Platonism – Lecture 7

Table of Contents

• Halakhic status as a metaphysical entity in the laws of conditions
• Positive law, negative law, and the distinction from the laws of doubt
• Practical ramifications: double doubt and rabbinic laws
• Moving beyond the Pnei Yehoshua: attribute versus entity
• A Platonic conception of Jewish law as reflecting reality
• Rabbi Chaim of Volozhin: Torah as cleaving to God, not as a means
• Kabbalah, positive attributes, and “thought cannot grasp Him at all”
• Leshem: literal contraction versus non-literal contraction
• Kiddushin, acquisition, and chauvinism without monetary ownership
• Outline of a future lecture: returning a lost object and intellectual property
• The Handels ruling: the Lost Property Law and the Foundations of Law Act
• Closing questions: halakhic status as fiction versus halakhic status as reality

Summary

General Overview

The text argues that halakhic statuses such as the status of a married woman, the status of a divorced woman, and the status of ownership are metaphysical entities, not merely legal descriptions or bundles of rights, and that rights and prohibitions are products of real, ontological relations. Rabbi Shimon Shkop is presented as an example of the idea that in a conditional bill of divorce, the status of a married woman and the status of a divorced woman can apply simultaneously, and the halakhic consequences are determined by “positive law” rather than by the laws of doubt. From this, a “Platonic” conception of Jewish law is built up, according to which it reflects reality rather than convention, and this is connected to Rabbi Chaim of Volozhin’s view of Torah and cleaving to God, as well as to a kabbalistic-Hasidic dispute over the question of contraction and whether the worlds of the sefirot are reality or metaphor. Later, an implication is drawn for understanding kiddushin as an acquisitional relation rather than monetary ownership over a woman, and a framework is opened for a future halakhic-legal example from the Handels ruling in the laws of returning lost property, with the aim of showing the gap in reasoning between Jewish law and modern legal systems.

Halakhic Status as a Metaphysical Entity in the Laws of Conditions

The text presents the claim that the status of a married woman and the status of ownership are metaphysical relations between a person and a woman or an object, and the legal rights are a consequence of the relation rather than its essence. The Pnei Yehoshua is brought as a consequence of this view, namely that a relation can exist without the full set of rights derived from it, as in the case of a slave whose bill of manumission is delayed. Rabbi Shimon Shkop is explained as saying that in a conditional bill of divorce, until it becomes clear whether the condition was fulfilled, the woman bears both the status of a married woman and the status of a divorced woman, because contradiction applies to attributes, not to entities—just as there is no contradiction between salt and sugar even though there is a contradiction between “completely salty” and “completely sweet.”

Positive Law, Negative Law, and the Distinction from the Laws of Doubt

The text states that the situation of “both this and that” looks from the outside like the laws of doubt, but it is not a doubt, because both statuses definitely apply, and the halakhic ruling rests on what is called positive law as opposed to negative law. The example is a woman whose husband dies before the condition is fulfilled, in which case she has both the status of a divorcee and the status of a widow. A widow is permitted to an ordinary priest, whereas a divorcee is forbidden to him, so a definite prohibition is established by virtue of the positive status of divorcee. The text adds that when discussing whether she may marry before the husband’s death, the positive prohibition comes from the status of a married woman, while the status of divorcee is treated only as the absence of prohibition, and therefore the result is prohibition.

Practical Ramifications: Double Doubt and Rabbinic Laws

The text says that if this were a regular doubt, then an additional doubt would create a double doubt, which yields leniency even at the Torah level, but here the first status is not a doubt, so a new doubt remains only a single doubt and leads to prohibition. The text adds that even in the realm of rabbinic law there is no room for leniency on the basis of “rabbinic doubt,” because the status is not doubtful but definitely “both this and that,” and Jewish law always tends toward the stricter side or the relevant positive side.

Moving Beyond the Pnei Yehoshua: Attribute versus Entity

The text distinguishes between two interpretations of the nature of that “something beyond rights” in ownership: one can see it as an attribute of the object, or one can see it as an entity in its own right. Examples such as speed, color, and height are presented as real features in reality that are not themselves objects, in order to make it possible to say that ownership can be a characteristic of the field—namely, that it “belongs to me”—without turning that into an entity. The text argues that Rabbi Shimon Shkop’s example of conditions forces us to see the status as an entity, because the characteristics of a married woman and of a divorced woman cannot reside together, whereas two statuses as entities can both “rest upon her” at the same time.

A Platonic Conception of Jewish Law as Reflecting Reality

The text argues that many halakhic determinations reflect an independent reality rather than social convention, and therefore it calls this a Platonic conception. The text presents halakhic ownership as a fact in reality whose consequences are halakhot, not as a communal agreement about “rights” created by an act of acquisition. It states that this move will lead to differences between halakhic reasoning and ordinary legal reasoning, and that modern legal systems are seen here as more Aristotelian, as opposed to the Platonic character of Jewish law.

Rabbi Chaim of Volozhin: Torah as Cleaving to God, Not as a Means

The text brings Rabbi Chaim of Volozhin in Nefesh HaChaim, Gate 4, as opposing the Hasidic view that cleaving to God is an emotional experience and Torah study is merely a means to awaken it. Rabbi Chaim of Volozhin uses David’s words about “songs” and the midrash about “plagues and tents” to argue that Psalms are not necessarily the ultimate form of Torah study, and that David’s very request teaches that Torah study is not defined by the intensity of the experience of cleaving to God. Rabbi Chaim of Volozhin holds that Torah study is itself the cleaving, because “He and His will are one,” and when a person engages with God’s will through halakhot such as an ox goring a cow, theft, oaths, impurity, and purity, he cleaves to the Holy One, blessed be He, independently of emotion.

Kabbalah, Positive Attributes, and “Thought Cannot Grasp Him at All”

The text sets up a contrast between Maimonides’ doctrine of negative attributes and the kabbalistic description in terms of positive attributes, in which the sefirot, the worlds, and the partzufim are real modes of description. The text asks why people say that one cannot grasp the Holy One, blessed be He, if even with ordinary objects, according to Kant, one does not grasp the thing in itself but only its characteristics. The text suggests that the difference is that the attributes of a car are properties rather than entities, whereas in Kabbalah the attributes of the Holy One, blessed be He, are actual entities in terms of “vessels and lights,” similar to clothing, which is an object rather than a property. Therefore, the relation between God and His “garments” is different from the relation between an essence and its properties.

Leshem: Literal Contraction versus Non-Literal Contraction

The text cites the author of Leshem as describing a Hasidic view according to which Kabbalah is metaphor and contraction is not literal, so that only the Holy One, blessed be He, truly exists and everything else is attributes or metaphors. Opposed to this is a non-Hasidic view according to which contraction is literal, and a “vacated space” was created in which metaphysical worlds exist with independent existence, so that Kabbalah describes reality rather than psychological metaphor. The text connects this position to the claim that Jewish law itself rests upon metaphysical worlds that are garments and wills, and that through Torah study a person “connects” to them in a factual rather than emotional sense.

Kiddushin, Acquisition, and Chauvinism without Monetary Ownership

The text addresses the modern difficulty with the expression “the woman is acquired” and the feminist criticism that seeks to abolish kiddushin, and it presents a response that was written against Rivkah Lubitch. The text argues that acquisition does not necessarily mean monetary ownership but rather an act that creates a metaphysical relation, and the rights of use are only a consequence of that relation. The text emphasizes that an act of acquisition is required in order to create a metaphysical reality, and therefore even the validity of a contract is created through a symbolic acquisition and the like, even though no ownership is being transferred.

