Platonism – Lecture 8

Table of Contents

• Platonism, Aristotelianism, and legal statuses in Jewish law
• The claim that Jewish law is not a legal system, and its implications for integration into Israeli law
• The laws of bailees and the bailees’ oath as an obstacle to integrating Jewish law into general law
• Hanan Porat’s “do not stand idly by your neighbor’s blood” law and the absurdity of civil implementation
• Combining legal systems as a non-organic act, and Aharon Barak’s position
• Beyond style of reasoning: returning lost property and the Andeles ruling
• The Foundations of Law Act, a lacuna, and criticism of the majority’s claim
• The Mishnah in Bava Metzia, Elon’s position, and the distinction between customer space and the owner’s space
• Purposiveness in Israeli law: optimizing the return of lost property
• Jewish law: ownership as a metaphysical fact and despair as severing the bond
• Maimonides, Laws of Robbery and Lost Property 11:7: going beyond the letter of the law versus the strict law
• Despair without a verse, and the ability to grasp metaphysical truth through reason
• Questions at the end: despair before/after finding, a transgression for the sake of Heaven, and oath

Summary

General Overview

The text presents Jewish law as a Platonic conception in which legal statuses, statuses, and acts of acquisition are metaphysical entities that generate the norms, as opposed to an Aristotelian approach that sees legal concepts as conceptualizations and conventions meant to serve needs and purposes. The author argues that Jewish law is not a “legal system” in the ordinary sense, and therefore attempts to integrate “Hebrew law” into Israeli law create distortions, because civil law operates purposively, whereas in Jewish law property law and legal statuses reflect metaphysical facts that are not shaped according to purpose. Through examples from the laws of bailees, the law of “do not stand idly by your neighbor’s blood,” and the Andeles ruling on returning lost property, he shows how the absence of the religious and metaphysical dimension in general law severs halakhic coherence and leads to results that are not identical with Jewish law and at times even contradict it.

Platonism, Aristotelianism, and Legal Statuses in Jewish Law

The text defines Platonism versus Aristotelianism as an attitude toward abstract properties and concepts: according to Aristotle, they are useful conceptualizations and conventions, while according to Plato they are real ideal entities. The text states that halakhic concepts such as ownership and legal statuses are entities, and legal norms are derived from their existence. It explains that when we say a woman is a married woman or that ownership takes effect over objects, “reality” and metaphysics change, and the norms are a result of that change rather than merely a normative decision.

The Claim That Jewish Law Is Not a Legal System, and Its Implications for Integration into Israeli Law

The text refers to an article titled: Is Jewish Law Hebrew Law? and advances the claim that Jewish law is not a legal system like other legal systems, and that even Choshen Mishpat and Even HaEzer are not “law” in the usual sense. It describes a fundamental difference between Jewish law and all other systems, especially the fact that metaphysics lies at the base of Jewish law. The text says that the debates in Israel over introducing components of Jewish law into Israeli legislation are not conducted only on the substantive plane, and sometimes the substantive arguments serve a meta-legal or meta-Jewish agenda.

The Laws of Bailees and the Bailees’ Oath as an Obstacle to Integrating Jewish Law into General Law

The text brings the laws of bailees as an example of an area that looks “contractual” and banal enough to integrate, but argues that the oath is an essential part of the exemption of an unpaid bailee in cases of theft and loss. It explains that the exemption exists because the bailee swears that he did not misappropriate the item, and once the oath is accepted, he is believed and exempted on that basis. The text argues that in Israeli law, the tool of a religious oath has no meaning, because some people do not believe in the Holy One, blessed be He, and are not God-fearing, so there is no basis for the threat and mechanism of trust that justify the exemption. It adds that halakhic situations such as someone suspected with regard to oaths and the reversal of an oath show that when there is no oath, the result changes; therefore you cannot “import” only the exemption without the religious mechanism that supports it.

Hanan Porat’s “Do Not Stand Idly By Your Neighbor’s Blood” Law and the Absurdity of Civil Implementation

The text argues that the goal of the move was to insert a verse into the law books, and that opposition to it did not concern the substantive content. It points out that in ordinary civil law there is no prohibition without a sanction, whereas in Jewish law someone who failed to save another violates “do not stand idly by your neighbor’s blood,” but there is no punishment imposed on him. The text says that before the law, the situation in Israeli law was similar to Jewish law in the sense of social condemnation without sanction, but after the law was enacted the Israeli system became different from Jewish law because a sanction was added. It concludes that attempts like this to integrate verses and halakhic rules into law always create distortions, and sometimes even make Israeli law less similar to Jewish law than it had been beforehand.

Combining Legal Systems as a Non-Organic Act, and Aharon Barak’s Position

The text says that Israeli law is a “creature of a different kind” from Jewish law, and therefore planting a section from one system into another does not fit organically and creates unforeseen problems. It attributes to Aharon Barak the position that legal systems are organic and have an internal affinity among their parts, and that any integration requires adjustments and examination of broad implications, because the evolution of a legal system creates coherence. The text humorously mentions an anecdote about “Gildel,” who found a logical contradiction in the American Constitution, and that his friends forbade him to say so. It emphasizes that the opposition to integration does not stem from anti-religious sentiment, but from a legal consideration of systemic impracticability.

Beyond the Style of Reasoning: Returning Lost Property and the Andeles Ruling

The text declares that the goal now is to understand how halakhic metaphysics is reflected in styles of reasoning in Jewish law as opposed to general law, and begins with the example of returning lost property in the Andeles ruling. It describes how Andeles found a bundle of securities on the floor of the safe-deposit room in Bank Kupat Am, and the question arose whether this counted as “a find on another person’s premises” under the Lost Property Law. The text brings the sections of the law: an obligation to return the item to the owner or notify the police, an obligation to hand it over to the owner of the premises when the lost item was found on his premises, and transfer of ownership to the finder after four months if the owner is not discovered. It explains that the dispute centered on the interpretation of “another person’s premises” and on whether the bank was the finder or Andeles was the finder.

The Foundations of Law Act, a Lacuna, and Criticism of the Majority’s Claim

The text presents the context of the Foundations of Law Act, 1980, as a mechanism for filling lacunae through sources of Hebrew law, and the debates over its implementation and the fact that judges generally do not know how to approach halakhic sources. It says that the main discussion of the ruling in legal discourse focuses on the question of integration, but the author focuses on why the solutions of Jewish law and general law differ in the first place. It describes the majority’s argument that there was no normative lacuna here, but rather an interpretive dispute over a concept in the statute, and therefore there was no justification for turning to Jewish law; yet it points to a contradiction in that the majority nevertheless relied on foreign legal systems to complete the decision. It adds that in Jewish law, in any case, the term “another person’s premises” does not appear in the laws of returning lost property, so the appeal to the Mishnah is not linguistic interpretation but the drawing of a normative solution.

The Mishnah in Bava Metzia, Elon’s Position, and the Distinction Between Customer Space and the Owner’s Space

The text cites the Mishnah in Bava Metzia 26b: “If one found [an item] in a store, it belongs to him… in front of a money-changer, it belongs to him… between the chair and the money-changer’s table, it belongs to the money-changer,” and explains the spatial distinction between the customer area and the money-changer’s area. It attributes to Judge Elon the claim that the bank case is similar to “found in a store,” in an area where customers walk around, and therefore its status is like the public domain and not the private domain of the owner of the place. The text says that the majority opinion saw the bank as “another person’s premises” and therefore held that the bank was the finder, not Andeles. It emphasizes that the real focus is the reasoning: in Jewish law one approaches it through property law and through whether a courtyard is guarded or unguarded, whereas in Israeli law the ruling is derived from the purpose of the statute.

