Platonism – Lecture 10

Table of Contents

• [0:01] Platonism and the halakhic connection
• [1:31] Legal effect and the Platonic connection to Jewish law
• [4:11] Teleological reasoning versus causal reasoning
• [9:22] The concept of despair in Jewish law and in law
• [10:37] The source in the verse and explanation of the reasoning
• [16:37] Indirect causation and halakhic reasoning
• [21:19] Morality versus Jewish law – the case of the beautiful captive woman
• [29:08] The difference between Jewish law and civil law
• [30:50] Law and Jewish law – do they merge?
• [32:04] The story of Rava and the convert regarding acquisition
• [39:30] The educational problems in studying Jewish law
• [46:30] Intellectual property in Jewish law
• [48:55] The legal approach to intellectual property
• [51:06] The halakhic challenge of intellectual property
• [54:36] The facts versus morality
• [56:41] The framework of intellectual property and presenting the details
• [57:48] Primary principles and legal effects in Jewish law
• [59:06] Summary and blessings for the Sabbath

Summary

General Overview

The text presents the dispute between Plato and Aristotle as a debate over the objective existence of categories and ideas, and applies it to Jewish law through the concepts of legal effect and ownership. Jewish law is presented as a Platonic position that sees legal effects as metaphysical entities existing in reality, not merely as a useful legal status; therefore, halakhic reasoning works in a causal structure of “because,” not a teleological structure of “in order to.” From this, the gap between law and morality is explained: the Sages themselves recognize situations in which morality requires a certain action even though Jewish law does not require it, and the solution is to leave the two categories independent—Jewish law as a rigid factual system, and morality as a parallel obligating system. Against this backdrop, the text presents the difficulty faced by halakhic decisors regarding intellectual property, where the social and moral need for protection is obvious, but it is hard to anchor it within property law as a set of given facts, and the tension between teleological reasoning in general law and causal reasoning in Jewish law becomes apparent.

Plato, Aristotle, and the debate over ideas

The text presents Plato as claiming that one can relate to categories and general objects as ideas that exist objectively in the world of ideas, such as horseness, redness, and democracy, even though they do not occupy space and have no mass. The text attributes to Aristotle the position that categories are human abstractions and conceptualizations, to be evaluated in terms of communicative and analytical efficiency rather than truth. The text uses this dispute as a working tool for understanding halakhic concepts, and does not seek to study Greek philosophy for its own sake.

Legal effect in Jewish law as metaphysical ownership and entities

The text defines legal effect in Jewish law as statuses such as ownership, betrothal, married-woman status, divorced-woman status, and priestly gift status, and argues that Jewish law sees these legal effects as entities and not merely as legal descriptions. The text presents a view according to which ownership does not begin with legal rights and duties, but with an objective metaphysical bond between a person and his property, or his wife, or objects that bear a legal effect, and this bond in some sense “rests” on the object. The text formulates the legal consequences as derivatives of a meta-halakhic fact in which a bond of ownership exists, not as a human creation designed to achieve a purpose.

Indications of a Platonic view: ownership without legal consequences

The text points to situations in which ownership exists even though its legal consequences do not appear, such as a slave whose bill of emancipation has been delayed. The text describes a case in which an object is considered owned by a person even though he has no ability to use it and no practical beneficial rights, and nevertheless the legal effect of ownership still exists upon it. The text presents this phenomenon as proof that Jewish law assumes ownership to be an existing reality, not a functional determination meant to serve purposes.

Returning lost property: teleological reasoning in law versus causal reasoning in Jewish law

The text describes common legal reasoning as teleological reasoning, in which the laws of returning lost property and property law are shaped in order to maximize optimal return to the loser, and cites the Andelis ruling and interpretations of Israeli law as examples. The text states that in conventional legal systems, property law is defined in order to serve a purpose, and the term “in order to” becomes central because the law is subject to design according to goals. In contrast, it presents the halakhic discourse in which property law is a basic given and the obligation to return is only a secondary derivative: as long as the loser has not despaired, he remains the owner, and therefore there is an obligation to return his object to him. The reasoning is “because it is his,” not “in order to return it.”

Despair: a halakhic fact not directly dependent on morality or verses

The text presents despair as a central halakhic criterion that changes the laws of property and therefore also the laws of returning lost property, and argues that in the legal world despair has no real standing and appears at most as a metaphor of “as if he despaired.” The text emphasizes that Jewish law itself recognizes that morally and logically despair has no significance, and cites the Maharal, Derashot HaRan, statements in the Talmud, and the rulings of Maimonides and the Shulchan Arukh, according to which the Sages approve of one who returns a lost item with identifying marks even after despair. The text explains that Jewish law nevertheless insists that despair factually severs ownership and the object becomes ownerless, and therefore returning it is beyond the letter of the law and not the law itself.

Midrashic derivation and reasoning: “which is lost from him” and the Sages’ shaping of the concept of despair

The text corrects an earlier claim and acknowledges that there is a midrashic source from the verse “which is lost from him” in the context of something swept away by the sea, and apparently also despair, but states that this is not a “real” source in the sense of an explicit source independent of the Sages’ conceptual shaping. The text argues that every derivation involves reasoning, and brings the example of “the Lord your God” as including Torah scholars, to illustrate that the word itself does not dictate what is to be included; rather, reasoning decides. The text concludes that the Sages arrived at the idea of despair because they thought it creates a disconnection between the person and the object, and only afterward attached this to a derivation, so the halakhic novelty begins with the Sages’ conception and not with an explicit verse.

Indirect causation in damages: halakhic exemption despite moral blame

The text presents indirect causation as another example of the fact that Jewish law operates through factual-causal categories and not according to purposive justice, and describes indirect causation as intentional action through an indirect means. The text cites the example of “one who winnows and the wind assists him” and emphasizes that the act is done intentionally to achieve a result, so there is no moral justification for exemption. It formulates the exemption as a factual determination: “I did not do this factually,” and cites discussions among the medieval authorities (Rishonim) regarding “one who places his fellow’s animal upon his fellow’s standing grain,” as well as the dispute between Tosafot and Rashba, to show that this kind of discussion does not arise in teleological legal systems.

Jewish law and morality as two independent categories

The text grapples with the question of why the Sages do not “adjust” Jewish law to justice and morality, and states that Jewish law is perceived as imposed and as fact, and therefore cannot be designed according to purposes. The text suggests that the Sages bring morality in through mechanisms such as rabbinic enactments or coercion against the trait of Sodom, without changing the halakhic facts themselves. It formulates a dichotomous principle according to which a moral category and a halakhic category obligate in parallel but do not overlap, and presents this as an explanation for why there is no room for apologetics claiming that Jewish law itself is a “higher morality” that we simply do not understand.

The beautiful captive woman, Rabbi Karim, and the distinction between halakhic permission and moral prohibition

The text brings the passage of the beautiful captive woman and the public storm over Rabbi Karim’s comments as an example of the Torah permitting something that is not moral, and argues that the medieval authorities (Rishonim) dealt mainly with the question of the prohibition of relations with a non-Jewish woman and not with the question of rape as a moral issue. The text states that morally, “it is obvious that one may not do such a thing,” but halakhically “it is permitted from a halakhic perspective,” because Jewish law is not dealing with morality but with the halakhic aspect. The text emphasizes that the practical demand is to obey both categories together, so from a Torah-moral perspective a person who would do this should be punished severely—not on account of a halakhic prohibition, but on account of morality.

