Platonism – Lesson 21
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- The two components of a Torah-level commandment and “greater is one who is commanded and does”
- The Platonism of Jewish law, legal effect, and the split between obedience and outcome
- Intention in commandments, transgressions, and the duty of obedience versus the facts of the outcome
- The righteous who suffers, reasons for the commandments, and Maimonides in the Guide for the Perplexed
- Ninth root, a general prohibition, and “there is no punishment unless there was prior warning”
- Choshen Mishpat: flexibility, rigidity, and rights versus duties
- Rabbi Shimon Shkop, the theory of jurisprudence, and doubt regarding theft
- Secular courts, the law of the kingdom, and the identity of the judges
- Explaining Rashi through separating the prohibition of theft from ownership
- The distinction between Choshen Mishpat and Yoreh De’ah: the other person’s rights versus the individual’s duties
- Stipulation, local commercial custom, the law of the kingdom, and rights as the basis of the duality
- Torah as Platonic truth versus Jewish law as application, and “Jewish law but not Torah”
Summary
General Overview
The text presents the claim that a Torah-level commandment is built from two cumulative components: a distinct command in the Torah and a real essence/purpose that the command comes to achieve, such as repair or prevention of damage. It explains that on this basis, “greater is one who is commanded and does” because in the act of a commandment there is both obedience to a command and achievement of the substantive benefit, while in a transgression there is both rebellion against the command and damage in reality. From this emerges a Platonic conception of Jewish law: Jewish law is not a collection of floating norms but reflects a reality behind it, and in Choshen Mishpat this becomes especially sharp through understanding the laws as a system of rights and duties that arise from the rights of others. That also explains both the flexibility (stipulation, custom, the law of the kingdom) and the rigidity (one may not violate another’s rights even at the cost of life according to Rashi’s interpretation), as well as the distinction between “Torah” as Platonic truth and “Jewish law” as practical application that also includes elements that do not reflect such truth.
The two components of a Torah-level commandment and “greater is one who is commanded and does”
The text states that a Torah-level commandment is counted as such only if it contains both a distinct command in the Torah and an essence that the command comes to achieve, and if one of the two is missing then it is not a Torah-level commandment. It explains, following the Ritva and Tosafot HaRosh, that one who is commanded and does achieves two benefits: he responds to the command of the Holy One, blessed be He, and he also achieves the benefit for whose sake we were commanded. It parallels this to a transgression, which contains both rebellion against the command and the corruption that the prohibition comes to prevent.
The Platonism of Jewish law, legal effect, and the split between obedience and outcome
The text argues that Jewish law is not made up of technical norms but reflects a Platonic reality, and therefore in the prohibition of pork there is both harm in reality and disobedience to the command. It distinguishes this from the concept of legal effect, in which the halakhic concept itself is an entity in reality, such as the legal effect of a married woman as a real change and not merely a legal status. It raises a difficulty with splitting things into two separate planes—one of obedience to the Holy One, blessed be He, and one of worldly repair that can be described even without mentioning the Holy One, blessed be He—and emphasizes that this is a nontrivial split with respect to the essence of the commandment.
Intention in commandments, transgressions, and the duty of obedience versus the facts of the outcome
The text argues that commandments require intention in the sense of intending to fulfill one’s obligation, and that this intention relates only to the dimension of obedience to the command and not to the dimension of the substantive outcome. It says there is no need to intend “to repair eternity within splendor” in order not to eat pork or to observe the Sabbath, because the substantive outcome either occurs or does not occur depending on the act itself, and intentions are irrelevant to it. It explains that normative duty exists only on the plane of fulfilling the command, while the outcomes are facts for whose sake the command was given and do not themselves impose obligation, illustrating this through the example of a red traffic light, where intention relates to obeying the law and not to the mere prevention of danger.
The righteous who suffers, reasons for the commandments, and Maimonides in the Guide for the Perplexed
The text agrees that generally one cannot actually point to the benefit and harm of commandments and transgressions, and therefore this is a matter of belief in their existence even without concrete knowledge. It argues that the question of the righteous who suffers and the wicked who prospers is different, because the result of the act may repair something in the world without necessarily affecting the one who did it. It cites Maimonides, who argues that denying reasons for the commandments does not magnify the Holy One, blessed be He, but diminishes Him, because His actions are not arbitrary. But it also notes that later in the Guide for the Perplexed Maimonides tries to identify the purposes of the commandments, and there things become “astonishingly lame.” It disputes a Leibowitz-style view that presents the commandments as boot camp for obedience alone, arguing that if commandments are given at all, reason suggests they should have value and benefit and not be “just invented things for the sake of inventing things.”
Ninth root, a general prohibition, and “there is no punishment unless there was prior warning”
The text explains Maimonides’ method regarding a general prohibition: the problem is that there is no separate command warning about each detail, and therefore there is not sufficient warning. It presents Maimonides’ explanation of why one does not receive lashes for a general prohibition as an application of the principle “there is no punishment unless there was prior warning,” because the verse can be interpreted in several directions and therefore a person can claim he did not know this particular matter was included in the warning.
Choshen Mishpat: flexibility, rigidity, and rights versus duties
The text asks what defines Choshen Mishpat and rejects the definition “monetary obligations between people,” because charity and interest are also monetary obligations between people, yet they appear in Yoreh De’ah. It describes Choshen Mishpat as the most flexible domain in Jewish law: in monetary matters, a stipulation is valid; “everything follows the local custom”; and the law of the kingdom gives validity to the king’s decisions in monetary law. At the same time, it presents extreme rigidity in monetary law through Rashi’s interpretation of the passage “a person may not save himself through another person’s property” in Bava Kamma 60b, according to which one must die rather than transgress by theft or damage, unlike most medieval authorities (Rishonim), who explain that the prohibition there is an obligation to pay and not a requirement of martyrdom.
Rabbi Shimon Shkop, the theory of jurisprudence, and doubt regarding theft
The text cites Rabbi Shimon Shkop in Gate 5, who argues that “do not steal” differs from other prohibitions because it rests on a prior definition of ownership, and therefore the laws of property and jurisprudence precede the Torah’s command. It brings the Mahariv”l’s question about certainty versus uncertainty: why is a possessor who claims uncertainty not required to pay because of a possible prohibition of theft? It answers in the name of Shev Shema’tata that the prohibition of theft is derived from jurisprudence, and therefore if according to evidentiary law “the burden of proof is on the one who seeks to extract money from another” and the money remains with the possessor, then he is under no suspicion of theft even if, in factual reality, he borrowed and did not repay. From this it sharpens the point that the charge against Sodom is not “do not steal” but a failure of “laws,” because a society without a legal and proprietary system is a wicked society even if theft cannot be defined within it.
Secular courts, the law of the kingdom, and the identity of the judges
The text explains that one who permits the law of the kingdom sometimes relies on the Ran, who says that the law of the kingdom does not apply in the Land of Israel, and adds another claim regarding the problem of the identity of the judges in the Israeli legal system, who do not meet the fitness requirements to judge. Therefore, “before them and not before laymen” and “before them and not before gentile courts” are invoked to prohibit turning to secular courts.
Explaining Rashi through separating the prohibition of theft from ownership
The text proposes reconciling Rashi by saying that saving life overrides the prohibition of “do not steal,” but does not override the basic fact that the money belongs to its owner, and therefore a person has no right to take or damage the property of a third party in order to save himself. It says Rabbi Shimon Shkop argues that even according to certain views there may be no prohibition of “do not steal” with respect to a gentile, but there is still a prohibition, rooted in jurisprudence, against harming his property. It concludes that there can be a legal prohibition without a halakhic prohibition “clothing itself” upon it. As an example it raises the question of the source of the prohibition against causing damage in Bava Kamma, and suggests that the obligation there may be purely legal, with a duty to pay, even without an explicit halakhic prohibition.