Purposiveness in Israeli Law: Optimizing the Return of Lost Property

The text attributes to the majority judges the claim that the purpose of the Lost Property Law is to enable optimal return to the owner who lost the item, and from this it follows that the bank should be considered the finder because the loser will search at the bank and not with some random person. It explains that the majority also links section 4 to this purpose, in that transferring the item to the finder after four months serves as an incentive for the finder to fulfill his obligations so as to increase the chances of return. The text describes Andeles’s argument that perhaps the bank should hold it temporarily for the sake of return, but after four months he should receive it, and the majority’s rejection of this, holding that the bank is the finder and therefore also the owner after the period has passed. It quotes Aharon Barak’s formulation that the ownership decision is a means of realizing the purpose of the law, and that the laws of possession and acquisition are not the relevant standard for determining “another person’s premises,” but only the purposes of the law are.

Jewish Law: Ownership as a Metaphysical Fact and Despair as Severing the Bond

The text says that in Jewish law, returning lost property is aimed at restoring it to the owner, but “the owner” is not always the person who lost it, because despair renders the object ownerless and the finder becomes the owner not as a prize and not as an incentive, but because it is his. It emphasizes that if the finder picked it up before despair, the lost item will never be his, and therefore the mechanism of acquisition cannot be understood as an incentive to return it, as it is in Israeli law. The text argues that Jewish law sees ownership as the expression of a metaphysical bond between a person and an object, and when the owner despairs, the bond is severed and reality changes; whereas in general law ownership is a convention shaped according to purposes. It sums up that the reasoning of general law is teleological, a matter of “in order to” achieve a purpose, while halakhic reasoning is causal, a matter of “because” that is the metaphysical reality.

Maimonides, Laws of Robbery and Lost Property 11:7: Beyond the Letter of the Law Versus the Strict Law

The text cites Maimonides: “The found item belongs to him… even if a Jew came and gave its identifying marks,” when most of those present are non-Jews, and adds his words: “Whoever wishes to follow the good and upright path… returns the lost item to a Jew who gives its identifying marks.” It concludes that Jewish law too recognizes that fairness and justice justify returning the lost item to the person who lost it when it is clear that it is his, but this remains beyond the letter of the law and not the strict law itself. The text says that Jewish law is not directed toward what is just, but toward what is correct, because the metaphysical facts of ownership do not depend on the moral result. It adds that in any case a poor person is not required to lose money in order to go beyond the letter of the law, while someone who is not poor ought to return it.

Despair Without a Verse, and the Ability to Grasp Metaphysical Truth Through Reason

The text says that there is no Torah source for the idea that despair renders property ownerless, that there is no verse for this law, and that it was established by reasoning even though it is a Torah-level law. It uses this to sharpen the claim that the sages grasp the metaphysical truth of the severing of the bond following despair and apply it as Jewish law, even though the result is not the most just solution. It presents this as a sharp expression of the difference between property law as a reflection of an imposed reality in Jewish law and property law as social design in the hands of the legislator in general law.

Questions at the End: Despair Before/After Finding, a Transgression for the Sake of Heaven, and Oath

The text explains, in response to the question of why despair is effective only if it preceded the finding, that when the finder picks it up before despair, an obligation of return takes effect upon him and he holds it as the owner’s agent, and later despair is a mistake, because if the owner had known the lost item would be returned, he would not have despaired. In response to the question about a transgression for the sake of Heaven, the text says there is no room for repentance when the act is “the proper act” required in that situation, similar to the fact that there is no repentance for desecrating the Sabbath to save a life, because that is the fulfillment of a commandment and not a transgression. The text ends with a note on the analogy between an oath and an investigation, while stressing that without the religious element of the oath, one cannot implement the halakhic exemption in theft and loss within general law.