The example of the law and the chocolate analogy: non-identity between one normative system and another

The text brings the debate surrounding the law “do not stand idly by your neighbor’s blood,” associated with Hanan Porat, in order to illustrate that a legal system may fail to include a certain moral obligation without claiming that the act is moral. The text argues that opposition to including a moral obligation in the law is not equivalent to ignoring morality, but rather to defining the role of the law. The text uses the chocolate analogy to present two categories that do not deny one another: “tasty” in terms of taste, and “fattening” in terms of health; and it parallels this to “halakhically permitted” versus “morally forbidden.”

The story of the convert, Rava, and acquisition by admission: legal versus moral

The text refers to the story in the Talmud about a convert who deposited money with Rava and wanted to transfer it to his son, and Rava thought there was no acquisition mechanism that would allow this, so after the convert’s death the money would remain with him. The text interprets Rava’s irritation at the one who proposed acquisition by admission as legal opposition to the validity of the mechanism, not as a moral decision in favor of taking the money. The text states that the convert’s desire does not create legal validity, and that morally one might still expect Rava to forgo the money, but that is a separate question from the halakhic discussion.

Educational aspect: stating the halakhic truth alongside educating for morality

The text warns against an educational solution based on concealment or twisting halakhic law in order to prevent difficult conclusions, and states that the proper way is to say the halakhic truth and at the same time educate toward moral obligation. The text argues that “holy” lies are mistaken, and compares this to lying about the taste of chocolate in order to prevent people from eating it. It presents the educational problem as a result of assuming that Jewish law and morality are identical, and argues that the dichotomous distinction prevents a crisis of faith that arises from expecting Jewish law to pass moral tests.

Intellectual property: social benefit versus property theory and the halakhic difficulty

The text describes the intensification of the question of intellectual property in the modern age due to extensive commerce in ideas, technologies, and creative works, and distinguishes between ownership of the physical medium and ownership of the information. It describes two central justifications in general law for protecting intellectual property: property theory, which grants the creator ownership in his creation, and social utility theory, which protects it in order to create an incentive for creativity; and it classifies the first as causal and the second as teleological. The text argues that in Jewish law an embarrassment arises because the need for protection is obvious, but there is no simple mechanism for grounding ownership as a fact. Therefore, solutions are proposed such as dina de-malkhuta dina, encroachment, “one who acts on the homeowner’s presumed intent,” and payments for benefit, while arguing that the multiplicity of solutions testifies to the fact that none of them is fully convincing.

The Platonism of Jewish law versus the Aristotelianism of law, and continuation of the series

The text concludes that secular law is perceived as Aristotelian because it is a convention that can be shaped according to optimal goals, whereas Jewish law is perceived as Platonic because it is a system of existing facts that are not created in order to achieve a result. The text notes that moral corrections can be made through rabbinic enactments, coercion against the trait of Sodom, or accompanying moral determinations, but not by changing the core law on moral grounds. The text ends by saying that the framework has been presented through intellectual property and the details will be given next time, and adds that there are further indications of Platonism in Jewish law, including an article on the talmudic reinterpretations, without attempting to build a taxonomy of “ideas,” but rather to show a recurring conception of legal effect and factuality.