The distinction between Choshen Mishpat and Yoreh De’ah: the other person’s rights versus the individual’s duties
The text defines Choshen Mishpat as duties imposed on me whose basis is someone else’s rights, and therefore the holder of the right can sue in religious court and the law is meant to protect his rights. In contrast, it sets charity and interest, where the poor person has no right to sue for charity and the lender has no right to sue for return of interest on the basis of a monetary right. Rather, the religious court compels in certain cases by way of coercion to fulfill commandments, meaning that they enforce my duty and do not protect your right. It concludes that the field of halakhic law deals with things that are legally claimable on the basis of rights, whereas other fields deal with duties that are not derived from another person’s rights.
Stipulation, local commercial custom, the law of the kingdom, and rights as the basis of the duality
The text explains that the flexibility of Choshen Mishpat stems from the fact that the Torah grants rights that the holder of the right may waive, and therefore one may stipulate in monetary matters, as in the statement “an unpaid guardian may stipulate to be like a paid guardian.” It explains that the rigidity is toward one who is not the holder of the right, and therefore one may not violate another’s right even at the cost of life within the framework presented. It illustrates the distinction between stipulating about the person and stipulating about the object through the Sabbatical remission of debts: “on condition that the Sabbatical year not remit my debt” is ineffective because “the Sabbatical year remits,” but waiver by the holder of the right regarding the exercise of remission is effective.
Torah as Platonic truth versus Jewish law as application, and “Jewish law but not Torah”
The text argues that studying monetary passages does not become unnecessary even if in practice local custom or the law of the kingdom changes the obligations, because the passages teach what the Platonic rights are that “really belong to you.” It posits a gap between Torah as truth that is correct in itself and Jewish law as practical ruling, which also contains binding elements that do not reflect Platonic truth but rather “floating norms.” It explains why studying Talmud is “Torah study” even when it is not practically binding, while studying law can establish practical obligation in monetary matters and still not be “Torah study,” because Torah is engagement with Platonic truth and not only with the rules of practical decision. It concludes that next time examples will be brought of laws that have no Platonic dimension at their foundation and are “Jewish law but not Torah.”
Full Transcript
[Rabbi Michael Abraham] Okay, we spoke about the contradiction in Maimonides’ ninth root, and the claim was that for a Torah-level commandment to be counted as a Torah-level commandment, it needs to have two components. One component is a command in the Torah, a separate command, and the second component is an essence that the command comes to achieve—repair, or preventing damage, or something like that. And if one of those two components is missing, then it is not a Torah-level commandment. I said that from this you can also understand why one who is commanded and does is greater than one who is not commanded and does. So the Ritva and Tosafot HaRosh write that one who is commanded and does thereby achieves two benefits, or his act has two positive aspects. One aspect is that he is responding to the command of the Holy One, blessed be He, and the second aspect is the aspect for which we were commanded—the essence, why this act presumably brings some kind of benefit. And likewise with a transgression: in a transgression there is the aspect of rebelling against the command, and there is the corruption that the definition of it as a transgression is trying to prevent. And really what stands behind this halakhic or meta-halakhic claim is that Jewish law is not a collection of floating norms. Meaning, it’s not just a bunch of statements like do and don’t, and that’s it. Rather, behind them there is some sort of reality, a Platonic one. So this is basically a Platonic conception saying that behind Jewish law there is some kind of reality that Jewish law is dealing with. It’s not completely identical to what I said when I spoke about the concept of legal effect, because the concept of legal effect was talking about entities—that the halakhic concepts are themselves entities. For example, the legal effect of a married woman. So my claim there was that this is not merely the woman’s legal status, but that the claim is that there is some kind of change in the woman’s reality. There is some Platonic idea that is somehow resting upon her, realized in her, taking effect upon her, however you want to put it, and that has halakhic implications, making her a married woman. So then we have all the laws of a married woman, or acquisition, or things of that sort. So there, when I speak about legal effect, the claim was that the legal effect is itself a kind of being. It’s not just a statement of norm—permitted, forbidden, obligatory—but a kind of being. Here I’m saying something slightly different. It’s also Platonic, but a different kind of Platonism, because the claim is that the halakhic rules are not just technical rules of the game, but reflect some kind of reality. Meaning, when pork is forbidden to us, the basis for that is presumably that eating pork causes some kind of harm in reality itself, and therefore when I eat pork, first, I cause that harm—that is one problem involved in eating pork—and the second problem is disobedience to the command of Jewish law, of the Holy One, blessed be He. But what lies behind this dual aspect is that behind the laws there is really some kind of reality. You can call it Platonic reality, or something like that. And that brings me to a few distinctions that I made in the parallel Thursday series.
[Speaker B] Rabbi, Rabbi, that separation is still problematic, because it comes out that there are two separate things. There is the matter of our relationship with the Holy One, blessed be He, that we have to obey Him and serve Him, and then there are other matters where I can avoid mentioning the words “the Holy One, blessed be He” at all—things like repairing eternity within splendor and all kinds of things like that, which aren’t connected to Him, and there we act—okay, they are connected to Him, fine, but look, we managed without mentioning Him and we do them. To me that’s something really, really not trivial. Really not trivial, in my opinion, to say that we are doing two different things, one of which is not connected to the Holy One, blessed be He. In my opinion that damages the essence of the commandment in a fundamental way.
[Rabbi Michael Abraham] What do you mean, not connected to the Holy—
[Speaker B] One, blessed be He?
[Rabbi Michael Abraham] The Holy One, blessed be He, created the world, so how is it not connected to the Holy One, blessed be He? But the fact that you do these things is, first of all, that you…
[Speaker B] Yes, but He created them… okay, but someone also created me and brought me here, but at the moment… He’s not here, and I manage without thinking about Him.
[Rabbi Michael Abraham] What does that mean, you manage?
[Speaker B] How do you manage? I admit I don’t think about Him all day. Here too I’m not…
[Rabbi Michael Abraham] I’m asking: when you go into fire, it burns you, right? There are laws of nature. Okay? Do you mention the Holy One, blessed be He, when you talk about the fact that fire burns people who enter it? No. But He created the fire. In other words, He created the situation in which fire burns people. The Holy One, blessed be He, also created all these Platonic realities that the commandments are supposed to help us navigate within, or behave correctly in relation to.
[Speaker B] Meaning, there’s an element of splitting here. So okay, He created the fire, and by that He sort of exited the picture.
[Rabbi Michael Abraham] Sure, there is always a split. Right, I made a split between these two aspects exactly. That was the whole point.
[Speaker B] I’m saying it’s not trivial.
[Rabbi Michael Abraham] I’m not saying it’s always im—
[Speaker B] possible, but it’s not trivial.
[Rabbi Michael Abraham] Not trivial—maybe in the sense of wrestling with it, it’s not trivial. But I think it’s true. If you have a claim why it’s not true—I understand that one can… My claim about intention for its own sake here. “For its own sake” now becomes a somewhat different “for its own sake.” Why? “For its own sake” is only for the sake of the Holy One, blessed be He. Since “for its own sake”… or not “for its own sake,” rather intention. “For its own sake” is something else, but “commandments require intention” means intention to fulfill one’s obligation. Therefore, you don’t need the intention, when refraining from eating pork, to repair eternity within splendor. That is definitely not what “commandments require intention” means. Okay, with transgressions there’s no intention at all. Positive commandments—we’ll talk about positive commandments. Right? In a positive commandment like Sabbath observance, you don’t need, in the positive commandment of Sabbath observance, to intend the repair of eternity within splendor, even though maybe that happens, that it repairs eternity within splendor. The intention deals only with the first dimension. Only the dimension of obedience, or rebellion against the command. And exactly because of what you said—that intentions relate to the Holy One, blessed be He. But as far as reality is concerned, what does intention have to do with it? Either you did the act and then it was repaired, or you didn’t do the act and it was not repaired. The intentions are irrelevant. And it doesn’t matter whether you intended to fulfill your obligation, because we’re not talking here about obligations, but about reality. The obligation is the obligation to obey the Holy One, blessed be He. On that plane there are obligations, or violation of obligation.
