Halakha and Ethics, Lesson 7

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[Rabbi Michael Abraham] Right, so according to this Raavad, that apparently isn’t correct. If it’s tzitzit made of a forbidden wool-linen mixture, then he shouldn’t wear it at night.

[Speaker B] Come on, from today on what we should do—no, all the Ashkenazim who put on a groom a tallit of—

[Speaker C] Linen with tzitzit—

[Speaker B] of—

[Speaker D] Wool, which is a forbidden mixture. He has to take off the small tallit at twilight, after sunset—after sunset according to Rabbenu Tam.

[Rabbi Michael Abraham] At the outset. Fine, he can take it off. After all, there’s no prohibition—you’re not wearing a four-cornered garment at all. It’s not that he’s walking around with—

[Speaker D] A four-cornered garment without tzitzit. But if it’s forbidden, then when am I supposed to take it off? Take it off in the morning. Don’t wear it in the morning.

[Rabbi Michael Abraham] There’s no prohibition—you’re not wearing a four-cornered garment. Take off the four-cornered garment. Don’t wear a four-cornered garment and cut off the strings. Just don’t get yourself into a doubtful danger. Just take it off, take it off, don’t take it off. What would you do now?

[Speaker C] So I—

[Rabbi Michael Abraham] I’ll say it again: this Raavad here, apparently it seems from him that this is really an existential commandment. A positive commandment dependent on time.

[Speaker B] Are you sure he holds that it’s time-dependent? Because a daytime garment worn at night is still obligated.

[Rabbi Michael Abraham] No, in practical Jewish law women are exempt. Tosafot disagrees. That’s exactly why the Raavad says what he says. The Raavad says it for that reason, because he too agrees that women are exempt from the commandment; otherwise why would he say they can wear it with a forbidden wool-linen mixture? He says that even though they are exempt from the commandment, if they do it with a forbidden mixture it’s fine, because a positive commandment overrides a prohibition. Now, you asked about “This is my God and I will beautify Him,” as a matter of beautifying a commandment. Beautifying a commandment is a common mistake. Meaning, beautifying a commandment is not voluntary; beautifying a commandment is a full obligation. The beautification of a commandment from “This is my God and I will beautify Him.” The only thing is, it doesn’t prevent fulfillment of the commandment itself. What we always think—that beautifying a commandment is voluntary because if you perform the commandment in a non-beautified way you’ve still fulfilled your obligation—true, it doesn’t prevent fulfillment of the commandment, but you haven’t fulfilled the commandment of beautification. There is a commandment of beautification. It’s like how the blue thread does not prevent the white, or how the head-tefillin does not prevent the arm-tefillin. So does that mean head-tefillin are voluntary? No. Rather, it means that if you put on arm-tefillin without the head-tefillin, then at least the arm-tefillin you did fulfill.

[Speaker B] There are many levels of beautification, though. You beautified it even if you only beautified it a little bit.

[Rabbi Michael Abraham] I’m saying: up to one-third there are rules. Up to one-third, you’re obligated; beyond one-third, you’re not. Right? That’s exactly the difference.

[Speaker B] But you can.

[Rabbi Michael Abraham] That’s exactly the difference—even maybe it’s worthy.

[Speaker B] But beyond that it’s already going beyond the letter of the law.

[Rabbi Michael Abraham] Correct. But the commandment of beautification itself is up to one-third. That part—on the contrary, this distinction between what one is obligated in and what one is not is exactly what shows that I’m right. Because the part one is obligated in is an actual commandment.

[Speaker B] And beyond one-third, is that no longer the commandment of beautification?

[Rabbi Michael Abraham] Now you beautified beyond that. Maybe that’s an existential commandment, maybe it’s beyond the letter of the law, I don’t know how you’d define it. You’re not obligated beyond that. But up to one-third you are absolutely obligated; that’s a halakhic obligation. Again, here too you’ll find among the medieval authorities (Rishonim) and later authorities (Acharonim) expressions as though this is basically some kind of voluntary matter. I think that’s a mistake. This whole area of voluntariness and going beyond the letter of the law versus the—it’s very vague. A lot of… But it seems clear to me that it’s a full obligation, meaning the beautification. It’s an obligation to beautify. If you didn’t beautify, you didn’t lose the basic commandment itself.

[Speaker B] And because you do it and it doesn’t prevent fulfillment of the commandment—fine, it doesn’t prevent fulfillment of the commandment, it—

[Rabbi Michael Abraham] Just like the blue thread does not prevent the white. So is there no commandment of the blue thread? People think the blue thread is voluntary too, because it doesn’t prevent the white.

[Speaker B] And going beyond the letter of the law—that’s not an obligation? What?

[Rabbi Michael Abraham] No, so that goes back to our discussion here. I think that going beyond the letter of the law, yes, is not an obligation. But again—look, the SeMaG brings that it’s a positive commandment to go beyond the letter of the law. “The act”—that’s the law itself; “which they shall do”—that’s beyond the letter of the law. And he counts it among the commandments. So how can you understand such a thing? Seemingly, you have here the scoundrel paradox. Right, so Yossi suggests that this would be an existential commandment. Basically, fine, I’m willing to accept that—that’s a possibility.

[Speaker C] There’s something even more severe than that. After all, this whole recognition that Jerusalem was destroyed because they insisted on the strict law.

[Rabbi Michael Abraham] Yes, fine, because obviously you can be an evil scoundrel within the permission of the Torah—you can be.

[Speaker C] And that’s not just “you didn’t do anything, nothing happened.” You didn’t go beyond the letter of the law and you were punished for it. And also it’s not that you did—beyond—

[Rabbi Michael Abraham] the letter of—

[Speaker B] the law, seemingly you don’t—

[Speaker C] You got punished, yes, that’s what Yitzhak is saying now.

[Rabbi Michael Abraham] And the claim is that if it were just something nice and they were punished—no. His claim is that if it’s an existential commandment, then if you didn’t do it, it’s not problematic. And going beyond the letter of the law, in that sense, is even more than an existential commandment.

[Speaker B] Who told you it’s not problematic if you didn’t do it?

[Rabbi Michael Abraham] What’s the definition of an existential commandment?

[Speaker B] If you didn’t do it, you didn’t—

[Rabbi Michael Abraham] commit a halakhic transgression.

[Speaker B] Also with a moral act—you didn’t commit a transgression, but you’re still problematic.

[Rabbi Michael Abraham] No, on the contrary. He wants to say that with a moral act, unlike an existential commandment, it’s not an existential commandment. Why? Because if you didn’t do the moral act, people come with claims against you; whereas with an existential commandment, if you didn’t do it, nothing happened. But that’s not true, because it could be that people come with claims against you there too.

[Speaker B] Moral claims.

[Speaker D] “So that you may walk in the way of good people.”

[Rabbi Michael Abraham] “So that you may walk in the way of good people.”

[Speaker D] Well then, if that’s the law—

[Rabbi Michael Abraham] Wait, I’m getting to that now. I’m getting to that now.

[Speaker B] The destruction of Jerusalem probably wasn’t a punishment; it was a consequence of conduct that is… if you go only by the books, you can end up hitting a wall.

[Rabbi Michael Abraham] Yes, but it seems to me that that’s homiletics. It seems to me the straightforward reading is that they were punished for being such formalists.

[Speaker B] That they did only what they were obligated to do. Only what they were obligated to do. What’s wrong with that?

[Speaker C] Not doing it—that’s not okay.