We’re in the series on Platonism. I defined Platonism as opposed to Aristotelianism as our attitude toward properties or abstract concepts, which according to Aristotle are our conceptualizations, conventions you could say. We created these concepts for our own needs; it’s convenient for us to deal with the world through them. According to Plato, these are a kind of entities—ideal entities that exist in the world. We saw various implications and meanings of this, and then in the last few sessions I moved on to the halakhic implications of the matter. And we saw that a concept like ownership in Jewish law, or legal statuses in general if I broaden it, are basically a kind of entities. And the legal properties or norms that follow from that are derivatives of the existence of those entities. When I say that a woman is a married woman, I have established her legal status. If I say that the legal status of “married woman” applies to her, that means that something in her reality is actually different. The metaphysics has changed. The norms are a result of that change, which is a thoroughly Platonic conception. I don’t see the Jewish laws as certain normative determinations; the normative determinations are consequences of some kind of metaphysical reality that changed after I betrothed the woman or imposed ownership status on objects. That’s what we saw before the break. Now I want to continue further. I started this a little at the end, but I want to keep going and see how this is reflected in forms of legal reasoning and modes of reference—especially reasoning—in halakhic law as opposed to general law, Israeli law or legal systems in general. And that brings me to an article I once wrote called: Is Halakhah Hebrew Law? And my claim there was that halakhah is not just another legal system, the way there are different legal systems in the world and halakhah is one of them. My claim was that halakhah is not a legal system. Now I’m not talking about a way of life or Yoreh De’ah, which is obviously different from ordinary legal systems because it deals with the individual person, while ordinary legal systems do not deal with the individual person but with his relationship to society. But even the legal part of halakhah—monetary law and family law—even those parts are not a legal system in the accepted sense. And this is not like the difference between, I don’t know, German law and British or American law. There is something here that is essentially different from all other legal systems in all kinds of respects. Among other things, I pointed out there that at the foundation of the halakhic system there sits a metaphysics. For example, I brought an example there: there are many debates over whether and to what extent to incorporate into Israeli law things from halakhah—from what people call Hebrew law. I don’t like that term, because from my point of view halakhah is not a legal system, but the debates are conducted as though the question is whether to incorporate components of Hebrew law into Israeli law. Various things people wanted to introduce into Israeli legislation—the most famous example is Hanan Porat’s “Do Not Stand Idly By Your Neighbor’s Blood” law, where the whole story was not really about “do not stand idly by your neighbor’s blood,” and nobody was interested in the law’s content. All they wanted was to put a biblical verse into the law books. That was the goal, and that was also the reason people opposed it. In other words, the debate was not really on the substantive plane at all. The substantive arguments came to serve the agenda—the meta-legal or meta-Jewish agenda or whatever you want to call it. In any case, around these debates the question arises—and that’s what I discussed in that article—whether halakhah is a legal system at all. Is it even relevant to connect parts of halakhah to the Israeli legal system? There I gave as an example several differences, and one of them is the metaphysical infrastructure of halakhah. Among other things I brought an example from the laws of bailees. One of the areas that might seem the simplest and most banal, and one that would not generate controversy if you tried to integrate it into Israeli law, is the laws of bailees. The laws of bailees are basically contract law; there is no religious aspect there, nothing that should make the halakhic legal system differ from the ordinary legal system of the state. So the obvious candidate, if you already want integration, would be to take the laws of bailees—that a bailee is liable for theft and loss and so on, every bailee according to the rules, not for negligence, according to all the rules of bailees—and integrate that into Israeli law. What’s the problem? So I gave an example of why this can still be a problem even in such a banal field. Why? Because in the laws of bailees, an inseparable part of the laws is the bailee’s oath. When a bailee claims that the object was lost—an unpaid bailee is exempt in a case of loss; a paid bailee won’t be helped by claiming it was lost, because he is liable for loss. But an unpaid bailee is exempt for loss. Now he claims it was lost, stolen, and he is exempted. But in order to be exempt, he has to swear. To swear that this happened, that he did not misuse it, and so on. Now you have to understand that the oath is not just another detail; it is an essential part of the laws of bailees. In other words, the fact that I am prepared to exempt him in cases of theft and loss is because I allow him to swear that he did not misuse it. And once he swears, I believe him, and if I believe him that he did not misuse it, then in the case of theft and loss he is exempt. So these are not two separate details—that he is exempt in theft and loss and that he is obligated in an oath. The obligation to swear is an inseparable part of the exemption for theft and loss. Without an oath here, and without my believing that oath, I would not exempt him for theft and loss. Now let’s see how to integrate this into Israeli law. So I would integrate into Israeli law that an unpaid bailee is exempt for theft and loss. But of course an oath does not belong here, because some people do not believe in the Holy One, blessed be He. The whole religious dimension of the oath, the whole metaphysics, the major threats hanging over someone who swears falsely—they are irrelevant. In other words, they do not believe in that system. In such a case there is obviously no point in making them swear, because the whole idea of the oath is that people are afraid to lie under oath. So all of that applies only to someone who has fear of Heaven, who believes that the Holy One, blessed be He, will punish him. And as you know, in halakhah at least for a Torah-level oath they light candles and make terrible threats; it is a pretty frightening business to take an oath in religious court. In the legal world none of that exists. You can of course tell a person, “promise me that you’re telling the truth,” but that is not the dimension of an oath. Once there is no such tool as an oath in general law, who says halakhah would exempt him at all in theft and loss? In other words, if you don’t swear—say, for example, someone who is disqualified from taking an oath—then they do not make him swear. They may reverse the oath onto the other party, but they do not make him swear. Now if he does not swear, who says he is exempt in theft and loss? He will be liable for theft and loss because he did not swear. Rather, we reverse the oath onto the claimant because we do not want to leave him completely exposed—so anyone can sue him, he cannot swear, and he will have to pay. So we require the claimant to swear in his place. This is called reversal of the oath. But still we see that if the person does not swear, he pays. Now in the ordinary legal world it makes no sense to make the person swear; a religious oath has no place there. Once that is so, halakhah too would say that he is not exempt in theft and loss. So how can you integrate this into general law without an oath, but still exempt him from theft and loss? That does not fit halakhic law, sorry. Either you integrate the whole thing or you integrate nothing; the details are connected to one another. And why, what is missing? Why can’t general law integrate it? The religious dimension is missing, because the oath is tied to the religious dimension of halakhah. And you cannot detach the religious dimension even from the legal part of halakhah. You cannot take the legal part of halakhah and say, “No, this is a legal system; it has nothing to do with halakhah and its religious dimensions,” and on that basis integrate it into Israeli law. And that is very far from trivial. Also regarding Hanan Porat’s “Do Not Stand Idly By Your Neighbor’s Blood” law, I wrote there that what came out of it is completely absurd. Because in ordinary legal systems, civil ones, there is no such thing as a law with no sanction attached to it. Once the law prohibits something, if someone violates that prohibition, a sanction is imposed on him. There is no such thing as an offense without a sanction; otherwise it is a dead letter. Why would people observe it? For anything forbidden by law, if someone violates it you impose a sanction. Administrative law is different in this respect and really does produce crazy absurdities, but I won’t get into that here. So basically it comes out like this: in halakhah, “do not stand idly by your neighbor’s blood”—if someone didn’t, say I saw my friend drowning in a river and I did not save him, then I violated the prohibition of “do not stand idly by your neighbor’s blood,” but I incur no punishment. There is no punishment for that prohibition. Now what was the situation in Israeli law before Hanan Porat passed this “do not stand idly by your neighbor’s blood” law? Exactly like in halakhah. Obviously it isn’t okay not to save another person, but there was no sanction. Because it does not belong to the legal system; this is a social attitude. Such a person is not okay. Why didn’t you save him? I’m not talking about putting yourself in danger, just doing what a person would do to save another person who is in trouble. Someone who didn’t do that would obviously be condemned by society. He is not okay. But there was no punishment, which is exactly the halakhic situation: it is not okay—of course not okay in the sense that it is a Torah prohibition—but in Israeli law there is no such thing as a Torah prohibition, it is morally not okay. And there is no punishment. Exactly like in halakhah. What happened after Hanan Porat achieved his success and integrated this part of halakhah into Israeli law? What happened is that now Israeli law became different from halakhah. Before, it was like halakhah; after you integrated halakhah into Israeli law, it became different from halakhah. Why? Because now there is a