesn’t know that sorting is forbidden on the Sabbath. He knows it’s the Sabbath, but he doesn’t know that sorting is forbidden. The first is factual error; the second is legal error. In terms of all the laws of unintentional transgression, it’s the same thing. The laws are the same whether the error is about the facts or about the law. Okay, this is unintentional and that is unintentional; it doesn’t matter what was hidden from you, the reality or the law. But regarding a woman who committed adultery, says the Maharik, it depends what kind of error it was. If the woman thought that the man she committed adultery with was not her husband—a factual mistake—then indeed she does not become forbidden. That is the unintentional case about which it was said that the woman does not become forbidden. But if the woman thought that adultery was permitted—she knew that it was not her husband, but she erred in the law, not in the facts; she thought it was allowed, that there is no prohibition concerning a married woman—then she becomes forbidden to her husband even though she acted unintentionally. Why? Says the Maharik, because it says, “And she committed a trespass against her husband.” What does that mean? The woman becomes forbidden to her husband because she trespassed against him, not because of the prohibition. Because she basically went into another domain, because the boundary of this couple was breached here, not because of the prohibition upon her as with some other forbidden relation. And then he says: suppose this woman didn’t know there was a prohibition, but she still wanted to have sexual relations with someone who was not her husband. Then she basically smashed the boundary of the home regardless of whether she knew or did not know that it was forbidden, but in practice that’s what happened. The result happened here, right? Therefore in such a case, “and she committed a trespass against her husband”—once she has trespassed against her husband, she becomes forbidden to him. Even though it was unintentional, because the problem is not the prohibition involved. The problem is—say a home is some kind of reality—and when a home is breached there is a prohibitory aspect to it, meaning you transgress a prohibition, but besides that there is also some specific result here: the house collapsed. Meaning, it became a desolation, in Nachmanides’ language. Okay? In that sense my claim is that the guilt-offering, in principle, every married woman who committed adultery should have had to bring a guilt-offering. In a place where there is a transgression, the punishment or the other sacrifice already addresses the transgression as well. In a place where there is only the dimension of intrusion or of collapsing the walls of the structure of the home, there you bring the guilt-offering of the designated maidservant. That’s the first example. The second example is the guilt-offering for misuse of consecrated property, cases of misuse. When a person misuses consecrated property, he is liable for a guilt-offering. Now there are several examples here of places where one is liable for a guilt-offering for misuse even though in essence there is no prohibition. First example: misuse with konamot. The Talmud says that a konam is a vow. I said, “Konam this book to me.” I prohibited myself from deriving benefit from this book. Fine. Now I used it. So that is misuse with konamot; I receive lashes for “he shall not violate his word,” for having violated the vow, and I bring a guilt-offering for misuse. Now the Mishneh LaMelekh already wondered about this, as did other later authorities: where does this come from? The Talmud brings no source for it, there is no source, no verse. There is nothing consecrated here; we are dealing with ordinary vows, not vows of consecration, meaning I prohibit the book to myself, it has nothing to do with the Temple or sanctity or anything. What misuse is there here? A guilt-offering for misuse—what guilt-offering for misuse do you want to bring here? The Mishneh LaMelekh leaves it unresolved, and the one who elaborates there on the subject does not understand at all where this whole thing of a guilt-offering for misuse comes from. That’s one example. And before I move on to the second example, I’ll already explain here: my claim is that the same thing is happening here that we saw with the guilt-offering of the designated maidservant. With the guilt-offering for misuse, for your transgression you get lashes, for “he shall not violate his word”—that is the halakhic transgression. But besides that, after all, the Talmud at the beginning of tractate Nedarim distinguishes between vows and oaths, that vows take effect on the object and oaths take effect on the person. In the common understanding—not everyone agrees, but in the common understanding—vows are basically some kind of reality applying to the object itself; the object itself is outside your domain. In an oath nothing happens to the object; you are supposed not to do something with the object, or some other act, it doesn’t matter—that is the difference between oaths and vows. Now, if that is so, it seems to me one can understand the guilt-offering for misuse brought for misuse with konamot. The prohibition involved is handled by the lashes, “he shall not violate his word”—the lashes address the prohibition. But there is also an intrusion here into something that is not yours; there is some object here that is outside your domain factually, not because of the prohibition. There is also prohibition in an oath, so what is there in a vow that isn’t in an oath? In a vow there is some kind of partition that says: this is outside your domain, and you penetrated that partition. For that you bring a guilt-offering. That is misuse with konamot. Now, as for this guilt-offering: true, here there is a transgression in the misuse, but the lashes deal with the transgression. Therefore, true, there is a transgression here, but that doesn’t mean the guilt-offering is brought for the transgression. The guilt-offering is brought for another element, not for the aspect of transgression in the matter, but for the consequential aspect in the matter.