The text argues that the concept of a rebellious wife does not prove monetary ownership but rather non-fulfillment of obligations created within the framework of a contractual-obligatory relation, and that statuses such as heave-offering or divorcee also require an act that applies the status, without acquiring anything. The text acknowledges that Jewish law is not egalitarian and defines it as “unequivocally chauvinistic,” but insists that this chauvinism is not the same as the claim that the woman is the husband’s property. As background, the text brings proofs from medieval authorities (Rishonim), especially Nachmanides and his students, who object strongly to formulations that seem to treat a woman as property and present that as impossible within their halakhic understanding.

Outline of a Future Lecture: Returning a Lost Object and Intellectual Property

The text announces that a concrete demonstration of the difference between halakhic reasoning and legal reasoning will be given in two areas: the laws of returning a lost object and the laws of intellectual property. The text argues that in both areas one can see that Jewish law operates differently from modern legal systems, and that the root of the difference is the Platonic character of Jewish law as opposed to the Aristotelian foundation of ordinary legal systems.

The Handels Ruling: the Lost Property Law and the Foundations of Law Act

The text presents the background of the Foundations of Law Act, 1980, as instructing judges to fill gaps on the basis of the principles of justice, fairness, and the heritage of Israel before turning to foreign systems, and it explains that in the Handels ruling a clash arose between Judge Elon and Barak and Chaim Cohen over the integration of Hebrew law. The case is described as follows: Eliezer Handels found a bundle of securities on the floor of the safe-deposit room in Kupat Am Bank, gave it to the bank so that the owner who had lost it would come there, and after four months passed with no claimant, a dispute arose as to whether the “finder” was Handels or the bank.

The text quotes sections from the Lost Property Law, especially section 3, which states that one who finds lost property on another person’s premises must notify the owner of the premises and hand it over to him, and if the owner of the premises received the lost property, “he shall be regarded as the finder.” The text describes the bank’s argument that the safe-deposit room is its premises and therefore it is the finder, and Handels’s argument that it is like a public domain. The text describes Judge Elon’s position that the concept of “premises” is borrowed from Hebrew law and should therefore be interpreted in light of the Mishnah in tractate Bava Metzia: “If one found [items] in a store, they belong to him… if [they were found] between the counter and the shopkeeper, they belong to the shopkeeper… if [they were found] before the money-changer, they belong to him; between the chair and the money-changer, they belong to the money-changer.” Accordingly, the floor of the safe-deposit room is like the customers’ area in front of the counter and is not “another person’s premises” for this purpose.

The text argues against Elon that the term “another person’s premises” is not a halakhic concept in the laws of returning lost property, so this is not conceptual interpretation but a normative determination of who ought to receive the lost object, and that this is not gap-filling because the law addresses all cases and the only question is the factual-legal one of how to classify the case. The text concludes by saying that the main question, from its point of view, is not who was right in the debate about integrating Hebrew law, but rather why Jewish law itself differs from other legal systems in the laws of returning lost property, with a promise to return to this after the vacation.

Closing Questions: Halakhic Status as Fiction versus Halakhic Status as Reality

The text ends with a question suggesting that halakhic status is a legal fiction in the style of “the laws of a divorcee now apply to you,” and with an answer claiming that evidence has been presented that halakhic status is a reality and not merely verbal formulation. The text states that the debate is not about the interpretation of the word “status” but about the evidence, and that anyone who disagrees must deal with the possibility of the double status of married woman and divorcee, and with the possibility of a status without legal consequences. The text closes with an announcement that the lectures will resume “sometime in Elul” or in September, and that a notice will be sent later, followed by words of farewell and “Have a peaceful Sabbath.”