sanction. Once there is a law of “do not stand idly by your neighbor’s blood,” you are obligated to help someone in distress. In some Christian countries—a minority of them—that have such a law, it is called the Good Samaritan law. That comes from the New Testament. But it’s the same idea. What happens as a result of such a law? If you violate it, there is a sanction. But that is not the halakhic situation. So what happened? By integrating this halakhic clause into the Israeli statute book, you actually created a difference between Israeli law and halakhah. Something that had previously been the same. In other words, this agenda of integrating verses and halakhic rules into the statute book always leads to distortions and disruptions. You will not succeed in integrating halakhah into Israeli law, because Israeli law is a creature of a different kind. It doesn’t fit. You cannot take some part from one such creature and artificially implant it into this other creature. It doesn’t fit; it will create distortions, it won’t work, and even if you somehow manage to do it without distortions, in the end it still won’t resemble halakhah. Therefore my claim in that article was: there is no point in all these attempts. Besides, it is also valueless, because observing halakhah not מתוך religious consciousness is valueless. So the halakhic solution is not necessarily the just or correct solution. It is service of God. If it is not done within the framework of service of God, then what is the point of it? It has no value even if you manage to integrate it. So from all these perspectives I argued that all these struggles to integrate halakhah into Israeli law are valueless struggles, wrong, doomed to failure, and there is no point dealing with them. By the way, Aharon Barak wrote this in his own way. He basically said that the attempt to integrate parts of halakhah into Israeli law is problematic because these are legal systems that proceed from different starting points. And in an organic legal system there is affinity among its different parts. You cannot tear a certain part out of one system and implant it in another. It always has to go through some adaptation; you have to check that this does not create other problems in that legal system. Because every legal system in the end organized itself so that if a certain law created problems, those problems were solved. The time and thought invested in the matter ultimately somehow organized the system so that it comes out coherent, that it works, that the system fits together. That is the evolution of legal systems; in the end, after a long time, things get organized in a more or less coherent way. Except for the American Constitution, where, as I mentioned, Gilead found a contradiction—a logical contradiction—in the American Constitution. Good thing his friends forbade him from saying that, otherwise he wouldn’t be an American citizen to this day. But a normal legal system evolves in a way that synchronizes it, makes it coherent, solves the problems created by every clause you changed. When you take a clause that belongs to one system and artificially implant it in another, which proceeds from different starting points and different assumptions, you can never know where it will pop up. In what place it will create a problem. Because it is not organic to the system. And therefore it is a mistake to try to integrate it—not because I am anti-religious and not because I have no interest in halakhah. I, in fact, do. Aharon Barak probably doesn’t. But that is not the point. The point is that on the legal level this is an unwise move. It is wrong; it will not succeed. It is forbidden to do such a thing from the standpoint of legal considerations. It is a mistake to do such a thing. Therefore in that article—and now I’m finishing my reference to that article—I tried to argue that this difference between the halakhic legal system and civil law has implications that prevent integration between the two. Among other things I spoke there about the metaphysics underlying halakhah, what we discussed last time, and about the form of reasoning. And that’s what I want to get into now. What does this mean for the form of reasoning, and what does the different form of reasoning reflect? It reflects some difference between the systems. So I want to begin—and I started this last time, but we really only touched the beginning—with the Endeles case. I want to discuss this form of reasoning and the difference between the systems using two examples. One example is the laws of returning lost property, and the second is intellectual property law. I wrote an article about each of them. But these are two examples in which you can see the same differences between Israeli law and halakhah, differences connected to the ones we discussed there, and those differences express themselves through the form of reasoning. So we begin with returning lost property. The story of the Endeles case was this. A man named Endeles was in a bank called Kupat Am Bank, and there he was in the safe-deposit room. There was a room with safes, and on the floor in the safe-deposit room he suddenly found a bundle of securities. Someone had lost those securities, they had fallen onto the floor there, and Endeles, who was there, found them. Now the question arose: what do we do with those securities? What do I mean? There is a law—the Lost Property Law in Israeli law. I’m sharing the screen; we saw this last time, but I want to go into it again. “A person who finds lost property and takes it, hereinafter ‘the finder,’ must return it to its owner or notify the police of it as soon as possible, unless under the circumstances it may be assumed that the owner of the lost property despaired of it because of its low value. If the finder notified the police, he may hand the lost property over to them, and must do so if they so demand.” That is section 2. I’m only bringing the relevant sections. Section 3: “A person who finds lost property on the premises of another person”—notice, that is our case, you found lost property on the premises of another person, not on your own premises as finder; this is Kupat Am Bank, you found it in the bank—“must notify the owner of the premises and deliver it to him upon demand. If the owner of the premises received the lost property into his possession, he shall be regarded as the finder.” That is section 3. Section 4: “If the finder complied with section 2, and the owner of the lost property was not discovered within four months, the owner shall be regarded as though he had despaired of it, and the finder shall become the owner of the lost property. The said period shall begin from the day he notified the police of the lost property, and if he was not required to notify them, from the day he found it.” Fine. So within four months the lost property becomes the finder’s. The question here was whether finding this bundle of securities on the floor of Kupat Am Bank really fits the section dealing with finding lost property on another person’s premises. Is this a situation of finding lost property on another person’s premises? Endeles found the lost property, but he did not find it in his house or in his courtyard; he found it in Kupat Am Bank—apparently on another person’s premises. The dispute revolved around whether this counts as “the premises of another person.” In a moment we’ll see the sides of the argument. I’ll just note that usually the Endeles case is treated in Israeli legal discourse from a slightly different angle, and people talk about it a lot because of the Foundations of Law Act of 1980. That law says that if there is a lacuna in Israeli law, judges who come to interpret the law shall resort to the sources of Hebrew law. Fine? In other words, that is where lacunae are to be filled from. That is the assumption. Again, until then they resorted to various other legal systems, and here it was established that Hebrew law has priority and one should go there first. If we didn’t find it there, then we go to other systems. There is a primary value to Hebrew law, to halakhah; that is where one should fill a lacuna from. Now all the judges in Israel and legal scholars and so on naturally debate this question. This law too was really part of that campaign by the Hebrew-law jurists to integrate Hebrew law into Israeli law. And here it speaks of filling a lacuna, like in “do not stand idly by your neighbor’s blood” and so on. That was earlier, of course; the Foundations of Law Act was from 1980. In any case, the debates are around the question of how much to integrate, whether it is right to integrate, why they don’t integrate—because in practice they usually don’t—and there are also very technical reasons for that. Judges simply don’t know; they have no access to halakhah, they don’t know how to read it, they don’t understand the language, so they don’t know how to complete from there, to take from there the completions for the lacunae they need. In other words, beyond the normative question of what should be done, there is the question of what you know how to do. Very few judges know how to get to halakhic sources, identify the relevant sources, and apply them to the case before them. So the main debates around the Endeles case concern this matter of the Foundations of Law Act. Is it right to integrate this into Israeli law? Not right? Why did Elon, who was a religious judge, want to integrate it, while Barak did not? Is that connected to the fact that he was religious and Barak was secular? Probably yes. But, for example, Haim Cohen—who indeed was secular but strongly supported integrating Hebrew law into Israeli law—was actually on Barak’s side in the Endeles case, and he opposed the integration. So there are all kinds of debates concerning the Foundations of Law Act: whether to integrate, how much to integrate, whether in the Endeles case it should have been integrated. I want to deal with a completely different question. The question is: why is there a difference at all? In other words, the whole debate starts from the premise that in halakhah the solution is one thing, and in Israeli law the solution is another—or there is no solution, there is a lacuna. And if you take from the American system or the British system or other families of legal systems, you will discover that the solution is different. So the question arises whether to take from those other systems or from halakhah. I do not want to discuss where to take it from, but why the solutions are different. Why in halakhah is the approach to lost-property law different from the approach in other legal systems? Once we understand that it is different, we can start discussing whether to take from halakhah or from other legal systems—that is usually the debate. But I want to discuss why it is different in the first place. Why shouldn’t halakhah