Okay, we’re in the series on Platonism. We talked a bit about the basic dispute between Plato and Aristotle—or what I pinned on Plato and Aristotle; in the sources it may be a bit more nuanced, but that doesn’t matter to me, I’m using it, I’m not… our point here isn’t to study Greek philosophy. And the claim that’s really at issue in this debate is the question whether one can relate to objects, to categories, as things that exist. Ideas, what Plato calls them. Plato claims yes; that’s the approach called Platonism. He basically says that horseness, or redness, or democracy—these are ideas that exist in some objective sense in the world of ideas. They don’t occupy space and they don’t have mass, but they exist in some sense. And for Aristotle these are only our abstractions, our conceptualizations, which are judged in terms of usefulness and not in terms of truth. Meaning, we need to create a system of concepts that will make it easier for us to communicate, to analyze things, to describe things, to argue about things, and so on. That’s the basic datum. I’m skipping ahead. We moved on to looking at this debate through a halakhic prism. I talked about the meaning of the concept of legal effect in Jewish law. Legal effect in the sense of, yes, ownership taking effect, marriage taking effect, the status of a married woman taking effect, the status of a divorced woman, terumah, and so on. All these legal effects—I wanted to argue, and I showed this through a few practical ramifications—that all these legal effects are basically seen by Jewish law as a kind of entity, and not as descriptions or legal status. When I say that so-and-so owns this ox or that one, or even this slave or that one, I’m not merely making a legal determination that he has rights over the ox and the slave and others can’t use them without his permission, and so on. Those are the legal consequences. But the Platonic view—and I showed that I think it exists in Jewish law, maybe even dominantly—says that this begins from some metaphysical bond in objective reality between the person and his property, or his wife, or the terumah, or various things; some metaphysical bond, some metaphysical entity that in some sense rests upon the object. When I say that ownership has taken effect upon it, I’m really describing something that exists in the object and has consequences, which are legal consequences. Meaning, all the legal determinations that relate to ownership are consequences of the metaphysical or meta-halakhic fact that there is an ownership bond between me and the object. And one of the central indications for this are situations that I described in which ownership exists but its legal consequences do not appear. Like a slave whose bill of manumission has been delayed, and more—we saw several examples of this—in which I regard a certain object as belonging to me, as being my property, even though there is no legal consequence whatsoever to that statement. I can’t use it, nothing in it belongs to me, what it does is not my property but belongs to itself, and nevertheless it is called mine. My ownership has taken effect upon it. So we saw various implications of that, and that is an indication of a Platonic conception. In the last one or two sessions I spoke about a conception… I got more into the halakhic conception of ownership and tried to show the Platonism of Jewish law through its mode of reasoning. Meaning, we saw that the form of halakhic reasoning when dealing with topics like returning lost property—and today we’ll talk a bit about intellectual property—the form of halakhic reasoning is different from the common legal reasoning. The accepted legal reasoning, very clearly and broadly, in almost all legal systems as far as I know—I’m not a lawyer—is a teleological form of reasoning. What do I mean? I formulate the laws of returning lost property, for example. We talked about the Endels ruling, and through it I explained this point. Israeli law, basically—or at least according to the judges’ interpretation; there isn’t really anything in the law itself that says this—but according to the accepted majority view, Israeli law following other legal systems sees the concepts of returning lost property as concepts whose purpose is to return the lost item optimally to the person who lost it. And property law, which the law also recognizes, is a derivative of that basic desire. Meaning, since I want to return the lost item to the loser, therefore I define the lost item as the property of the loser, and after four months I transfer it to become the property of the finder if the loser is not found and if the finder did what the law required of him. Then it becomes his, but I define it as the loser’s or as his, and that definition is meant to serve the goal of optimally returning it to the owner, to the loser, back to the owner. And therefore all the reasoning you find in this context is teleological reasoning—purpose-based reasoning. Meaning, I formulate property law in order to achieve such-and-such a goal. And therefore the term “in order to” is very central here. Meaning, property law is not some given datum; property law is handed over to me, I define it, and my motivation—or the criterion according to which I define it—is basically what I want to achieve. And the goals I want to achieve in the case of returning lost property are optimization of the chance of returning the item to the loser, and from that all the property laws are derived. In contrast, in halakhic discourse, as Aharon Barak also noticed, he uses this in order to say why halakhic discourse should not be applied in legal interpretation, while Elon does apply it and somewhat ignores the differences—Barak here is actually sharper, in my opinion. He argues, and rightly I think, that the halakhic conception is the complete opposite of the legal conception—not specifically Israeli law, but legal thought in general, as commonly found in legal systems around the world. Because Jewish law sees property law as the basic given, and the duty to return as the derivative, secondary matter. Meaning, we define who owns the lost item through principles that belong to property law. Meaning, as long as he has not despaired, the loser is the owner; if he has despaired, then the object is essentially ownerless—the Netivot says one merely has permission to acquire it, but that doesn’t matter for our purposes; for us that counts as ownerless. So we begin with property law. Once we’ve defined property law, a duty to return may arise. Meaning, as long as according to property law the owner is the loser, there is automatically an obligation to return him his object because it is his. Meaning, here property law is the fundamental thing, and the returning comes to serve property law. In the legal world, by contrast, it’s the other way around. Meaning, return is the central thing, and property law comes to serve the matter of return. And in this context you really see that beyond the… that is, that’s the difference in conceptions, but you see it through the mode of reasoning. The mode of reasoning in the legal world is teleological, purposive: I shape the laws in order to achieve such-and-such goals. In the halakhic world the reasoning is causal. I need to return the lost item to the owner because it is his, not in order to but because. Meaning, we are speaking here in causal terms and not purposive terms, because property law is a given. It’s a fact. It’s not something I can formulate according to one purpose or another. It is simply a given that is imposed on me. Someone mentioned in a question on the site, it seems to me—I really need to correct a certain mistake—I said that to sharpen this difference further, I said that despair, yes, which is in fact a very central criterion in the halakhic world: the moment a person despairs, he loses his ownership and the object becomes ownerless. That’s what changes property law and therefore also the laws of return. And I said that despite the centrality of the concept of despair and despite its uniqueness—because in the legal world despair has no real significance. Despair appears in the law only incidentally, just as a metaphorical expression; nobody really speaks about the owner as having despaired. Rather they say he is regarded as if he despaired. But what happens when he actually despaired, not as if he despaired? The law says nothing about that. What does it mean “as if he despaired”? As though if he had despaired then we would know what to do, and in such-and-such a case he is also as if he despaired. But no—when he actually despaired, the law says nothing. If the owner despaired over the lost item, one still has to return it to him according to the law. Despair has no standing in the law. “He is seen as if he despaired” is just a metaphor resting on the halakhic conceptual world. Because in the halakhic conceptual world, when the owner despairs, he has lost his ownership. Therefore in the law the use of the concept of despair is, first of all, thin, and even when they already use it, they use it metaphorically. Despair plays no role in the law at all, unlike in Jewish law. Then I said about this that despite this difference there is no source in the Torah—I would have expected them to derive it from some verse. Where does it come from? If ordinary human logic says that despair plays no role—if you’re the owner, you’re the owner, and if I can return your object, why shouldn’t I return it? So what if you despaired? You despaired because you thought no one would return it to you; you were mistaken—here they are returning it to you. Why should I care whether you despaired or not? Justice and morality certainly should not depend on whether you despaired or not. I brought the Maharal, I brought the Maharal and Derashot HaRan on this point, and everyone agrees. The Talmud itself says—and this is ruled as Jewish law in Maimonides and the Shulchan Arukh—that even if the