[Rabbi Michael Abraham] Fine, but “not okay”—you know, we once talked about Rabbi Kook, who says it’s better to fail in gratuitous love than in gratuitous hatred. And I said it’s better not to fail in either one. So here too—if only they had properly done what they were obligated to do. But that doesn’t mean there isn’t an expectation to do more than that. Why do they get hit? Why do they get hit? Because it’s not okay.

[Speaker B] And if they get hit, then that fits the SeMaG very well, it seems to me.

[Rabbi Michael Abraham] I’m not sure, because you can also get hit in the moral sense—what do you mean?

[Speaker C] They also didn’t get “hit”; it was a consequence of that reality.

[Rabbi Michael Abraham] Society collapsed.

[Speaker C] Going beyond the letter of the law—that’s what they did, that’s what they did. It doesn’t belong only to interpersonal matters. Yes, but Nachmanides—what Nachmanides says, “You shall be holy,” that’s for example multiplying food indulgences, going wild, like stuffing yourself.

[Rabbi Michael Abraham] And—

[Speaker B] And that—

[Rabbi Michael Abraham] isn’t connected to other people. It’s human coarseness—that’s his claim.

[Speaker C] Okay.

[Speaker C] And you can still—

[Speaker B] say that that’s also immoral?

[Rabbi Michael Abraham] Why? Aesthetic maybe, but what is it—it doesn’t hurt anyone. It doesn’t hurt anyone. If I want to gorge myself, I haven’t hurt anybody. I want to gorge myself. Fine, but in the Torah, “You shall be holy”—is that moral or not? Seemingly not. “You shall be holy” is everything together. Also things that have no connection at all to—both. Fine, but it’s both. In practice, it could be there’s even a distinction… This SeMaK raises a problem for me: how do you count, in the enumeration of commandments, a command to go beyond the letter of the law? So maybe an existential commandment really is a solution, I don’t know, maybe. But there are several places where we see among the medieval authorities (Rishonim) that the difference between things we were not explicitly commanded in, which remained in the moral sphere rather than the halakhic one, is not in the level of obligation they place on us, but in the possibility of defining them fully. Meaning, there are things the Torah cannot enter into all the details of and define completely, because it depends on the situation and it changes and depends on many parameters. So it doesn’t put it into the enumeration of commandments, and it leaves each person to understand on his own, in each situation, what is expected of him. But according to this approach, it comes out that given the particular situation and the person in it, if he concludes that this is what is expected of him, then it is a full halakhic obligation. The fact that the Torah does not define this as one of the 613 commandments is simply because it is hard to draw sharp or universal lines here—and Jewish law contains only those things that can be defined as some kind of general rule for all circumstances, one that is not contextual, not dependent on context. Right? And if that’s the definition—and in a moment I’ll read you a few sources where it looks this way—then it really comes out that this is exactly the SeMaK. It’s exactly the SeMaK. Because what comes out is that “beyond the letter of the law” does not mean something I’m less obligated in. Rather, “beyond the letter of the law” means a kind of obligation that is too amorphous to define as a commandment. Putting on tefillin—everyone knows, everyone has to put on tefillin in a very specific way, the tefillin are made this way, it’s sharp, it’s clear, it’s not situation-dependent, more or less. There are commandments that are a bit more situation-dependent, but still more or less universal. There are things where moral obligations are a function of place, a function of your means, a function of who is standing opposite you, what spiritual level you are on, I don’t know, lots of things. And because of that, it’s impossible to define it as a universal obligation. So therefore it doesn’t enter the system of commandments. But that doesn’t mean it’s less binding; it only means that technically it can’t be defined within the system of commandments. So theoretically, if Elijah the Prophet came and told me, in a certain situation, “this is what going beyond the letter of the law demands from you in this situation,” and let’s say I became convinced that this is what I’m obligated in, then I’m obligated in it exactly like an explicit positive commandment.

[Speaker B] But how can a person know that he’s obligated, in the situation he’s in, in the best possible state—that he’s obligated?

[Rabbi Michael Abraham] He should make an assessment. He should assess what the moral conduct expected of him is in that situation. And that’s why—and that’s why I say this completes the SeMaK. Because what the SeMaK is basically saying is that there is a positive commandment to act beyond the letter of the law. That is the halakhic anchor for the matter, because otherwise, without a command, how would this enter Jewish law? A commandment requires a command. So there you have it—the SeMaK says there is a command; here is the command: “which they shall do,” beyond the letter of the law. So there is a general command here, a sort of umbrella-command. This command basically says: now, in every situation you find yourself in, if you conclude that this is the moral behavior, then you are under a full obligation to do it, a full obligation to do it. Except that the Torah cannot put it into the framework of the 613 commandments, because there is no universal definition here that applies to all circumstances and all people.

[Speaker D] But there are commandments—like, I don’t know, “Honor your father and your mother.”

[Rabbi Michael Abraham] Right.

[Speaker B] Here there could be two people in exactly the same situation, exactly the same conditions, exactly. Right. And one concludes that it’s not—

[Rabbi Michael Abraham] Not just “concludes”—it’s actually objectively so; the Holy One, blessed be He, would tell them. More than that, I’ll say: it’s not that they have a disagreement; here apparently one is wrong and one is right. I’m talking about a real situation: two people in different states, different means, different psychological condition, different spiritual level, different biography, whatever. So one of them in that situation would be obligated to do it and the other would not.

[Speaker B] I mean the opposite. I mean two people in exactly the same situation. Yes.

[Rabbi Michael Abraham] Exactly the same situation, same biography, everything.

[Speaker B] And one concluded that—so one was mistaken. And one concluded that—

[Rabbi Michael Abraham] Then one is an inadvertent transgressor. Completely. An inadvertent transgressor, because he thought he didn’t have to, but in fact he did.

[Speaker B] And how do you know whether it’s—

[Rabbi Michael Abraham] You don’t know, you don’t know, right—what can you do? How do you know who is right, Rashba or Maimonides? There’s a dispute—how do you know?

[Speaker B] Isn’t that true of all Jewish law? And how do we know? There are halakhic decisors who decide Jewish law; you follow the Shulchan Arukh.

[Rabbi Michael Abraham] How do the decisors know? What do you mean, “there are decisors”? How do the decisors know? In the end they ruled. But how do they know? Never mind—but they decided that Rashba is right. But maybe Maimonides is right?

[Speaker B] But here every person rules for himself.

[Rabbi Michael Abraham] What difference does that make? Logically it doesn’t matter. What difference does it make? You never really have a way of knowing if you’re right, okay.

[Speaker B] What can you do? It could be that when we observe many, many Jewish laws that appear in the Shulchan Arukh and the Mishnah Berurah, we are sinning inadvertently. Obviously.

[Rabbi Michael Abraham] There’s no doubt about it.

[Speaker B] Because we know how to rule according to the Shulchan Arukh, but it was wrong. Obviously.

[Speaker D] We’re not inadvertent sinners—we’re coerced, no?

[Rabbi Michael Abraham] Maybe coerced; it doesn’t matter. But it’s not what the Holy One, blessed be He, expects—just without getting into the halakhic definition right now.

[Speaker D] It’s Mishnah Berurah, but how according to the majority—

[Speaker B] Obviously that’s also what He expects, because there’s a clash here with listening to—He expects us to decide. That’s the Derashot HaRan, right? That in any case it’s better to listen, even if you’re wrong, than not to listen. Fine. A clash of two expectations.