[Speaker B] But the difficulty in the end is really understanding that there is some issue of fixing something in the world, some normative obligation that is separate from the idea of serving God.
[Rabbi Michael Abraham] It’s not an obligation. It’s not an obligation. Fixing something in the world is a fact. Meaning, if you do it, it fixes.
[Speaker B] But you feel an obligation. You are commanded to do it.
[Rabbi Michael Abraham] I’m commanded to do it—that is an obligation to fulfill the command. The obligation exists only on the plane of fulfilling the command. The outcomes are: first, I obeyed the command; second, there is some result here for which the command was given.
[Speaker B] Which itself does not impose an obligation on me. I can basically say, from that perspective I’m not at all…
[Rabbi Michael Abraham] Facts do not impose obligation. That is… and therefore the feeling that a command is needed here—what I talked about at the beginning of the series—like with the example of a red traffic light. Why is there a need to legislate a law that one may not go through a red light? After all, going through a red light is dangerous. Suppose it was dangerous even before the law—suppose, yes? So why need the law? You need the law in order to turn it into something that one must do. Before that, it was something sensible to do, but if you didn’t do it, nobody would come with complaints against you. Once it became law, then if you don’t do it, people come with complaints because you are obligated. The concept of obligation—if I were to say something similar regarding law, then I would say: when you stop at a red light, that has two… two positive aspects. First, you obey the law, and being a person who obeys the law is a worthy thing. Second, you also do not endanger your own life or the lives of others, which is also a worthy thing. But if intention were required in obeying the law, you understand that the intention would relate only to the first part, because the second part—if I don’t drive through the red light, then I don’t endanger the other person’s life—what difference does it make what I intended? The result will happen. Intention relates only to the dimension of the command, or of the law—the formal, legal, halakhic dimension, however you want to call it.
[Speaker C] Yes, but in the nice example of the traffic light, we can see both planes. Meaning, the command is the command, and traffic accidents here and there we actually see in practice. Right. The problem is that in the subject we’re dealing with, there is apparently the righteous who suffers and the wicked who prospers. Meaning, the second plane apparently does not exist.
[Rabbi Michael Abraham] I completely agree with the difference you pointed out—that I do not know how to point to the benefit of commandments and transgressions, at least usually. So therefore I only believe that there is such a thing as benefit and harm, but I don’t know how to point to it. As for the righteous who suffers and the wicked who prospers, that’s a little different, because that is about what happens to the doer himself. I’m not sure that the result of the act is supposed to affect the doer. It may be that it repairs something in the world. And therefore the righteous who suffers is a different question. These are two different questions. For example, I’ll give you an example: personally I feel that I don’t really… believe in the involvement of the Holy One, blessed be He, in the world. Yes? So I don’t have a problem with the righteous who suffers and the wicked who prospers. The righteous who suffers and the wicked who prospers—because the world runs the way it runs. The Holy One, blessed be He, didn’t do the bad to me; rather the world, or another person, or whoever did it, did the bad to me. But that has nothing to do with the first question: do I think that doing bad or doing good has some positive or negative spiritual consequences? Definitely yes. So those are two different questions.
[Speaker C] Right, it’s not the same thing, but it’s a direction of thought. Fine. But just as we don’t know, we assume that it’s…
[Rabbi Michael Abraham] Right, that I agree with. I’m saying: I assume there are such things, as Maimonides writes, because when the Holy One, blessed be He, does something, it is reasonable to assume He does it for some reason, that the Holy One, blessed be He, does not act arbitrarily. Maimonides writes that there are people who think that if they say there are no reasons for the commandments, they are thereby magnifying the Holy One, blessed be He—that He does things just like that. After all, every human being does things that have a purpose, that have meaning, and where one can understand why he did them.
[Speaker C] Proof of wisdom. What? Proof to the five books established from the Torah, next section. Fine, okay.
[Rabbi Michael Abraham] No, but Maimonides’ claim is the opposite: that this diminishes the Holy One, blessed be He, because if someone does something, then you expect him to do it for some reason, for some purpose. But that doesn’t mean that I know how to identify what the purpose is. Because from there onward—that’s the third part of the Guide for the Perplexed—from there onward Maimonides tries to identify the purposes, and there it starts to become astonishingly lame. Meaning, all the…
[Speaker B] Rabbi, according to the rabbi’s explanation, this Maimonides is not really difficult, because what is so illogical about the idea that yes, the Holy One, blessed be He, gave the commandments in order to refine human beings, as the Talmud says, and they have no other point and fix no eternity in any splendor? It’s like a soldier in basic training whom they push around, and that changes him. Also, in the very fact that he becomes obedient that’s good, and so are we with the Holy One, blessed be He.
[Rabbi Michael Abraham] Even if it’s possible that the Holy One, blessed be He, gave commandments in order to refine human beings through them—but if you’re already giving commandments, logic says, then give commandments that also have value, or reason, or benefit. Why just invent things for the sake of inventing? After all, there are acts that need to be done in order for this whole business to run properly. So why not make those into the commandments?
[Speaker B] Because I want you—I’m now in basic training—I want you to become obedient.
[Rabbi Michael Abraham] If I give you something sensible, if I give you… For the recruit to become obedient, he has to become obedient so that later he’ll receive commands that have value and carry them out. But here, where is the “later”? Basic training trains a soldier, but it doesn’t train a soldier for nothing. It trains him so that when he becomes a soldier, he’ll receive commands that are not shoe-polishing, but commands in battle or in war, and there it is very important that he obey. But to train a person to be obedient when there is nothing whatsoever that makes sense to obey—what good is that?
[Speaker D] But that is exactly Leibowitz’s method.
[Rabbi Michael Abraham] Okay.
[Speaker D] Okay, I don’t agree. There are reasonable people who think that way, that there is no reason there.
[Rabbi Michael Abraham] There are people who think unreasonable things. I agree. There are many such people. That’s a line from Aharon Barak, by the way. There was some petition that reached the court about—I think it was a woman who was driving, a cat crossed in front of her car, she swerved, and killed someone. So the lower courts acquitted her. They said: this is how a reasonable person would act, what could she do, it’s instinct. Any reasonable person might have failed in this matter, and therefore she cannot be blamed. And Aharon Barak said there some sentence—I don’t remember the exact wording—but he said: this is an unreasonable instinct of the reasonable person. And he still decided to impose some punishment there. Well, it’s probably not as foolish as it sounds, but okay, we won’t get into that now. Anyway…
[Speaker E] Okay, just regarding the roots that the rabbi discussed, the two roots that apparently exist in Maimonides—so a general prohibition, certainly there too there is a command for the prohibition, for the things, so to speak; there is a command there and there is also an essence. So I didn’t exactly understand why…
[Rabbi Michael Abraham] Because it is not a separate command. Because if the command is not separate for each one of the five essences or six essences, then according to Maimonides’ method, that is not called having a command on the matter. Because you can also interpret the verse in relation to other things. So basically you are not warned by virtue of that verse. After all, the purpose of the command is to warn you: pay attention, you need to do this, or you may not do this. Now if this verse can be understood in several other ways, then you can always say, look, this particular thing I didn’t know the verse was commanding. And therefore, as far as Maimonides is concerned, that counts as my not being commanded.