person despaired, if there is an identifying sign and you know for certain that the lost item is his, the sages approve of someone who returns the lost item to him and disapprove of someone who does not return it, even though according to Jewish law you do not need to return it—it is yours. Meaning, no one disputes that morally and rationally despair has no significance whatsoever, and nevertheless Jewish law insists that if you despaired, you lost your ownership of the object, and only beyond the letter of the law should it be returned to you. If that is really what morality and justice say, why not establish that as the law itself? After all, Jewish law also agrees that that is what justice and morality say. It’s not that there is a dispute here about morality. So why sever morality from Jewish law? And the answer is because Jewish law sees itself as a reflection or expression of a collection of facts. It’s not in my hands; whether it’s moral or not moral, that’s the fact. The fact is that if he despaired, it’s not his. Therefore it doesn’t matter right now that morally it is still proper to return it to him; Jewish law reflects the factual truth. We saw this in the Maharal in a very strong and sharp way. Now I said that if that’s so, I would have expected that if this goes against ordinary human reason and is unique to Jewish law, I would have expected a source from a verse. But there isn’t one. The parameters of the concept of despair were shaped by the sages, and there is no real source from a verse—that’s what I said. Now somebody corrected me on the site, and rightly so: there is a source from the verse “that was lost from him” regarding something swept away by the sea. They bring a source there, in effect, for something swept away by the sea and apparently also for despair. But as I answered him there too, that’s not really a true source. What do I mean? “That was lost from him”—so they derive from this someone who despaired over the lost item, or in the case of something swept away by the sea or something like that, someone from whom it is lost and from all people. But it is obvious that we learn from the verse “that was lost from him” to exclude someone who despaired only because our logic tells us that someone who despaired is in a different situation, because the verse does not speak about despair. It’s like—I’ve spoken about this more than once—“the Lord your God,” where the particle “et” comes to include Torah scholars. The “et” serves to include, according to Rabbi Akiva; “the Lord your God” comes to include that there is a commandment to revere Torah scholars. Now it is obvious that some sort of reasoning is involved here—that it is fitting to revere Torah scholars—because the verse itself, the word “et,” does not tell me what to include. Maybe include fans or peppers? I don’t know. Where does the idea of what to include from the word “et” come from? It comes from reasoning. The reasoning says that if I am already including something, my logic says to include Torah scholars. Therefore, even if there is some source, as long as it’s not a clear source—like the prohibition on eating pork, where the source says you may not eat pork—there is no involvement of the sages in shaping that law, or a mixture of an ox and donkey together, or whatever. Those are things written in the Torah. But wherever I’m talking about a derashah where the sages include something, or make an analogy, or whatever—general and particular, verbal analogy, all sorts of things of that kind—reasoning is always involved, because the derashah by itself never states the result; it only serves as a trigger to activate reasoning. When they say “You shall fear the Lord your God,” they say one must include something. What must be included? Reasoning says to include Torah scholars. Meaning, in the final analysis reasoning determines it. So also regarding despair: true, there is a verse that excludes the person who despaired, saying one need not return the lost item to him. But we can ask: why exclude specifically despair, and not, say, people over the age of seventy to whom one need not return lost objects? Where did they get the idea of despair? It is not written in the Torah, it does not appear in the verse; it is a derashah. They got there because the sages’ reasoning said that despair creates a disconnection between the person and the object. Yes, it turns the object into ownerless property, without an owner. Okay? And once they had that reasoning, they attached it to the derashah of “that was lost from him.” Meaning, true, there is a derashah on this matter, and still, because it is a derashah, it is obvious that in the background there is reasoning of the sages; otherwise they would have derived completely different things from this derashah. Therefore it’s admittedly not as strong as I presented it, but my claim is still not canceled altogether. And my claim is that not only is Jewish law anomalous, but that this anomaly does not begin from verses; rather it begins from the sages’ conception, from reasoning. It is later anchored in some derashah as well, but it begins with the sages understanding that if there was despair here, the connection between the person and the property has been severed. Meaning, they see through their own plain lenses—not by force of verses—they see that when we talk about property law we are talking about facts. The question is whether it exists or does not exist, and for them, through reasoning, in the eye of the intellect, however you want to put it, they understand that in a case where there was despair there is factually no ownership. Factually. Not because it is not worthwhile to define him here as owner, or because it is worthwhile to define him as owner. It is not a question of expedience. It was not created in order to; it was created because of. The reasoning is not teleological, purposive reasoning, but causal reasoning. He is simply not the owner. What can you do? Because he is not the owner. That’s it. Isn’t that how you would describe laws of indirect causation as well? Yes, definitely. In the laws of indirect causation too, I think perhaps even the Maharal brings this, and Derashot HaRan certainly does. Meaning, when you cause damage indirectly there is no rational reason to exempt you. Why? What difference does it make? It’s not a lack of intention to cause damage—you have to understand this. In indirect causation, according to some views perhaps yes, but in the simple conception indirect causation is not connected to intention at all. Suppose you, as the Talmud says in tractate Bava Kamma on page 60 there in the case of “winnowing and the wind assists him,” there the discussion is about indirect causation in the laws of the Sabbath and indirect causation in tort law, one over against the other. And what is indirect causation? I toss the grain with the chaff into the air, and the wind scatters the chaff and then the grains fall downward, and thus I have separated the grain from the mixture. Now when I threw it into the air, I did that in order for the act of separation to occur. It’s not that I didn’t intend it and oops, it happened to get separated—the chaff flew off and the kernels fell. Of course not. I intended it; that’s why I did it. Therefore the concept of indirect causation is basically just carrying out an intentional action through an indirect means that in the end will achieve a goal that I intended from the outset to achieve. Therefore from the standpoint of morality, justice, there is no reason in the world to exempt someone for indirect causation. None. But what? Factually I did not do it; it is not damage that I did. I am guilty, it is morally wrong, but factually if I did not do the damage I am not responsible for it. Therefore the medieval authorities (Rishonim) discuss the case of “placing your fellow’s animal in your fellow’s standing grain.” I take your cow and place it in somebody else’s grain so that it will eat. They start discussing whether I am liable for the damage. What do you mean whether I am liable? What could be more liable than that? I took the cow and placed it on your grain. Yes, but the cow is not mine. So what? The cow is not mine; I am not responsible for it. What do you mean I’m not responsible? I used it in order to place it there. In the end they obligate. The Talmud there too, in Bava Kamma, almost in the same place, says that there is liability. But there is discussion about it; it is not simple. And the medieval authorities are even more torn over it—how can there be liability if the animal is not mine? So perhaps it falls under a person who causes damage, or some major innovation in an animal that causes damage? A dispute between Tosafot and Rashba there. And all these discussions would never arise in a legal system. There are no such discussions there. It doesn’t come up. It doesn’t come up because there, in the end, we shape the law so that it serves the goals of justice, morality, order—whatever legal goals there are—in the best possible way. From the standpoint of Jewish law, we cannot shape the law so that it serves something. We do not shape the law at all. The sages’ sense is simply that they uncover a shaped law. It is not in their hands; it is a fact. I only want to understand what the facts are here. Is this mine or not mine? It is an almost observational, factual question, I would say. Not a question of how I would prefer to define the legal system. Okay? That’s what we saw regarding returning lost property. I want to see a similar phenomenon regarding intellectual property. Before that I just have a question: if indeed both in indirect causation and in returning lost property it is completely clear that this serves neither justice nor morality, then first of all I have a question—so what really is the essence of Jewish law? If the sages who disputed over despair or no despair don’t feel that they are harming justice and morality—isn’t that