[Rabbi Michael Abraham] Fine, okay. But still, it doesn’t hit exactly what the Holy One, blessed be He, would have expected. The fact that something is written in the Mishnah Berurah does not mean that’s what the Holy One, blessed be He, expects. In a situation of conflict, what’s written in the Mishnah Berurah does not necessarily match what the Holy One, blessed be He, expected us to do. True, but what we… there’s some… once it’s written, you can say, fine, so maybe we’re not mistaken, maybe we’re never mistaken. No, that’s not precise. Exactly—“It is not in heaven.” The Holy One, blessed be He, expects me to do what’s written in the Shulchan Arukh.

[Speaker B] No, but He has a basic expectation.

[Rabbi Michael Abraham] He only says that “It is not in heaven” overrides the desire that you do the true thing.

[Speaker B] But that doesn’t mean there isn’t a truth. Those are two different things. There is a truth. Fine. So I did the right thing according to “It is not in heaven,” so I did what I was supposed to do.

[Rabbi Michael Abraham] Fine. Same thing with a person in a situation where he doesn’t know that this is what is expected of him—

[Speaker B] then that’s okay.

[Rabbi Michael Abraham] No, he’s inadvertent. Again, I’m not talking now about the difference between inadvertent and coerced. Obviously. I’m not entering the question whether this is inadvertent or coerced in those categories, but whether he did the right thing. It could be that he didn’t do the right thing, but since that was your conclusion, the Holy One, blessed be He, Himself says, “Okay, then do what you think,” even though that’s not what I would ideally want you to do. Is that called inadvertent or coerced? That’s another discussion. Straightforwardly, it’s coerced, yes.

[Speaker B] This isn’t going to be universal morality. It’s only between a Jew and—what do you mean? For example, “To the foreigner you may lend on interest.” Yes. Meaning, you can’t suddenly say, “I’m moral, I won’t charge it.”

[Rabbi Michael Abraham] Not there either. According to Maimonides, “To the foreigner you may lend on interest” is a positive commandment. Not everyone agrees with that. Some say it’s a prohibition inferred from a positive commandment.

[Speaker B] Right. It says, “To the foreigner you may lend on interest.” How do you live with yourself, according to Maimonides, if a person morally feels he doesn’t want to take interest even from a non-Jew, when it is obligatory to take it?

[Rabbi Michael Abraham] No, so that’s where morality really—

[Speaker B] No, morality is universal.

[Rabbi Michael Abraham] Morality is universal. But there are places where Jewish law clashes with morality and overrides it. That’s a different discussion. Still, the principle of not lending on interest to anyone—that moral principle may be correct. But according to Maimonides there is a halakhic law to lend to a foreigner on interest, and that law overrides the moral principle not to do so. So I do it. I spoke in previous classes about situations where there is a clash between Jewish law and morality. And when we talk about going beyond the letter of the law, that’s not a question of conflict, but of a different threshold. Meaning—

[Speaker B] But what universal morality is there here, if the Torah commands you to take interest? We already discussed this.

[Rabbi Michael Abraham] It says—

[Speaker B] that it wants you to cause him suffering.

[Rabbi Michael Abraham] Right, but still, from a moral standpoint it’s not okay to cause suffering.

[Speaker B] What’s the difference between causing him suffering and excluding the Jew? That’s not relevant right now.

[Rabbi Michael Abraham] No, but—

[Speaker B] it—

[Rabbi Michael Abraham] I said in the first classes: the fact that the Torah commands something does not mean it is the moral thing. It has some other purpose—let’s call it religious—and that overrides the moral principle. You don’t need to change your moral theory according to halakhic commands. If your moral theory says that lending on interest is not okay, stay with that. True, if the Torah tells you, “To the foreigner you may lend on interest”—that there is a positive commandment to lend on interest to a non-Jew—then you will lend on interest to a non-Jew because here Jewish law overrides morality. But that doesn’t mean that’s morality.

[Speaker B] You look at all the commandments and you say, “Okay, out of those, say out of 613, 600 are okay and 13 are not okay.” Fine. And suddenly you see that all 13 that are not okay are against non-Jews. All the okay ones are for Jews.

[Rabbi Michael Abraham] No, not always. But that’s not true.

[Speaker B] There are loads against—there are many problems against Jews too.

[Rabbi Michael Abraham] Many commandments that run against morality regarding Jews too, not only regarding non-Jews.

[Speaker B] Even more.

[Rabbi Michael Abraham] What do you mean? I go back to this issue: the wife of a priest who was raped, whom they are required to separate—what is that?

[Speaker B] That too. A mamzer.

[Rabbi Michael Abraham] All kinds of things—a mamzer who is not allowed to marry. That poor fellow.

[Speaker B] Which is like the red heifer. These are things in Jewish law that we don’t understand.

[Rabbi Michael Abraham] Fine. And “To the foreigner you may lend on interest” is also like the red heifer.

[Speaker B] What are you talking about? A non-Jew who converts can… the fact that a mamzer can’t marry—that’s obvious. What else is obvious?

[Rabbi Michael Abraham] But it’s against morality.

[Speaker B] Like the red heifer.

[Rabbi Michael Abraham] What does “against morality” mean?

[Speaker B] Yossi, understand—a mamzer is the same thing. So I’m telling you, someone who doesn’t understand mamzer and interest—it’s all just the red heifer, not morality. It’s a deficiency in morality.

[Rabbi Michael Abraham] Do you understand the red heifer? No, you don’t understand the red heifer, right? Never mind. He says to him he doesn’t understand the red heifer. Fine. So he doesn’t understand the red heifer, and he also doesn’t understand the obligation to lend to a foreigner on interest. Same thing. What’s the difference? Meaning… But there was a reason that the red heifer—

[Speaker B] How would you know, how would you know?

[Rabbi Michael Abraham] So I said about morality—I spoke about this in all the classes until now—

[Speaker B] when you see that the Torah itself, in large part, tells you to do certain immoral things.

[Rabbi Michael Abraham] Exactly. That’s what I talked about in all the classes until now.

[Speaker B] In all the classes until now I spoke—

[Rabbi Michael Abraham] about this, and exactly what I said was that the Torah assumes that what our natural conscience tells us—that is morality. Because it doesn’t bother to tell us what is called moral and what isn’t, and nevertheless it tells us, “You shall do what is upright and good,” or “and cleave”—to cleave to the attributes of the Holy One, blessed be He, “and you shall walk in His ways,” and so on. Meaning, it assumes that we know what is moral. If we understand what is moral and what is not moral, then that is morality. Now true, there are places where a command of the Torah contradicts what we understand as morality. About that I said there are three possible approaches. One of them is the complexity approach, which says that this does not change my moral theory. It still isn’t moral, but there is some religious value because of which one nevertheless has to do it, and that overrides the fact that it isn’t moral. You don’t need to change your conception of morality. That’s how I understand it.

[Speaker B] When you see a paradigm saying, “To the foreigner you may lend on interest”—so then you know that you’re supposed to make life difficult for him in every—

[Rabbi Michael Abraham] Obviously, you’re supposed to make life difficult for him, but that doesn’t mean it’s moral to make life difficult for him. It’s not moral, but there is a religious matter in making life difficult for him, like the red heifer. What’s the difference?

[Speaker B] It’s the same thing. So the Torah’s morality says to do to a foreigner—

[Rabbi Michael Abraham] No, no, that’s not the Torah’s morality. It’s the halakhic command, true, but morality—forbids it, right. Exactly. And what is moral? To do good only to Jews? No. Morality says there is no difference between Jew and non-Jew in morality.

[Speaker B] It’s moral to do good, fine. Right, when we have a paradigm “To the foreigner you may lend on interest”—right, but—

[Rabbi Michael Abraham] morality does obligate that.

[Speaker B] Every matter I face with a foreigner, I don’t need to deal at all with—

[Rabbi Michael Abraham] what is moral to do to him? On the contrary. You can’t derive a paradigm so quickly.