Okay. Last time we talked about the laws of conditions according to Rabbi Shimon Shkop, and I wanted to use them to show, to illustrate through them, the claim that the concept of the legal effect of being a married woman, or the legal effect of ownership, has a metaphysical, ontological dimension—ontology, yes, the theory of being. Meaning, the legal effect of being a married woman is some kind of entity, and not just a description of the legal status of some woman who is married; and the legal effect of ownership is basically saying that there is some metaphysical bond between me and my object, between a person and his property, and not just a collection of rights that this grants me. The rights are a product of the fact that there is a metaphysical bond between me and the object, but they are not the essence of the matter. And one of the implications is what we saw in Pnei Yehoshua there about someone whose bill of emancipation is being withheld: it may be that there is a situation in which the metaphysical bond exists, but all the rights derived from it do not exist—in the case of one whose bill of emancipation is withheld. In the laws of conditions I showed the same thing from another angle. There the claim was that when a man, say, divorces a woman conditionally, then until the point at which it becomes clear whether the condition was fulfilled or not, the woman is in a state—this is how Rabbi Shimon Shkop explains it—the woman is in a state where she is both a married woman and a divorcee. How can that be? After all, a married woman is not a divorcee and vice versa; there seems to be some logical contradiction here. The claim is that she is not both a married woman and a divorcee; rather, she has upon her both the legal effect of being a married woman and the legal effect of being a divorcee. It’s like in a dish that can have both salt and sugar in it, and there is no contradiction in that. The dish cannot be both completely salty and completely sweet, because there is a contradiction between salty and sweet. But there is no contradiction between salt and sugar. The contradiction exists between characteristics or attributes, not between entities. Entity A does not contradict entity B; the properties of entity A may contradict the properties of entity B, but entities do not contradict one another. And therefore you cannot say that a woman is both a married woman and a divorcee, but you can say that both the legal effect of being a married woman and the legal effect of being a divorcee apply to her simultaneously. The question that arises here is: what are the legal implications of this strange situation? So here, just as with salt and sugar, of course the taste will be some combined taste of salty and sweet together, but in the halakhic context it will look like the laws of doubt. I explained that it is not really the laws of doubt, but it resembles the laws of doubt. In the halakhic context, what will determine things is the positive law and not the negative law. For example, if I ask whether such a woman would be forbidden to a priest? Say her husband died. She is a married woman and a divorcee before the condition has been fulfilled, and now her husband dies. So if her husband dies, then in essence she is not a doubtful case, but rather she is both a divorcee and a widow. Now an ordinary priest comes and wants to betroth her. A widow is permitted to an ordinary priest; a divorcee is forbidden to an ordinary priest. So is it permitted or forbidden? The answer is: forbidden. Why? Forbidden because of the divorcee aspect in her, because “divorcee” is a positive law; being a divorcee creates a prohibition against marrying a priest. “Widow” only says there is no prohibition; it does not say there is an obligation for a priest to marry a widow, but only that there is no prohibition—Jewish law has nothing to say about it. So if in the case of a divorcee Jewish law has something to say, and in the case of a widow Jewish law has nothing to say, then at the end of the day, regarding a woman who is both a divorcee and a widow, Jewish law does have something to say. She has the status of a divorcee, and she is forbidden to marry a priest. That prohibition is a definite prohibition, not a prohibition because of doubt, because she is definitely a divorcee and also definitely a widow. Meaning, the legal effect of divorcee and the legal effect of married woman or widow both apply to her. And therefore the prohibition against marrying a priest is determined by the positive law. A prohibition is a positive law; permission is a negative law. Permission only says that there is no law, no prohibition. A prohibition is more positive—sorry—it is a positive law because it is an innovated law; it is not just the opposite state, it is something Jewish law innovated for such a situation. In this case it innovated a prohibition. What would happen if I ask whether she is permitted to marry before the husband dies? Then she is a doubtful divorcee, a doubtful married woman. Is she permitted to marry just some other man? The answer is forbidden. Why? Because in this case specifically the prohibition—specifically the “married woman” status—is the positive law, and “divorcee” is the negative law, because “divorcee” only means that there is no prohibition against her marrying. She can marry because she is divorced. So that is not a positive law, it is a negative law, the absence of a law. But because of the married-woman aspect in her, there is a positive law upon her that forbids her to marry someone else, and therefore in the question whether she may marry someone else, specifically “married woman” is the positive law and “divorcee” is the negative law. And therefore this is seemingly similar to the laws of doubt, but really it is not the laws of doubt at all; rather it is both-and. It is not a doubtful married woman or doubtful divorcee—it is both a married woman and a divorcee with certainty. A practical difference, for example: what happens if there is a doubt regarding this bill of divorce that was given? If I had doubt—if this were an ordinary case of doubt—then an additional doubt would make it a double doubt: doubt whether the bill of divorce is valid or invalid, and then doubt whether she is a divorcee or a married woman or a widow because of the condition, so that is a double doubt, and a double doubt is permitted on the Torah level. But here I am claiming that the first law is not a doubt, it is certainty, and therefore if one doubt arose, that is only a single doubt, not a double doubt, and one must prohibit. And on the other side, what happens if I am talking about a married woman and a divorcee on the rabbinic level? If this were the laws of doubt, then I could be lenient, but since here it is not the laws of doubt but certainty, then even if we are talking about rabbinic law, she will be considered either a married woman or a divorcee each time in the stricter direction, or the positive direction, regardless of the fact that these are rabbinic laws. That is, the claim is that this is not the laws of doubt but both-and. But what matters for our purposes, what really underlies the matter, is that you can say that a woman is both a married woman and a divorcee. That both-and becomes possible only because we are speaking here about entities, because the legal effect of married woman and the legal effect of divorcee are two entities; otherwise you cannot say of a woman that she is both a married woman and a divorcee. You can say that both the legal effect of married woman and the legal effect of divorcee apply to her. So this is an indication that the legal status of an object or a woman or a person in Jewish law is a consequence of a situation or of a metaphysical state, and not just a floating norm, a norm of permitted and forbidden like in legal conceptions. There is metaphysics at the base of the matter. What I said at the end of last time sharpened what emerges here beyond what came out of Pnei Yehoshua. In Pnei Yehoshua the claim was that there can be a concept of ownership that is detached from its legal implications; there is something beyond the legal implications. But what is that something? That is open to interpretation. That something can be at least one of two kinds of things. You can say that it is a property of an object, and you can say that it is itself a kind of being, of object, of entity, when you speak about the legal effect of ownership. So I say: the legal effect of ownership is something that underlies all the rights that I receive from ownership. Meaning, first of all there is some kind of bond between me and the object, and there are legal implications to the existence of that bond—but what is that bond? I said that in reality, when I speak about something that exists in reality and not only in the context of definitions, not only in the person but also in the object, it can still be one of two kinds of things. Say, it can be a characteristic of an object or an attribute of an object, and it can be an object. When I speak about the speed of the car—the speed of the car is not an object; it is a property or state or characteristic of the car. The car is an object; its speed is not an object. It is a property of the object. But that does not mean that the speed of the car exists only in my head and does not exist in reality. No, it exists in reality, even though it is not an object; it is a property of an object. But it is something in objective reality. It is not a matter of our arbitrary definition, like the color of an object, the speed of an object, the height of an object—it doesn’t matter. All these things are properties of objects; they are not beings. But these properties are part of reality itself. Objects in reality itself have properties. So to say what Pnei Yehoshua said—that I have ownership of the object and as a result there are legal implications—I could still say that ownership is an attribute of the object. If I say that I own the field, then one of the attributes or characteristics of the field is that it belongs to me. And therefore it is something in reality itself, but it is not an entity; it can also be a characteristic or attribute of an entity. In