[Speaker B] And that is what would not also happen with a married woman? What? Why shouldn’t that also happen with a married woman?

[Rabbi Michael Abraham] With a married woman, the Torah says what the punishment is, for example. Maybe because the punishment is more severe with a married woman—maybe because the punishment is more severe, it also closes off the issue of the guilt-offering? I don’t know. There the Torah doesn’t say that you need both things. But here they say that you need both things.

[Speaker B] Here too it’s not the Torah, right,

[Rabbi Michael Abraham] The sages, right, the sages’ reasoning, you’re correct. Really it’s harder that the sages say this from their own reasoning. So maybe because the punishment is more severe—that’s a question, it needs thought. In any case, that is what one sees here. Now I’ll bring you another example also of a guilt-offering for misuse. The Talmud in tractate Berakhot looks for a source for why one must recite a blessing before eating. It brings various sources and rejects them, and in the end the Talmud says that it is reasoning: that it is forbidden to benefit from this world without a blessing, and anyone who benefits from this world without a blessing is as if he misused consecrated property. And when you read that, you understand it as some literary, metaphorical expression—as if he misused it. After all, this is a rabbinic prohibition; it is not a Torah-level prohibition to eat without a blessing, because the obligation to bless is rabbinic. But the students of Rabbeinu Yonah there on the Rif, in that place, say that he is liable for a guilt-offering. Someone who ate without a blessing, who transgressed a rabbinic prohibition, ate without a blessing, brings a guilt-offering for misuse. Why? Because it says “as if he misused”; “as if he misused” means that he misused, as though he had misused sacred things, like theft from sacred things—but it is actual misuse. And you bring a guilt-offering for misuse. So here too people really ask: what connection is there to a guilt-offering for misuse? It’s a rabbinic prohibition; there is really no prohibition here of that kind. What guilt-offering? For what are you bringing this guilt-offering? My claim is—I’ll say the claim and then the proof—my claim is that what they are really saying by “as if he misused” is: this is outside your domain. And once this food is outside your domain, as long as you have not blessed, it is as if it is in the domain on high, in the domain of the Holy One, blessed be He. You need to ask permission in order to take the thing. So the prohibition, if you ate without a blessing, the halakhic prohibition is rabbinic. But the problem here of intrusion into a domain is a consequential problem that exists, and in that sense it is Torah-level. Meaning, there is basically a Torah-level obligation to bless. That is what I claim. There is a Torah-level obligation to bless. Why? Because the fact that the food is outside your domain is a fact; it has nothing to do with rabbinic or not rabbinic. The sages established a rabbinic rule to bless in some specific wording or another. So that is a rabbinic obligation, and if you ate without a blessing you transgressed a rabbinic prohibition. But beyond that, fundamentally—I wouldn’t say you committed a Torah-level transgression—but there is a Torah-level problem in the act you performed. You entered a domain that is not yours; for that you bring a guilt-offering. Now I’ll bring you proof of this. The Pnei Yehoshua there asks—and we already discussed this—the Pnei Yehoshua and the Tzelach have a very famous dispute there in the passage. The Pnei Yehoshua there asks: if the basis of the blessing is learned from reasoning, that anyone who benefits from this world without a blessing is as if he misused consecrated property, then why do we rule leniently in cases of doubt concerning blessings? There is a prohibition here; reasoning is Torah-level. Yes? How do we know that something derived from reasoning has the status of Torah law? Because the Talmud says, in several places, “Why do I need a verse? It is logical.” That means that if there is reasoning, you don’t need a verse. What comes from reasoning and what comes from a verse are on the same level of status. Okay? Understand: if what comes from reasoning were only rabbinic, then there would be no room to ask, “Why do I need a verse? It is logical.” You would need the verse in order to tell you that this is Torah-level and not rabbinic. Only when one asks, “Why do I need a verse? It is logical,” does it mean that the verse and reasoning are sources of the same status. Not only is there a prohibition also from reasoning, but it is a Torah-level prohibition, and it is the same prohibition. What follows from reasoning you are obligated to uphold exactly like what is written in the Torah. So the Pnei Yehoshua asks: if so, then why are doubts concerning blessings treated leniently? After all, the obligation to bless is a Torah-level obligation; it comes from reasoning, and reasoning has the status of Torah law. So if you are in doubt, a Torah-level doubt should be treated stringently. Why are doubts concerning blessings treated leniently? He answers there with various things that I did not entirely understand—what exactly he is saying there. It seems to me that the simple answer is that there is a Torah-level obligation to bless, not merely rabbinic. There is a Torah-level obligation to bless, but the wording with the divine name and kingship—yes, the whole formula established by the sages—is rabbinic. Similar to this we find with prayer, right? Maimonides’ view is that prayer is a Torah-level obligation, unlike Nachmanides; according to Nachmanides only in times of distress is it Torah-level, but ordinary prayer is entirely rabbinic. According to Maimonides ordinary prayer is Torah-level. But the wording, and the times, and the three daily prayers, and all the rules and the form that prayer takes—that is a rabbinic enactment.