troubling? I’m not talking about later periods; I mean in the Talmud itself. In the Talmud itself the Talmud writes this. The Talmud itself brings the father of Shmuel, who found a lost item with identifying marks, and the Talmud said that the sages disapprove of someone who does not return a lost item with identifying marks even though the owner despaired. But Jewish law exempts him; if the owner despaired it is mine, what’s the problem? But this is very troubling, because Jewish law claims, let’s say, to be the translation of what the Holy One, blessed be He, wanted in all generations, and so on. Suddenly we are attributing to the intention of the Holy One, blessed be He, some unclear rigidity of hair-splitting about property laws when it harms justice and morality. And another question: okay, now we’ve reached these generations and we see that other approaches do in fact move toward justice and morality, so let’s fix something here. Why get stuck on this? This rigidity is very disturbing. Right, this point of rigidity is exactly the point I want to put my finger on. You raised a question, and I’ll devote maybe a few minutes to it because it really is troubling in this context. First of all, I’ll finish with your last sentence. You asked why they don’t adapt it to systems that we know are more just. The answer is exactly that: I cannot adapt it. It is imposed, it is a fact. I cannot adapt it. This whole rigid outlook—that is the essence of Jewish law. I am talking about it as some kind of fact, and my indication is precisely that they do not make adaptations. Now again, they can make adaptations in the sense that they can still establish a moral obligation to return the lost item even after despair. But Jewish law itself will not change. Meaning, because it is a fact. It is imposed on us. I think—I’ll maybe add two more comments on this. First, I do not need to see that there are other systems in which this is just. Because the sages in the Talmud itself say that it is not just. I did not need legal developments in other systems in order to understand that I live in an unjust system; the sages themselves say it. Therefore I would not hang the difficulty and the question at all on the fact that now in the modern era other systems have suddenly arisen. I also don’t know, incidentally, if they didn’t exist even then; I have no idea, one would need to ask legal historians. But it doesn’t matter; the sages themselves saw this, so I don’t need… No, I’m not saying we should go by it because there are other systems. I’m only saying that when I make the comparison and see that suddenly other systems do insist on justice and morality, then I become even more troubled. Okay, so I’m saying: but the sages themselves evidently were not troubled, even though they themselves understood that it wasn’t just. How troubled one should be quantitatively is a secondary question. But why indeed were they not troubled? That’s what you are asking, independent now of what did or did not develop. So I say, first, suppose they were troubled—but they had no ability to change it. All they can do is enact a rabbinic ordinance, establish a moral rule, but the meta-halakhic fact remains in place; it is not in their hands. That is the claim. Now you can accept or reject this thesis that there are such facts, but because of this very rigidity, I am trying to show that the sages certainly conceived Jewish law this way. They understood it as something rigid. And they had their own ways of nevertheless bringing in aspects of justice and morality. What did they say? They either enacted a rabbinic ordinance, like “we compel one not to act in the manner of Sodom” in Bava Batra there on page 12 or so, which means that although this is only a moral matter and from the standpoint of Jewish law there is no obligation, nevertheless one can compel it—one can even compel it because it is a moral matter. But they still do not change Jewish law; they only compel. They compel morality. And second, they can also establish rabbinic law or a moral obligation and say: look, morally you have to return it; halakhically I can tell you nothing. It’s like—I once spoke about this in the context of the beautiful captive woman. Yes, the Chief Military Rabbi—now I forgot his name—when he was appointed, a question came up about some remark he had made years earlier. They asked him whether it is permitted to rape a gentile female captive—yes, the beautiful captive woman at the beginning of the portion of Ki Teitzei in the Torah. So he said yes. Yes, Rabbi Karim, exactly. So he said yes, and then all hell broke loose: how can one appoint such a person, are they going to go rape captives for us now, and all kinds of things of that sort. Maybe they should fire the chief rabbi of Hamas. So the claim was—I think everyone twisted themselves terribly around this issue, because the truth is that this is what the Torah says. One cannot deny it. Everyone bent it and rolled their eyes and said no, and it’s not relevant to our time, yes relevant to our time. The Torah says it and it is relevant to our time. But there there is a dispute among the medieval authorities about what exactly the commandment is there, whether one must wait; it’s not so simple. Fine, even if you wait, you don’t need to be stringent. Meaning, if there is a moral matter and there are two opinions, take the moral route, not the immoral route. You’re getting ahead of me by one second; I’ll get to that too. But the point is that if you ask about the medieval dispute, all that bothers the medieval authorities is the prohibition of intercourse with a gentile. No one cares in the least about the rape. The problem because of which they qualify the prohibition of the beautiful captive woman, and the broad permission regarding the beautiful captive woman—“the Torah spoke only against the evil inclination”—none of them are troubled at all by the fact that it is rape. That doesn’t even come up. All that troubles them is the prohibition of intercourse with a gentile woman. That’s all. So if we’re already talking about the medieval authorities—there is an insane indifference there to the moral aspect. Therefore this criticism is totally justified. I just think there is a misunderstanding both מצד the critics and מצד the rabbis who defend themselves, because they do not accept the thesis I am about to state. And I have written it in many places in great detail. There is column 15 on my website that discusses this issue of the beautiful captive woman. And my claim was basically that on the moral level it is obviously forbidden to do such a thing. But Jewish law does not deal with morality. Jewish law deals with facts—let’s say at least some parts of it—and with what, from its standpoint, those facts say about what I am obligated or forbidden to do. If a person were to come and ask me, tell me, is it permitted to rape a captive? I would tell him that if you do such a thing I’ll cut your head off, because you are behaving in an immoral way. Are you asking me whether it is halakhically permitted? The answer is yes. It is halakhically permitted. It’s not—I—when you ask the gentile whether it is permitted to do this, he too should answer you: morally it is forbidden to do this, but I have no halakhic problem with it, because halakhic problems do not concern him. So one has to understand that the statement that there is a moral problem here but no halakhic problem is a categorical distinction. There is simply no basis for moral criticism here. There is no moral inferiority in this at all, because morally I forbid it just like any gentile does. I am no less than him on the moral level. I only claim that in the halakhic aspect there is no prohibition here. That’s all. Jewish law does not deal with this. But morally I fully agree with him that it is forbidden. So—doesn’t it bother you that in everything connected to morality and justice, our Jewish law ignores it and you behave—you behave like the gentiles, caring about morality independently of Jewish law? Good heavens, then where are we? A hundred things there are wrong. It’s not true that Jewish law ignores it, and it’s not true that I behave like the gentiles. No, it doesn’t tell you to behave that way; it goes on its own path. It leaves it to you, to your conscience, to be moral. Jewish law says there is no prohibition—there is no halakhic prohibition against raping a gentile woman. Jewish law does not deal with the… Doesn’t that drive you crazy? Doesn’t it bother you? No, not at all. The only thing it says is that there is no halakhic prohibition against raping a gentile woman. From the perspective of intercourse with a gentile there is no problem. They do not deal with the question of rape as a moral problem because that is not the role of Jewish law. Jewish law does not deal with morality. Jewish law deals with Jewish law. It’s like asking me why a murderer by indirect causation is exempt. All right? A murderer by indirect causation, or one who causes damage indirectly. What, Jewish law didn’t understand that to murder indirectly is a monstrous moral wrong? Of course it did. They’ll even put you in the cell. Morally they treat it no less seriously than all the gentiles do. From the standpoint of Jewish law, categorically speaking, then from the standpoint of Jewish law there is no prohibition. It’s like, you know, before the “do not stand idly by your neighbor’s blood” law of Hanan Porat was passed. Okay? Someone could walk by the river, see a person drowning in the river, whistle a cheerful tune and keep walking, and even wave like this afterward to the person drowning there. From the standpoint of the law, there was nothing to do to him. Doesn’t that trouble you? The fact is that it did not trouble anybody. I don’t know whether it troubled you, but it troubled no one. And why not? Because even the people who opposed Hanan Porat’s law—and there were many such people, and they are