contrast, here, in the context of Rabbi Shimon Shkop on conditions, here the claim is that this thing is literally an entity. If it were a characteristic, then the characteristics of “married woman” and “divorcee” could not coexist simultaneously. Therefore it cannot be a characteristic; it must be an entity. So this example of conditions takes us one step further beyond the example of ownership according to Pnei Yehoshua. Here the claim is not only that it exists in reality, but that it is some kind of being. When I say “the legal effect of married woman,” that means that something in reality itself has changed. When I impose the legal effect of married woman on the woman, there is like a backpack, yes, she is carrying on her back that legal effect, that entity called the legal effect of married woman, and also the legal effect of divorcee. She has on her back two legal effects, two such backpacks. Okay, so that is the meaning of the fact that there are entities here. So the legal effects are entities, and that means essentially—and we will return to this further on—that it means essentially that the descriptions—wait, yes—that it means essentially that all the halakhic determinations, not all, but many of the halakhic determinations, unlike, say, the laws of a state or whatever, or the rules of a guild or whatever, the laws of Jewish law reflect something in reality itself. And therefore I relate to this as a Platonic conception. Jewish law sees itself within a Platonic conceptual framework. Meaning, when I say that I own something, this is not some agreement, norm, determination of society. We agreed among ourselves that you will be the owner if you perform such-and-such act of acquisition and pay so-and-so such-and-such amount—you will be the owner. The claim is that in Jewish law, the fact that you are the owner is a fact; it is not an agreement, it is not a convention. It is not something we agreed upon in the halakhic community. It is a reality. That reality has halakhic implications, but first of all the thing itself is a reality. And in a moment we will see differences that follow from this Platonic conception as opposed to ordinary legal conceptions, which usually are not Platonic. So I will just make one comment—I’ll come back to this point in a moment—I’ll just note that this connects to how we relate in general to Torah, Torah study, and so on. Rabbi Chaim of Volozhin, in the book Nefesh HaChaim—yes, a student of the Vilna Gaon, basically the one who founded the Volozhin yeshiva and the father of the yeshivas in Lithuania, or really the whole modern yeshiva model we have today is basically from Rabbi Chaim of Volozhin. And he wrote a book called Nefesh HaChaim that came out against Hasidism. Even though he does not mention Hasidism in the book, he keeps arguing against its ideas. And in Gate Four, which deals with Torah, Rabbi Chaim of Volozhin basically speaks about the conception of cleaving to the Holy One, blessed be He. And he brings in the name of Hasidism—without saying so, again—that there are those who understand cleaving to the Holy One, blessed be He, as some kind of experience or feeling. Yes, I feel within myself some kind of attachment to the Holy One, blessed be He. And he says that in their view the role of Torah study is to arouse the experience of cleaving, and therefore the Torah is basically some kind of means to produce cleaving to the Holy One, blessed be He, where cleaving is some kind of experience or feeling. Against this, he argues—he brings several proofs that this cannot be correct—and he claims, yes, he says: according to this, King David asked the Holy One, blessed be He, that his songs—yes, that Psalms should be considered like the study of tractates dealing with ritual afflictions and tents of impurity. That is what the midrash says; the Talmud brings it. And Rabbi Chaim of Volozhin says: what do you mean? If the purpose of learning is to arouse an experience of cleaving, then obviously Psalms is a much stronger kind of learning, much more Torah study, than studying ritual afflictions and tents of impurity. What kind of cleaving is created by learning ritual afflictions and tents of impurity—technical matters of purity and impurity—whereas in Psalms it is all entirely some kind of cleaving to the Holy One, blessed be He? So I would expect Psalms to be the ultimate model of Torah study, and specifically ritual afflictions and tents of impurity would need explanation as to why that too counts as Torah study. But with King David we see the opposite: ritual afflictions and tents of impurity are Torah study, and he asks that Psalms too be considered Torah study. So you see that the Hasidic conception is not correct, that the purpose of study is basically to arouse experiences of cleaving. So what is it? He says more than that—he makes an amusing remark there: it also does not say what the Holy One, blessed be He, answered King David. Yes, it says, “Your statutes were songs to me”—King David asks that his songs be considered statutes, be considered Torah study—but it does not say that the Holy One, blessed be He, answered him favorably. Meaning, first of all, the very fact that King David asks is already proof. Besides that, the request may not even have been granted, so in the end Psalms still remains second-class Torah study, and ritual afflictions and tents of impurity are the real Torah study. So Rabbi Chaim of Volozhin says: then what is the idea? What is the concept of cleaving? Why does Torah study bring one to cleaving to the Holy One, blessed be He? He argues that Torah study is not a means to cleaving; Torah study is the cleaving itself. When you study Torah, in that very act you are cleaving to the Holy One, blessed be He. It has nothing at all to do with experiences and emotions and all sorts of things that are aroused in you as a result of the study. And why? He brings there from the Zohar and so on, “He and His will are one.” The Holy One, blessed be He, and His will are one thing. And when you cleave to His will, you are in fact cleaving to Him Himself. So what is His will? His will is when you look at an ox that gored a cow, at commerce, at the laws of thieves and oaths and all these things, and purity and impurity and everything—then all these are in fact the wills of the Holy One, blessed be He. Jewish law is basically the will of the Holy One, blessed be He, what He wants us to do or not do. And therefore studying these wills is our way of cleaving to the Holy One, blessed be He. Actually, it seems to me that behind these words—and in the book Nefesh HaChaim you can see this in a very sweeping way in many places—there really is a conception here that when you study Torah you are entering into some metaphysical world, and that world is some kind of garment of the Holy One, blessed be He. And when you engage in it, you are cleaving to the Holy One, blessed be He. And therefore there is no need to look for the experiences produced as a result of study; the study itself is the cleaving. And I think what stands behind this is really that when I deal with an object and with ownership and with all these kinds of things, I am dealing with existing metaphysical worlds. I grasp something and connect to it, I connect it to myself. This is not a metaphorical statement. It is not something as if I am connected. Today they call it “connecting,” yes, in the emotional sense. Do you connect to Torah and commandments, do you connect to Simchat Torah, do you connect to Sabbath observance? “Connect” of course means to feel some kind of identification. It speaks about some emotion or experience. Here we are talking about being metaphysically connected, meaning simply to be one with it, yes? As Rabbi Chaim of Volozhin describes: when you think about Torah ideas, those ideas are inside you, and you are physically, as it were, or metaphysically connected to the Holy One, blessed be He, because He and His will are one. You are simply connected to it in the factual sense. This is not connection in the emotional, experiential sense. So what I think stands behind this conception—and he talks about it in Gate Three regarding prayer, where he says at length, yes, that prayer is repairs of all kinds of spiritual worlds and things of that sort—the whole book talks about how behind Jewish law, prayer, Torah, there stand metaphysical worlds. And these metaphysical worlds are garments of the Holy One, blessed be He. They are basically part of the Holy One, blessed be He, Himself. You know that usually Maimonides and philosophers of the Middle Ages—Jewish philosophers of the Middle Ages, not only Jews actually, also Muslims and others—spoke about the fact that you cannot describe the Holy One, blessed be He; He has only negative attributes. I can say that it is not true that He is cruel; I cannot say that He is merciful because that is a positive attribute. I cannot describe the Holy One, blessed be He, in any positive way, only by negation—that it is not true that He is cruel, or things of that sort. But on the other hand it is also not true that He is merciful. Nothing is true of Him; no positive attribute is true of Him. And this is the doctrine of negative attributes, which in my opinion contains logical contradictions; to me it does not really hold water in its simple sense. But in the Kabbalistic world they speak explicitly about positive attributes. Kabbalah definitely sees our conception of the Holy One, blessed be He, as a conception of positive attributes, not negative ones. And the positive attributes of the Holy One, blessed be He, are the sefirot, the worlds, the partzufim, all the abstract spiritual Kabbalistic concepts. All of these are basically attributes of the Holy One, blessed be He. What does “attributes of the Holy One, blessed be He” mean? These are the ways in which… the ways in which I describe the Holy One, blessed be He. Yes, for example, as I described earlier: a car has such-and-such speed, such-and-such color, such-and-such height, such-and-such volume, and so on. I describe reality in different ways. The same way, the descriptions that the Holy One, blessed be He, is merciful and gracious, slow to anger and abundant in kindness and