[Speaker C] So if a person just has to bless, then without a fixed wording?

[Rabbi Michael Abraham] Exactly, that’s what I want to claim.

[Speaker C] Meaning, one could explain it differently: that a Torah-level doubt—basically the obligation to be stringent is rabbinic; the same mouth that prohibited is the mouth that permitted. They said there is a special rule in cases of doubt concerning blessings. Why? But why? Because if you say that doubt concerning blessings is a rabbinic doubt, then why say “doubt concerning blessings is treated leniently”? Say nothing; a rabbinic doubt is treated leniently. Why do you need to state specifically that doubt concerning blessings is treated leniently?

[Rabbi Michael Abraham] No, but why did they do it? You’ve convinced me that they did it; I’m asking why they did it. Why waive a possible Torah-level prohibition? If throughout the Torah the sages say that in a Torah-level doubt one should be stringent, why here do they decide to be lenient? They have the authority to say that, but why would they do it?

[Speaker C] Maybe because it is a Torah-level law derived from reasoning and not from a command or something like that?

[Rabbi Michael Abraham] Torah-level but lighter? I don’t know. In any case, and even that is only according to Maimonides. But say according to Rashba and Ran, all those who say that a Torah-level doubt requires stringency by Torah law—then that is not possible. So my claim basically is that just as Maimonides says with prayer, so too with blessings. On the Torah level one must bless, but the wording with the divine name and kingship and so on is only an obligation established by the sages. Okay? Now if you are in doubt, the Pnei Yehoshua asks, then why not be stringent? My answer is that one indeed should be stringent. One should be stringent, but not by reciting a blessing with the divine name and kingship—that would be using the Name in vain, because maybe you already blessed. You have to be stringent in the prohibition, right? Rather, bless in your own wording: thank you, Holy One, blessed be He, for the apple you gave me. That’s all. Then you satisfy the Torah-level doubt, and the doubt regarding the formula is a rabbinic doubt, and there you can be lenient. That’s the claim. Now from this there follows, of course, a great practical novelty: that someone who is in doubt whether he recited the blessing or not should really bless without the divine name and kingship because of the doubt. So according to this approach, what—

[Speaker C] what is the novelty of “doubt concerning blessings is treated leniently”? What’s the novelty in that? After all, in any case a rabbinic doubt is treated leniently.

[Rabbi Michael Abraham] It’s the same thing; it’s not a novelty. Doubt concerning blessings is treated leniently because blessings are rabbinic.

[Speaker B] That’s how all the medieval authorities understand it. Doubt concerning blessings.

[Rabbi Michael Abraham] No, because it is a Torah-level blessing.

[Speaker B] Yes, I’m saying it’s a rabbinic doubt.

[Rabbi Michael Abraham] It is not a special rule about blessings. It’s only a rule about blessings that are rabbinic. Meaning, he wanted to say it isn’t a unique rule about blessings. If there is a Torah-level blessing, then it wouldn’t apply.

[Speaker B] It’s part of the general rule that a rabbinic doubt is treated leniently. Grace after Meals.

[Rabbi Michael Abraham] The blessing over Torah study is disputed, yes. And what about someone who fulfilled it through another?

[Speaker B] There was someone who wanted to say—

[Rabbi Michael Abraham] I found that one of the statements—there is a Rivah in Tosafot who says that with certain blessings, in a case of doubt one should be stringent. He probably does not mean this. But in my opinion—and I say this practically—in my opinion this is what should be done.