no less moral than you and me—they opposed that law because they argued that this is not the role of the law. Not because it is moral to ignore it, but because the law does not deal with this. You should do it. That was the argument. You can agree or disagree with it, but I am trying to show you that the fact that one category does not deal with what another category deals with is not called ignoring it. It only means that I am dealing with this aspect. In the halakhic aspect there is no problem. If you ask me whether in the moral aspect there is a problem—of course, it is a terrible moral wrong. What does that have to do with it? Clearly on this matter I won’t go on further, but just one question: don’t you think that law and Jewish law nevertheless ought to integrate into themselves the categories and morality and justice, and produce integrated Jewish law rather than leaving them as two separate categories? So I’ll answer in two parts. Regarding civil law, I think yes, and law generally does in fact do that. Not always, but it does. Regarding Jewish law, I claim no. Jewish law should remain its own category, and in my opinion all those make a mistake—incidentally, also among the halakhic decisors and rabbis—who do not accept the dichotomous distinction I am making here. But of course then they have no answers to all these questions, and so they try to engage in hair-splitting and contortions and to smooth things over, all kinds of things like that. There is nothing to smooth over and no need for hair-splitting, and there is no reason for apologetics. There is no moral problem here at all. Jewish law does not deal with morality, that’s all. If you had asked me morally, then of course it is forbidden, as everyone understands. I am dealing with a different aspect. It’s like the chocolate example that I come back to a thousand times. They tell me one ought—it is permitted to eat chocolate because it is tasty, but one ought not eat chocolate because it is fattening. How can it be that considerations of health ignore considerations of taste, or that considerations of taste ignore considerations of health? What do you mean? They don’t ignore them. I am telling you: in this aspect it is one way, in that aspect it is another. That’s all. Jewish law does not belong to morality; it is something else. The question whether the eternal structure of the cosmos is damaged if I rape a captive gentile woman—the answer is no. The question whether that thing is moral—the answer is of course no as well. That’s it: two different questions. I have a totally different question from the Talmud. There is a story in the Talmud where some convert gave money to Rava for safekeeping, and he wanted to transfer it to his son, and Rava saw that there was no legal acquisition by which he could transfer the money to his son, and in the end someone said there is a legal acquisition by acknowledgment, and Rava got upset at him and said he was sort of a thief—I wanted, when the convert dies, for the money to be mine. What kind of morality is that? I didn’t understand. Who was talking there about morality? The convert wanted to give it to his son. Okay. And Rava said there is no legal acquisition, and therefore when the convert dies the money will be with me; I will get the money. Okay. And someone said there is a legal acquisition by acknowledgment, and therefore Rava did not get the money and it passed to the son. Fine, I understand. Rava got upset. So what’s the problem? I didn’t understand. He says that halakhically it belongs to him, and he is right. But it’s obvious the convert wanted to give it to his son. He wants to—so what if he wants to? Rava got upset because someone found a way to bypass it. I say again: this is mixing two categories. What the convert wants is wonderful. That does not mean he actually did it. I want to fly—does that mean I can fly? The fact that he wants it does not mean that from a legal, halakhic perspective what he did is valid. Lots of people want lots of things, and there are legal rules for how to do the things they want. Now if according to Jewish law that money belonged to Rava, then he says: this money belongs to me, regardless of what the convert wanted. That is on the legal level. You ask me whether morally Rava should have given up the money and given it to the child? The answer is yes. But the discussion there is a legal one, not a moral one. Also, someone found a way around it using acknowledgment and Rava got upset. What? He found a way around it. Again: he found a way around it, so he goes around it. But this whole discussion is a legal discussion; it is not connected to the moral question. But why did Rava get upset that someone found some way around it? He thought that way was incorrect. But acknowledgment works. Not because he wanted the money, but because he thought that route was incorrect. It may be that on the moral plane, after he would have insisted and said “the money is mine,” maybe he would have given it to the child on his own initiative, voluntarily. Fine. But that is a moral question. The legal question has to be discussed in legal categories. There are many times—even in the ordinary legal system, not only in Jewish law—there are situations in which the judge is forced to give his ruling because the law says thus and so, even though it is clear to him that there is a problem of justice, of morality. One cannot always reconcile the two things. Now in secular law that is even more problematic, because the law in principle is indeed supposed to bring morality into the world, or into the legal categories, as I said earlier. In Jewish law, no, because Jewish law does not conceive itself that way; it sees itself as one category out of two. What guides me when I act is two independent categories. One is the moral category, and the second is the halakhic category. And they are two independent categories, and therefore there is no reason in the world to look for morality in Jewish law, or to look for law in morality. No, they are two different categories, and I have no moral problem with that, not the slightest bit. Jewish law does not encourage people to rape gentile women. Jewish law only says that there is no legal problem in it. That’s all. If you ask whether it is moral to rape—it clearly is not. Does that even need to be said? Of course it is not. Therefore I think one simply needs to understand that there are two different categories here; there is no reason to expect one category to cover what the other category says. When people ask me whether chocolate is healthy, that doesn’t deal with the question whether it is tasty. Whether it is tasty belongs to the category of taste, of pleasure, and whether it is healthy belongs to the category of medicine. That’s all. The category of medicine is not supposed to address taste—not because it denies taste or ignores taste. And likewise in reverse, in the category of pleasure. You ask me whether chocolate is tasty, and the answer is yes, even though it is not healthy. How can the category of taste ignore the fact that it is unhealthy? Because it deals with the aspect of taste, not the aspect of health. In the aspect of taste it is tasty; in the aspect of health it is unhealthy. End of story. Ask me what to do? When I ask what to do, I need to take both categories together into account and make my decisions accordingly. If you ask from a Torah perspective now—I say not halakhically—whether to rape a captive gentile woman, God forbid. A person who does such a thing should go to prison for life. But not because of Jewish law—because of morality. Fine, but both are binding. And one last remark to Ezra’s questions, one final remark: I do all this not because the gentiles do. I think it is more likely that they do it because I do it. It comes from here, not from them. The point is that we do the same thing; it doesn’t matter right now who is doing it because of whom. We do the same thing because on the moral level there should be no difference between Jews and gentiles. Morality is morality. Jewish law does not deal with that; that’s all. I am not doing it because the gentiles do it, or to find favor in the eyes of the gentiles, or because I adopted gentile norms. I do it because I think that is what morality requires, and the gentiles think so too, and that is perfectly fine, because morality is the same morality. According to the Talmud, King David took a beautiful captive woman. What? I can’t hear. According to the Talmud, King David took a beautiful captive woman. Right, because in that period moral norms really were different. But that was not because of Jewish law; rather because he thought there was no moral limitation here. Right, we know what they did in wars in those periods. Just read the Bible; no need to go far. And thank God this has improved in our time, so that moral improvement is something one can bless, but it has nothing to do with Jewish law. Jewish law deals with the question of intercourse with a gentile woman in general; it does not deal with the moral aspect of rape. It’s not relevant. Good, so I’m returning to our topic. So yes, that was a good question you asked, Ezra, and that’s why I devoted some time to it, because it is obviously troubling here. But I want to clarify: in my view at least, the picture I am presenting is not problematic at all. These are not excuses, this is not apologetics. There is no problem here. No problem at all. I don’t want to continue expanding on that, so I’ll just say as a headline: I think from an educational perspective, to educate young people—you study Jewish law now, let’s say you’re learning Jewish law, and you reach conclusions from Jewish law that are clearly unacceptable to you, but that is Jewish law, and then they tell you: but know that there is another system too; go there as well, learn from it, follow it—that in my opinion is very bad. Very bad. Because it spills over into many things—I