behave like other legal systems, when all legal systems apparently—as the judges there write, at least the systems they cite—all basically go in one direction, which is not the direction halakhah goes. And the question is why. So this is relevant to our subject of why. Let’s first understand the issue in dispute a bit. The question is basically what the meaning is of “the premises of another person.” Because if there is a difference between another person’s premises and the public domain—when I find lost property in the public domain, it is as if I found it on my own premises. Somewhat similar to halakhah, by the way, where a person’s four cubits in the public domain count as if it were his courtyard. So when I find lost property in the public domain, it is as if I found it on my own premises. But if I find it on another person’s private premises, then the section on finding lost property on another person’s premises applies. Now, I found it on the floor of the bank’s safe-deposit room. Does that count as another person’s premises or not? That was the dispute. So this is really filling a lacuna, asking what “the premises of another person” means. Judge Elon, who of course supported and pushed the integration of Hebrew law, argued: there is a lacuna here, and therefore the problem must be solved by resorting to halakhah. And halakhah has a very clear solution to such a case. It is in the Mishnah in tractate Bava Metzia 26b. And the Mishnah says as follows: “If one found something in a shop, it belongs to him. If between the counter and the shopkeeper, it belongs to the shopkeeper. If one found money before a moneychanger, it belongs to him. If between the chair and the moneychanger, it belongs to the moneychanger. One who bought produce from another…” and so on—that’s something else. What does this mean? Think of the moneychanger sitting behind his table. He has his chair, in front of him the table, and the customers are in the shop area. Okay? Now the Mishnah asks: where did you find your lost item? Did you find it in the area beyond the table where the customers walk around, or did you find it on the side of the table where the moneychanger sits? The Mishnah says this: if you found it in the area where the moneychanger sits and customers do not enter, then the lost item belongs to the moneychanger. If you found it beyond the table, where people walk around, then it is like the public domain and “it belongs to him.” We are talking about an item without identifying marks for purposes of the present discussion, although that is a dispute between Rashi and Tosafot there, but that doesn’t matter right now. I found the lost item beyond the table, so it is like finding it in the public domain. That is what the Mishnah says. Elon says: if so, that is exactly our case. Maybe I’ll mute something here because there are noises. Whoever is not speaking should stay muted. So Elon basically argued that halakhah can fill the lacuna in Israeli law. What happens if I found it on the floor of Kupat Am Bank? It is like finding it in the shop area beyond the moneychanger’s table. Why? It does belong to the bank, the area is the bank’s area, but it is an area where customers walk around, and therefore it is parallel to the area beyond the moneychanger’s table where customers walk around, and it has the status of public domain. It is not another person’s premises. Therefore Elon basically argued that the finder was Endeles. He is the finder; this is not a finder on another person’s premises. The majority judges argued otherwise. They said that this was another person’s premises—namely, the bank’s. Now what is interesting is the reasoning. First of all, they argued against Elon—and of course everything is subject to agenda, but the argument is important and correct—that this is not really a case where there is a lacuna in the law. There is no lacuna in the law at all; the law determines everything that needs to be done. If it is another person’s premises, the rule is such and such; if it is your own premises, the rule is such and such. Everything is covered. You just don’t know how to interpret a concept in the law. A lacuna is where there is a situation as to which you do not know what the law says. That is a lacuna, a normative lacuna. Here it is not a lacuna; it is an interpretive lacuna, if you like. There is simply a concept in the law about which we have a dispute. The law tells us for every situation what it wants; there is no lack, no gap in the law. The wording of the law is not entirely clear and we need to figure out what it says—what “the premises of another person” means. The majority judges’ claim was that this is not called a lacuna. And that is very reasonable, because for two reasons. First, to complete the conceptual system from halakhah is absurd. It is another language. To take the interpretation of a language from halakhah is strange. Because halakhah uses rabbinic Hebrew and the law uses modern Hebrew, and if you do not know the meaning of modern Hebrew there is no logic in looking for it in the Talmud. If in modern Hebrew people debate what the concept means, why assume that… rabbinic language is one thing, biblical language another, and ordinary people’s language another. The Talmud itself says that. Since we are talking about language, the languages are certainly different. If you want to fill normative lacunae from what appears in halakhah, fine. That is a conception that says if I have a normative lacuna, I will complete it from halakhah, because there is an interest in integrating halakhah into the law. Fine. But here there is no normative lacuna at all; you are looking for the interpretation of a concept. To take the interpretation of a concept is like taking it from Hottentot. What do you want from Hottentot as a way of figuring out what a sentence in Hebrew means? So on the face of it that is a good argument. But of course it is an argument by which the majority judges somewhat contradicted themselves. Why? Because as a result they went to foreign legal systems and completed it from there. So what now—English is a place from which you can complete the interpretation of the phrase “the premises of another person” in Hebrew? If you tell me there is no lacuna here, then you also cannot take it from other legal systems. It is only about the interpretation of words, so you have to decide what the words mean. And what did you take from other legal systems? We’ll see in a moment. They took the normative rule for such a situation from other legal systems. If you are already taking the normative rule, then Elon is right—go to halakhah. In my view the majority judges made two arguments that contradict each other. I haven’t seen anyone write this, but it seems obvious to me. What they say is correct, but in the end what they did contradicts their own correct argument. That is the first point. Second, in halakhah the phrase “the premises of another person” does not appear at all. In the laws of returning lost property, the concept of “domain” does appear, yes. One who steals cannot consecrate it, and the owners cannot consecrate it either, and the thief cannot consecrate it, “this one because it is not his, and that one because it is not in his possession.” The concept of possession exists in halakhah, but in the laws of lost property the concept of “another person’s premises,” or “premises” in that sense, does not appear. So if you want to complete the meaning of the concept, what is relevant about taking it from the laws of returning lost property? In the laws of lost property it does not appear as an interpretation of the concept “another person’s premises”; it is simply the halakhic rule about what to do in such a situation. And once again the majority judges’ argument returns: what you did here was complete the normative rule, not the interpretation of the word. You took the normative rule from halakhah. Because not only is it incorrect to complete the meaning of the word from halakhah, it is also impossible, because the word simply does not appear in the laws of returning lost property. These two questions really revolve around one point: essentially, what you are doing is looking for the interpretation of a word, not filling a lacuna in the normative world, where a legal instruction for a certain situation is missing. No instruction is missing; you just do not know the meaning of a word. But in the end, for our purposes, they too did a normative completion, even the majority judges. And therefore in that sense, although their argument against Elon is correct, I think that in the end they were wrong. Elon was right in the end. Because if in the end you decide: okay, I have no way to interpret the phrase “the premises of another person,” I don’t know, we disagree—fine, so now de facto we have a normative lacuna. So what do we do in a case like the bank floor? The law perhaps says something, but we don’t know what it says. So practically there is a normative lacuna. Now we go to other legal systems to fill it. Where should we go? If you are already doing normative completion, then the Foundations of Law Act says go to halakhah. And they went to foreign systems. And again, of course, partly because they didn’t know, whatever—but on the principled level, because of the constraints of the debate, I think that in the end Elon was the one who was right. But what I really want to discuss here is why there is a difference between the halakhic rule, which says that in a case like the bank floor the finder is the person who found it, and other legal systems—and also the majority opinion in Israeli law—which say that the finder is the bank. In other words, the securities should have been handed over to the bank, and from that point on the finder is the bank. So the majority judges basically argue that the purpose of the Lost Property Law in Israeli law is to enable optimal return to the owner. The law is called the Lost Property Law. The purpose of the law’s details is to ensure that the lost property is returned to the owner. All the details of the law are derived from that. That is the purpose of the law, its aim. From that we derive all the details. Therefore they argue that the best possible return to the loser would be if the securities were given to the bank and not left with Endeles. Why? Let’s think about the loser. The loser, who lost the securities—where will he go? He will suddenly notice that he lost the securities. Where will he go look for them? He will start calculating where he was during the day. Hopefully he will remember that among other places he was at the bank. He will go to the bank and ask whether his securities were found there. He has no idea who Endeles is. He does not know that some person named Endeles passed by there and is holding his securities, and lives somewhere or other. Therefore, if I