[Speaker B] If the moral principle—

[Rabbi Michael Abraham] is that you are also forbidden to harass a foreigner, then you are forbidden to harass a foreigner. And a gentile is also a gentile. Now there are things the Torah tells you—for example, according to Maimonides, “To the foreigner you may lend on interest.” So let’s assume Maimonides is right, okay? Then that means that here the Torah says there is a religious commandment to lend on interest to a foreigner. It does not change my moral theory. In my moral theory, lending on interest is not good.

[Speaker B] It also doesn’t say what you should do to a non-Jew in other matters.

[Rabbi Michael Abraham] Right, that’s why I’m saying—the paradigm… why would you infer?

[Speaker B] “To the foreigner you may lend on interest” doesn’t change the compass—

[Rabbi Michael Abraham] No, but it’s the same—Yossi, it’s the same mistake, the same mistake, the same mistake. Because why do you decide that one can learn from “To the foreigner you may lend on interest”? Because you think that what it says there is that toward non-Jews one need not behave morally.

[Speaker B] On the contrary—you should behave immorally.

[Rabbi Michael Abraham] Yes, fine, that’s not the opposite, it’s just stronger, not the opposite. But no, no, that’s not correct. I disagree with that interpretation. I argue—

[Speaker B] So why did Maimonides understand it that way? What? That what? That between wicked people and non-Jews—

[Rabbi Michael Abraham] No, we discussed that. There are commandments involving “your brother” and “your fellow” and so on—that’s a whole section, I’m not getting into it now. I mentioned it in previous classes. But I just want to talk about the principled issue. As far as I’m concerned, the moral principle remains in place. It is forbidden to abuse a gentile, forbidden to lend on interest to a gentile—morally forbidden. Lending on interest to a gentile—the moral principle remains in place even toward a gentile. When you see that there is a commandment to lend on interest to a gentile—one second—you can say that here the Torah itself tells me that morality is canceled in relation to a gentile. That’s one interpretation. I argue not. The Torah says one must lend on interest to a gentile. That’s what it says. I do not derive from that a paradigm that morality toward a gentile is canceled. Morality toward a gentile is another subject; it may remain in place. And therefore your claim, that you identify the Torah’s command with the moral principle—meaning that you infer from the Torah’s command that there is a different morality here—

[Speaker B] When I’m forbidden to do acts of kindness for a gentile and suddenly I give him charity—

[Rabbi Michael Abraham] What do you mean, what’s the problem?

[Speaker B] Is that against the will of the Holy One, blessed be He?

[Rabbi Michael Abraham] No, if there is a commandment—

[Speaker B] If He tells me, “Acts of kindness—you can’t do with him,” meaning you can’t give him a hundred shekels and say “no problem,” or give him a hundred thousand shekels and say “no problem, when you have it return it to me”—don’t give him anything; you must say, “Sir, you will return 110.” But now suddenly he has nothing at all—so give him charity?

[Rabbi Michael Abraham] Actually charity is a good example, because it says—

[Speaker B] that we support the poor of the gentiles together with the poor of Israel.

[Rabbi Michael Abraham] What? “We support the poor of the gentiles together with the poor of Israel, for the sake of peaceful relations.” So what? Is there permission to violate a prohibition for the sake of peaceful relations? There is no permission to violate a Torah prohibition. “To the foreigner you may lend on interest.” You’re saying that lending—yes. Rabbi, what’s going on? Are you deriving a paradigm or not? If you are deriving a paradigm, then that means there is a prohibition. So because of peaceful relations I violate prohibitions? Do I eat pork for the sake of peaceful relations?

[Speaker D] Would you desecrate the Sabbath, Rabbi?

[Rabbi Michael Abraham] For the sake of peaceful relations? There won’t be peace.

[Speaker B] They’ll kill her.

[Speaker D] Was there an argument about saving a gentile on the Sabbath?

[Rabbi Michael Abraham] No, so you’re taking “peaceful relations” into life-threatening danger, but that’s not right.

[Speaker B] Peaceful—

[Rabbi Michael Abraham] relations are not life-threatening danger. Those are two different things. Peaceful relations are something else. Life-threatening danger permits all prohibitions, obviously. What do you mean, more?

[Speaker B] The Rabbi says in the Mishnah: “To the foreigner you may lend on interest.” Right, “To the foreigner you may lend on interest.”

[Rabbi Michael Abraham] “To the foreigner you may lend on interest.” Who said it’s forbidden? Charity is something else. Why not? A gentile is just—why not? No, you’re focused on interest. And “we support the poor of the gentiles together with the poor of Israel”—there’s no prohibition in that.

[Speaker D] Why not? Interest is a business matter. Why not? Interest—you’re forbidden to take interest.

[Rabbi Michael Abraham] No, but he said according to his own view. On the contrary—interest, Haym Soloveitchik writes in a book—Haym Soloveitchik writes in a book, he has a book on interest, economy, Jewish law, and self-image. He writes there that he went through all the commentators; no one sees interest as a moral problem.

[Speaker C] There’s no moral problem in it. That’s what he claims—I didn’t check, but that’s what he claims.

[Rabbi Michael Abraham] No, but he says the early commentators, not today. Nobody talks about a moral problem. It’s not a moral problem; it’s a religious problem.

[Speaker B] Lending on interest, taking—

[Rabbi Michael Abraham] interest—that’s not a moral problem.

[Speaker B] You talked about where this appears in the Shulchan Arukh, no?

[Rabbi Michael Abraham] In Choshen Mishpat. No, that’s a different discussion—it’s in Yoreh De’ah.

[Speaker B] Not necessarily; Yoreh De’ah also has moral matters in it.

[Rabbi Michael Abraham] No, but giving charity is a moral matter, yes.

[Speaker B] These are economic questions.

[Rabbi Michael Abraham] So let’s just—

[Speaker B] It’s less—it’s not “neshekh,” it’s not the bite of a snake. Here you have neshekh, tarbit… fixed interest, non-fixed interest.

[Rabbi Michael Abraham] No, fixed interest is Torah-level. Fixed interest is Torah-level; non-fixed interest is rabbinic. That’s something else. But the whole concept of interest, even fixed interest, straightforwardly is not a moral problem. If you want to say to someone, a world without interest… If I rent you an object, how many percent?

[Speaker B] Let’s see you want to give something. There are no stocks, there’s no such thing as—

[Rabbi Michael Abraham] interest.

[Speaker B] Lending to someone—if he loses, he loses. That’s not neshekh, but they take it.

[Rabbi Michael Abraham] Then do it… Yossi, then do this: give the gentile a quarter-percent interest. Give the gentile a quarter-percent interest and that solves all your problems. So there’s no moral problem here, you’ve solved Maimonides’ problem halakhically, and everything is fine. It seems to me that according to Maimonides you need to give more than a quarter-percent in order to fulfill the obligation.

[Speaker B] That’s not a loan, that’s the problem.

[Rabbi Michael Abraham] Anyway, let’s get back to our subject.