[Speaker E] Because it’s not certain? Because it’s not certain that the Holy One, blessed be He, commanded this? Or is it…
[Rabbi Michael Abraham] Not certain, or because it is not… yes, yes. That’s the suggestion he offers. Maimonides offers an explanation for this, an interesting explanation, of why one does not get lashes for a general prohibition. What’s the problem? So what if several prohibitions come out of one verse? That’s a question for the Talmud, not for me—I’m not familiar with an explanation for that question. Maimonides claims that one does not receive lashes because of the rule that there is no punishment unless there was prior warning. Meaning, because there is no warning. It does not count as a warning, therefore one does not receive lashes. It’s not because it is less severe, or because of something else—there simply is no warning. What can you do? You can’t punish a person if there was no warning. Fine, okay. In any case, in order to sharpen these points further, I want to show, or make, a distinction in light of all this between commands in Jewish law that have a Platonic basis behind them and commands that do not. Okay? Because that will sharpen this point more, that there is a Platonic dimension behind Jewish law or behind Torah. It turns out that there are things that do and things that do not, and I want to touch on that a bit. I dealt with this in my parallel Thursday series on that of the rabbis, customs, the law of the kingdom, and the like. I’ll start maybe with Choshen Mishpat. There are those who come—and we come—to ask ourselves what defines the laws that appear in Choshen Mishpat. Usually the initial tendency is to say that these are monetary obligations between one person and another—what in legal language is called civil law. But if that’s the definition, then it’s not clear why, for example, charity and interest appear in Yoreh De’ah. Those too are monetary obligations between one person and another.
[Speaker B] Charity and interest.
[Rabbi Michael Abraham] So why do they appear in Yoreh De’ah and not in Choshen Mishpat? So I said that what characterizes Choshen Mishpat is like Adino HaEtzni, as the Talmud says about King David: when he engaged in Torah he made himself soft like a worm, and when he went out to war he was hard like wood. It’s a dual aspect of the same person. And in fact Choshen Mishpat also has a dual aspect. On the one hand, Choshen Mishpat is the most flexible area in Jewish law. In all areas of Jewish law, if one stipulates against what is written in the Torah, the stipulation is void. You cannot condition an action on a prohibition. One who betroths a woman on condition that he has no obligations toward her of sustenance, clothing, and conjugal rights; or one who sells on condition that there is no law of overcharging; or all kinds of things of that sort—the stipulation is void. You cannot do it. The Torah said that there is overcharging in a sale, the Torah said that toward a wife you are obligated in sustenance, clothing, and conjugal rights. You cannot stipulate against what is written in the Torah. But in a monetary matter—this is the dispute of Rabbi Meir and Rabbi Yehuda, and in practice we rule like Rabbi Yehuda—that in a monetary matter his stipulation stands. You can stipulate against what is written in the Torah in a monetary matter. And the same thing can be seen in the first Mishnah in Bava Batra, for example: everything follows the local custom. “Everything follows the local custom” means that monetary laws are determined according to custom. And if there are places where the custom is such-and-such, then that is what will be binding. Unhewn stone, hewn stone, half-bricks—the partners who wanted to make a partition in a courtyard, the Talmud at the beginning of the Mishnah at the beginning of Bava Batra, and it says there “everything follows the local custom.” Of course this is only in monetary law. By local custom you cannot eat pork—there’s no such thing. A third thing that expresses the flexibility of Choshen Mishpat is—wait, I said stipulation, customs, and the law of the kingdom. The law of the kingdom is basically like custom: when the king decides something in monetary law, it has force, Jewish law gives that thing force. The king cannot decide that one may eat pork or desecrate the Sabbath, but the king can say that one pays for indirect damage. Meaning, in monetary law the king can decide. So again we see that monetary law is the most flexible category in Jewish law. You can stipulate about it, the law of the kingdom works there, custom determines it. In short, it’s a flexible business.
[Speaker E] Does “property declared ownerless by the religious court is ownerless” also—? Can’t hear? Does “property declared ownerless by the religious court is ownerless” also show the flexibility?
[Rabbi Michael Abraham] “Property declared ownerless by the religious court is ownerless” is also connected to the issue. Maybe after I explain—remind me afterward and I’ll explain why it is connected to the issue. That’s on one side. On the other side, Rashi’s view—and there are other medieval authorities (Rishonim) who at least on the conceptual level go in the same direction, even if not in practice—is that a person may not save himself through another person’s property. Rashi in HaKones, yes, in Bava Kamma 60b, where King David is there with the mighty men, and he sends the mighty men to draw water for him from the well of Bethlehem. So the Talmud interprets those verses and says that in fact he sent them to ask the Sanhedrin a halakhic question. “The elders at the gate”—the gate of Bethlehem was really the Sanhedrin. And “to bring water”—there is no water except Torah—in order to ask a halakhic question. So that’s how the Talmud interprets it. And what did he ask? He asked whether a person may save himself through another person’s property. Meaning, there were Philistines there who were hiding behind some haystack, and the question was whether it was permitted to burn the stack in order to fight the Philistines, in order to save our lives. By burning that stack I am harming people who are not involved, a third party. And he asked whether it was permitted to do that, and they told him it was forbidden. But you are a king, and a king may breach a fence to make a path for himself. So in principle, for an ordinary person who is not a king, this is forbidden. Now most medieval authorities (Rishonim) understand “forbidden” to mean that if you did it, you have to pay—not that it is forbidden, that there is martyrdom rather than transgression for theft. Because what the Talmud is really saying is that there is martyrdom rather than transgression for theft or damage. If you need to damage property or steal property, it is forbidden—you have to die. That is martyrdom rather than transgression for monetary law, for theft and torts. So the medieval authorities (Rishonim) say this cannot be. There are only three severe transgressions: idolatry, sexual immorality, and bloodshed. We do not find that “do not steal” or the prohibition against causing damage is in the category of martyrdom rather than transgression. Therefore they interpret—and this is forced in the Talmud, but that’s how they interpret it—that when the Talmud says a person may not save himself through another person’s property, it means that if you did it, you have to pay. Not that you are forbidden to do it. But Rashi interprets it literally. Rashi says that a person may not save himself through another person’s property means you have to die—martyrdom rather than transgression for theft. And the medieval authorities (Rishonim) ask him: what do you mean? There are only the three severe transgressions. How did you insert theft in here as well? It’s true that one of the passages from which they challenge Rashi is a passage in Ketubot there with Rabbi Meir about “we were coerced because of money,” about witnesses who sign a document and afterward say that we were coerced—not that the document is forged, but they threatened us. So from the passage there they challenge Rashi. In my opinion that passage is the greatest proof for Rashi. I once wrote a column about it on the website. In any case, Rashi’s view is that there is martyrdom rather than transgression even for theft. Why is this not found in the list of severe transgressions for which there is martyrdom rather than transgression? So I explained that in monetary law, in “do not steal,” what Rabbi Shimon Shkop says in Gate 5 is that “do not steal” is a prohibition that differs from the rest of Torah’s prohibitions. For when the Torah forbids me to steal, the concept of theft has to be defined. When I take your money, I steal. But in order to define me as a thief, this money has to be defined as your money, or not his. And only after that can one speak about prohibitions of theft. The laws of acquisition have to be in place before the prohibition of theft is introduced, because if there were no laws of acquisition and there were no “my money” and “your money,” then the concept of theft would not be defined. And therefore Rabbi Shimon Shkop argues that the laws of acquisition exist even before the Torah’s command. The Torah’s command comes to give force to the preexisting laws of acquisition—what he calls jurisprudence, or the laws of justice. Maybe this is a social convention, or whatever it may be, but it precedes the Torah’s command. And therefore his claim is that if, for example, someone sues me for money and he brought no proof, then the rule is that the burden of proof is on the one who seeks to extract money from another. Meaning, the money remains with me; I am the possessor. What happens if he claims with certainty and I answer with uncertainty? He says, you borrowed money from me, and I say, you know what, I don’t remember. Maybe you’re right, but I don’t remember. So this is a dispute among the Amoraim in the Talmud, and in practice we rule that certainty versus uncertainty—certainty is not stronger. Meaning, certainty versus uncertainty: certainty does not extract from a possessor who claims uncertainty. If there is no possessor, then certainty is stronger. But if there is a possessor—if the possessor claims uncertainty—then certainty cannot extract from him without proof. The burden of proof is on the one who seeks to extract money from another. So the Mahariv”l asks: why shouldn’t the one who claims uncertainty have to be stringent because of possible theft? Yes, there is a possible prohibition of theft here. Meaning, if it’s not yours, and you are holding money that is not yours, then you are violating the prohibition of theft. And we know that with a Torah-level doubt we are stringent. If there is a doubt about a prohibition, one must be stringent. So seemingly I should have to pay the claimant the money he claims from me, in order to avoid the prohibition of theft. He discusses this in Kuntres HaSfeikot, not important, but Shev Shema’tata says that the prohibition of theft is derived from jurisprudence. Meaning, if under jurisprudence I can leave the money with me, then automatically there is also no prohibition of theft upon me. Since the prohibition of theft follows the legal definition. Once it is legally determined that I am holding money that is not mine, then I am a thief. But in order to determine that I am a thief, you first have to determine that the money I am holding is not mine. There’s a mute here because there are noises. And therefore he says that when someone claims against me with certainty and I claim uncertainty, if in jurisprudence and the laws of evidence they tell me “leave the money with you,” then as far as we are concerned this money is yours. So once that has been determined, now the laws of acquisition say that this money is mine. Consequently there is also no concern that I am violating the prohibition of theft, even if the truth is that I borrowed and did not repay. At the moment that we determine that the burden of proof is on the one who seeks to extract money from another and I am exempt, at the moment I am exempt, this money is legally mine. And once it is legally mine, there will also be no halakhic prohibition of “do not steal” upon me. What do we learn from this? We learn from this that in monetary law, really the Torah gives its seal of approval to a norm or a law that already existed before it. It is a legal law. Once there is a legal law—another mute here—once there is a legal law, then one can apply the prohibition of “do not steal” to it.