truth, jealous and avenging, and all these things—these are all positive descriptions of the Holy One, blessed be He, and not by way of negation as Maimonides and his camp say. So if that is really so, then why do people always say that the Holy One, blessed be He, cannot be grasped? And how is grasping the Holy One, blessed be He, different from grasping the car? After all, I never—Kant already taught us this, since I mentioned it—Kant taught us that when we encounter some object, we do not encounter the thing in itself but the thing as it appears to us. We encounter its characteristics. I see the color of the car, its height, the material from which it is made, its speed, and so on. I do not grasp the car in itself, the bearer of the properties—yes, we talked about that, that it is the bearer of the properties. I do not grasp the entity that carries the properties. I grasp the collection of properties. I only argued, against Leibniz and if you remember Borges and so on, that there must necessarily be some object that owns these properties, that the properties describe it. Otherwise, what is holding this collection of properties together? What turns this collection of properties into a being, into an object? Clearly there is some object here of which all these properties are properties. So in that sense, as Kant said regarding every object in the world, I cannot grasp the thing itself but only its properties. So if that is so, what is the difference between that and the Holy One, blessed be He? Him too I cannot grasp in Himself but only His properties. So why do people always say that the Holy One, blessed be He, cannot be grasped because He is so exalted and transcendent and distant and incomprehensible? “No thought can grasp Him at all.” Yes? Why can thought grasp Him any differently than the car beside me? There is an essential problem in grasping things themselves, and therefore I grasp only the characteristics. But that is true of cars too, not only of the Holy One, blessed be He. Because I do not have access to the thing in itself; I have access only to its collection of characteristics. And therefore a question arises here: what is everyone talking about when they say that the Holy One, blessed be He, cannot be grasped? And I think the explanation of this matter is that the relation between the Holy One, blessed be He, and His characteristics or attributes is not the same relation as between the car and its attributes and characteristics. The attributes and characteristics of the car are not entities. They are properties of the car, exactly what I spoke about earlier with salt and sugar and saltiness and sweetness, yes? So these are properties of the car; they are not entities. What really exists is the car, and these are its characteristics. The attributes of the Holy One, blessed be He, are beings. It is not like the color of a car. The mercy and grace of the Holy One, blessed be He, is an object. There is some merciful and gracious force in the world that in some sense represents the Holy One, blessed be He. It is not His own property; rather it is something specific that appears in the world—at least according to the Kabbalistic conception. Therefore they speak about sefirot and partzufim and worlds as some kind of beings. They speak about this as engagement in metaphysics. It is a kind of being. And these beings—in Kabbalah this is called vessels and lights. Yes? The lights are inside the vessels, and the vessel and the light, like body and soul, become in essence one entity. But it is still clear that the vessel is not the light, even though they join together and create one entity. That is the analogy for the relation between the Holy One, blessed be He, and His characteristics, His garments as they are called in Kabbalistic language. And basically the claim is that these garments—like clothing that we wear—when I say that I have the color blue, that is not the same as saying that I am wearing a blue shirt. When I wear a blue shirt, the shirt is an object; it is not my characteristic. If they say that I have the color blue, the color is not an object; the color is my characteristic, my attribute, my property. The characteristics or positive attributes of the Holy One, blessed be He, are beings. It is like a blue shirt. He has a shirt of kindness. Not that He is kindhearted—the shirt is kindhearted. But the shirt is His attribute. His attribute is a kind of entity. And therefore I think this is what people mean when they say that the Holy One, blessed be He, cannot be grasped, because really this is worse than grasping cars. The car in itself I cannot grasp, but I do grasp its attributes and characteristics. With the Holy One, blessed be He, the attributes and characteristics are not His attributes and characteristics; rather they are beings that represent Him in our world, or something like that. That, at least, is the Kabbalistic conception. Why am I saying this? Because here there is… so I say: He basically has contradictory beings. He has both mercy and grace and jealousy and vengeance, right? But by the way, that is true of human beings too. Human beings can sometimes be compassionate and sometimes jealous and vengeful. The same person can be both this and that. By the way, this is an interesting question—we will get to it later. For example, when I am obligated to love every Jew and to hate the wicked, can that be fulfilled with regard to the same person? To love him because he is a Jew and to hate him because he is wicked? And I argue that yes, it can. There is no contradiction between those two things at all, and “let sins cease, not sinners.” But we will discuss that; that will already lead us to Platonic love or Platonic emotions, which also appears in the Platonic-Aristotelian context, but we will discuss that later in the series. In any event, back to us: the Leshem—the grandfather of Rabbi Elyashiv, yes?—was perhaps the greatest Ashkenazi Kabbalist in the time of Rabbi Kook, or maybe even a bit older than Rabbi Kook; they were in contact. And he writes that the Hasidim understand that all of Kabbalah is nothing but a metaphor. Kabbalah is nothing but a metaphor, and the tzimtzum is not literal; only the Holy One, blessed be He, really exists. All the other things are only His attributes or metaphors or things of that sort, but nothing has real existence except the Holy One, blessed be He. And therefore they understand all of Kabbalah as some kind of metaphor that basically speaks about powers in the human being, or a metaphor for psychology, or a metaphor for metaphysics—I do not know exactly what—but it is not a description of reality, rather a metaphor. The question is: a metaphor for what? That is an interesting question, and I think there is no answer to it, because if there is a metaphor then there is also something it refers to, and that referent is supposed to exist; otherwise what is the difference between the metaphor and what it refers to? But never mind—this is how the Hasidim understand this world of Kabbalah, and this basic statement of “the tzimtzum is not literal.” The Holy One, blessed be He, who contracted Himself, is not really contracted; He is still everywhere and only He exists. That is the Hasidic conception. And he argues that against this, the Mitnagdic conception, let’s call it that, is a conception that sees the tzimtzum as literal. The Holy One, blessed be He, withdrew, and what remained here is a vacuum in which things exist that are unrelated to the Holy One, blessed be He, things that have independent existence, and the entire Kabbalistic structure or structures basically describe this metaphysical reality and not the Holy One, blessed be He. And therefore the tzimtzum is literal, and Kabbalah describes worlds that really exist—metaphysical worlds. It is not a metaphor for psychological forces and all kinds of things of that sort. It is worlds. There is a correspondence between this and the structure of our psyche—“from my flesh I perceive God”—but it describes real worlds; it is not only a psychological metaphor or something like that. And that is what I am talking about here: that behind Jewish law there sit metaphysical worlds, and these metaphysical worlds are wills or characteristics of the Holy One, blessed be He. And when I study Torah I am basically connecting to them, and that is how I become attached to the Holy One, blessed be He. All these Kabbalistic, conceptual little teachings are basically saying, I think, that this connects to the meta-halakhic conception I described earlier. The meta-halakhic conception I described earlier basically says that the Jewish law we are dealing with is really a reflection or normative expression of some metaphysics that we grasp through its halakhic implications. We understand that a woman becomes a married woman and he becomes the owner of an object and all these things, and all of that is really understanding metaphysical, spiritual worlds that lie behind Jewish law, the wills of the Holy One, blessed be He. And in that sense this is exactly speaking in the same language in which we speak about metaphysical beings—yes, the sefirot and the worlds and so on. What are attempts to grasp garments of the Holy One, blessed be He? Jewish law is some kind of reality that is a garment of the Holy One, blessed be He. We try to understand it, while the implications of these garments are the laws: what is permitted to do, what one must do, what is forbidden to do—but all of these are only implications of states. Those states basically project or create, generate, norms. Now all these things sound a bit—I don’t know what to call it—mystical, vague, not well defined, and so I will return to the halakhic plane and try to explain the things in a more concrete way. I’ll just perhaps say one sentence related to things we’ve been discussing. This way of speaking that I presented earlier, about legal effects as some kind of entities, can explain another point for us, and this is something that in recent years has often been a point that bothers people greatly: when I speak about the husband acquiring his wife, at the beginning of tractate Kiddushin. Yes? “A woman is acquired in three ways: by money, by