[Speaker B] According to Maimonides there’s no control over anything except interest. He doesn’t arrange your whole state for you—only “you may lend on interest.” Now there is, say—you can’t—

[Rabbi Michael Abraham] Fine, so basically what I want to claim is that the SeMaK—what stands behind the words of the SeMaK—is some conception according to which going beyond the letter of the law is not like we usually understand it, namely as things one is not obligated to do, but there is only an expectation, as I said earlier. These are things one is obligated to do. And the reason this does not enter the law itself, the list of formal halakhic directives, is because you can’t define universal rules here. Now let me read you a few sources where you can see this conception. There is a Maggid Mishneh in the Laws of Neighbors, where he talks about… about the law of the adjacent owner. I mentioned earlier the law of the adjacent owner, and then he says as follows: “And the matter of the law of the adjacent owner is that our perfect Torah gave, for the refinement of human character and his conduct in the world, general principles. In saying ‘You shall be holy,’ the intention is as the sages said: sanctify yourself in what is permitted to you.” Notice, this is very interesting—the expression “sanctify yourself in what is permitted to you” means exactly: “this is permitted,” meaning not only that it doesn’t enter the commandment, yet that’s what he says. “That one should not be swept after desires, and likewise it said, ‘And you shall do what is upright and good,’ and the intention is that he should conduct himself with good and upright behavior toward other people.” Here you have this distinction—that “You shall be holy” means sanctify yourself in what is permitted to you; that is personal human holiness, not connected to your relations with others. And “You shall do what is upright and good” refers to your relations with others. Because Nachmanides, for example, who is the source for this idea, doesn’t make the distinction this way. “And the intention is that he should conduct himself with good and upright behavior toward other people. And it would not have been fitting in all this to command the details, because the commandments of the Torah are at all times and in every age and in every matter, and one is necessarily obligated to do so. But human character and conduct vary according to the time and the persons”—sorry, the time and the persons—“and the sages, of blessed memory, wrote some useful particulars that fall under these principles. Some of them they made into actual law, and some of them are in the first instance and a path of piety, and all are from the words of the sages, of blessed memory. And therefore they said, ‘The words of the beloved are dearer than the wine of Torah,’ as it says, ‘For your love is better than wine.’” So what he is saying, at least it seems from his words, is that going beyond the letter of the law really should have been written in the Torah. It wasn’t written because it was impossible to write universal rules here that would apply to every person in every state. So that means that essentially there is no difference in the force of the obligation that you have to do it, given the particular situation and person. Let’s say I know what is incumbent on me in this situation—then that is a full obligation, maybe even halakhic. It’s just that the Torah could not write it because it isn’t universal; it changes, it depends on many details. So according to this approach, this is what Rabbi Lichtenstein says—I think there is definitely room here to interpret this Maggid Mishneh that way—that going beyond the letter of the law does not mean something one is not obligated in, but rather things that did not enter the halakhic definition because they cannot be defined universally. That’s all. So it’s only a technical problem, not a principled one. There is a Gemara in Eruvin 21, where the Gemara says: why weren’t all the rabbinic laws written? Because “of making many books there is no end”—it brings that verse. It sounds from the Gemara that really all the rabbinic laws should have been written in the Torah, but you can’t write everything—it would become an encyclopedia; it’s not practical. So according to this approach it really comes out that all the things the sages added—or at least some of them, yes—but I’m saying, all the things the sages added were not written in the Torah not because they are less binding. A rabbinic law, for example—“And you shall do according to all that they instruct you”—that basically means that the Torah itself expects this of me. Meaning, according to this approach, since you mention “And you shall do according to all that they instruct you,” maybe I don’t need to look at all for the question of why one must obey the sages, which the medieval authorities (Rishonim) discuss—is it because of “Do not deviate,” “And you shall do according to all that they instruct you,” and Nachmanides disagrees about this. Maybe there’s no need to look for it at all—it’s found here, in “and you shall do,” beyond the letter of the law. It’s just that the Torah left to the sages those things it could not define in a universal definition. But since that is the Torah’s direction, now I understand that once the sages told me that this is indeed what is expected of me, then it is already Torah law to do it; it is no different from any other Torah law. So it may be that I don’t even need a source from the Torah to obey the sages, because this isn’t really called obeying the sages. What I do, I’m not doing because I need to obey the sages because they said so; rather, the sages revealed to me that this is what is going on in this situation, and the Torah expects me to do it.

[Speaker B] There’s no rabbinic category at all, no such thing.

[Rabbi Michael Abraham] Exactly. And if we take that to an extreme, then it comes out that this completely erases the distinction between rabbinic and Torah law.

[Speaker B] There is a rabbinic layer; there are things that are very, very well-defined.

[Rabbi Michael Abraham] Fine, so really it could be that—

[Speaker B] No, a technical problem, a problem of—no, it’s much more than a technical problem, because it can’t be something defined universally.

[Rabbi Michael Abraham] That connects to his question from before. It connects to his question from before, that even before rabbinic law—in general, even beyond the letter of the law—the basic argument of the Maggid Mishneh. After all, there are quite a few commandments in the Torah that also cannot really be given one sharp definition and depend on many situations, and nevertheless they are written.

[Speaker B] That’s the other direction.

[Rabbi Michael Abraham] Therefore the Maggid Mishneh’s argument is a problematic one. Again, I’m not inclined to agree with it, but I’m only saying that there is such a view among the medieval authorities (Rishonim). I’m bringing this view to complete the picture.

[Speaker B] Almost nothing is written—three words about tefillin and that’s it. Right, but the fact that it was given orally—

[Rabbi Michael Abraham] No, the fact that it was given orally doesn’t bother me. The question is whether the argument is that things were not written not because one isn’t obligated to do them, but because they can’t be defined universally. So look: some of the things that are written also are not universal definitions. Not to mention Torah study, where all the later authorities (Acharonim) disagree about exactly what defines the bounds of the obligations of the commandment of Torah study, but almost everyone agrees that it depends on the person and on the situation and on livelihood and on many things. So that is a classic example of something that couldn’t have been written.

[Speaker B] My claim wasn’t a difficulty on what the Maggid Mishneh said. My claim was about extending what the Maggid Mishneh says to rabbinic commandments.

[Rabbi Michael Abraham] Yes, I’m saying, I’m bringing the other side of the coin; it’s the same issue. But I think that there too we really have to—maybe we need to distinguish between several kinds of rabbinic laws. Here he’s talking about everything that comes from the Sages, but he’s talking about those rabbinic laws that really fill in the holes, the moral lacunae. There are rabbinic laws that are simply a fence: don’t eat poultry with milk so that you won’t come to eat any meat with milk. That’s not a moral lacuna; I don’t think that’s what he’s talking about. So for that maybe you really do need a source, “do not turn aside,” and all the other things. And what the Talmud in Eruvin is talking about, it’s talking about those things that are not a decree lest something happen, but things that are problematic in themselves, only they don’t appear in the Torah. Maybe I once spoke about this—I don’t even remember anymore—there’s a whole series of enactments that the later authorities struggle over, and they get into all kinds of difficulties, and in my opinion it’s simply a misunderstanding. Take, for example, the enactment of the oath of inducement. There are, after all, three levels of oaths. There are Torah oaths: partial admission, one witness, and bailees. There are Mishnah oaths, oaths that appear in the Mishnah in the seventh chapter of tractate Shevuot, in the first mishnah there. And there is the Talmudic oath, which is the oath of inducement. That didn’t yet exist in the period of the Mishnah; that was Rav Nachman. Okay? So the later authorities discuss it—there’s a long piece in Beit HaLevi on this, and other later authorities too—what changed in the time of Rav Nachman that caused him to institute the oath of inducement. Because the oath of inducement applies to someone who denies everything. You sue someone, and he says, “Nothing like that ever happened.” On the face of it, I go home; the burden of proof is on the claimant. The enactment of the oath of inducement says no: someone who says, “Nothing like that ever happened,” has to swear. If he denies everything, he has to swear. That’s the oath of inducement. So the question is: what, did liars become more common? What exactly happened there? Meaning, he does all sorts of calculations there and gets tangled up in this issue, and the question is whether we really need to look for something that happened then. Maybe Rav Nachman says: what do you mean? This is a universal thing. This is obviously something that should be done. It always should have been done. The Torah didn’t say it; I’m telling it to you.

