Jewish Law and Jurisprudence – Lecture 5

[Rabbi Michael Abraham] We talked about the metaphysics underlying halakhic law, where the basic claim was that legal status is a derivative of some metaphysical condition. When I own something, or when I betroth a woman or divorce a woman, then I am, כביכול—so to speak—creating some different state in reality, in meta-legal, metaphysical reality, and the halakhot connected to that state are derived from it. And we saw various implications of this, like the possibility of being in the status of both a divorced woman and a married woman at the same time, or ownership that appears without any rights at all, as we saw in the case of a slave whose bill of emancipation is being withheld, and so on. In this article I wrote on this issue of what legal effect is, I said that at the base of legal insights or legal conceptions there lies some kind of act that at least looks very much like observation. Meaning, in order to know what the legal status is, what the legal norms are in a given situation, we do not determine them. We observe reality, look at what is happening there, and the results are basically the legal norms. This is unlike the accepted conceptions in ordinary legal systems, where what people usually understand is that legal norms are determined by the community. Meaning, there is some agreement of the community, and that is what determines the legal rules or laws relevant to that situation. What I want to do today is show this in practice. To try to go one step further and show that indeed the mode of thought and mode of reasoning in the context of halakhic law looks different from that in the context of general law. And I will argue that the basis of that difference is really the picture I have described up to now, the fact that there is some kind of reality here to which we are committed. These things are not handed over to us to formulate or shape as we please. Sometimes we come to a situation where we issue a halakhic ruling that is clearly, to us, unjust, or not the right thing, it is not just.

[Speaker C] Lost property after the owner has despaired, for example.

[Rabbi Michael Abraham] And nevertheless we do it, because that is the fact. I also would not want fire to burn an innocent person who happened to fall into it, but it is obvious to me that that does not matter; meaning, he will burn if he is in the fire. Why? Because that is the nature of fire—it burns. In the legal context, my claim is that it is very similar. Meaning, you are defined as the owner simply because that is the fact. Not because it is right, or just, or because that is what we decided, or however else you want to put it. Rather simply because you are the owner, because that is the fact. It is a fact that does not depend on us; we are basically subordinate to this reality. This is a worldview.

[Speaker D] What?

[Rabbi Michael Abraham] A worldview. In some places he expresses himself that way, yes. There are places where it is clear that he grasps it explicitly, but it comes up in many places in his statements. I’m going to do this through two topics. One topic is the laws of returning lost property, and the second topic is copyright. In both of these cases we are basically dealing—at least in part—with proprietary aspects, meaning property law. And in both of these contexts we can see very clearly, I think, that halakhic decisors are standing before a reality that they clearly would not want, but it is equally clear to them that this is the reality. Meaning, there is nothing to do, as if reality is imposed on them even though it is not the situation they would want to happen. I’ll start with returning lost property. With returning lost property. The claim—the case that made the penny drop for me was a very well-known Supreme Court ruling called Handels, and it is usually brought up in legal contexts in connection with the Foundations of Law Act. There it was established in the law that when there is some gap, or you cannot find a legal answer in our legal system or by analogy, doesn’t matter, then one turns to the principles of justice and fairness of the heritage of Israel, something like that, with some other word in the middle, not important; the whole thing has no meaning. The religious people of course say that means Jewish law, the secular people say these are amorphous principles of justice and fairness that basically emptied the law of all content. The prophets. Never mind, let it be the prophets. The morality of the prophets, which says, “Happy is he who seizes your infants and dashes them against the rock,” or other lofty moral principles of that sort.

[Speaker E] In any case, that’s because it’s in the Writings.