document, and by intercourse, and she acquires herself in two ways: by a bill of divorce and by the husband’s death.” Fine, so there is some acquisition the husband makes in the woman. What is that acquisition? This enrages many people, mainly feminists, male and female, but I think in general it is very hard to digest the idea that a husband is the master, the owner of his wife in the monetary sense, to the point that there are all sorts of protests against it and a desire to abolish it and all sorts of things of that sort even within the religious world, not only outside it. I have an article in Hakdamot against an article by Rivka Lubitch—the female rabbi who wrote that betrothal should be abolished, that it is chauvinistic and these are archaic concepts that should be abolished because basically it reflects acquisition that the husband has in his wife. And in my response article I argued that this is based on a misunderstanding. When we speak about acquisition, we are not necessarily speaking about ownership. When we speak about acquisition, we are speaking about a metaphysical bond. Even in the concept of ownership itself, when I say that I have acquisition in a field, the fact that I have rights in the field and I can do with it whatever I want is a consequence of the concept of acquisition; it is not the concept of acquisition itself. The concept of acquisition means that there is a bond between me and the field. There are implications: that I am allowed to do various things with it and everyone else is forbidden to do various things. Therefore in Jewish law, an act of acquisition is not an act that imposes ownership in the sense of giving me rights to use the thing as I please. Rather, the concept of acquisition means to bring about a metaphysical reality. That is what is called acquisition. When I perform an act of acquisition, that act is what brings about the metaphysical reality. You cannot create my ownership over an object if the halakhic conception is Platonic, meaning that a reality is created here. You cannot create that without there being some act that creates that reality. That act is called an act of acquisition. Meaning—the land will be my owner too, which is actually reciprocal? He says this is actually reciprocal: I own the land just as the land owns me. Fine, just it is not correct to say “owner”; rather, I am connected to the land by some bond, and a bond is of course something symmetric. But are the rights reciprocal? The land cannot use me; I can use it. Meaning, there are rights. I am not touching the language of legal rights; that remains as it was. I am only claiming that the legal rights are a consequence of a metaphysical reality. When I say that I own something, first of all I said that there is a metaphysical bond between me and it. Now there are many such bonds in Jewish law. There are bonds of ownership, bonds of terumah, bonds of married-woman status, bonds of agency, partnership. All the halakhic concepts are some sort of bonds or metaphysical realities, and in order to change a metaphysical reality one has to do an act. Reality does not change without my doing some sort of act. The act is what brings about the metaphysical state. Yes, but in the context of a woman? In the context of a woman I create a bond of marriage, not of ownership in the sense of ownership of an object, but I create a bond of marriage. But marriage is not a legal status as people usually understand it. First of all, it is a metaphysical bond. I create a connection between me and the woman. We talked about splitting speech and all those examples. I create, change some reality in the world, a metaphysical, meta-halakhic reality, and in order to change that one has to perform an act of acquisition. “Act of acquisition” means an act that imposes the legal effect; it is not an act that necessarily creates my ownership over the thing. Ownership is one of the consequences of an act of acquisition. Most acts of acquisition that we perform really are acts that generate ownership. But there are other acts of acquisition. I perform an act in order to validate a contract. I lift a pen or a kerchief, yes? When signing the ketubah. When signing the ketubah the rabbi usually gives you some pen to lift. Why? Because that is how one acquires with the garment of the buyer or with the garment of the seller—there is a dispute in the Talmud—but you have to lift some kind of object in order for the contract to be valid. That contract contains no ownership at all, nothing of the sort—it contains obligations. Right, but you can’t blur the fact that there is an issue of ownership in the sense that, for example, there is the concept of a rebellious wife. Why is she rebellious? Because I own her, and if she does not do something—No, you do not own her, not at all. Why is she rebellious? Rebellious against the authority over her. What do you mean, not fulfilling the… The contract to which she committed herself. I too, if I don’t… Then say the woman is breaching a contract; you don’t need to say rebellious. “Rebellious” means rebelling against the authority over her. That is called rebellious; it is called rebellious. No, “rebellious” is not against authority over her. There is a Talmudic discussion about a chicken that rebelled. What does it mean, a chicken that rebelled? It is not rebelling against authorities; a chicken cannot rebel. The chicken simply does not obey me, does not do what it is supposed to do. This is not rebellion in the sense in which in modern Hebrew we understand it. The point is that there is here—betrothal is a contract. Betrothal is not acquisition. And the act of betrothal imposes the contract. And now this contract has two sides: I am obligated in food, clothing, and conjugal relations, and she is obligated to me in various things. Part of this—part of this is the contract in the ketubah, not in the betrothal, never mind—but overall some kind of obligations are created here, what jurists call obligatory contractual obligations, not property obligations. And therefore both sides have to fulfill what they committed to. But that is not because I become the owner. There is a contract between us that you committed to do such-and-such and I committed to do such-and-such; both sides must uphold what they committed to. But in Jewish law, in order to impose a contract too, one has to perform an act, one has to do something. And that is what confuses people into thinking that by this I am acquiring someone. When I separate terumah, then I separate terumah, I impose the legal effect of terumah on the thing. In order to impose the legal effect of terumah on the thing, one has to do something, okay? Even though I have not acquired anything—there is no act of acquisition here at all. But in order to impose the legal effect one has to perform some sort of act. The legal effect of divorcee—I did not buy anything or sell anything. I created the legal effect of divorcee, and that legal effect requires an act in order to impose it. Can the woman impose the same thing as the man? Didn’t hear. Does the woman have exactly the same rights to impose this bond just like the man? What does it mean, rights to impose? There is no such thing as rights to impose. The question is how it is imposed. Can she create this bond exactly the way the man creates this bond? No, only the man can. Because “when a man takes a woman,” and not “when a woman is taken by a man.” Only the man gives it. So there is asymmetry. Correct, I did not say there was symmetry. Maybe I was not clear. In the article I explain this very clearly. I am not claiming that Jewish law is egalitarian, that there is symmetry. Jewish law is unequivocally chauvinistic. And all the apologetics—each in its place, but not here. Jewish law is chauvinistic, that is clear. I am only claiming that there is no acquisition here, that is all. Simply a mistake in understanding. But I did not say there is equality. There is no equality. A woman cannot marry another husband; a husband can take another wife. There are many asymmetries in Jewish law. By the way, on this point too one can play around a bit. You know, any man who cannot marry a woman—the woman also cannot marry him. In that sense it is completely symmetric. Say I am married to a woman; I can marry another woman. But that other woman has to be unmarried. Now if she is unmarried, then she is permitted to marry me just as I am permitted to marry her. So here is perfect symmetry—what is the problem? Whenever you look at a pair action between a man and a woman, if it is forbidden, it is forbidden to both of them; if it is permitted, it is permitted to both of them, in principle, yes? In this formal sense I can show there is even symmetry. But of course that is a formal amusement. Anyway, for our purposes, the claim I want to make is that once we understand that metaphysical realities sit at the foundation of Jewish law, then our view of Jewish law changes. We understand that what we are doing is not exhausted by the implications. When I say that the husband can, I don’t know, do something with his wife, that does not automatically mean that she is his property. That is a consequence of some metaphysical state. That state is called marriage, not necessarily ownership in the sense of proprietary ownership over the thing. And there are medieval authorities—and I bring many proofs there, this is not—contrary to what you often hear today, these apologetics: no, heaven forbid, Jewish law is enlightened and its ways are ways of pleasantness and all that nonsense. It is not enlightened and its ways are not ways of pleasantness and nothing of the kind. Jewish law is not symmetric and is chauvinistic, all true—unfortunately, by the way—but that is reality. You cannot deny reality. I do think there are points where people do not understand Jewish law correctly, and what I show there in the article is that the strongest proofs of this are proofs brought from the literature of the medieval authorities and from the Talmud itself. Not from our feminist period, where we are on the defensive and everyone writes how enlightened and just Jewish law is and who knows what else, and all sorts of things of that kind. That is suspect