[Speaker B] By the way, according to that… what? It comes out according to that that, for example, if Rabbi Shimon Shkop had been in Sodom, then he would have said that yes, if we live according to the norm of Sodom, then Jewish law would align itself with the norm of Sodom.
[Rabbi Michael Abraham] The rabbi—
[Speaker E] The rabbi mentioned that, the rabbi from Gibraltar and so on—we mentioned that. Yes, exactly.
[Rabbi Michael Abraham] The accusation against the people of Sodom was not an accusation of “do not steal.” The accusation against the people of Sodom was an accusation about laws. Meaning, once you did not establish a legal system, you are wicked. But it is true that if there is no legal system and no laws of acquisition, then there is no such thing as theft. It’s just that a society like that, within which there are no concepts of acquisition and theft, is a wicked society. The accusation against it is that it did not fulfill the commandment of laws, that it did not establish a legal system. But not an accusation of theft. There is no theft in such a situation.
[Speaker B] But if it establishes wicked laws in the deepest sense of the word…
[Rabbi Michael Abraham] It’s an evil society, but those are the rules. So why after that is it permitted to go to a secular Zionist court? If in monetary matters that’s fine, then what? Is it only in monetary matters that the law of the kingdom is law, or that local custom is decisive? Some rely on the Ran, who says that the law of the kingdom is not law in the Land of Israel; that fits their agenda. Beyond that, there’s also the claim that there is a problem with the identity of the judges. By “the identity of the judges,” I mean that someone qualified to judge has to meet various halakhic requirements, and the judges in the Israeli legal system do not necessarily meet them—or according to some people, they necessarily do not meet them, because by the very fact that they are judges they already don’t count toward a prayer quorum, as is well known, and all kinds of things of that sort. Therefore it is forbidden to go there. “Before them and not before laymen,” before them and not before courts or gentiles, and so on. Fine, in any case, the claim is that following Rav Shimon Shkop’s argument, I wanted to explain Rashi’s view. Rashi said that with theft there is “be killed rather than transgress.” The medieval authorities (Rishonim) asked him: after all, there are three cardinal sins, and theft is not among them, so how can you say that theft is not set aside in the face of saving a life? The answer is: theft is set aside in the face of saving a life; of course it is. But the fact that you are forbidden to take someone else’s money or damage someone else’s property is not because of the prohibition “you shall not steal,” but because it is his. You cannot take or damage property that is not yours. The prohibition “you shall not steal” comes to give halakhic stamp and force to the legal prohibition against harming someone else’s property. The reason I am harming someone else’s property is not because of the prohibition “you shall not steal.” The prohibition “you shall not steal” is there because that property belongs to someone else. And therefore Rashi’s claim—at least the way I understand it—is that when I need to damage my fellow’s property in order to save myself, not in the case of a pursuer but a third party of course—for a pursuer it is certainly permitted—but in the case of a third party, I am forbidden to do it even though the prohibition “you shall not steal” falls away because of saving life. But his ownership still remains in force, and once he is the owner I cannot take it because it isn’t mine. Not because of the prohibition “you shall not steal”—that prohibition is set aside. Therefore Rav Shimon Shkop, for example, argues that even regarding a gentile, for whom according to some medieval authorities (Rishonim) there is no prohibition of “you shall not steal,” Rav Shimon Shkop says: yes, but there is still a prohibition from the standpoint of the laws of justice to steal from a gentile. Since that money is his, it is automatically forbidden for me to steal that money, regardless of “you shall not steal.” True, in this particular case, according to some views, the halakhic prohibition of “you shall not steal” does not overlay the legal prohibition, and what remains here is only a legal prohibition without a halakhic prohibition—but the legal prohibition still exists. There is no halakhic prohibition without a legal prohibition. There can be a legal prohibition without there also being a halakhic prohibition on top of it. That can happen.
[Speaker F] So according to this, it’s not only about theft; it’s also true of all monetary law. For example, causing damage. Rashi would also say that one must be killed rather than transgress by damaging your fellow’s object.
[Rabbi Michael Abraham] Theft and damage in this respect are exactly the same thing. Not for nothing, in that baraita in Bava Kamma of Rabbi Oshaya and Rabbi Chiya, theft appears as one of the primary categories of damages. Because the point is not the prohibition of theft in the sense of “and he stole the spear,” but rather harm to the other person’s property. And you do that both when you damage and when you steal. Therefore, once this property is defined as belonging to someone else, you cannot harm it—not damage it, not steal it, nothing of the kind. Because it is his. Regardless of prohibitions. By the way, in damages, for example, yes, always—
[Speaker E] That’s not clear; it’s not at all clear what the prohibition against causing damage is.
[Rabbi Michael Abraham] The discussion at the opening of Bava Kamma is always: what is the source of the prohibition against causing damage? Because in the Torah all that is written is that you have to pay if you caused damage; it does not say that it is forbidden to cause damage. The question is: what is the source of the prohibition against causing damage? There is some tacit assumption that there ought to be a prohibition, but maybe not. Maybe it is a legal prohibition, and therefore if you violated it there is an obligation to pay, but who says the Torah also placed a halakhic prohibition on top of it? A question. Either it did or it didn’t, but it doesn’t have to. Like theft from a gentile, for example: it is forbidden to take it on the legal level because it is his, but I did not violate the prohibition “you shall not steal.” The murder of a gentile, for example—well, according to many opinions it is not included in “you shall not murder,” but rather in “whoever sheds the blood of man, by man shall his blood be shed.” Meaning, Jewish law is not always required to match what happens on the legal plane. But what happens on the legal plane remains there and is valid ontologically. Yes, there was a comment—Dov?
[Speaker E] Yes, what I wanted to say is that what the Rabbi is saying—because the Kehillot Yaakov has great difficulty bringing proof for a prohibition against causing damage. So according to what we’re saying, really it’s not—
[Rabbi Michael Abraham] There isn’t really much difficulty here. In any case it’s a legal prohibition and not a halakhic one, and that is enough to create liability to pay. And that’s what the Torah says: once you violated this legal prohibition, you have to pay according to the Torah. Is there also a halakhic prohibition here of “do not damage”? It is not written in the Torah, so there isn’t. The suggestions offered there as the source of the prohibition against causing damage are very dubious. From “do not stand idly by your neighbor’s blood,” or “do not place a stumbling block before the blind,” or “love your fellow as yourself”—all of these certainly have nothing to do with Choshen Mishpat, even if there is something there. These are dubious sources. So some say it’s logical reasoning. I don’t think that formulation is precise. Rav Asher Weiss, for example, wants to claim that it is logical reasoning; he has a long presentation there at the beginning of Bava Kamma explaining why reasoning has force, “why do I need a verse? It is reasoning.” I don’t think that’s the precise formulation. It’s not reasoning in the ordinary sense, like the reasoning of a private individual. It’s Rav Shimon Shkop’s laws of justice.