[Rabbi Michael Abraham] Ah, you’re saying the Writings aren’t moral, only the Prophets are moral. I understand. Well, in any case, I don’t intend to deal here with the Foundations of Law Act; I’m just saying that this ruling is usually discussed quite a bit around that issue, around the debate over what exactly “the principles of justice and fairness and law” or whatever phrase you want means. Meaning, is this Jewish law, or is it something more amorphous, abstract, that says nothing? In short, those are the two options. I think when we talked about morality, I said—I can’t resist saying one more word about it, even though I said I wouldn’t—when we talked about morality I said there is no such thing as Jewish morality. There is Jewish law. Jewish law obligates Jews and not gentiles. But morality—if something is moral, then it obligates all human beings, and if it is not moral, then it obligates no one. There is no such creature as Jewish morality; it is simply an oxymoron, in my humble opinion. Therefore, as long as you do not manage…

[Speaker E] A Jewish conception of morality, maybe—that’s what you meant, a more precise formulation, some Jewish conception of morality. Yes, but the Jewish conception of morality—

[Rabbi Michael Abraham] —is simply what you think. If your mother is Jewish, then your conception is a Jewish conception of morality.

[Speaker E] No, there’s no—

[Rabbi Michael Abraham] It has no meaning in that sense. Because there is no traditional conception and so on. Obviously, people do what seems moral to them. Afterwards they write it in a book in Rashi script and bind it in a brown cover with gold letters and it becomes a Jewish conception. But all it really is is the moral conception of the Rashba, or of Maimonides, or of whoever, of Yosef Karo. And in that sense there is nothing Jewish there except the mother of the person who wrote the book. And therefore, since that is so, this is really my claim: there are no more than these two possibilities for interpreting the Foundations of Law Act. Meaning, either you are talking about Jewish law or you are talking about nothing. Because principles of justice and fairness—that is obvious. Meaning, wherever there is no clear legal determination, turn to principles of justice and fairness. Sounds reasonable. But what does that have to do with the heritage of Israel or things of that sort?

[Speaker C] You can’t rely on legal precedents from the Council of the Four Lands and all that?

[Rabbi Michael Abraham] You can rely on them, but I don’t think that reliance stems from this definition.

[Speaker C] The heritage of Israel—the legal heritage of the Jewish people.

[Rabbi Michael Abraham] Yes, but principles of justice and fairness are not legal heritage. The heritage of justice and fairness—I don’t know who represents justice and fairness. Whatever seems to you to be justice and fairness, that is justice and fairness. And if it is not upright, then why do I care if it is written in a hundred books?

[Speaker E] There is a verse in the Bible that says, “And you shall do what is right and good.”

[Rabbi Michael Abraham] “And you shall do what is right and good”—do the moral thing.

[Speaker E] According to whom? According to what principles?

[Rabbi Michael Abraham] According to the principles by which you understand what is right and good.

[Speaker E] Each person according to his own way?

[Rabbi Michael Abraham] Of course. You tell me—what do you think the verse means? It says nothing. “And you shall do what is right and good.” Okay, I want to do what is right and good. Where do I read what is right and good?

[Speaker E] And why are people punished when they do not do what is right and good?

[Rabbi Michael Abraham] Because you are not behaving morally.

[Speaker E] According to what morality?

[Rabbi Michael Abraham] Morality as such. There is no special morality. There is one morality. Meaning, what obligates—I’m not saying all people agree on what morality says; there are disagreements in the field of morality. And that has nothing to do with Jew or non-Jew. There are disagreements because one can see arguments this way and that way in a given moral issue. But it has nothing to do with Jew or non-Jew. What seems moral to you—that is what you are obligated to do. The Torah expects you to do moral things, but that expectation applies to all human beings, not just Jews. By the way, that is also why it is not a counted commandment, of course. “And you shall do what is right and good” is not a counted commandment. Why is it not a counted commandment?

[Speaker E] As it appears from Nachmanides, that the intention is to see from the commandments—to infer from the commandments what their underlying direction is.

[Rabbi Michael Abraham] When you infer from the commandments what their direction is, you will always infer whatever seems right to you. I already spoke once about this too, in connection with what people learn in Bible study and things of that sort. Okay, but let’s say I see a certain contradiction here. If it contradicts morality, believe me, no one will do it—if in my eyes it contradicts morality, no one is going to do, because of that verse, what seems immoral to him just because that is how he understands the spirit of the commandment. He will just do it, I don’t know, in cases involving children and infants and all that… The halakhic commandment—that has nothing to do with morality. The commandment to kill Amalek is not connected to morality. It is not moral, but it is a halakhic obligation; that is unrelated to this. It does not mean it is moral. There are things—

[Speaker E] —that are halakhic and can be immoral.