could also bring examples from our lives today. I learn Talmud in yeshiva and I learn that this is the law, and maybe I have a rabbi who doesn’t say at all what you are saying, and I’m left only with Jewish law, and now I have to invent solutions for myself for how this fits with morality and justice. It seems educationally very bad. Okay, so I’ll nevertheless say something about that. First of all, an overwhelming majority of rabbis you ask would not say what I am saying. I’m not… I don’t even know one who thinks this way. And still, clearly, I have absolutely solid evidence—meaning, they are all mistaken. The evidence is completely clear. Now the educational problem arises because people miss this perspective, and you are right. There is a serious educational problem. And there are people who think that Jewish law also expresses Jewish moral principles, and they arrive at behavior, sometimes very problematic behavior, because they do not understand that one must also take the moral aspect into account. On the other hand, those educational problems cannot cause me to lie. I cannot lie. From a halakhic point of view there is no prohibition against raping a captive gentile woman. Period. That is the fact. Can I lie? I am against lies. What I will do to prevent such acts is educate people that there is also morality and one must obey it. I will not lie. It’s like saying: I can tell a person, look, chocolate is really, really not tasty. Why? Because I know that if it’s tasty, he may eat it and be unhealthy. So I’ll lie to him and tell him that it’s not tasty. I am against lies, including holy lies. Tell the truth. And you are right, there is a serious educational problem here. There is a serious educational problem because of the assumption that is shared both by you and by most rabbis, commentators I have seen and know, that they do indeed see an identity between Jewish law and morality. And that is a big mistake. A big mistake, a mistake that also leads to educational failures. I agree. But I think the way to deal with educational failures is not to lie, but to deal with the failures. It’s like—you know, you remind me of after Rabin’s assassination. People said: look where religious faith can lead a person. To murder a prime minister—let’s say that’s worse than murdering any other person; in my opinion it isn’t. But fine, let’s say it’s a terrible act, and look where religious faith leads a person. So I heard people saying: so tell me, what are you suggesting—that I should stop believing in the Holy One, blessed be He, because of that? That I should lie to myself? That I should lie to… what do you want me to do? If I think there is a Holy One, blessed be He, and I am bound by Jewish law, then that is what I do. Does this raise educational problems? Agreed, we need to try to deal with them. And problems of rethinking the faith? That is another discussion. I don’t want to get into it, okay. No, I’m saying: if this raises doubts for someone regarding the faith itself, then he can reconsider it and leave the faith, that is perfectly fine. I only think there should be no problem with it, because whoever sees this as a problem is the one who creates or assumes an identity between Jewish law and morality, and therefore says: wait, but Jewish law is not moral. And he doesn’t buy all the nonsense that the apologists sell him—no, this is a supreme sublime morality that we don’t understand, and all that bullshit. Clearly, that’s nonsense. And someone who doesn’t buy it really does begin to have doubts about faith itself, because it doesn’t actually stand the tests it supposedly ought to stand. And I claim that it is not supposed to stand those tests, and therefore this also ought not to raise problems in faith. What it should raise is educational work—to explain this point to people, that Jewish law is Jewish law, and alongside it there is morality, and both are binding. Jewish law is not a license to ignore morality. Exactly like “do not stand idly by your neighbor’s blood,” where one certainly could have said that there was no need to legislate that law, and still demand of people that if they pass by a river they save someone who is drowning there. Why? The law doesn’t require it? Because morality requires it. The law does not have to be identical with morality. The law has its own considerations and definitions. Again, some wanted to put it into law, and many people no less decent and no less moral did not want to put it into law for various reasons. Does that mean they are dull to morality? Does that mean they don’t care about morality? No. It means that in their opinion the law should not deal with morality, or at least with this point of morality. That’s all. Now I’m saying, this point—I completely agree there are educational problems here. I only argue that the way to deal with educational problems is not to lie and contort, but to deal with the educational problems. Good. And the point, why is there really this rigidity—that is the focus of everything. Why can’t anything be changed? Because these are facts. Facts. These facts are imposed upon me, and therefore I am not supposed to change them; I cannot change them. You can ask: then why did the One who created these facts—yes, the Holy One, blessed be He—why did He create the facts in such a, how shall I put it, cold way, alienated from morality? The answer is because these facts have a purpose; they are not random. They too apparently have some purpose—some metaphysical structure, I say just to keep myself at a distance. I say: someone who does not know what is happening so and so—that is, someone who despairs over the lost object—then in that higher metaphysical realm some thread becomes severed there. That’s it, he is no longer connected to that lost item. That’s a fact. If I deny that or lie about it, that will not change the fact. To say that it is also moral not to return the lost item—the sages do not say that. On the contrary, in the Talmud itself they say: even though one need not, one is morally obligated to return it. And in the Shulchan Arukh it is even written that one compels this. But it is very important to them to preserve the distinction between Jewish law and morality; these are two different categories. And it is so clear that it is strange to me how no one is willing to accept this thesis. When I say these things, people pelt me with etrogim on the website. The Maharal writes this, Derashot HaRan writes this; if I need trees to lean on, though I don’t need them—the halakhah says this, Jewish law screams this. Anyone who looks at Jewish law with an unprejudiced eye sees it. Now there are corrections—they keep making moral corrections to Jewish law in all sorts of ways, whether by compelling one not to act in the manner of Sodom, or by rabbinic ordinances, or whatever it may be—but one cannot change Jewish law itself for moral reasons. If you have another indication… What was said here earlier—that if I have two interpretive options halakhically, and morality tells me that one of them accords with morality and the other does not, that is perfectly fine; then I will choose the one that accords with morality. Not because that is the halakhically correct interpretation—it is not more correct because it is moral—but because if I have two possibilities, why act in a way that does not accord with morality? I will act in a way that is both halakhically possible—there is such a possibility—and also accords with morality. But not because morality is a means for interpreting Jewish law. Okay? Good, so that’s regarding this principled question. I wanted to discuss intellectual property a bit, so I’ll try to manage to touch on that as well. Look, in intellectual property you see the same things. Basically the claim is: how does this whole story of intellectual property work? First of all, in the modern era the question of intellectual property of course becomes much sharper and much broader. In the past too, if a person had an idea—this existed in the past as well—if someone had an idea or some commercial secret and wanted to keep it, wanted his rights to that secret or idea protected, okay? that insight. But today it is so common, and there is such extensive commerce in matters like ideas and technologies and art and all sorts of things of that type, that the question becomes much more acute. It is not a modern question; it is a question that has existed forever, but its scope is modern. Today almost everything has intellectual property in it. Every software program, every work of art, every technology, everything. Today basically everything is knowledge. Only a small part of the things traded—not a small part, but a certain portion of the things traded—are still tangible bodies. Yes? You own a table, a chair, a tomato. But a great deal of commerce deals with technologies, ideas, insights, works of art. When you talk about a disk, yes? the ownership of the disk is not relevant at all to the question of intellectual property. Anyone who bought a disk owns the disk he bought, but he does not own the information burned onto the disk. We are speaking in old-fashioned language, yes? Today disks are no longer the thing, but for the sake of discussion. You deal with—you own the disk, but the one who owns the information burned onto the disk is the creator or the rights holder; that’s not important right now. Meaning, these distinctions are very, very clear to us today, but once they were not so simple. And because of both the scope and the sharpening, because of the nature of the current market, the question of intellectual property arose with greater force both in Jewish law and in general law. Now what happens in general law? I’ll do this briefly because we really have little time left. In general law, once again, when you look at theoretical texts that deal with intellectual property, you always see that there are two principal directions for handling the issue of