[Speaker F] But according to this, maybe there’s a difference between interest and everything else, because interest is not—it’s only forbidden with a Jew and not with a gentile. So maybe that’s something else.
[Rabbi Michael Abraham] Meaning—exactly. Therefore interest really appears in Yoreh De’ah. Why? Because interest is in fact not an infringement of someone else’s rights; it is an obligation imposed on me. I’ll formulate that more clearly in a moment. So—
[Speaker G] Rabbi, I wanted to ask whether Rav Saadia Gaon in Beliefs and Opinions says something similar—I’m trying to see whether it’s connected or not connected. He says that, for example, the laws of marriage are an intellectual commandment, but what defines a married woman, and how a married woman is permitted again, and so on—for that Jewish law has to come. Right? And he says the same about theft. Meaning, the basic guarding of another person’s money is intellectual, but whether it is a perutah’s worth or less than a perutah’s worth and so on—for that the Torah has to come. Is that the same principle?
[Rabbi Michael Abraham] I don’t think it’s exactly the same. What you’re describing here is related more to the question whether Jewish law is a constitutive system or a directive system—that is, constitutive or regulative. We have a tendency to think that Jewish law is a constitutive system. So for example, the Sefer HaChinukh writes in the portion Ki Tetze, that if a man gives his wife a bill of divorce that is invalid according to Jewish law—you can’t hear?—then he has nullified this positive commandment of divorce, and his punishment is great. Now, that is a very surprising sentence to a yeshiva-trained ear. Ask a yeshiva student, and he’ll say: if you didn’t write a divorce document according to Jewish law, then the woman is not divorced. What does nullifying a positive commandment mean here? Is there some positive commandment to divorce one’s wife? If you want to divorce your wife, divorce her; this is how it’s done. If you didn’t do it this way, then she isn’t divorced. What is this nullification of a positive commandment? So the claim I want to make is: “and he writes her a bill of severance.”
[Speaker G] You can’t hear? He violates “and he writes her a bill of severance.”
[Rabbi Michael Abraham] Yes, but there is no commandment of “and he writes her a bill of severance.” If you want to divorce, then this is how you do it; that is how she becomes divorced. Otherwise she isn’t divorced. What commandment is there? Does everyone who didn’t divorce his wife nullify a positive commandment? So the claim—I want to argue—is yes, there is a commandment. Meaning, that is what Maimonides says at the beginning of the laws of marriage. Maimonides introduces it by saying that before the giving of the Torah, if a man met a woman in the marketplace and they agreed to live together, he brought her into his house and that was it; then once the Torah was given, we precede this with betrothal. And the same thing with divorce: before, he would simply send her out of his house, and now the Torah says he gives her a bill of divorce. What does that mean? Usually people think that when the Torah defined betrothal and divorce, the Torah constituted these concepts. Meaning, if you didn’t do it according to the Torah’s definition, then you simply didn’t do it; so she isn’t divorced or betrothed. The Sefer HaChinukh tells us not so. The Torah’s system, in this particular case at least, is a directive, regulative system, not a constitutive one. Meaning, the concepts that existed before the Torah continue to exist after the Torah was given. What the Torah does is direct them. How do you do it correctly? So it adds further details or layers in order to tell me how to do it properly. But after the Torah said to do it this way and not that way, it did not cancel the previous layer; it only shaped it. But the previous layer still exists. Yes, the example I gave for this is the verse regarding the commandment in the passage of tzitzit: it says, “and it shall be for you as tzitzit.” Now that’s a very strange verse when you think about it. What does “and it shall be for you as tzitzit” mean? Usually we understand what tzitzit is: tzitzit means taking a four-cornered garment, attaching the fringes with tekhelet, with the knots, whatever is required. That is tzitzit. If you didn’t do that, then you didn’t make tzitzit. But when they tell you “and it shall be for you as tzitzit,” what are they actually saying? The Torah is telling us: what I defined here in the passage of tzitzit—I want this to be your tzitzit, not something else. That implies that the concept of tzitzit is not necessarily this thing; it exists even without this, and the Torah wants the concept of tzitzit to be specifically this. Right? “And it shall be for you as tzitzit”—this thing will be your tzitzit, meaning the concept of tzitzit already existed earlier. And before that I might have thought it could be done differently; and the Torah says no, this shall be your tzitzit, not something else. And Ibn Ezra explains: tzitzit is some kind of symbol, the lock of hair, yes, a symbol is a concept the Torah did not invent, but the Torah wants our symbol to be this and not something else. The same applies to divorce and betrothal. Divorce and betrothal are living together and separating. That is called divorce and betrothal even after the Torah was given. Therefore, if a man sends a woman out of his house without a bill of divorce, they are divorced. Only they are divorced unlawfully. He acted improperly, but they are divorced. And I brought many practical ramifications of this. A woman toward whom he has set his eyes to divorce her—he no longer has rights to her produce—and there are other ramifications. In any case, the claim is that at least in some areas of the Torah, the Torah does not constitute the thing but directs it. What does that mean? It directs us how to do it properly. Now, I think that is what the things you quoted in the name of Rav Saadia Gaon are saying. What I am speaking about here is something similar but not the same. Because “you shall not steal” does not come to define the laws of justice better; it does not replace the laws of justice. The laws of justice remain in force. “You shall not steal” is essentially parasitic upon the laws of justice, and once the laws of justice determine that this money is yours and not mine, if I take that money from you, then beyond the legal prohibition I have also violated a religious prohibition of “you shall not steal.” But “you shall not steal” does not tell me to change the laws of ownership contrary to the laws of justice, with extra details of one kind or another. It does not operate on the plane of constitutive versus regulative. Meaning, it says that it is not constitutive, but on the other hand it also does not come to direct. Right? If “you shall not steal” came to direct the laws of justice, then “you shall not steal” would in effect define another set of laws of justice in place of the existing one. But no—“you shall not steal” does not come to touch the laws of justice. It only comes to say that if you violated the laws of justice, there is also a halakhic prohibition of “you shall not steal.” It is an additional level—not to shape the first level, but to add a second level. Rav Saadia Gaon comes to say that Jewish law shapes the first level. Right? Essentially, if there is a prohibition of pork, and you don’t know that it applies only in the amount of an olive’s bulk, then he tells you: it’s in the amount of an olive’s bulk. Meaning, that comes to reveal things to you about the first level, not to add a second level. So it’s not exactly the same thing. So what is an agunah? What is an agunah? Do you hear? So shouldn’t there be an agunah?
[Speaker C] If her husband divorced her even if he didn’t give her a bill of divorce?
[Rabbi Michael Abraham] Oh come on—she is indeed divorced by Torah law, and therefore she is not permitted to the general public.
[Speaker E] It goes back to betrothal; the Rabbi says it goes back to betrothal. I heard.
[Rabbi Michael Abraham] They are divorced, but not lawfully.
[Speaker C] Yes, but then she shouldn’t be an agunah; she should be allowed to marry. Why is she an agunah? An agunah is someone who—he didn’t divorce her properly, but we said she—if he didn’t divorce her properly, then she remains forbidden to the general public. So you can’t marry her.
[Speaker E] No, the Rabbi explained it. The Rabbi said that they are in fact divorced, but they return to the state of marriage—they return to the state of betrothal. Betrothal. And therefore that’s the problem of an agunah. Yes.
[Speaker D] Fine.