[Speaker D] The blessing over Torah study, which is from the Torah, which is Torah-level—is its wording also from the Torah? What is the difference between the blessing over Torah study and a blessing where we say the wording is rabbinic, and the blessing over Torah study where we say it is Torah-level?

[Rabbi Michael Abraham] Regarding the blessing over Torah study, I really don’t know what the law is in a case of doubt. There is an argument whether it is Torah-level. Grace after Meals—the wording there too is Torah-level.

[Speaker D] And that’s exactly the point.

[Rabbi Michael Abraham] With the blessing over Torah study it really isn’t clear that one should repeat it again because of doubt. Maybe there too one should say it only in one’s own words. So what I want to claim is that this takes us back to the words of Rabbeinu Yonah, who say that someone who eats without a blessing must bring a guilt-offering for misuse. Now I’m explaining why: exactly because of this Torah-level dimension that has nothing to do with the rabbinic prohibition or the rabbinic obligation to bless. Rather, on the Torah level there is some need, in order to break through the wall that fences me off from the thing, I need to bless on the Torah level. The wording is rabbinic. If I did not bless, then I need to bring a guilt-offering.

[Speaker B] So that means that if I blessed but not in the fixed wording, there is no guilt-offering?

[Rabbi Michael Abraham] Correct. That’s what I claim: there is no need for a guilt-offering. Rabbeinu Yonah introduced this whole guilt-offering here. So within his approach I want to claim that there is no guilt-offering if you blessed without the divine name and kingship. Fine? So basically this gives us two things—it solves two not-simple puzzles, this thesis that I am proposing. Also this riddle of misuse with konamot: where did they innovate a guilt-offering there? There is no source for it at all. The prohibition already has lashes, so if there is no prohibition, then why bring the guilt-offering? And regarding doubtful blessings, the same thing. There too. There is no prohibition, because the prohibition is Torah-level. So why bring the guilt-offering? One sees consistently—and the same with the designated maidservant—in all guilt-offerings, the guilt-offering is brought for the result that occurred, not for the transgression. And therefore a transgression is not needed. In principle, if there is a result—if I know in some other, indirect way that a result exists—then even if there was no transgression, a guilt-offering is brought. That is the claim. The big question is what happens with the guilt-offering for misuse itself, the father of them all. After all, the guilt-offering for misuse is exceptional first of all because it is brought only for an unintentional act. And all guilt-offerings—maybe I should explain. Why is my motivation for looking for a consequential dimension in guilt-offerings? Because, as I said, a guilt-offering is brought both for intentional and unintentional acts. So that means that basically what matters is what happened in the end. It doesn’t matter how you did it and how guilty you are and all kinds of things like that. The question is what happened in the end. To the point that in principle even in a case of coercion one should have to bring the guilt-offering. And then the claim is basically that with the guilt-offering for misuse, which is actually the source for the two guilt-offerings for misuse that I mentioned, in blessings and in konamot, misuse itself seems to be a counterexample. Because in misuse itself, this is a guilt-offering brought only for an unintentional act.

[Speaker C] In intentional misuse, is that called misuse? Because there is a dispute in the passage whether if I misuse intentionally, does the misuse take effect or not?

[Rabbi Michael Abraham] What does “take effect” mean? It does not go out into ordinary status.

[Speaker C] Is that called misuse?

[Rabbi Michael Abraham] It is called misuse. You transgress the prohibition of misuse, but it does not become ordinary.