[Speaker B] Why didn’t the Tannaim do it?

[Rabbi Michael Abraham] Wait a second. It could be that the Tannaim did do it, by the way. Several later authorities point out that there are already hints in the Mishnah that there was an oath of inducement. That only completes the picture I’m describing here. But let me give another example, say, the market regulation. Okay? The market regulation is a situation where, say, I sold something to someone in good faith—on my part and on his part—and then it turns out that it wasn’t mine at all. The beam regulation, never mind, the regulation for penitents, the market regulation—a collection of different enactments where it’s not entirely clear who instituted them, but it’s clear that it’s an enactment, it’s rabbinic law. Then the question comes up: why didn’t the Torah itself write the market regulation? The later authorities ask that too. Why didn’t the Torah write the market regulation? After all, it’s terribly logical. Nothing new was created here. We’re not talking about an increase in swindlers or some change in reality that required a response from the Sages. It’s a principle that is necessary in order for the market to function. You can’t run a market if you can’t sell things and you constantly have to worry maybe it isn’t his and maybe it is. If it was done in good faith and you made the reasonable checks, then there’s nothing to be done—the owner loses out. The one it really belongs to. Under certain circumstances; I’m not going into the details now. But that logic was true even when the Torah was given to Moses at Sinai. It didn’t need to wait until the Talmud. So why isn’t it Torah law? I think the answer here is simple; I’m only bringing this as another example of what I said before. There are things that are not the Torah’s role; the Torah does not see them as its role. Regulating the market is the role of the Sages. Obviously, that too is by Torah law—meaning, obviously, if the Torah itself had seen fit to regulate the market, it would have written it. Nothing changed in reality that forced the Sages to make an enactment here. This enactment has been correct since the creation of the world. Rather, the Torah does not think it is its role to deal with this aspect of reality. The Torah states religious principles, religious truths of one kind or another. Things that are needed to run life and regulate the market and so on—excellent, that is the role of the Sages; they will do it. But once the Sages determine it, it becomes something that the Torah also wants us to do. The reason it didn’t write it is because it doesn’t belong to it; it’s not in its mandate. It doesn’t deal with that kind of thing. But that doesn’t mean it is a response to some

[Speaker B] change

[Rabbi Michael Abraham] that happened and because of that there was an enactment by the Sages.

[Speaker B] So here’s another example of something that is not

[Rabbi Michael Abraham] written in the Torah, but it’s not written in the Torah not because you don’t need to do it, and not because the obligation to do it is lower, but because it’s not

[Speaker B] the kind of thing the Torah wants to write. That’s all. So what about rabbinic decrees?

[Rabbi Michael Abraham] What? So I’m saying, rabbinic decrees are something else. That too joins in—they are also things the Torah does not want to write and leaves to the Sages: “make a safeguard for My safeguard.” But there the level of obligation really is lower, because the decree in itself is not something forbidden; there is no problem in it in itself, only a concern lest you come to do something. And that really is born as a result of problems. Yes, generally it’s a result of problems. Generally. I don’t know if that’s always true, but even with ordinary decrees one could say these things. And all the things in the Torah that do seem like the Torah is arranging the world for us have religious reasons why they’re not just that. That’s what I think; that’s my reasoning. Because there are many things—“do not murder,” “do not steal”—why do you need to write that? It’s obvious reasoning. The famous questions. Fair enough. I think that means there are some religious aspects here beyond the social aspect and so on. So in short, that’s what the Maggid Mishneh writes here, and it joins what the Sefer Mitzvot Gadol also writes. Maybe we’ll also see it in Nachmanides on “You shall be holy.” Nachmanides says: “Therefore Scripture came, after specifying the prohibitions that it completely forbade, and commanded in a general matter that we should be separate from excesses.” Yes, that’s “You shall be holy.” “He should minimize sexual relations, as they said in Berakhot, that Torah scholars should not be found with their wives like roosters. And he should engage only as needed for fulfillment of the commandment through it, and sanctify himself from wine by using little of it, and remember the evils mentioned in the Torah that came from it in the cases of Noah and Lot. And so too he should separate himself from impurity, even though we were not warned about it in the Torah.” After all, there is no prohibition for an ordinary Jew to become impure; only for a priest. But still, “You shall be holy”—it is fitting nevertheless to be careful. “As they mentioned in Chagigah: the garments of an ignoramus are considered impurity for the separated ones.” “And just as the Nazirite is called holy by guarding himself from impurity of the dead as well. And he should also guard his mouth and tongue from being defiled through excessive coarse eating and through repulsive speech, as Scripture mentioned, ‘and every mouth speaks vile things.’ And he should sanctify himself in this until he reaches separation, as they said about Rabbi Chiyya that he never uttered idle conversation in his life. And in these and similar matters this general commandment was given.” After it specified all the transgressions that are completely forbidden—again, that expression “completely forbidden” as against “not completely forbidden.” That seemingly hints at a level of prohibition, not that it’s less—not completely forbidden, but still something the Torah expects. A person who guards himself to sanctify himself in what is permitted, yes, in excesses. “Until this command includes cleanliness of hands and body, as they said: ‘And sanctify yourselves’—these are the first waters; ‘and you shall be holy’—these are the final waters; ‘for holy’—this is fragrant oil. For even though these are commandments from the Sages, the main verse and similar verses warn that we should be holy, clean, pure, and separated from the masses of people who dirty themselves with excess and ugliness.” Up to here this seems more like a view not like the Maggid Mishneh, but that these things are less binding. Now look at the next paragraph: “And this is the way of the Torah, to specify and to generalize in matters like these. For after warning about the detailed laws in all business dealings between people—do not steal, do not rob, do not wrong, and the other warnings—it said generally, ‘And you shall do what is right and good,’ so that it would include in the positive command fairness, equity, and everything beyond the letter of the law for the benefit of one’s fellow, as I will explain when I reach its place, with the will of the Holy One, blessed be He. And so too regarding the Sabbath: it forbade the labors through a prohibition, and the exertions through a general positive command, as it says, ‘you shall rest.’” Yes, this is Nachmanides, the well-known view of Nachmanides that rabbinic-style rest on the Sabbath is a Torah prohibition. So what is he actually saying? After the Torah gives all kinds of details—do not rob, do not wrong, do not steal, etc.—it gives some general principle: “And you shall do what is right and good,” or “You shall be holy.” Now if that is the conception in “You shall be holy,” then the question is what exactly he means. Does he mean to say that a general principle was stated here, and all the details are just specifications of it? And they wanted to tell you: don’t cling only to the specifications, because there are other things that cannot be determined by universal rules. Therefore they told you this in a general way, like the Maggid Mishneh, and so on. Or does he mean something else? And I’m unsure about that, because his language does not sound like the Maggid Mishneh. Rabbi Lichtenstein does bring him in the direction of the Maggid Mishneh; I’m not sure he’s right here. Because maybe what he means to say is not that. Maybe he means that the Torah really forbade those things, and with regard to all the other things it then told you more generally that it is fitting to do those as well. Not that one is obligated to do them, but that it is fitting. He does not mean to say that it is the same level of obligation, only it’s not universal and therefore it wasn’t commanded. That’s not what is written here. He only says that it is the Torah’s way, after bringing some specific prohibitions, to make some sort of completion. Exactly like with the Sabbath, for example. On the Sabbath, when we talk about rest from ordinary exertion, even if that rest is Torah-level according to Nachmanides—after all, according to Nachmanides exertion involving permitted activities on the Sabbath is Torah-level, Nachmanides in parashat Emor and the Ritva repeats this in Rosh Hashanah and elsewhere, that it is a Torah prohibition—but certainly it does not incur stoning. It is not a sin-offering and stoning like the labors of the Sabbath.