[Rabbi Michael Abraham] Right. Also non-moral and even anti-moral, yes. We talked about this when we discussed morality, and I went into it at length there.

[Speaker E] There is a conflict—

[Rabbi Michael Abraham] Meaning, the claim is that there are religious aspects of reality and moral aspects of reality, and they do not always coincide. Sometimes there is a clash. That does not mean the Torah does not care about morality; it only means that the category of morality is not identical with the category of Jewish law. And therefore sometimes Jewish law will tell you to do X, but that X is not moral. Fine—then you are in a dilemma about what to do now: should you go with morality or go with Jewish law? And by the way, the answer is not always to go with Jewish law. There is such a thing as a transgression for the sake of Heaven; there are all kinds of places where morality actually overrides. I talked about that then and even brought examples from halakhic decisors. Meaning, there are situations where it is possible—

[Speaker B] —to go with Jewish law and not with morality? With Jewish law and not with morality?

[Rabbi Michael Abraham] Of course there are. The novelty is that one can say the opposite too—that sometimes one goes with morality even though it is against Jewish law. Okay, so that is just a parenthetical note on the Foundations of Law Act. The claim is basically—where does this come up? There was the story of Handels, who found—what?—a lost item in a bank.

[Speaker E] Yes, he found—

[Rabbi Michael Abraham] —on the floor of Kupat Am Bank, he found a bundle of securities. And he went to the clerks, or whoever was there at the bank, and said to them: listen, I found securities here; maybe someone who lost them will come and look for them, so here, keep them with you and know that if someone comes to claim them, he should receive them. Four months passed. The law says that after four months the lost item belongs to the finder, so the bank took the securities, and Handels sued them. He said: I am the finder. After four months, if we did not find the loser, then I am the one who should get the securities. Then a discussion arose over who the finder was, meaning who gets the securities. They both argued over the right to take part in the great commandment of returning lost property and be considered the finder. No, actually I think Handels behaved properly—he left it with the bank so it could be returned… Yes, I don’t know. In any case, it is not so simple, because under the law, if you did not do what you were supposed to do, or what was reasonable to do, then you do not get the item after four months. Meaning, if it is not reasonable to take it with you, because you know that the finder—sorry, the loser—when he comes back in a month, will never remember that it is with you and not in the bank, then you did not actually fulfill your duty. And someone who did not fulfill his duty also does not get it after four months. In short, I don’t know, maybe he really was righteous too; I don’t want to slander him. By the way, some judge—some district court judge in Haifa—I met him at some conference, and he told me there is some detail people do not know about the Handels case. Wait, what was it? I don’t remember exactly; I was with Finkelstein, I need to ask him. Now I suddenly remember—it was actually a juicy detail. That he was the loser. He was caught—he was the loser. He was trying to launder money, I think. He was trying to launder money, so he sort of “found” the bundle of securities—you don’t know this story? He told me it is verified, meaning that is the fact. It became clear afterwards, yes. That he was the loser and he was trying to—ah, now I remember exactly—we were discussing whether Handels was righteous or not, so…

[Speaker C] Okay, anyway, what was the bank’s initial reasoning that they were the finders?

[Rabbi Michael Abraham] So the bank says: it was in the bank—what do you mean? It was with us, on property that belongs to us—

[Speaker C] Like a person’s courtyard acquires for him?