want to improve the chances of return to the loser, say the majority judges, I have to give the securities to the bank. Leave them at the bank, not with Endeles. In other words, they are saying that since the purpose of the Lost Property Law is optimal return to the loser, logic dictates that in this case the finder is the bank. Since if I declare the bank to be the finder, that will improve the chances of return to the loser. Therefore the bank was the finder. From there they continue to derive further implications. They say that if so, then once four months have passed—remember section 4—if four months passed and the loser was not found, then the securities pass to the finder. But if the finder is the bank and not Endeles, then after four months the securities—because this too was a legal dispute—Endeles argued: okay, give it to the bank, but after four months if the loser has not come, give it to me, I was the finder. You keep it at the bank because of the chances of return, but ultimately I was the finder, I deserve the securities after four months. The majority judges say: absolutely not. The bank is the finder, and the lost property must be given to the finder. And if the finder is the bank, then after four months the bank is the owner of the securities. They add another explanation. They say: why indeed is this so? Because why does the law really give the lost property to the finder after four months? And by the way this is conditional on the finder having done what the law required of him in order to return the lost property to the loser. If he did not do so—did not notify the police when required and so on—he will not receive the lost property. In other words, he gets the lost property only if he did what the law requires him to do. The majority judges say: why? That too serves the purpose of the law. Basically, in order to ensure that the finder makes his best efforts to return the lost property to its owner, we give him motivation. If you made the required efforts and after four months did not find the loser, it will be yours. But you have to make the effort; if you don’t, you won’t get it. In other words, Aharon Barak and Haim Cohen and the majority judges argue that even transferring the lost property to the finder—meaning giving the lost property to the finder after four months—also serves the purpose of the law. The purpose of the law is to maximize the chances of returning the lost property to the loser. Even giving the lost property to the finder after four months serves that purpose, because it gives him motivation to make the required efforts to return the lost property to the loser. Therefore they argue that once we have concluded that the purpose of the law is to return the lost property to the loser—optimal return—all the details of the law and the interpretation of “the premises of another person” are derived from there. “The premises of another person” always means whoever has the best chance of returning the lost property to the loser. Consequently, that finder—the one called the finder—is also the one who receives the lost property if after four months we have not found the loser. The loser is gone, we didn’t find him, so the finder gets the lost property. And everything is derived from the purpose of the law. Now Elon, by the way, when he answers these arguments, wants to say that giving the lost property to the finder after four months is a reward for good behavior. He made the effort, we have nothing to do with the lost property because we did not find the loser, we need to find someone to give the lost property to, so we give it to the upright finder who made the efforts. That sounds very similar to the majority’s reasoning, but it is not the same thing. The majority’s reasoning says that this serves the improvement of the chances of return. If you give him a reward at the end if he makes the effort, that will motivate him to make the effort. For Elon, the purpose of the law is not improvement of return to the loser—we will soon see what it is. But still there is a reward for the finder because I have nothing to do with the lost property, so I give it as a reward to the finder. It is not the same thing. It is similar, but not the same thing, because Elon does not accept that the purpose of the law is optimization of the chances of return to the loser. Now the interesting question is why, as I said earlier, usually the debates or discussions of the Endeles case focus on the question of how far the Foundations of Law Act applies here. Is there a lacuna? Should Hebrew law be integrated? And so on. I want to address a different question. Why is there any dispute here at all? There is a dispute because in ordinary legal systems, the purpose of lost-property law is to maximize the chance of returning the lost property to the loser. In halakhah, it is not. In halakhah, that is not the way it works. And therefore the question arises: okay, then where do we go—to halakhah or to other legal systems? I am not asking where to go; that is the question people usually ask, under the Foundations of Law Act. I am asking why there is a difference at all. Why in this matter is halakhah different from all other legal systems? Why does it see lost-property law differently? So in order to answer that, I first have to explain how it is different, what it sees differently. So I’ll say this: Elon explained it, and the other judges agreed with him; in this sense everyone understands that halakhah has a different orientation. What is that orientation? In halakhah too, returning lost property—the purpose of the law of returning lost property—is to return the lost property to the owner. The big question is who the owner is, because according to the law the owner is the loser. According to halakhah the owner is not always the loser. As long as the loser has not despaired, he is the owner. But if the loser has despaired, then he is not the owner. The object is ownerless, and therefore the finder is the owner. The finder is the owner not as a reward for making the effort to find the loser. He is the owner because it is his, period. It is not to achieve optimal return; rather, in the factual sense he is the owner, because the other person despaired. And despair is more or less like abandonment—Netivot says it a little differently, but it is similar. That is the difference between the halakhic laws of returning lost property and the Lost Property Law. Under the Lost Property Law, the definition of who the owner is starts with the loser, and after four months, if the loser has not been found, if we did not find the loser, then the finder becomes the owner. Why? Because property law is derived from the purpose of the law. The purpose of the law is optimal return to the loser. Even the property rules—who gets the lost property at the end of the process—we derive from the purpose of the law. Now in halakhah we do not derive property law from the purpose of the law. If the finder acquires the lost property because the loser despaired, it is not in order to encourage him to return it to its owner, but simply because it is his. It is obvious that this is not an incentive to return it to its owner—why? Because if he picked it up before the owner despaired, then even if the owner despaired afterward, once the lost property was already in his possession it will never become his. He must always return it to the owner; it never becomes his. When is lost property the finder’s? When the despair occurred before he found the lost property. He found the lost property after the owner had already despaired. In such a situation there is no duty of return upon him from the outset. So giving him the lost property is not meant to motivate him to fulfill his duty and return it; there is no duty to return it. It is simply his. The property law that the lost property is his does not serve the purpose of the law of returning lost property. It is simply a factual determination: it is his. Because the owner despaired, and therefore the owner is no longer owner of the lost property, so it is ownerless. You found it, so you are the owner. It is yours. This determination that it is yours does not serve anything; it is simply yours. Now notice: what this means is that it depends on the relation between property law in lost-property cases and the purpose of the law. According to other legal systems in the world, property law is an outgrowth of the purpose of the law. There is no objective owner. The owner is whoever we want to be the owner. And we want the owner to be whoever will be motivated by that to return the lost property, because in the final analysis everything is subordinate to the purpose of the law—to return the lost property to the loser. Property law too is subordinate to that purpose; it does not stand on its own. In halakhah, property law stands on its own. If the loser has not despaired, he is the owner; if he has despaired, I am the owner. Not in order to achieve something, not in order to motivate me to return the lost property. It is simply a fact that I am the owner, that’s all. Property law in halakhah stands on its own. It is not an outgrowth of the purpose of the law. That is the difference between halakhah and all other legal systems. Now the question is why. Basically, I want to claim—and here I connect back to what we discussed earlier—that halakhah sees property law as a normative expression of a metaphysical state. In other words, the fact that the object is mine represents the existence of a metaphysical bond between me and the object. That is what we saw in the previous classes. And my claim is that in returning lost property too it is like this. If the owner despaired, then the metaphysical bond between him and the object has already been severed. The object is currently detached; there are no metaphysical ties, it is ownerless, and therefore I can take the object. There are metaphysical facts that the laws of ownership reflect. They are derived from them. By contrast, in law we shape the laws of ownership. Ownership law is not a fact. It is not something based on a metaphysical bond. It is a convention—the Aristotelian approach as opposed to the halakhic Platonic approach. We determine the laws of ownership. How? In order to achieve the purpose in the best possible way—to achieve in the best possible way the worthy purpose of returning the lost property to the loser. But the shaping of the laws of ownership is in our hands; it is not a fact imposed on us. It is in our hands. In halakhah, by contrast, it is a fact. The fact is that you are the owner; the fact is that you are not the owner. And that is all; from there the laws of ownership follow. It does not depend on the question of what I want to achieve. It is simply a fact imposed on me. This, I think, is a very strong expression of the fact that halakhah stands on