[Speaker B] Meaning, stoning is only for a negative commandment, no?

[Rabbi Michael Abraham] Fine, but that’s exactly the point.

[Speaker B] After all, this is more of a positive commandment and not a negative commandment.

[Rabbi Michael Abraham] What does that mean? But that’s exactly the point. If this thing is not really a separate obligation, if it only completes for you all the places where we couldn’t write things—

[Speaker B] But it still can be an obligation, simply an obligation that comes from the law of a commandment.

[Rabbi Michael Abraham] No. For labor there is a prohibition, for the labors. So why is there no prohibition for exertions? After all, in the end you are telling me that this is—

[Speaker B] because it’s a positive commandment, and maybe the level of obligation is lower for a positive commandment than for a negative one.

[Rabbi Michael Abraham] No, but again, that’s lacking. If it makes no difference at all whether it is a positive commandment or not, since the definition is not determined by the question of how it was said—this is basically saying: everything I told you in the details, extend that also to the places where it wasn’t stated, with the same definitions. Meaning, if there is a prohibition on labors, then also the labors that were not fully forbidden in that prohibition, basically it would be fitting to stone for them as well. Meaning, it is not really a positive commandment in the formal sense of a positive commandment; rather it is some kind of catch-all clause that completes the specific details and tells you not to cling only to the details, but that everything is included in this whole matter. If you understand it that way, then it should also be at the same level of obligation. What difference is there? Therefore I do not think Nachmanides means what the Maggid Mishneh means. He means to say that the Torah, in its usual way, after forbidding certain things, also says some general principle, but that general principle really is not just: we couldn’t write it because it isn’t universal, but basically it is the same level of obligation. No—the level of obligation is lower. That’s what he means by “to forbid myself in what is permitted.” He calls it excesses. I don’t think he means it in the same way as the Maggid Mishneh.

[Speaker B] And it also says there “obligated.” He also wrote there in the sense of an obligation for that student, but that yes, he called it a lesser obligation. An obligation, but less.

[Rabbi Michael Abraham] Fine, so he means what I earlier called an expectation; he does not count it.

[Speaker B] And that’s what I called an obligation on other levels.

[Rabbi Michael Abraham] No, fine, I have no problem—call it whatever you want—but it cannot enter into the count of the commandments. Nachmanides does not include “You shall be holy” among the positive commandments.

[Speaker B] Why? Commandments that are lesser?

[Rabbi Michael Abraham] He doesn’t include it. That’s a fact; he doesn’t include it. Nor does he include—

[Speaker B] the positive commandment to avoid exertions?

[Rabbi Michael Abraham] Does he include exertions? Exertions… no, he doesn’t include it. It seems to me he doesn’t count such a commandment. No, he doesn’t count it.

[Speaker B] Resting on the Sabbath, no?

[Rabbi Michael Abraham] No, resting on the Sabbath everybody counts. But the exertions beyond the defined labors, what Nachmanides adds—he does not add that in his list of commandments that he adds to Maimonides’ count. At least as far as I remember, he does not add it there. Like “You shall be holy,” and like “And you shall do what is right and good.” Meaning, all of these—I think Nachmanides is not going in the direction of the Maggid Mishneh, even though the wording of the Maggid Mishneh really is taken somewhat from Nachmanides. Meaning, it’s clear that he took the principle from him, but it seems to me he also took it in a slightly different direction. And regarding “And you shall do what is right and good,” Nachmanides basically says the same thing: “And this is a great matter, because it is impossible to mention in the Torah all of a person’s conduct with his neighbors and friends, and all his business dealings, and all the regulations of settled life and of states. But after it mentioned many of them, such as ‘do not go about as a talebearer,’ ‘do not take revenge,’ ‘do not bear a grudge,’ ‘do not stand idly by your neighbor’s blood,’ ‘do not curse the deaf,’ ‘rise before the aged,’ and the like, it returned and said generally that one should do the good and the right in everything, until this includes compromise and going beyond the letter of the law, such as what they mentioned in the law of the neighboring property owner,” which is the source for the Maggid Mishneh. Yes? “Even what they said—that his bearing should be pleasant and his speech gentle with people—until in every matter he should be called upright and straight.” Here it is already closer to the language of the Maggid Mishneh, because he says that it was impossible to put all these things into the Torah, and still, in my opinion, that is not what he means. Clearly gentle speech and being called upright and straight are not full legal obligations—it’s not reasonable that he means that. He says it was impossible to put it into the Torah, not impossible because it would have been simply hard to write because it isn’t universal. It was impossible in a legal sense to put it into the Torah, not impossible in a literary sense to put it into the Torah. Meaning, it’s not… I think that’s what he means. Now I just want to complete the picture with two more points. First point: Rabbi Lichtenstein brings a whole list of places where we see that we compel on a moral principle. In tractate Bava Batra, in the discussion of the trait of Sodom, they say that we compel against the trait of Sodom. In the Shulchan Arukh it appears regarding compelling the return of a lost object after despair, “so that you may walk in the way of good people”; the law is indeed that they compel him. Or in the Shulchan Arukh it appears regarding return after despair, the view of the Raavyah, it seems to me, that they compel him; the Rema brings this in the Shulchan Arukh, that they compel him. Rabbi Lichtenstein says: if they compel him, then by definition this is not a moral problem but a halakhic problem. And the fact that it isn’t written in the Torah because it is beyond… he continues his line, saying that it is simply because it isn’t universal. That’s his claim. I disagree with that too; I don’t think it’s correct. The fact that they compel him—that

[Speaker B] because also with returning a lost object after despair? What is less universal than returning a lost object before despair? Exactly, I completely agree.

[Rabbi Michael Abraham] Right, I completely agree. In fact the Torah does the opposite—it makes distinctions between before despair and after despair instead of leaving it simple. Why make that distinction? After all, you should always have to return it, and that’s that.

[Speaker B] Right, right, that means

[Rabbi Michael Abraham] that after despair you don’t need to return it. No, but the duty beyond the letter of the law to return after despair—after all, there is a duty to return it. But if that “beyond the letter of the law” is a full obligation, as Rabbi Lichtenstein says, then basically there is no difference between before despair and after despair; it’s just that the Torah couldn’t write it because it isn’t universal? What isn’t universal? On the contrary, the Torah made too many distinctions where there was no need. It said: before despair, return it; after despair, don’t return it. Why? Don’t make distinctions—write a universal rule.

[Speaker B] So that’s proof that it did not expect it.

[Rabbi Michael Abraham] Exactly, exactly. But the Sages do say that beyond the letter of the law one returns it after despair, and they even compel for that. It’s not an enactment; nowhere does it say that this is an enactment. “The Sages are displeased with one who does not return after despair,” and in the Shulchan Arukh they even compel for it. That means that… I think it means that they compel morality. The fact that they compel something does not mean it is a halakhic obligation. There are situations where you deviate from morality… right. Why?

[Speaker B] What is special about a lost object after despair that there are so many moral problems in which the Sages do not intervene?

[Rabbi Michael Abraham] No, because there are levels of morality. There is a certain moral level—a certain degree of immorality—on which they compel, and other levels on which they do not compel.

[Speaker B] So what is the difference with a lost object?