[Rabbi Michael Abraham] acquires it for himself, say, or something like that. Again, I don’t know exactly what terminology they used, but their claim was that they were the finders. Not only that, even beyond the issue of the premises: after all, it was with us for four months, and we took care of the lost item and waited for the loser to come. Whoever takes care of a lost item is the finder—that is, not just the person whose eyes happened to fall on that bundle of papers. I assume maybe that was more their line of reasoning. In any case, some discussion arose, and it turns out there’s probably no simple answer to this in the usual legal sources—in the statute, in precedents, whatever. There wasn’t a simple answer; it looked like a lacuna. So Menachem Elon, of course, said—this was in the framework of, if you remember, the Foundations of Law Act; I mentioned this once—regarding the supermarkets law, I brought this up once, that in the ruling of—what was the previous Chief Justice’s name? Beinisch. In that ruling she opens by saying that this has nothing at all to do with religious and secular people. Naor? Naor’s ruling. So at the beginning of the ruling she writes there that it has absolutely nothing to do with the religious-secular divide, in the context of supermarkets on the Sabbath, and she writes a reasoned opinion explaining why, in her view, they can’t be shut down, and so on—where of course there were five judges: the two religious ones were in favor of closing, and the three secular ones were against. But in the very first sentence of that ruling—which is just unbelievable—she writes that this is not at all a matter of religious and secular people, that it doesn’t depend on worldview at all, and that it is simply a pure legal question. Okay.

In any case, there was some chance—it wasn’t zero, one in thirty-two I think, if I’m not mistaken. Actually, not sure. Fine. So they had to resort to the Foundations of Law Act because there was a lacuna. So Menachem Elon said: fine, then we have Jewish law. Jewish law says that if you find something by a money-changer—there’s a Mishnah in Bava Metzia—that if one found a lost item by a money-changer, it depends where it was. If it was from the table outward—the money-changer sits behind a table and the customers come from the other side—so if you find something on the other side of the table, that’s like the public domain: the finder is the person who saw it, even though the ground or the space belongs to the money-changer. But if it’s behind the table, toward the money-changer, then he is considered the finder; that is, then it’s his. So Menachem Elon says: fine, same thing here. Here it’s in Bank Kupat Am, but it’s in a place where everyone walks around; it’s like outside the money-changer’s table. And therefore the finder is Endelson. That was the claim, and since there’s a lacuna, one must turn to the principles of Jewish law, according to Menachem Elon’s interpretation there.

And the majority judges argued against this—of course, it had nothing to do with religious and secular people at all—but the majority judges, who happened in this case to be secular, argued against it and said various things. They said, first, that there is no lacuna. Second, because it can be completed by analogy. After all, you have to decide that it can’t be completed by analogy in order for this to be a lacuna. Now, deciding that something cannot be completed by analogy is an intellectual joke. So either there is no lacuna, or the claim is that the lacuna was actually—this is an interesting claim—the lacuna was in what, under the Foundations of Law Act, is the expression that really required interpretation. It says as follows. Maybe I’ll read you a few selected sections from the Lost Property Act—not the Foundations of Law Act, the Lost Property Act.

“A person who finds lost property and takes it”—hereinafter: “the finder”—“must return it to its owner or notify the police of it as soon as possible, unless under the circumstances it may be assumed that the owner of the lost property has despaired of it because of its low value. If the finder notifies the police, he may deliver the lost property to them, and he must do so if they demand it of him.” Section 3: “A person who finds lost property on the premises of another person”—which is really our issue—“must notify the owner of the premises and deliver it to him upon demand”—to the owner of the premises, not to the loser. “If the owner of the premises takes possession of the lost property, he shall be regarded as the finder. If the finder has fulfilled the provisions of Section 2”—notified the police, did what was required, whatever—“and the owner of the lost property has not been discovered within four months, he shall be regarded as though he had despaired of it, and the finder shall become the owner of the lost property.” The finder acquires the lost item. “The said period shall begin on the day he notified the police of the lost property,” and so on. And what matters is that it belongs to the owner of the premises.

Okay. Now the question is: who is called “the owner of the premises”? What lacuna? Wait—the claim is: who is called “the owner of the premises”? Does “owner of the premises” mean the property owner in property law? Or not? So there were all kinds of debates about this. And by the way, even the majority judges did not take it as self-evident that “owner of the premises” means the one who owns the ground where it was lying. Because “on the premises of another person”—“on his premises”—also raises the question whether this means within another person’s legal possession. “His premises” is a vaguer concept. In Jewish law too, by the way: “If one stole and the owners had not despaired, neither can consecrate it”—“this one because it is not his, and that one because it is not in his possession.” Meaning, “in his possession,” specifically in the halakhic context, comes to exclude ownership. The actual owner cannot consecrate it because it is not in his possession, even though it is his.