apologetics. Bring me proofs from the period of the medieval authorities, where no one bothered to defend himself against feminist protests, or from the Talmud. And I can show you in a very systematic way in the medieval authorities and in the Talmud that the conception is not a conception of ownership. Yes? There is a well-known Nachmanides and Rosh—mainly Nachmanides, actually, and his students—who raise a difficulty. They say: after all, a woman is not the husband’s property, so how can the Talmud say such-and-such? And it’s not that they answer, no, no, don’t think that—a woman is not the husband’s property, the Torah is enlightened and its ways are ways of pleasantness and so on. They do not say that. They say: whenever there is somewhere in the Talmud where it seems from the Talmud that the woman is the husband’s property, Nachmanides immediately cries out with a difficulty: after all, the woman is not the husband’s property—how can one say such a thing? It cannot be! And that is not apologetics; it is a very clear internal halakhic conception that the woman is not the husband’s property. It is a mistake in understanding. Now there is abundant evidence for this, dozens of proofs. This is not apologetics or latching onto some source here or there—there is no other source. It is completely clear; I do not think one can argue about it. So this is, for example, an implication of the Platonic or metaphysical conception of Jewish law. When we speak about acquisition or about an act of acquisition, we are basically speaking about an act that generates a metaphysical state. What is the nature of that metaphysical state? There are many kinds of states, and it is not right to assign them all to states of ownership. Ownership is only one example, and there are other examples of metaphysical states that Jewish law deals with. Now I want to bring—I won’t manage both examples now, but at least I hope one—I want to bring an example of how this business works in halakhic practice. Meaning, I want to argue that the form of halakhic argument or reasoning looks different from ordinary legal reasoning because of the Platonism of Jewish law. Because of the Platonism of Jewish law, when Jewish law deals with certain topics that general law also deals with, you will see a different form of reasoning, the reverse in Jewish law from what you find in any other legal system. And I think the foundation of these things is the Platonic character. And I will show this in two contexts. One context is the laws of returning lost property in Jewish law, and the second is the laws of intellectual property, copyrights, patents, whatever you want to call it. In both of these places, I think you can see very sharply the difference between the way Jewish law operates and thinks and the way ordinary legal systems think. It is not the same thing. And one of the differences—there are others too—but one of the differences is that Jewish law sits on a Platonic foundation, and other legal systems sit on an Aristotelian foundation. Again, the systems I know—I don’t know, maybe there are others—but the ancient systems, by the way, were more Platonic; the modern systems go in the Aristotelian direction. I’ll try to explain that a bit more. So let us begin with the laws of returning lost property. The basis for this discussion is what is called the Handels case. The Handels decision in the Supreme Court, district and then Supreme Court, received a great deal of attention in the literature, mainly because the basic dispute in that judgment revolved around the question of how far one can bring Jewish law into the halakhah—into the ordinary legal world, into the law. I don’t like the term “Hebrew law”; in my view it is a problematic term, but since that is how people speak, maybe I will use it—to bring Hebrew law into the ordinary legal world, into the statutory framework. And one of the places where this came out very strongly was in the Handels case. What stands behind it is basically the Foundations of Law Act of 1980, where they enacted a law that if there is a lacuna in the law, judges are supposed to fill the lacuna first of all from principles of justice and equity and the heritage of Israel, or from Hebrew law, or something like that—I don’t remember the exact wording—and only afterwards go to foreign legal systems and the like. There is of course a problem that judges cannot do this because they do not know, they are not familiar with this system, so that is a technical problem and therefore many times they do not do it either. But that is the Foundations of Law Act. Now in the Handels case this came out very, very, very sharply. There was Elon against Barak and Haim Cohen; in the end it came before five judges, I think. By the way, Haim Cohen himself was one of those active in bringing Hebrew law into Israeli law, but there he was דווקא on the secular side, I don’t know what to call it. And the story was this: a man named Eliezer Handels went to a bank called Kupat Am Bank, and on the floor of the safe-deposit room he found a bundle of securities. And now the question arose—what do you do with it? It is a lost object; what do you do with it? Fine, in principle you have to announce it, inform the police; if it is something valuable you have to inform the police. He did that, and after four months, when the loser does not come, then by law it goes to the finder. Now a dispute arose between… one second, another important note. Handels gave the securities to the bank; he did not keep them with him. Why? Because clearly the loser, when he realizes he lost the papers, whom will he approach? He does not know Handels. Obviously he will go to the bank and ask whether anyone here found my securities. So Handels, in all his honesty, left the papers at the bank and said to them: listen, friends, I found this; if someone comes, give it to him. Four months passed and no one came. According to the law, after four months the lost item belongs to the finder, and the question arose: who is the finder? Handels or the bank? Not a policeman—it’s a bank, as the Gashashim used to say. So who is the finder? Handels claimed he was the finder; the papers should go to him. He left them at the bank for the sake of the loser, because the loser will come to the bank and then he will be able to find them. But the one who found them and the one who did the required acts in order to return them was Handels. So if so, after four months those papers belong to him. The bank claimed no, it was the finder, I am the finder, and therefore those papers belong to me. I held them, I kept them for the loser, and so on. This story went through several instances, reached the Supreme Court, and the Supreme Court basically began a dispute over the question of who is the finder. Now to understand the dispute, let us look for a moment at the Lost Property Law—the Lost Property Law in Israeli law, of course I mean. Section 2: “A person who finds lost property and takes it, hereinafter: the finder, must return it to its owner or notify the police of it as soon as possible, unless the circumstances indicate that the owner abandoned hope of it because of its low value. If the finder notified the police, he may deliver the lost property to them, and he must do so if they so require.” All right? Section 3: “A finder who finds lost property on the premises of another person”—this is an important section here—“must notify the occupier of the premises and hand it over to him if he demands it. If the occupier takes the lost property into his possession, he shall be deemed the finder.” Section 4: yes, so if the lost item is found on another person’s premises, then the finder, the one who actually found it, has to give it to the occupier, and the occupier is considered the finder. “If the finder complied with section 2 and the owner of the lost property was not discovered within four months, the owner shall be deemed to have abandoned hope of it and the finder shall become the owner of the lost property. The period stated shall begin on the day he informed the police of the lost property, and if he was not required to inform them, from the day he found it.” All right? So these are the sections relevant to us. Now the discussion, of course, arose around what counts as “the premises of another person.” After all, here Handels found it on the floor of the safe-deposit room of Kupat Am Bank. Says the bank: he found it on my premises, I own this building, this safe-deposit room; I am the “other person,” the premises of another person. Handels argued that no, it is a public domain. When I found it, it was like finding it on the street—everyone walks around there. This was what the discussion in the Supreme Court centered on—not the High Court, the Supreme Court. Yes, because it was not an appeal about permission, it was an appeal from a lower court. The Supreme Court, and there was a dispute there over whether this was indeed considered the premises of another person—the bank—or not. Now Elon, Justice Elon—who as you know was a religious judge and strongly advocated bringing Hebrew law in and so on—argued that the concept of premises is drawn from the superior law… from Hebrew law, sorry. And therefore it should be interpreted in light of Hebrew law. And according to Hebrew law, Elon argued, a situation like this, where I find the papers on the floor of the safe-deposit room, is essentially the premises of another person. What is his proof? There is a Mishnah in tractate Bava Metzia: “If one found something in a store, it belongs to him. If it was between the counter and the shopkeeper, it belongs to the shopkeeper. If it was in front of the money-changer, it belongs to him. If it was between the chair and the money-changer, it belongs to the money-changer.” This is what matters for us. What does it mean? We are talking about a store; there is a counter in the store, and the seller stands behind the counter—or the money-changer, this is a currency exchanger, yes, the bank of olden times, so he stands behind the counter. Now in front of the counter, in that same store, all inside one room which is the store, there is a counter; behind it stands the seller or owner of the shop, and on the