[Rabbi Michael Abraham] The difference is the question of how much injustice there is.

[Speaker B] It’s simply a much greater injustice than ordinary immorality.

[Rabbi Michael Abraham] Yes. You see a person—this object is his, he lost it, it’s his, he has identifying marks, everything. It’s after despair—he despaired of the object… give it back to him. Why are you taking this object? Such a Sodom-like trait. So therefore I think that the fact that they compel does not mean it is Jewish law. I don’t think that is clear proof. Maybe one last note. What practical difference does it make? What practical difference? Hm?

[Speaker B] Same thing—there’s morality here too. Someone sold a car that wasn’t his to someone else, and now it’s with you.

[Rabbi Michael Abraham] No, but here there is a moral problem because I paid. I am not the seller. No, I paid. I paid properly, in good faith. Fine—you want me to return it voluntarily? And what about my money? Who will return that to me voluntarily?

[Speaker B] So here there is the market regulation, so here not—

[Rabbi Michael Abraham] Here there is the market regulation in order to allow commerce. Obviously, obviously.

[Speaker D] But here we’re asking: what is the difference between compelling morality and compelling Jewish law? There’s no difference. What practical difference does it make? There’s no difference. So then why doesn’t this become Jewish law here?

[Rabbi Michael Abraham] It does enter Jewish law! It enters Jewish law after they decided that we compel for it. Yes, obviously—the Sages determined it. And that’s what the Maggid Mishneh says: “and all this is from the Sages.” And the Sages can bring things that are not in the law into the law; that is the meaning of enactments. So the Sages can also decide that one compels a moral principle. Very good. So now it enters Jewish law, as part of Jewish law. Yes, but rabbinically. Not like Rabbi Lichtenstein wants to say—that the moment we compel for it, that means that basically on the Torah level it is already inside Jewish law. The reason the Torah did not write it is because it isn’t universal. Here I disagree. Now one last point that I still want to get to, so allow me. There is a Meiri in Bava Kamma who is basically drawing from Baal HaHashlama. He writes: “The great ones of the generations…” With the Meiri there are these codes. “The great codifiers” means Maimonides, “the great commentators” means the Raavad, “the great ones of the generations” means Baal HaHashlama. And he brings in the name of Baal HaHashlama: there are four things that if a person does them he is exempt under human law but liable under the law of Heaven. One who sends a deaf-mute, an imbecile, or a minor; one who hires false witnesses to testify; all sorts of things of that sort—the Talmud in Bava Kamma says this. “Everything we wrote here,” says the Meiri, “that he is liable under the law of Heaven, its meaning is that he is obligated to make restitution.” What does that mean? Not that “liable under the law of Heaven” means that he deserves punishment if he did it, but that he has an obligation of payment. That is not the same thing. You could say that if you caused damage indirectly, “liable under the law of Heaven” means you deserve punishment. But no—what matters is not that you deserve punishment. You caused damage indirectly; you have to pay. But only under the law of Heaven; the court will not take it from you. “As for the matter of prohibition, even when he is exempt under the law of Heaven, there is at least a prohibition in it; but the statement was said regarding payment.” “And from here the great ones of the generations wrote that whenever it is said of someone that he is liable under the law of Heaven, he is disqualified from testimony until he makes restitution. And the matter appears correct, since because he is obligated to restore, the law of theft applies to him until he restores.” Meaning, if someone caused damage indirectly, he is disqualified from testimony like a transgressor, like a wicked person, until he returns it. Like a thief, like one who caused damage on the Torah level, even though in indirect causation you are exempt. So he says there is a difference between pious conduct, beyond the letter of the law, and an obligation to satisfy the law of Heaven or liability under the law of Heaven. The term “liable under the law of Heaven” or “to satisfy the law of Heaven” is a truly halakhic obligation. Now on the face of it, that really does say what Rabbi Lichtenstein says. But the bill comes with its receipt attached. Because he says that only about places where it says that one is obligated to satisfy the law of Heaven. But if there are places where it says “a pious trait,” or “beyond the letter of the law,” and so on, then that precisely means it is not the same thing. And that is exactly the point. So there really is a division here between two different categories that have different expressions in the language of the Sages. To be obligated to satisfy the law of Heaven is a full obligation—you are a thief. You are a thief! It’s just that the Torah said that the court will not extract it from you. A big question why—I truly do not know why. But the court will not extract it from you; in Heaven they will settle accounts with you, and you are obligated to pay. And if you do not pay, you are disqualified from testimony like a wicked person. A wicked extortionist, or just wicked, according to all the views there. So here we see a kind of intermediate view that says there are things that really are part of Jewish law, and the fact that they are not written in the Torah means only, perhaps, that the court does not deal with them. But in terms of force, it is certainly a halakhic obligation. But I think that by implication we learn from his words that the other things—those that are pious conduct, or where it does not say “to satisfy the law of Heaven”—there it really is a moral matter. If you want, give; if you don’t want, don’t give. You are not disqualified from testimony if you do not return a lost object after despair. Are you a thief? Are you disqualified from testimony? No. One who does not return a lost object before despair is disqualified from testimony; he is a wicked extortionist. But one who does not return a lost object after despair—I have never seen anyone say he is disqualified from testimony. Why? Because you are not obligated. It does not say that you are obligated to satisfy the law of Heaven. It says that the Sages are displeased with one who does not do it—that’s immoral, but you are not obligated to return this thing. After all, at that point it is not his. But when you caused damage indirectly, you caused him damage to something that was his. So what if you did it with your left hand and with your eyes closed? In the end you damaged something that belongs to him, so by law you really ought to restore it to him.

[Speaker B] This creates a strange situation: something that is “liable under the law of Heaven,” which means really obligated, and yet they do not compel it—the court does not compel it. And something that is not obligated, but is the trait of Sodom—that becomes a big question.

[Rabbi Michael Abraham] Here there is some kind of prohibition against compelling—as if, I don’t understand why.

[Speaker B] They compel in those cases.

[Rabbi Michael Abraham] Here there is some kind of prohibition against compelling; it’s not entirely clear. So tell me what the basis is. Why? What’s the problem? Exactly. At least even from the moral side—compel it. After all, they even compel morality, so why not compel here? I truly do not know; this matter is not clear to me. About what? It could be—I don’t know—maybe the point is that there is a difference between compelling commandments and extracting rights. Meaning, say I owe someone money and I don’t repay him. The court goes down to my property and takes the money from me in my place. With a sukkah, say, if I do not build a sukkah, the court will beat me until I build a sukkah, but it will not build a sukkah in my place. That won’t help at all; I have to fulfill that commandment. So compelling regarding a commandment means forcing me to do something. Okay? Enforcing a court ruling is not coercion. Enforcing a court ruling means: if you won’t do it, we’ll do it in your place. Seizure. Exactly. This is somebody else’s money that is in your possession; we will take it from you. Okay? Now it could be that what it says here—that the court does not extract—they do not extract in the legal sense. Meaning, they will not go down to your property to take it, but they will beat you until you fulfill it, like with a sukkah. And then that really is moral coercion. So that paradox at least maybe can be solved.

[Speaker B] But even so, why didn’t the Sages do that like in returning a lost object?

[Rabbi Michael Abraham] No, with returning a lost object after despair, when it says there that the court compels, the meaning is that they also go down to the property. That is coercion in the monetary-law sense; it appears in Choshen Mishpat. That is coercion of Choshen Mishpat; it means going down to the property. Because otherwise there would be no need to say it. Anything you are obligated to do and do not do, the court compels you. Meaning, the court compels regarding commandments. You understand? So it may be that this really does solve that paradox. Okay.