In any case, there was some dispute among the judges, and the claim was that it really isn’t clear: this term—who counts as “the owner of the premises”—is unclear. On that there was agreement. You can’t derive a clear result from our legal source system as to who is called the owner of the premises. But the claim was that what Elon did did not actually fill the lacuna at all. He did not fill the lacuna because the lacuna was in the interpretation of a concept: who is called “the owner of the premises.” But in Jewish law, when he says that the one who acquires the lost item when it is found outside the money-changer’s table—Jewish law did not need the question of who is called “the owner of the premises.” Jewish law determines the property rule, who it belongs to. We’re not talking here about property law; there’s a lacuna here in understanding a concept. That concept does not appear in Jewish law. So you can’t just take an interpretation from Jewish law. By the way, even if it did appear in Jewish law, it isn’t clear that you could really draw an interpretation of a concept from there. Interpreting a concept is context-dependent. It could be that in Jewish law it is interpreted one way and in the legal system another way.

My own logic tells me that filling lacunae is about legal norms, not about the meaning of words or concepts. But never mind—even if it were, there is no source in Jewish law showing you that “owner of the premises” means Endelson. It doesn’t say that there. What it says is that in such a situation Endelson is considered the finder. That’s true. That is written in Jewish law. But that is a normative determination, not a conceptual one. It is not that he is considered the owner of the premises. And in the context of the statute, there is no normative lacuna. The norms are completely clear. We know: it belongs to the owner of the premises. The statute states unambiguously what happens; the only question is who the owner of the premises is. So you have a question of conceptual interpretation. And that interpretation you cannot fill from Jewish law. In Jewish law, the concept of “premises” does not even appear in the context of returning lost property. Not at all. It’s simply not the term used. In a moment I’ll also explain why.

So I think there are strong arguments in favor of the majority judges. In my opinion, Elon was mistaken there. In any event, discussion of the Endelson ruling is usually conducted around the Foundations of Law Act—that is, what exactly is the Foundations of Law Act, why does it obligate recourse to Jewish law, to moral principles, where is there a lacuna, where is there no lacuna. What interested me was something else. In the end, the majority judges brought support from various other legal systems—European, American—and they showed from there that in those legal systems, essentially, it should be given to the bank, which is the owner of the premises. Yes, or that it is the owner of the premises. I don’t even know whether they were completing a concept here or making a legal analogy, but they argued that it should be given to the bank for various reasons that I’ll explain later. And therefore they said that here the bank is the finder, not Endelson.

Now, in this context, what interests me is not so much the Foundations of Law Act, but rather why Jewish law actually stands in opposition to the other legal systems. Why is it that in the laws of returning lost property, in a situation like this, Jewish law says that Endelson is the one who acquires it, the finder, while the regular legal systems say it is the bank? What is different in Jewish law? Why did it arrive at that conclusion? And this is not a question in legal theory; it’s a question in comparative law, right? How is it that the halakhic legal system reaches a different result from all the other legal systems? At least all those they cited there—I didn’t check every system, but everything they cited points in one direction. And my feeling was that this reflects some fundamental difference in legal thinking between Jewish law and ordinary legal systems, one that has nothing to do with the Foundations of Law Act.

The claim, basically, is the following. The majority judges are essentially saying this. By the way, there were two rounds in the Supreme Court over this matter. The claim of some of them—again, there were different rationales here—but some, I think most of them, wrote that the purpose for which the legislator gives the lost item to the finder is to encourage him to do his duty, to do everything he needs to do to return it, to ensure optimal return to the loser. That’s why, in the end, they give him the lost item—not because they’re just handing him something that is his. Why give it to him? So the claim is that this is part of the effort to motivate him to do what he is required to do under the law in order to find the loser, to optimize the chances of return. Therefore, giving the lost item to the finder is essentially subordinated to the purposes of the Lost Property Act. The purpose of the Lost Property Act is to ensure, or increase the chance of, returning the lost item to the loser.