[Speaker C] But the result doesn’t…

[Rabbi Michael Abraham] Exactly. That’s my answer. Meaning, what happens with the guilt-offering for misuse is—people asked me this after I told them this idea. I later wrote an article about it, but during the clarification process, when the ideas occurred to me, I spoke with people. What? The guilt-offering for misuse is only for unintentional acts. So I started thinking: after all, the rule is that with misuse, the object goes out into ordinary status only if you misused unintentionally. If you misused intentionally, it does not go out. Only then is there a result. Exactly. Now the guilt-offering is brought for the result, not for the transgression. So precisely because of my idea, in misuse the guilt-offering is only for an unintentional act. Meaning, the idea arose from the fact that the guilt-offering is brought for both intentional and unintentional acts. From here I inferred that a guilt-offering is probably a sacrifice for a result, not a sacrifice for the act. But now, from this very principle it follows that in misuse the guilt-offering is brought only for an unintentional act. But it is brought only for an unintentional act not because only an unintentional act obligates a guilt-offering, but because the result—that the object went out into ordinary status—occurs only if I misused unintentionally. The unintentional aspect is not a rule in the person; it is a rule in the object going out into ordinary status. But once there is going out into ordinary status, only then are you liable for a guilt-offering. And that’s all. Therefore the guilt-offering for misuse is evidence in my favor; not only is it not a difficulty, it is evidence for this whole idea. There is a third kind of guilt-offering, which is the guilt-offering for robbery, what I mentioned before. And with the guilt-offering for robbery the explanation is fairly natural. There too you see consistently that guilt-offerings are not brought for a transgression; they are brought for a result. And whether there is a transgression or not, it is brought for the consequential aspect, and sometimes even when there is no transgression a guilt-offering is brought. With the guilt-offering for robbery—here this is the famous Rabbi Shimon Shkop, who says, yes, I mentioned this several times already, who asks why in robbery we go leniently in a case of doubt in favor of the defendant: the burden of proof is on the claimant, so in a case of doubt the object remains with the one in possession. This is from his Sha’arei Yosher? Yes, Sha’arei. So he asks why. The Mahari Basan really asks this, not he. The Mahari Basan—if I remember right, he was the teacher of the Ramchal, though there were two Mahari Basans, so I don’t know whether it’s this one or the other. In any case, he asks: why indeed do we go leniently, after all there is a possible prohibition of robbery here, and a doubt concerning the prohibition of robbery should be treated stringently? So he brings several answers there from the Tumim and from the Mahari Basan himself, and Rabbi Shimon Shkop rejects them all and makes the following claim. He basically wants to say that the prohibition of robbery is different from all the other prohibitions in the Torah. Pork, for example, is forbidden to me because the Torah commanded it. Meaning, the command creates the prohibition, and without the command there would be no prohibition. In robbery, the prohibition creates the command, not the command the prohibition. Meaning, robbery is forbidden by virtue of the fact that this object belongs to someone else, not because the Torah said “you shall not steal.” Once that is the case, the Torah also said “you shall not steal.” What he calls—there are basically property laws that precede the halakhic command of “you shall not steal.” He says there: after all, in order to define the prohibition of robbery, you have to define the laws of ownership. Now in Jewish law there is no comprehensive definition of property law. It doesn’t say in Jewish law, in the Torah, how one acquires things, how one does not acquire things—hardly at all. Here and there there are things learned from the Torah, but very few. Tractate Bava Batra is known as a tractate without verses; it deals with acquisitions, and acquisitions are all determined by the sages. But clearly these are Torah-level acquisitions, and yet there are no verses. So where does it come from? Rabbi Shimon Shkop says it comes from what he calls the theory of law or legal principles. What does that mean? There is some meta-halakhic determination that is entrusted to society, to the public, to establish certain rules for deciding what belongs to whom, how one buys, how one sells; the laws of acquisition determine what belongs to whom.

[Speaker B] How does that change

[Rabbi Michael Abraham] between a non-Jew and a Jew?

[Speaker B] What? How does acquisition differ between a non-Jew and a Jew?

[Rabbi Michael Abraham] What do you mean, how does it differ? It doesn’t differ, except in those things where the Torah itself established the mode of acquisition, which is a small minority. Like land, yes, where taking possession does not work for a non-Jew—but that is because the Torah established that for a Jew it does work through possession. Only in acquisitions that the Torah itself establishes can there be a difference between a Jew and a non-Jew. All the other acquisitions are basically set by commercial convention.

[Speaker D] They—

[Rabbi Michael Abraham] Convention—not in the sense of merchants’ custom, but custom established by the sages. What difference does that make? It still works on the logic of convention. So among non-Jews too, the same thing: what they establish is what determines it. So it is forbidden to rob also

[Speaker D] from a non-Jew? Wait, in a second I’ll say.