[Rabbi Michael Abraham] In any event, the claim—how did we get to all this? So I’ll define it this way: basically, what characterizes the solution to the riddle, yes, of “dina de-atzni”—we saw that Choshen Mishpat has two characteristics. One characteristic is that it’s the most flexible thing in the world: local custom is decisive, the law of the kingdom is law, you can make stipulations about it—in short, it is in our hands like clay in the hands of the potter, monetary law. On the other hand, it is the most rigid thing there is—even to be killed rather than transgress monetary law. The most rigid thing there is, not in our hands at all. How are these two faces of monetary law reconciled? The answer is that they are two sides of the same coin. Not only is this reconcilable; it has to be this way. What characterizes Choshen Mishpat is not this definition of interpersonal monetary law, because that is also true of charity and interest. What defines the laws that appear in Choshen Mishpat are obligations imposed on me whose foundation lies in someone else’s rights. He has rights, and as a result I have obligations toward him. For example, he has rights over his property; therefore I am forbidden to steal from him, forbidden to damage it, and if I damaged it I have to pay him, and so on. But all of that begins from the fact that he has rights over his property. And if I infringe his rights, he can take me to court and sue me, and the court will protect him so that his rights are not harmed. Now with a poor person, for example, he has no right to receive charity from me. I have an obligation to give him charity; the Torah imposes on me a commandment to give him charity. But it is not that if I didn’t give charity I infringed his right. He has no right. He has no right to receive charity. I have an obligation to give him charity. Therefore, if I did not give charity to a poor person, he cannot take me to court and demand that I give him what is coming to him, because it is not coming to him. The same with interest. With interest, when I took interest from you, you cannot go to court and sue to get your money back. And the reason is that it is not your money. You agreed to a contract of a loan with interest; you gave it to me willingly under the agreement, and the agreement is valid and everything is fine, and therefore—get out of here. You can’t sue me for anything. The court will compel me to return fixed interest, interest that is recoverable by the court; the court will compel me to return the interest, but by virtue of coercion to perform commandments, just as they can compel me to build a sukkah. Meaning, they compel me to fulfill my obligations, but the court’s coercion is not aimed at protecting your rights, because those are not your rights; rather, it is my obligations. Meaning, what distinguishes Choshen Mishpat from other areas of Jewish law is that in Choshen Mishpat my obligations are grounded in your rights against me. If I borrowed from you, you have the right to get money back from me, and therefore I have an obligation to pay you. If I damaged you, you have the right to receive compensation from me and to demand that I not damage you, and if I did then you can take me to court and I will have to pay if I do not pay, because all of this is your rights. If these are your rights, you can go to court to have them protected. But in charity, in interest, in things that are not your rights but my obligations—even though they are obligations toward you—their basis is not in your rights. You have no right to receive this from me, so you cannot go to court to sue. Therefore this is not Choshen Mishpat; it is not the legal world. The legal world is the things you can sue me for. Okay? Therefore it includes only things that have rights and obligations. That is why in the legal world there is what is called Hohfeld’s table: opposite every right there is an obligation, and opposite every obligation there is a right. That is true only of legal laws—even in Jewish law, but only of legal laws, the laws of Choshen Mishpat. Laws outside Choshen Mishpat are obligations imposed on me to separate terumot and ma’asrot. These are obligations imposed on me, but not someone else’s right. Therefore they appear in Yoreh De’ah and not in Choshen Mishpat. So if we understand it this way, now there is no contradiction at all between these two characteristics of Choshen Mishpat. Why? Because if I understand that all of Choshen Mishpat is people’s rights, this is essentially the halakhic discourse of rights. People say there is no discourse of rights in Jewish law—that is a mistake. Choshen Mishpat is the halakhic discourse of rights. And once you waive your rights—let’s say you are an unpaid bailee, and in the contract we made you are willing to accept liability also for theft and loss, like a paid bailee—this is a Mishnah in Bava Metzia 94 that says an unpaid bailee may stipulate to be like a paid bailee. One may stipulate in monetary matters, and the stipulation stands. You can stipulate. Why can you stipulate? Very simple. Because the whole idea of not paying for theft and loss is a right granted to you. It’s your right. If you waive your rights, good for you, you can waive them. The Torah gives you rights, and it does not obligate you to use them or realize them. If you want to give me gifts, to waive your rights, no problem—waive them. But as long as you have not waived your rights, I cannot touch them even at the cost of my life. The rigidity of monetary law is rigidity toward someone who is not the holder of the right. If someone else wants to infringe another person’s right—so-and-so wants to infringe the right of someone else—then so-and-so cannot do that under any circumstances, even at the cost of his life. Be killed rather than transgress. It is the most rigid thing there is. Why? Because the rights belong to the other person, and only that other person can decide what happens to them. If that other person decides to waive them, as happens in stipulations, or local custom, where the state in effect waives on behalf of all of us, or the law of the kingdom is law, or something like that, then there is no problem at all. Once you waived your rights, then you waived them; you are not exercising them. But only the holder of the right can do that. Therefore when the holder of the right wants to change the law, it is the most flexible thing in the world, because the law is not saying you must be exempt in a case of theft and loss, but that you are entitled to be exempt. Fine—if I want to waive what I am entitled to, good for me, there is no problem. The Torah has no issue with that. Ideally, from the outset, you can stipulate regarding what is written in the Torah in monetary matters. It is not only that after the fact it takes effect; it is entirely valid from the outset. Since the whole idea of monetary matters is that the Torah gives you a collection of rights. If you want to waive your rights, good for you. But as long as you haven’t waived them, if someone else wants to infringe those rights—be killed rather than transgress. The most rigid thing there is, because the mandate to make decisions in this domain of your rights is given only to the holder of the rights. Only you can make decisions. One could elaborate on this a lot; I won’t get into it here. I spoke a bit more about it in the parallel series. In any case, think for example—the question that arises here is basically: what does this actually mean? Let’s say I am an unpaid bailee and I stipulate that I will also be liable for theft and loss; or let’s say there is a local custom that an unpaid bailee is liable for theft and loss as well. Then that is valid. Halakhically, that is valid, because in monetary law everything follows local custom, or the law of the kingdom, or whatever it may be. Now I ask: can we read the pages dealing with the laws of bailees and then throw them in the trash? Are they no longer relevant? No. My answer is no. Why not? Because those passages are not dealing with the question of what one should do; those passages deal with the question of what rights we have. Once I study the laws of an unpaid bailee, I know that an unpaid bailee has the right to be exempt in a case of theft and loss. That is the right of an unpaid bailee. Now if he decides to waive his right, or the law of the kingdom or custom—whatever—say that we waive this right, that is a kind of collective waiver. We waive it. But that does not change the halakhic determination that you have that right. If you had not waived it, then it would be yours, and no one could infringe it. Want to waive it? Waive it. But that does not make the study of the passage unnecessary. When we study the passage, we are not studying what one should do with an unpaid bailee. We are studying what rights an unpaid bailee has. What should be done in practice depends on whether he wants those rights or waives them. That is a different discussion. But when I study Torah, I study the question of what rights an unpaid bailee has—the Platonic, metaphysical truth: what rights an unpaid bailee has. And that is always true. It does not change with local custom, or the law of the kingdom, or stipulation, or anything else. These rights are always your rights. No one can infringe them. Depends which. In property law, they existed from time immemorial. And in property law it really may be that this is only by private agreements—how one acquires ownership, not the concept of ownership. Okay? But in other areas it may be that Jewish law also constitutes that layer. All right? So it can constitute the layer of the laws of an unpaid bailee, for example. It doesn’t have to be so, but let’s say it is. Even then, there is something here that can be waived, but it remains true even if you waive it. That right is your right. Only you can waive it. When I study the passage, I study something that is basically a Platonic truth. That is the truth: an unpaid bailee has the right to be exempt in cases of theft and loss. And that is eternal and never changes, and it doesn’t matter what the local custom is or what the law of the kingdom is. In practice, what I will do halakhically—that of course depends on the law of the kingdom and customs and stipulations and all kinds of things, whatever may be. So that is—
[Speaker E] The Rabbi says—
[Rabbi Michael Abraham] Wait one second. And this sharpens the Platonic dimension behind Jewish law, because essentially what Jewish law tells us to do reflects some kind of Platonic fact. Yes, some fact that an unpaid bailee ought to be exempt in cases of theft and loss. And he really is exempt. He can obligate himself if he wants. Fine. But even when he obligates himself if he wants, that does not change the facts. The facts are that he deserves to be exempt. It is his right. And in the Platonic world of ideas, that is what is there. What we do here with local custom and the law of the kingdom and stipulations and things like that is halakhically binding. But behind that there is nothing on the Platonic plane. Those are floating norms. They are not norms that reflect a Platonic truth or a Platonic reality; rather, they are norms valid in themselves, but they reflect nothing. They exist only on the level of the person and not on the level of the object. Yes?