Because if you find the lost item in a bank, then it’s obvious that if Endelson had taken the lost item home with him, there would be no chance at all that it would return to the loser. The loser doesn’t know who Endelson is. After a month he would come to the bank, no one would know that a month earlier Endelson found some securities here and took them home. In this specific case? No, no, I’m talking about the case. What is the whole point of giving the lost item to the finder? Yes, to motivate him—for what? He gets it only if he did what he was required to do by law to find the loser. If he didn’t do what he was required to do, if he didn’t notify the police or didn’t hand it over—the condition is that he acted as the law requires. That’s what motivates him. Obviously. I’m saying: I’m giving you a stick and a carrot. If you do what the law requires, after four months you’ll get the lost item if the owner doesn’t come. If you don’t do it, you won’t get it, even if he doesn’t come. So you increase the chance that the person will do what is required.

Now, the claim is that if that is indeed so, then in Endelson’s case it is obvious that leaving the lost item in the bank increases the chances of return. Right? When Endelson found the bundle of securities, there were two possibilities: take it home with him and be the finder himself, right? I’m talking about the day it was found. He would go to the police and tell them he found a bundle of securities or something like that, and keep it at home for four months. Okay? Or leave it with the police—it doesn’t matter, fine, depending on whether they require it; that depends on the police. Or leave it in the bank. What makes more sense in terms of the chances of return to the loser? Obviously leaving it in the bank. The loser doesn’t know who Endelson is; he never heard of him until it became known that he himself was the loser. But when they thought there was some other loser, he doesn’t know who Endelson is. He doesn’t know him. At most he’ll remember that he lost it in the bank. So what step will he take? He’ll go back to the bank and say, “Folks, did you find securities here? I lost securities here—maybe you found them?” The place he’ll go is the bank. Therefore, if we want to optimize the chances of return, it’s obviously more sensible to leave the securities there in the bank. Right? So if that’s the case—and that’s what Endelson did—then, if so, the bank is the finder. It is the one that needs to hold the papers and the one that needs to do what the law requires in order to return them to their owner. And therefore, after four months, if the loser is not found, it belongs to the bank.

Why not? Because you want to motivate Endelson. What difference does it make now whom to give it to? You need to motivate Endelson to pick up the lost item and bring it either to the police or to the bank, whatever. Why does it make a difference? I want him to give it to the bank. The police is also a body you can leave it with, but no one goes to the police over a bundle of securities lost at Kupat Am. He goes to the bank. Fine, but he is the one who brought it to the bank—motivate him, give him the find afterward. What? Why would he go bring it to the bank at all if he knows he won’t get it? The law obligates him to give it to the bank under this interpretation. But that doesn’t motivate him. The law doesn’t motivate. The law wants the lost item to return to its owner. Fine, what needs to be done for that? To motivate Endelson to pick it up and take it to where it should go. And then the bank will put it in the basement and do nothing with it. Why? What interest does the bank have? What interest does the bank have? It won’t get the lost item in the end. After all, if the assumption is that someone who doesn’t get it won’t do what he needs to do, then the bank won’t do what it needs to do. That’s the assumption of the law, isn’t it? Why give the lost item to the finder? Because the assumption is that if you don’t give it to him, maybe he won’t do what is required. So the bank won’t do what is required. That’s how they argued. Maybe. Could be. Fine. But that’s what they argued. They argued that the bank also did the job, so to speak—it held it for four months, whatever—that was the claim. And therefore they said: fine, if the bank was the one that had to take the steps to find the loser, then it is the finder, and therefore the papers should be given to it. So essentially their claim is that the bank is considered the finder.