[Rabbi Michael Abraham] Yes, Rabbi Shimon Shkop explicitly says so, and in a moment we’ll see. So the claim is that the prohibition of robbery—meaning, the object becomes yours not because the Torah says “you shall not steal.” On the contrary, the Torah says “you shall not steal” because the object is yours. First of all the object is yours, and after the object is yours, the Torah gives that halakhic validation and says “you shall not steal.” Therefore, says Rabbi Shimon Shkop, when I have a doubt—say Reuven sues Shimon, and we are uncertain who is right, okay? Then comes the Mahari Basan’s question: why shouldn’t Shimon be stringent? After all, there is a possible violation of “you shall not steal” here; let him be stringent. Why does he leave it with himself because of doubt? He says: because if at the legal level society recognizes this object as yours—there is a legal determination that the burden of proof is on the claimant—then automatically the prohibition of robbery also does not apply. Since the prohibition of robbery is a derivative of the legal situation of property law and legal determination, once the legal determination is that the burden of proof is on the claimant, meaning that if he brought no proof the object stays yours, then if legally it is yours, halakhically it is also yours, and now there also will not be a prohibition of robbery. Because the prohibition of robbery is a result of the meta-halakhic state, the legal, factual state. Okay, that’s his claim. One of the implications, for example, is robbery from a non-Jew, which you asked about before. And regarding robbery from a non-Jew, as is known, the medieval and later authorities already disagreed whether robbery from a non-Jew is forbidden by Torah law or not, whether it is forbidden under “you shall not steal.” Rabbi Shimon Shkop says: even according to the view that robbery from a non-Jew is not forbidden by Torah law, that does not mean it is permitted by Torah law. The prohibition—”you shall not steal”—does not apply to a non-Jew, but among non-Jews too there is ownership of money; the non-Jew’s money is his, and by virtue of the fact that it is his, you may not take it. The legal prohibition remains in force. It’s just that the halakhic layer was not added on top of it. Meaning, here the Torah did not add another halakhic layer on top of it with the prohibition of “you shall not steal.”

[Speaker B] You are not violating a prohibition.

[Rabbi Michael Abraham] Exactly. When you rob a Jew, then you violate two things: you violate a legal prohibition and you violate a halakhic prohibition of “you shall not steal.” The legal prohibition exists even without “you shall not steal.” With a non-Jew, the prohibition of “you shall not steal”—according to those views for which it does not apply to a non-Jew—was not said regarding a non-Jew, so the religious prohibition is absent, but the legal prohibition exists also with respect to a non-Jew because he has ownership.

[Speaker C] “Legal” meaning moral, sort of?

[Rabbi Michael Abraham] Not necessarily. Meaning, there is room to discuss how far that is necessarily moral. It is legal. The social determination is binding. It may be that it is not moral, unless it is blatantly immoral, and then the claim would be that perhaps it also has no legal validity. But law has standing in its own right. You belong to the public; you are obligated to obey what the public established, independently of whether it is moral or not moral.

[Speaker B] Is there a difference between legal obligations and prohibitions and legal reality? No, no.

[Rabbi Michael Abraham] That is one of his proofs. I had a big argument about this with one of the guys in our kollel. This is the strongest proof, because according to his view he argued that the legal situation only defines who owns what, and does not establish a legal prohibition. Fine? Consequently, “you shall not steal” is the only thing that establishes a prohibition; the Torah adds the prohibition, and before that there is only a determination. But if so, then from a non-Jew you could take.

[Speaker B] You could take, because you would simply become the owner of it for some other reason, perhaps.

[Rabbi Michael Abraham] No, that’s from Terumat HaDeshen whom he cites. No, he himself argues that it is forbidden to take. It is forbidden to take from a non-Jew. So there is a legal prohibition. More than that, I have another proof—I brought him another proof on this point. Rabbi Shimon there asks: perhaps you will say, why do I need to obey this if the Torah did not command it? Right at the beginning of the section in Sha’arei. Why must one obey it? Then he gives the famous answer that I like so much: yes, why must one obey what the Torah itself does determine? It determined it—so what? It said “you shall not steal”—so it said it. Why do I have to obey? Because reasoning says that what the Torah says one must obey. Here too reasoning says that what the legal order says one must obey. Reasoning is the highest source, not the Torah. Apropos, “Why do I need a verse? It is logical.” In any case, Rabbi Shimon asks—but what is implicit in his question? When he asks why one has to obey if the Torah did not command it, where is obedience being required of me? According to your suggestion, where is obedience being required of me? The legal system only determines facts—what belongs to whom. It is not a matter of obedience; I would be permitted to take it without “you shall not steal.” Only “you shall not steal” forbids it. So what room is there for the question why I must obey the legal order? There is no dimension of obedience here at all. We are forced to conclude that Rabbi Shimon means something else. He claims that there is a legal prohibition against taking the thing. And that prohibition exists also with respect to a non-Jew. With respect to a Jew there is also the halakhic prohibition of “you shall not steal.” That is a second layer, but the Torah does not build a second layer on every first layer. Sometimes yes, sometimes no. But when there is no first layer, obviously there is no second layer. There can be a first layer without a second; there cannot be a second without a first. Therefore he argues that if you are in doubt, then in monetary doubt the burden of proof is on the claimant, so in terms of layer one the money belongs to the one in possession according to legal principles. Consequently there also will not be a prohibition of robbery, because it cannot be that this is mine—there is no first layer of robbery—and yet there will be a second layer. There is no such thing. Fine? That is basically his claim. Now if we understand the prohibition of robbery this way, then basically in the prohibition of robbery too there exists some kind of reality to which “you shall not steal” only gives halakhic endorsement. For that one brings a guilt-offering for robbery. When you rob, then the prohibition of robbery is there—well, the robbery is corrected in another way—but for the intrusion into a domain not yours, you bring a guilt-offering for robbery. By the way—and this is a point on which I have some answer, but not a fully satisfying one—once again the same question arises: so why don’t you bring a guilt-offering in every case of robbery? They bring it only for a false oath denying a deposit. Why not bring a guilt-offering for every robbery? So again I will say what I said about the married woman: in a place where there is ordinary robbery, the prohibition of “you shall not steal” already addresses the issue, so one no longer brings the guilt-offering. The guilt-offering is brought only in a place where this is isolated, where there is only the dimension of intrusion into a domain not yours. And that happens in denial of a deposit. Why? Because in denial of a deposit, it came into his hand permissibly. There is no act of robbery here like “and he stole the spear.” So the result exists—there is in my possession an object that is not yours—but there is no act here. Therefore this is an isolated case of the problematic result without the dimension of the forbidden act, and therefore here indeed a guilt-offering is brought: the guilt-offering for robbery.