other side of the counter the customers move around. Now if you find something in the store, as if beyond the counter, it belongs to you. It is like finding it in the street. If you found it behind the counter, between the shopkeeper and the counter or behind the counter, it belongs to the shopkeeper. And the same with the money-changer. But here we’re talking about one person who owns whatever it is, his business. Here it is a bank. A bank is not—there is no one specific person you can say is “the bank.” It is an entity. Doesn’t matter, the bank is a legal entity with a well-defined identity. The fact that ownership is shared does not mean anything. Whether a partnership or a corporation, doesn’t matter, it means nothing. You… but it says “person.” In the law it says “person.” Person means a specific person. No, it doesn’t matter. It refers to a specific person; it does not refer to an entity… This reminds me of the ruling of a magistrate judge in Jerusalem who claimed that a kibbutz has no religion. It is of no religion. Therefore it is not obligated to observe the Sabbath. Under the Hours of Work and Rest Law, businesses may not open on the Sabbath except by special permit. But that is for Jews. Arabs or non-Jews are allowed. Now what about a kibbutz? A kibbutz all of whose members are Jews. But what about the kibbutz itself? The kibbutz is of no religion, and therefore that law does not apply to it. Well, a very dubious argument, and it is quite clear where it came from. And likewise here. The corporation is regarded as a legal entity like a person in every legal respect. No one in the Handels case disputed that. That was not the point. The point was: what happens beyond the table… beyond the counter? The floor of the safe-deposit room is parallel to what is beyond the counter. Beyond the counter is basically a place where many people move around. And if you find some object there, some lost item, then even though the place belongs in terms of property law to the shop owner—clearly it does—the owner of the store—but in terms of the laws of returning lost property it is considered like finding the lost item in the street. And therefore Justice Elon said that if so, the floor of the safe-deposit room is like beyond the table, beyond the counter. And therefore even though the place obviously belongs to the bank, since many people walk there—the customers walk there—it is considered like finding it in the street, and since the concept of premises is drawn from Hebrew law, it should be interpreted the way it is interpreted in Hebrew law. And in Hebrew law a place like this is not considered the premises of another person. So argued Elon. Now the truth is that here, in my opinion—just as an aside—in my opinion such an argument has no place at all under the Foundations of Law Act, because he did not fill a lacuna from Hebrew law. He simply took a concept and interpreted it because he says the concept comes from Hebrew law, so he interprets it from Hebrew law. If this concept had been taken from English law, then he would have interpreted it in light of the principles of English law. Meaning, he does not see any advantage to Hebrew law just because it is Hebrew law. He only says: since the concept of premises is drawn from there, it should be interpreted according to the principles there, because that is where it comes from. This has nothing to do with the Foundations of Law Act. I have many disputes with what Elon wrote there, but this is one of them, for example. Beyond that, as the judges wrote there, what you are really doing is not interpreting… you are not interpreting a concept according to Hebrew law. You are making a normative determination out of Hebrew law. After all, the concept “premises of another person” does not appear in Jewish law at all in the context of returning lost property. You will not find the concept “premises of another person” there. “Premises of another person” is a definition of Israeli law, Israeli statute. It is not taken from Jewish law. In Jewish law, in the laws of returning lost property, they do not deal with the premises of another person. So what are you telling me—that you are explaining the concept of premises? You are not. You are simply taking the halakhic ruling regarding this situation and claiming that this ought to be the statutory or legal ruling. This is use of the Foundations of Law Act, but unjustified use. Because there is no lacuna here on the legal level. On the legal level there is no lacuna at all: if it is the premises of another person, it goes to the occupier. The question what counts as premises is not a lacuna in the sense that something is missing. Not understanding a concept is not a lacuna. A lacuna is when there is a case for which the law gives no reference, but here the law gives a reference for all cases. You just don’t know which reference or what the case is. And therefore this is not called a lacuna at all. And I think that is not a formal argument; it is a very correct argument. I think Elon here made the Foundations of Law Act into a spade to dig with. It is simply not correct. He uses the Foundations of Law Act to fill this supposed lacuna from Jewish law. Didn’t understand—why is there no premises? There is a public domain, a private domain, and the found object can be… In the laws of Sabbath, not in the laws of returning lost property. It has no connection to the laws of returning lost property? Okay. The concept of premises does not appear in the laws of returning lost property. Only the statute formulates it this way. So therefore if you want it to have four walls too so that it won’t be a public domain—in the laws of Sabbath you need four walls for it to be a private domain, or in a sukkah two and a handbreadth. No one would think of doing such a thing. The point, in short, is that the use of the Foundations of Law Act here is problematic. But I see I need to finish, so I’ll just finish the introduction and we’ll come back to this after the break. I specifically want to focus not on what occupies everyone—Foundations of Law Act and whether to integrate Jewish law into the law and the Handels case and who was right, and there are heated disputes about this which, not very surprisingly, are conducted between supporters of Hebrew law and its opponents, though supposedly this is meant to be a legal dispute. But I want to focus on something else, which in my opinion a great many people miss when dealing with this judgment. I ask: fine, suppose Hebrew law sees the laws of returning lost property differently from the statute. I ask: why? Why in Hebrew law is lost property in such a case given to the finder, to Handels, while under ordinary law, if you take American law or all the other legal systems—and the judges did this, and that is also how they ultimately reached the conclusion in Israeli law—that it goes to the bank, that it goes, yes, to the bank. Why really is that so? Beyond the question whether it is justified to import the halakhic rulings here, I do not want to deal with that. I want to deal with the question why the rulings of Jewish law are different at all from the rulings of other legal systems. What is distinctive about Jewish law, that it relates to the laws of returning lost property differently from other legal systems? And my claim is that what underlies this is the Platonism of Jewish law. And I will explain that next time, of course. I no longer have time to get into it, and then we will see this and also the laws of intellectual property, and I think that will greatly sharpen my claim about the Platonism of Jewish law. But we no longer have time for that. We’ll stop here until there is an announcement about the renewal of the classes sometime in Elul. Anyone with questions or comments? The legal effect—I don’t know if I understood correctly. The legal effect, I think, is just what the name says: that we impose—that it is not something that exists, rather it is not a reality—we impose on her that she is divorced, we impose on her a legal reality that she is subject to the law, and mainly for legal matters, to impose something means to place something on the thing. I am not claiming that this legal effect existed from the six days of creation. I am claiming that the moment I betroth a woman, I created a legal effect in the world, I imposed a legal effect on the woman. The legal effect is the reality, not the imposition. The imposition is the act. But what does that act do? That act creates something in reality. Right, because this is not reality—it is like we said, a fiction, a corporation is a legal fiction. Basically we are making a fiction; we are saying: the laws of a divorcee apply to you, the laws of a widow apply to you—not that this is some reality, we understand—You are presenting the accepted conception, and I brought proofs why it is not correct. As for the fact that both this and its opposite fit into the meaning of the word legal effect—by the way, in my view mine fits better—but okay, the argument is not a verbal one. You can say that the concept of legal effect is such-and-such; in fact most of the world understands it that way. But I brought proofs why that cannot be. After all, I said: how can there be both the legal effect of married woman and the legal effect of divorcee, married woman and divorcee, together? How can there be a legal effect with no legal implications? I have proofs for my claim that the legal effect is a reality. It is not only because the word “legal effect” expresses that. Now if you want to argue something else, you need to address the proofs, explain why you do not agree with the proofs. Okay. Anyone else? When exactly are we coming back? I still don’t know; I’ll send a message. So what, we’re left in suspense? It’s in Itzko, maybe in September, I don’t know exactly. Healthy suspense. Whether in September or Elul—I never know—but Ala, Ala is responsible for that, he’ll announce it, or I’ll announce it through him, from him, and he’ll also notify the community in Ra’anana. Sometime—it will probably be in September, or somewhere in Elul. We’ll see. Okay. Good, then have a pleasant time, we’ll see each other again. Thank you very much. Thank you, Sabbath peace.