Now in the context of Jewish law, this is of course irrelevant. Why is it irrelevant? Because how does Jewish law determine who acquired the find? This is not purposive thinking at all. That’s the demonstration I want to make. It’s not purposive thinking at all. I do not decide that this lost item belongs to you in order to achieve some goal like optimizing the chances of return. It is yours because it is yours. That’s the fact. It has nothing at all to do with the question of what I achieve through this. The thinking is not purposive at all. The question is: what is the fact? To whom does it belong? And it belongs to Endelson. Why? Because this is public domain, and the person despaired, and if the person despaired and I picked it up and it isn’t the bank’s premises if everyone walks around there and it’s like outside the money-changer’s table, then I acquired it. That’s all. It’s mine.

In sharper terms, the claim is that in the area of returning lost property there are really two aspects, both in the legal context and in the halakhic context. One aspect is, of course, returning the lost property to the loser; that is ostensibly the basic goal. The second aspect is property law. Property law asks when and whether the lost item belongs to the finder, the loser, yes—to whom it belongs, who the owner is. In the legal world, property law is subordinate to the law of returning lost property, to the interest in returning lost property. The interest in returning lost property dictates the property rules. We shape the property rules in order to achieve optimally the goal of returning the lost item to the loser. In the halakhic world, it works the other way around. Literally the opposite—not merely different, but the opposite. Property law begins the story. First of all I have to know whose lost item this is. Once I know that the lost item belongs to the loser, now the finder must do what he needs to do in order to return it to the loser. But if this lost item belongs to the finder, then he doesn’t have to do anything; he simply takes it home and that’s it. Even if the loser is standing right here saying, “Hey, hey, it’s mine, I have identifying marks, witnesses, whatever you want.” I tell him: be well. I take the lost item. You despaired, or for whatever reason—the lost item is mine. So I’m not interested in the fact that you’re the owner—not because I’m arguing with you. I know you’re the loser. So what? You were the owner; now I’m the owner.

And in the statute too, doesn’t the law give the object to the finder after despair? In Jewish law, if the object… If he despaired—despair after I picked it up doesn’t help. No, it’s more than that. In the statute they regard him as though he despaired; despair itself is not what determines it. The word “despair,” by the way, is in my opinion borrowed here from Jewish law. The word “despair” is borrowed from Jewish law, but it is used here as a fiction. The claim is basically that after four months—as the majority judges explicitly say—why do I give it to him after four months? Because the other person despaired? Obviously not. He is regarded as though he despaired. But why do we really do it? Not because he despaired, but because that improves the chances of returning the lost item. Therefore he is regarded as though he despaired; that is, the despair is derivative. You first decide that you want to give it to the finder, and then you organize the property rules so that they serve the chances of return. In Jewish law it is exactly the opposite. You begin with property law. If this lost item belongs to the loser, then nothing will help the finder—not four months, not forty years, not four thousand years. It remains set aside until Elijah comes. If you picked it up before despair, nothing will help you. Why? Because he had not despaired at the moment you picked it up, and you became obligated to return it. But if he had already despaired when you came and picked it up, then it is yours. Say, for example, in the “swept away by the sea” case: an object fell into rough sea waters where it can’t be rescued. Let’s say some especially bold person jumped in and rescued it from the sea, okay? The owner is standing there, he saw it fall from his possession, the owner is standing there on the shore. He dives into the water, takes it out, and goes home happy and cheerful. The loser says to him: “Wait, hey, what is this? Didn’t you see it fell from me? It’s mine.” He says: “Yes, of course I saw. Goodbye, and thank you.” And he goes home. Why? But the loser is right there—what do you mean? Fine—so what? You despaired. It was obvious you couldn’t retrieve it from the sea, so you despaired the moment it fell there. Later, when you saw that I saved it, you suddenly decided to exploit the opportunity? Too late. It’s mine.