[Speaker C] So with robbery from a non-Jew there should also be one here?

[Rabbi Michael Abraham] What? Also with robbery from a non-Jew. Correct. According to my approach, robbery from a non-Jew should require a guilt-offering for robbery. That is what I claim. Any robbery, no matter the deposit. Regarding a non-Jew it is even more severe. Any robbery in which you rob a non-Jew should require a guilt-offering, if I am right. Fine? That is the claim. That’s regarding the guilt-offering for robbery. I said that it isn’t fully satisfying because of Shmuel’s question from before: why don’t you bring one in every case of a married woman? So I said, also with a married woman it is only in a place like the designated maidservant, where only the factual dimension is isolated, but—

[Speaker B] With konamot, for example, then—

[Rabbi Michael Abraham] there were both, so I said because there the punishment is more severe with a married woman. Well, and here with robbery? Here too it isn’t more severe, it’s like konamot. So why here yes? I don’t know; there is no answer. In any case, the last example among the guilt-offerings of sin is the suspended guilt-offering. The suspended guilt-offering is fascinating. The suspended guilt-offering according to Maimonides is very difficult, because according to Maimonides a Torah-level doubt is treated leniently; only rabbinically must one be stringent in a Torah-level doubt. On the Torah level it is treated leniently. So for what are you bringing a guilt-offering? You didn’t commit a transgression. A difficult question. And because of this question, or a close relative of this question, several later authorities propose emending the text of Maimonides. A suspended guilt-offering is brought only for a case of one piece out of two pieces, only where the prohibition was established, not one piece. Meaning, if there are before me two pieces, one of forbidden fat and one of permitted fat; I took one of them—forbidden fat is prohibited, permitted fat is allowed—I took one of them and I don’t know which one, for such a thing one brings a suspended guilt-offering. But if there is one piece here and I don’t know whether it is forbidden fat or permitted fat, there is only one piece, then one does not bring a suspended guilt-offering. In practice, only where the prohibition was established does one bring a suspended guilt-offering. Fine? Now several later authorities want to claim on the basis of this question that according to Maimonides, in a doubt where the prohibition was established, one must be stringent on the Torah level; only in a doubt where the prohibition was not established is the obligation to be stringent rabbinic. Because otherwise, they say, how can there be liability for a suspended guilt-offering? After all, according to Maimonides, in doubt there is no transgression at all on the Torah plane. How do you bring a guilt-offering? Is this ordinary slaughter in the Temple courtyard? Therefore they say that in those cases where there is a guilt-offering, apparently the obligation to be stringent is also Torah-level according to Maimonides. Now this is explicitly contradicted by Maimonides. They also bring that in those cases some want to argue that in all matters whose intentional violation incurs karet and whose unintentional violation incurs a sin-offering, perhaps there too the doubt is Torah-level stringent. There is some kind of textual emendation like that too. Nowadays people emend Maimonides’ text and there is neither root nor branch to it. The Mefrashim in Frankel, for example, bring the regular text without all these emendations of the later authorities. And truthfully, they are mistaken. There is no need to emend the text. According to Maimonides, a Torah-level doubt is treated leniently in all kinds of doubtful cases. He writes this explicitly in a thousand places; there is no exception at all. But a guilt-offering does not require a sin. Again, exactly the same principle we saw in all the other guilt-offerings. The fact that there is no sin is not a difficulty as to why one brings a guilt-offering. A guilt-offering is not brought for sin. A guilt-offering is brought for intrusion into a domain not yours, for the result. What happens with doubtful cases? This is another interesting point. In doubtful cases—maybe Rabbi Shimon Shkop also speaks about this in the first section, I think—what is the prohibition of doubt? One can understand it in two ways. You