intellectual property. There is the direction of property theory: the creator has property in his creation, and therefore it must be protected and one may not steal it, and so on. And there is the theory of social utility. What does that mean? It is worth protecting it so that people will have motivation to create. If you do not give them rights in the creation, they will not have motivation to create and solve problems and find technologies and create works of art and so on. So we have—you understand that the first reasoning is causal reasoning and the second is teleological reasoning. Okay? Meaning, I need to preserve intellectual property or protect intellectual property or define ownership of intellectual property at all, of ideas, in order to achieve social goals, in order to advance society. That is teleological reasoning, reasoning of “in order to.” I determine the parameters of ownership in order to achieve something; that is a purposive matter. In Jewish law there is a problem. And therefore there is enormous confusion in the literature of the halakhic decisors over what to do with intellectual property. Everyone understands that intellectual property has to be protected. Everyone. Morally, from the standpoint of advancing society, from all the perspectives that secular law also speaks about. But unlike secular law, which says okay, if intellectual property needs protection then let’s protect it, let’s shape the laws of intellectual property in such a way that a person has protection over creations he creates, and there is no problem. But there is a concept of encroachment. That too… I’ll get there. I’ll get there. That’s one of the proposals that comes up. I haven’t yet detailed the proposals; I’m just giving the framework. The claim is that in the legal world they face a question: how should one shape intellectual property law in a way that leads to the desired goals—yes, what I want to do. In the halakhic world that’s a difficulty, not a question. What am I to do? I agree there are important goals for which one should define intellectual property in order to protect them, but I can’t. I have no mechanism. Again you see this rigidity saying that property law is some kind of fact. It is not in my hands; I cannot determine it in order to achieve this result or that result. Exactly as we saw regarding returning lost property, so too in intellectual property: in the legal world the dominant reasoning is teleological. I shape the laws in order to achieve such-and-such goals. In the halakhic world we are stuck. We are stuck because the legal facts do not align with my social goals, and sometimes with morality. They do not align, and then there is nothing I can do. I cannot establish ownership over intellectual property according to Jewish law. So what do we do? And then they come up with all sorts of solutions: the law of the kingdom is law, encroachment, maybe I’ll detail it more, all sorts of things like that, sneaking in against the owner’s intention, payment for benefit derived. None of these solutions really solves the problem—not important right now. But these are attempts to try to solve a problem, and those attempts are, as I have mentioned more than once in the name of Rabbi Meidan, who said that he knows twenty-two explanations for why we read the Book of Ruth on Shavuot. But he knows only one explanation for why we read the Book of Esther on Purim. There is the correct explanation, okay? When you have twenty-two explanations for why Ruth is read on Shavuot, that means none of them is convincing. Because if the explanation is clear, then there is one explanation; you don’t need more. Same thing here. Once you bring me ten mechanisms, each more crooked than the last, to explain why there is intellectual property in Jewish law, that only means that none of these mechanisms is really convincing. And on the other hand, it is clear that you have strong motivation to find a mechanism, because you also understand that intellectual property needs protection in this moral sense, the social sense, social order and progress and so on. Jewish law sees the matter exactly the same way as any other legal system in terms of what I want to achieve. No one here is blind. The difference is that in the legal world, what you want to achieve—no problem, you achieve it; you shape the legal world in a way that achieves the goals you want. In the halakhic world you are stuck, because there are given facts and you cannot touch them. What you can do is rabbinic ordinances, all kinds of things, establish—I would say much more reasonably in my view—a moral rule. To say that morally there is intellectual property, even though halakhically there is not. That’s all. And therefore one may not infringe intellectual property—not as a halakhic prohibition but as a moral prohibition. Exactly like raping a captive gentile woman, yes, what we discussed earlier. In my opinion that is the natural solution. But okay, the way of Jewish law is that they also try to anchor things within Jewish law itself. They want to pour this into a legal mold. I don’t know exactly why one has to do that, but halakhic decisors and commentators tend to do things like that. But for me what matters is the very distress. The distress in the context of intellectual property shows us once again the same difference: Jewish law is Platonic law, it assumes a Platonic conception. And the Platonic conception says: if this concept of ownership exists, then it exists. If it does not exist, I cannot create it. There are facts. The facts are imposed on me. I can determine that morally it is forbidden to do this, but Jewish law is facts. It is something that does not depend on me; I do not create it. It is not a convention. Okay? Rabbi, precisely by adopting a Platonic conception it should be easier to accept ownership over something that isn’t tangible. No, that’s a different discussion. You can ask why indeed according to Jewish law there is no ownership over something intangible, especially if it is Platonic. And I actually claim that there is, incidentally. I wrote an article about this. But still, I claim there is not because I want to achieve certain goals, but because I have evidence that on the factual level there is ownership of abstract things. Someone who thinks there isn’t—so that’s a dispute at the level of facts. But at the level of reasoning, even I agree that although I very much want to protect intellectual property, I cannot do it if factually I cannot anchor—not protect, anchor—it at the factual level that there really is ownership over such a thing. Okay? So I simply didn’t have time, so I closed the framework before detailing things. I’ll still elaborate all of this. But I wanted to show that even in the world of intellectual property you see the same tension that you see in returning lost property and in other places, and it all starts from the fact that in the secular worlds, let’s call them that, the ordinary legal worlds, the conception is Aristotelian. Nothing is imposed on me; these are not facts. I shape the law in a way that leads to goals optimally. But it is in my hands; what I determine is convention. Law is convention. We decide what we want, and from now on that will be the case. In the halakhic world, the conception is Platonic. Law is an existing fact. It is not in my hands, I cannot shape it. Rabbinic law I can shape, but not the core law. I can point to morality, but I cannot shape Jewish law. And therefore we feel all these difficulties of halakhic decisors around both returning lost property and intellectual property. I’ll do the details a bit more next time, but that is basically the framework I wanted to show also regarding intellectual property. Okay. I’ll stop here if anyone has a comment or question. Rabbi, I wanted to ask whether besides the issue of acquisition and ownership, there are other Platonic elements like these in Jewish law? And if so, have you written about this somewhere, and can one survey it? Yes, I’ll get to that too; I’ve also written about it and I’ll get to it. There is, for example, my article on ukimtot. Is it sort of a few isolated roots from which a lot branches out, or is it some infinite spiritual system that gets developed? I have various indications that Jewish law contains a Platonic conception. I don’t know what exactly you are asking—whether I can assemble all of them into one overall conception? I don’t know; they are different fields. Maybe yes, maybe no, I’m not fully understanding the question. I mean, are there sort of, I don’t know, two or three or four primary principles, say ownership and X, Y, Z, or is it…? These are fully-fledged legal effects, and I don’t think they need to be connected. There is the legal effect of ownership, the legal effect of terumah, the legal effect of divorce, the legal effect of marriage, there is whatever else—every transaction takes effect in one way or another. They are all legal effects, but why do I need to find a connection between them? The perspective isn’t about connection. I was trying to understand at what resolution we are, as it were—whether the rabbi has fixed them as these kind of foundational elements. No, I’m not trying to create a taxonomy here of Platonic ideas. Not some classification of Platonic ideas and relations between them. I’m trying to point out that in the background there are Platonic ideas. I don’t think one needs to find connections between them, nor does it seem to me that there should be, at least usually. Maybe here and there some connection will be found, but the conception is indeed a similar conception. The Platonism of the conception is what appears in all these places. We’ll see it in more examples, so I hope that will become clearer. Thank you, that’s intriguing. Okay. Good, may we hear good news. Someone got called up right in the middle of the class, so okay. Sabbath peace. Sabbath peace, Sabbath peace, thank you very much.