one side of the river and all legal systems on the other, like Abraham the Hebrew. It is a very different system from ordinary legal thinking. Why? Because ordinary legal thinking is not based on a metaphysical infrastructure. I am not an owner of something because there is a metaphysical bond between me and it. I am owner of this thing because society decided to grant me ownership of it. It is a convention. There are various purposes—we want life to be orderly and so on—so we determine that there are property laws and that one person may not harm another’s property. But all of this is convention. We could have determined this way, we could have determined another way. What we determined—that is what determines things. In halakhah it is not so. In halakhah it is a fact; we determine nothing, it is imposed on us. In a moment I will bring proof of this. But that is what I want to claim we see in the laws of returning lost property. It is imposed on us; it is reality. The metaphysics is not in our hands. It is not a convention, not an agreement that we decide and can decide however we want. It is metaphysics. What can you do—that is the situation, those are the facts, it is not up to us. I’ll tell you—I’ll show you in a more explicit way why this is so. Yes, look—before I show you that, look at Aharon Barak’s summary in that judgment. “Examination of the policy of the Lost Property Law leads to the conclusion that the decision as to whom ownership in the lost property shall be granted—the original finder or the owner of the place where the lost property was found—should not be made solely according to the degree of justice involved in granting ownership to this one or that one. By such standards it may be that in every case ownership should be granted to the finder, who in his fairness took the trouble to pick up the lost property, notify the owner of the place, and deliver it to him. But that was not the legislature’s approach.” The legislature of course said nothing; Barak is the legislature here, but never mind. “Moreover, justice may require dividing the ownership between the two. There will certainly be cases in which justice requires not granting ownership to anyone. Indeed, the legislature itself foresaw this possibility when it provided that the Minister of Police may, in consultation with the Minister of Justice, provide by regulations that in the case of valuable lost property or property that can be assumed to have special emotional value to its owner, and other special kinds of lost property, the provisions of this section shall not apply to them or shall apply with extension of the periods stated in it,” and so on. “It follows,” and here it is emphasized, “that the decision on the question of ownership is merely a means of achieving the law’s principal objective, namely, the return of the lost property to its owner,” where “its owner” always means the loser. “From this a further conclusion follows. It seems to me that in deciding whether lost property was found on another person’s premises, there is no room to resort to the question whether that other person is regarded by the law as having possession of the lost property even before it was discovered by the finder.” Yes—did the bank acquire it under possession law because it was lying on its floor? That is what Elon argued. Barak says that is irrelevant. “This approach”—who was the first possessor—“does not appear to us relevant to the principal purposes of the Lost Property Law. Indeed, it seems to me that the legislature did not adopt the test of possession—who possesses the lost property—as the criterion for deciding whether the lost property was found on another person’s premises. Premises and possession are not the same thing. Whatever the laws of possession may be, another person’s premises for purposes of the Lost Property Law are not determined by them, but by the principal purposes of the law—returning the lost property to its owner.” So here I think there is a very sharp expression of the fact that Aharon Barak understands that the conception of lost-property law in halakhah and in the statute are different conceptions. In the statute there is no such thing as property law and possession—it is not interesting. All the laws of returning lost property, including who gets the lost property in the end, are not determined by property law—who acquired it, who picked it up, on whose land it was found. Irrelevant. Everything is determined by the question of what will maximize the chances of return to the loser. And that is of course in contrast to halakhah, where it is determined by property law. If the bank acquired it under the law of acquisition by courtyard because it was in the bank’s courtyard, then it belongs to the bank. If it is an unguarded courtyard—guarded, unguarded, because many people walk there—then it does not belong to the bank; it belongs to Endeles, who picked it up first. And that is what Elon argued. But for our purposes, you can see that these discussions are discussions in property law; they have nothing to do with the question that this is a case of returning lost property and I want to maximize the chances of returning the lost property to the loser. These are property-law discussions: who acquired it? Is there acquisition by courtyard here? Not? Is it a guarded courtyard? An unguarded courtyard? Barak says the laws of ownership are irrelevant to the discussion here, because it all serves the purpose of the law, the objective of the law. In halakhah, no. These are ordinary property laws. Now notice: it is not that halakhah doesn’t care about returning lost property to the loser, and doesn’t see the injustice in not returning the lost property to the loser. Look, for example, at Maimonides in Laws of Theft and Lost Property, chapter 11, halakhah 7. Basically it’s in the Talmud, and it appears in the Shulchan Arukh too, but never mind, I’m citing Maimonides—it is the same thing. “If the majority of the city are gentiles, but he found it in a place in the city where the majority of those commonly present are Israelites, he must announce it. But if he found it on a main road or in a large public square, or in synagogues and study halls where gentiles are commonly present, and in any place where the public is commonly present, the lost property belongs to him, even if an Israelite came and gave its identifying marks, because the owner despaired of it when it fell, since he says to himself that a gentile found it.” In a case where the lost property was lost in the street or in a place where most passersby are gentiles, even if the item has identifying marks, the loser will despair, because gentiles will take it—what difference do the marks make? So he already despairs; it is clear to him that he is never going to see that lost property again. Maimonides says: “Even though it belongs to him”—that is, to the finder—“one who wishes to go in the path of the good and upright, and acts beyond the letter of the law, returns the lost property to the Israelite who gives its identifying marks.” Yes, we are talking about lost property with identifying marks. But the point is: there was despair despite the marks because most people there were gentiles. Maimonides says yes, but if there are marks, then it is obvious to you that the lost property belongs to the loser. When the loser comes and gives identifying marks, that proves that the lost property really was his. The only issue is that he despaired. Maimonides says: true, it is yours according to the strict law, but one who wants to go in the upright and good way should nevertheless return the lost property to the loser. Because after all, he really lost it. On the conceptual level it isn’t really yours, it is his. Technically it is yours because he despaired and now it is ownerless and you acquired it, but justice says you should return it to him. After all, he worked for it, he bought it, it is his, he has identifying marks, it is clear that it is his. You did not work, you did not buy it, nothing. Return it to him. Why should you take it for yourself? What do we see here? That the Sages too agree that justice and fairness say one should return this lost property to the owner. But that is only justice and fairness beyond the letter of the law. Halakhah says the lost property is mine—not that I should return it to the owner; the lost property is mine. Now the question is why. If halakhah too sees that this is the just solution—in that sense halakhah is like the other legal systems—the loser is in fact the owner, and the moral goal should be to maximize the chances of returning it to the loser. Halakhah also agrees with that. So why is the strict law not determined that way? Why is that only beyond the letter of the law? Why is the strict law not determined that way? The answer is because halakhah is not directed at doing what is just, but at doing what is true. And what is true is that if the owner despaired, the lost property is not his. Period. Morally it is proper to return it to him, but metaphysically the bond between him and the object no longer exists because he despaired, so he is not the owner and I am the owner. Morally they tell you: it is proper to return it. This is an excellent expression of the difference in thinking. In ordinary legal systems, morality determines what the contours of property law will be. Property law comes to serve moral goals—justice, fairness, and so on. In halakhah, property law is a reflection of reality. These are facts; it is not in our hands. These are metaphysical facts. If he is the owner, then he is the owner; if not, not. It has nothing to do with whether the results are good, fair, or unfair—that changes nothing. It matters for morality, not for halakhah. Morally, return it to him; halakhically, it is yours. Therefore, for example, if you are a poor person, you are not required to return it, because according to the strict law you are not required to return it. A poor person can take it, because after all it is his; we do not require him to act beyond the letter of the law and lose money because of that. Someone who is not poor—we say to him, return it, because in the end it is more decent to return it. So we see that there is no moral disagreement here. Halakhah too agrees that it is more decent to return it to the loser. But halakhah says: yes, but the facts are imposed on me. It does not belong to the loser; it belongs to me. Those are the facts. I cannot change the halakhah even though it does not seem fair to me. Fairness says return it to the loser. Fine. But the facts are that it does not belong to the loser. You see that the law determines ownership by fairness and by the just purpose of the law. In halakhah, ownership is a fact—whether it is mine or not mine. Maybe I’ll add one more point and then we’ll finish this segment. Just a