have doubtful pork, doubtful kosher meat, fine? Why is it forbidden to eat it? Is it forbidden because maybe you are eating pork, or is it forbidden to enter a state of doubt, forbidden to enter the house of doubt? A practical difference: I ate this doubtful pork, and in the end it turns out it was beef, it was kosher. Did I transgress? It depends. According to the first definition, no. They told me: look, be careful, you’re taking a risk here. I take the risk. In the end it turns out I took the risk and came out safely, so I did not transgress. But according to the second approach, the prohibition is on entering the house of doubt, says Rabbi Shimon Shkop. The very entry into a doubtful situation is forbidden, regardless of what was clarified in the end. Now if that is indeed the definition, then it is even more similar to all the previous examples. Because then, essentially, violating the prohibition of doubtful cases is entering the house of doubt; it’s once again entering some territory outside my legitimate domain. Fine? And for this devastation, for this ruin that I create, for this collapsing of boundaries that I create—for that I bring the guilt-offering. Now there is here—since time is up, I’ll just finish with a biblical anecdote. There are three stories in the book of Genesis that almost repeat themselves, two with Abraham and one with Isaac, concerning “please say you are my sister.” Fine—Abraham with Avimelekh, Abraham with Pharaoh, and Isaac with Pharaoh. Okay, I don’t know whether it’s the same Pharaoh, but that’s not the place for that now. But there are three stories, and all three are repeated. There are differences, and I’ll send you the article if you want; I wrote about this and expanded on it in my article. There are differences in the Torah’s wording in these three cases. In one of them—and I’ll already say the answer and the explanation because I don’t have much time to go into the details—one of them deals with a situation where the king took Sarah intentionally; he knew she was Abraham’s wife. The second case deals with a situation where the king took Sarah unintentionally, the woman unintentionally. The third case speaks about a situation where he took her under coercion. One can see this.

[Speaker B] Now in the third case, what does “under coercion” mean?

[Rabbi Michael Abraham] What? What does “under coercion” mean? Basically he had no reason to suspect; they caused him to stumble, like we discussed before. He asked Abraham, and Abraham said to him, “She is my sister,” meaning she is my sister—what more could he do? So that is exactly what we discussed earlier: once you rely on someone whom you are allowed to rely on, the unintentionality is on such a level that it is already called coercion. Now in such a situation it says—why did you do this, do you remember the verse there—”What is this you have done to us? You almost brought guilt upon us.” You almost brought guilt upon us. That is in the case of coercion. Because in the case of coercion there is no sin-offering, there is no dimension of wrongdoing; he did nothing. But there is a guilt-offering, because the result almost was guilt, because the result almost occurred; therefore it is a guilt-offering. Elsewhere it says, “You brought upon us a great sin”—that is what is written in the second passage—because there it really was unintentional, and for that one brings a sin-offering. And when it was intentional, what is written is that the Holy One, blessed be He, struck him and all his household with great plagues. Because for intentional wrongdoing one receives punishment. So with intentional wrongdoing there is punishment; with unintentional wrongdoing it says, “You brought upon us a sin”—that is a sin-offering; and with coercion it is a guilt-offering. Because the guilt-offering comes for the result. And you can really see this; it is precise in the verses, even though it is not written explicitly, but it is precise in the verses. Nachmanides even notes this almost explicitly. Then indeed you see here these three possibilities. Intentional wrongdoing is basically both the result and the dimension of wrongdoing. Unintentional wrongdoing is a result without the full dimension of wrongdoing. Wrongdoing under coercion is a result without an even reduced dimension of wrongdoing—meaning, without even the unintentional element—just the result pure and simple. Okay, those are basically the possibilities. We’ll stop here.