[Speaker E] So then the Rabbi is basically saying that rights that are Torah-level are not by virtue of some prohibition or commandment, but simply the facts that the Torah tells us exist—that this is his territory.
[Rabbi Michael Abraham] There is also a prohibition there.
[Speaker E] No, but the Rabbi says that it’s not—but the Rabbi says that in a case of danger to life, then it does override the prohibition, but it would not override his right.
[Rabbi Michael Abraham] Yes. No. At a time when there is danger to life, the prohibition is overridden, but on the legal level you are still the owner. He is between—
[Speaker E] And what is this legal level, Rabbi? The legal level here is not the legal level of society, because with society we said that it doesn’t—maybe the unpaid bailee is exempt or liable, it doesn’t matter. The principle of the unpaid bailee—
[Rabbi Michael Abraham] You’re repeating the question; I’ll repeat the answer. In property law, society determines how things are acquired. In the laws of bailees, the Torah chose to determine the definitions, the rights. Because apparently there there is some one objective and binding truth. So there the Torah writes what it is.
[Speaker E] But there, if the prohibition wouldn’t be there—in the case of the unpaid bailee, if there were danger to life, then apparently the prohibition would be overridden—the exemption or obligation of the bailees?
[Rabbi Michael Abraham] No, it overrides the prohibition, not the right.
[Speaker E] The prohibition it overrides, but the right—it—
[Rabbi Michael Abraham] All of Choshen Mishpat, in a case of danger to life, will look the same. Whether the rights are defined by the Torah or whether the rights were already defined before the Torah. Since these rights stand beyond the prohibition. Even when the Torah defines them, it defines them as your right. The prohibition can depend on stipulations and other things.
[Speaker E] Yes, but then what really obligates me? I mean, I don’t really have an obligation there. The Rabbi is only saying that there is some kind of metaphysical truth there, that this is your territory, and so on.
[Rabbi Michael Abraham] That is the question of the Shev Shema‘ata. What he asks there at the beginning of Shev Shema‘ata is: what obligates us to keep things that the Torah does not command? So Rav Shimon answers that with a question, like a good Jew: what obligates us to keep what the Torah does command?
[Speaker E] No, but the Rabbi explained there that it’s the law of justice. That is, justice—that you are obligated to the law of justice, that this is a moral matter or something like that.
[Rabbi Michael Abraham] A legal law, okay. That’s my answer.
[Speaker E] But here it’s different, a little different. Because here it’s not exactly the law of justice.
[Rabbi Michael Abraham] It is the law of justice. Only here the justice is universal and not dependent on the determinations of different societies. Here the Torah reveals to me what universal justice is. But that does not change things essentially. In the end it is still the laws of justice; only in this case, since it is universal, the Torah revealed what the laws of justice say. In ownership contexts, what human beings determine is what will determine the laws of ownership.
[Speaker F] But you can see from the example of partial admission, where one is liable—it’s not just Platonic; it’s because of presumptions, the way people behave, not something universal.
[Rabbi Michael Abraham] First of all, you are assuming something about the first Rabbi Chiya there in Bava Metzia on page 3; I don’t agree with your assumption. Meaning, it’s not because of presumptions about human behavior. The medieval authorities (Rishonim) there already discuss this: the question of why there is liability in partial admission. The simpler understanding, in my view, is that there is liability in partial admission because once you admitted that there was a loan, the burden of proof shifts from the plaintiff to you. Because you admit there was a loan; now the dispute is only over the amount of the loan. And Rava’s whole discussion there—or the first Rabbi Chiya’s discussion—about the presumption that a person does not make a claim unless he has grounds for it, and a person does not brazenly deny before his creditor, and the migos and all that—those are objections as to why he should not be exempt. They do not explain why there is an obligation. But you have to look at the medieval authorities (Rishonim) there. Okay, but again, it may also be that there are things that do not have a Platonic dimension. I’ll bring more such things later on. I’m only saying that, on the principled level, Choshen Mishpat is indeed something that sits on a Platonic layer that determines what everyone’s rights are. And that is eternal. It has nothing to do with whether we stipulate, whether state law is different, whether the law of the kingdom is law—it changes nothing. It is an eternal truth, exactly like the prohibition of pork. The same thing. About that you can never make a stipulation. You cannot stipulate that an unpaid bailee will not have the right to be exempt in cases of theft and loss. You can agree with him that he waives that right. That is what the Gemara says: if he stipulates “on condition that the Sabbatical year not cancel my debt,” that is fine; but “on condition that there is no Sabbatical year in it,” that is not fine. In the remission of debts in the Sabbatical year, yes? I lend to you on condition that the Sabbatical year not cancel my debt, or on condition that there is no remission in it. “That the Sabbatical year not cancel my debt”—that I cannot stipulate, even though it is a monetary matter. Why can’t I stipulate it? Because I can’t stipulate it because the Sabbatical year cancels debts; nothing will help. But if I ask you to waive that right of remission, no problem. A person can waive his right. Therefore one can stipulate in a monetary matter if I am stipulating regarding the person and not the thing itself. If I stipulate regarding the thing itself, then it is the same as stipulating against what is written in the Torah—I cannot do that. So what I basically want to say from here is that Choshen Mishpat is a good example of the fact that these laws essentially reflect some Platonic layer standing behind them. And the laws are its practical expression. And in cases of stipulation, the law of the kingdom, custom, sometimes a gap will be created between the Platonic truth and what happens in practice halakhically. What will obligate me is state law. But the truth—what rights you really deserve—that is what the Torah determined, or what the legal system determines, or whatever it may be. The stipulations come afterward; that is something else. There is a gap here. In the parallel series I said that this is a gap between what is called Torah and what is called halakhah. Halakhah can be made up of all kinds of things that are binding but are not Torah. Right? Someone who studies law, even though what he studies is in fact what binds us halakhically—because in monetary law the law of the kingdom is decisive and local custom is decisive, not the Gemara—and yet when we study Gemara that is Torah study, while when we study law that is not Torah study. Why? After all, what we study in law is what binds halakhically, and when we study the Gemara in monetary matters, what is in the Gemara is not halakhically binding. But it is Torah. Why? Because Torah is the study of something Platonic, of the truth that is correct in itself. How far that is realized in practice, and what must actually be done, belongs to halakhah. And in halakhah there are additional components besides the Platonic truth that stands at the foundation, such as stipulations, the law of the kingdom, and the like. Okay. So Choshen Mishpat is a good example of this matter, and next time I’ll go into some examples where this is not the case. Meaning, laws that do not have a Platonic dimension at their foundation. They are basically halakhah but not Torah. Okay. Up to here?
[Speaker E] This is really going to parallel the next series. Right.
[Rabbi Michael Abraham] That’s why here I’m doing it briefly, because I’m not—but it’s necessary here too.
[Speaker E] Fine, Sabbath peace. Sabbath peace.
[Rabbi Michael Abraham] Sabbath peace. Goodbye.