question? One second, and then we’ll do questions. I just want to sharpen it further. Look: there is no source in the Torah that despair makes something ownerless. There is no verse. This law—that after despair, the owner loses the lost property, or is no longer the owner of the lost property—is something the Sages determined. It is not rabbinic law; it is Torah law. And the Sages determined it by reasoning; there is no verse for it. That sharpens the difficulty even more, because if you tell me this is not about fairness but about metaphysics, I would have expected to learn it from the Torah; otherwise, how do I know that this is the metaphysics? The Torah did not reveal this to me. My claim is stronger: the Sages understand that we have the ability to grasp what the metaphysical truth is, and they understood that if the person despaired, then the bond between him and his property has been severed and he is no longer the owner. They understood this by reasoning; it is not from a verse. Once they understood that this is the metaphysics, even though the halakhic solution is not the just solution—for the just thing would be to return it to him—still, this is the truth. And once that is the truth, that is the halakhah. In other words, this is a very strong expression of the difference I spoke about earlier: from halakhah’s perspective, when I say that you have rights in an object, that you are the owner of the object, that reflects a metaphysical state of bond between you and the object. By contrast, in ordinary legal systems, including Israeli law, your rights in an object are the result of a determination by the legislature. The legislature—it is a convention, not a fact. The legislature could have determined that you have rights, or that you do not have rights. And if it wants to improve the chances of return to the loser, then it will determine property law accordingly, because it is all in its hands. These are not metaphysical facts imposed on it. So there you have an example of the fundamental difference between halakhah’s legal conduct and other legal systems. The reasoning of ordinary legal systems is—and this is the important point—teleological reasoning. I determine property law in order to achieve a worthy goal, in order to improve the return. Yes, you saw that Aharon Barak talks about fairness—who is it fairest to give the lost property to? Elon does not talk about that; he talks about the question of who the owner is. It is simply a metaphysical fact. These are not teleological considerations, meaning purpose-oriented considerations. These are causal considerations. The lost property is mine because he despaired. Not in order to achieve something, but because he despaired. It is because of, not in order to. Legal considerations are considerations of “in order to.” I determine property law in order to achieve such-and-such outcomes. Halakhic considerations are causal considerations, not teleological. I determine property law this way because such-and-such is the case, not in order to. Because the facts are such; it is imposed on me. What can I do? It is not in order to achieve something. On the contrary: if it were in my hands and I could shape property law to achieve something, I would shape it differently, like the law. But what can I do? These are the facts; the metaphysics is imposed on me. Okay, I’ll stop here. Menachem, you wanted to ask? Yes, thank you. I wanted to ask: then why, from the standpoint of halakhah, is there a difference whether the owners despaired before the item was found or after the finder picked up the lost property? Because once the finder picked up the lost property, a duty of return takes effect on him. Therefore, once the duty of return has taken effect on him, he is effectively the owner’s agent, and at that point he is holding the lost property for the owner. The lost property is basically in the owner’s possession and belongs to the owner metaphysically. So now even if the owner despaired, first, he despaired by mistake, because if he knew that a Jew had found the lost property and was about to return it to him, he would not have despaired. And second, the despair does not help. The despair does not sever the bond between him and the object, because that bond now exists through the finder. The finder is now responsible for maintaining that bond, because he is holding the lost property in the loser’s name. If the lost property is lying in the street, there is no mediating factor. If I no longer want the bond to the lost property, then it is severed. But when the finder finds the lost property, he is essentially representing the loser. Now the loser possesses the lost property through the finder; he just doesn’t know it, like the principle that one may act beneficially for a person in his absence. Anyone else? A comment—can I ask something about the series? Yesterday I listened to the class about kindness and justice. Rabbi, you spoke there about the concept of a transgression for the sake of Heaven, and I thought a bit about it and wanted to know your view. If a person, in a certain situation, committed a transgression for the sake of Heaven, is he obligated to repent for it? Obviously not. It’s like the issue of “permitted” versus “overridden.” If we say that saving life overrides the Sabbath, the question is whether it is fully permitted or merely overridden. So sometimes—I once saw someone who wanted to say—what is the practical difference? The practical difference would be that if it is merely overridden, then you need to repent for it because after all there was a transgression there, it’s just that you had to commit it, what can you do. If it is fully permitted, then there is no transgression at all, so there is nothing to repent for. But that is absurd. Why? Because part of repentance is saying, first, that I was not okay—and here I was okay. In fact halakhah obligates me, not merely permits me. It obligates me to desecrate the Sabbath in order to save a life. Second, part of repentance is a commitment never to return to that sin. But if I enter that situation again, I will certainly be required once more to desecrate the Sabbath in order to save a life. So what sense does it make to repent for an act that I performed and that was the fulfillment of a commandment? Halakhah imposes on me an obligation to desecrate the Sabbath to save a life. So to repent for that? Okay. So that’s not similar to this case? What? No—I’m just bringing from there an example of a situation where ostensibly it is “overridden.” It is overridden in the sense that there is seemingly a transgression here, but I am allowed to do it; it is set aside in favor of the commandment. Fine, but clearly that is not really a transgression, and certainly I do not need to repent for it. Now remind me again—I lost track—what exactly did you ask? I asked about a transgression for the sake of Heaven, because the Rabbi… A transgression for the sake of Heaven—the same claim applies. Yael, the wife of Heber the Kenite, is basically praised for having relations with Sisera in order to kill him. Or Lot’s daughters there, right? So they are praised. What does it mean that they are praised? That this is the proper act. The next time they encounter the same situation, I expect them to do the same thing. Even though there is a transgression in it, it is overridden, not fully permitted. Fine—but certainly it makes no sense to repent for it if in that situation I am required to do it. That is what the Holy One, blessed be He, expects me to do. It is very similar to the halakhic distinction between “permitted” and “overridden.” But Rabbi, in that class you compared it to something like the difference between conscientious objection and a manifestly illegal order. And you referred to the point that a person who refuses on conscientious grounds is willing to bear the consequences and the burden and the implications of that. So what is the parallel here? I explained there that conscientious objection is where the value in whose name I refused is only a personal value of mine, not a value of all society and not the legislature’s value. Now society is willing to recognize your right to act according to your values, if you bear the consequences. Because you do have to bear the consequences, since from the standpoint of the law you acted wrongly. But it is legitimate—it is not something shameful—because after all you acted according to your values. By contrast, in a transgression for the sake of Heaven in halakhah, we are speaking about a transgression done in the name of a value that is also correct from God’s point of view. It is not merely your own personal value. So in that sense, why would the Holy One, blessed be He, punish you? I said there that it falls somewhere between conscientious objection and a manifestly illegal order. I remembered that the Rabbi said that if a person made the judgment in a case of a transgression for the sake of Heaven, and if a person made the judgment and is willing to bear the consequences—so I’m asking about that part, being willing to bear the consequences. No. In a transgression for the sake of Heaven, in my opinion he should not bear consequences. What, are they going to kill the wife of Heber the Kenite for adultery? For being a married woman? Why on earth? After praising her, saying that a transgression for the sake of Heaven is greater than a commandment not for the sake of Heaven, then they’ll kill her? Of course not. After all, they praise her; they expect people to do that. What, to do it and die? That’s unreasonable. Thank you. About the point we said that in halakhah there is the matter of the oath, which frightens the person. By contrast, in secular law there is some kind of “I declare, I swear,” but it’s not significant. I was thinking—maybe it’s simply because, pardon the comparison, I once rode a scooter. There the oil and gas were mixed, unlike a car where there’s one tank for this and one for that. The same thing here: in religious court there is both the interrogation and the testimony. By contrast, in the secular system the interrogation is separate, and the oath is basically part of the interrogation, where they scare the person—it’s part of the interrogation, no? That’s an interesting analogy, I hadn’t thought of it. Interesting analogy. But my claim still stands, because without this element of the oath, even if it belongs to the interrogation, you still cannot exempt him from theft and loss. Right, so I’m saying that in that interrogation there are threats. That is, the oath does exist there in a somewhat different form. Not exactly the same, but similar. So I’m saying, that would need discussion. If you say it is the same thing, then integrate it. I’m only giving an example of why integration is not trivial. Okay. Good. Have a peaceful Sabbath. Goodbye. Peaceful Sabbath.