But sometimes the Sages, for example, exempted someone returning a lost item from taking an oath. Meaning, that was a purposive consideration: they said… Rabbinically. On the rabbinic plane there are always purposive considerations, no question. I’ll get to that. Can they override Torah-level considerations? Rabbinically, obviously. “You shall do what is right and good,” “we compel against the trait of Sodom”—in many places a moral consideration or a purposive consideration overrides the halakhah, but that requires an enactment by the Sages. I’m asking how the Torah-level law itself is structured. But according to Rashi, one who returns a lost item is exempt from an oath by Torah law, not rabbinically. There is some deviation there. Maybe the difference really lies in the fact that in Jewish law, when it comes to returning a lost item, you don’t need, unlike the regular legal system, to build the law so as to lead there, because in returning a lost item you are already in a relationship both between yourself and God—between you and your God—since you have the commandment to return lost property. So you don’t need to direct things in order to encourage you to return it, because once it’s yours, we now rely on sanctions in the World to Come or, I don’t know, fear of Heaven or whatever it may be.

That I agree with. Meaning, clearly there is a background within which Jewish law operates, and the background within which the legal system operates is completely different. I think I once mentioned in this context—I also once wrote an article about adopting halakhic norms into the legal system. Attempts to insert halakhot into the Israeli statute book. “Do not stand idly by your neighbor’s blood,” or there are all kinds of struggles where really it wasn’t the blood of your neighbor and not “do not stand idly by” that interested them. What interested them was having one more verse in the statute book. Like Hanan Porat’s law. And those who opposed it, opposed it precisely because of that too—not because they really… But what I said there in the article was that I see no point at all in trying to insert such things into the statute book, for various reasons. And I said that in many cases, even if you take the most neutral things, the least dependent on a religious worldview, and you insert them into the statute book, you have reversed the halakhic logic. By the very fact that you inserted them into the statute book.

An example is the law “Do not stand idly by your neighbor’s blood.” Hanan Porat fought to get that into the statute book—the Good Samaritan law, as it is called in Christian systems, whatever—that if you see someone in distress, then you have to help him, okay? You are obligated to help. Morally, of course, everyone agrees with that. There was no argument. The question was whether to put it into law, and whether there should even be sanctions if you didn’t do it. So there is a non-simple question here. Hanan Porat fought over this, as though the only problem had been that people don’t help one another on the street. Suddenly he inserted a verse into the statute book, and that’s why everyone danced when the law passed. Not because now two more people would be saved because someone passing by would rescue them, but because redemption had been brought into the world.

But what happened when they put it into the statute book? In the halakhic world there is a prohibition: “Do not stand idly by your neighbor’s blood.” If I violate that prohibition, I am not punished for it, because it is a prohibition with no action. It is a prohibition with no action. It is a prohibition of omission, right? I do not jump into the river, or I fail to act, so you are not punished, right? Now, what was the situation before they put it into the statute book? Everyone expected you morally to do it, but there was no punishment because it wasn’t in the statute book. Exactly what Jewish law says, right? Now they inserted it into the statute book—what happened? Now there is punishment. Which is exactly against Jewish law. Meaning, many times—“derive from it and preserve it in its place.” You take an element from one place and plant it in another soil—you need to know that when you plant it in different soil, all sorts of things can happen.

By the way, one of Aharon Barak’s arguments against the claim that one should complete lacunae from Jewish law in the Foundations of Law Act—an argument I think is correct—is that Jewish law works with different forms of reasoning. You can’t take some specific norm from Jewish law and plant it in the middle of the legal system; who knows, there may be all kinds of consequences you didn’t think of, because it won’t be consistent. Meaning, it doesn’t fit. There are often implications you don’t think about—things are interconnected, and Jewish law was somehow built in such a way that it has assumptions and other elements that cover those assumptions if problems arise. The law was not organized according to those modes of thought, and this will simply be a foreign implant there. It won’t fit. It will create inconsistency within the legal system. In my view, a strong argument.

In any case, an example I brought there was, say, the laws of bailees. The most banal, vegetarian thing possible, right? Not connected to worldviews, not connected to anything—the laws of bailees. You want contract law. If nothing was stipulated between the bailee and the depositor, then take the halakhic default, because in Jewish law too, if you do stipulate, you can make conditions. No problem. Meaning, the bailee laws we always study are only the default if you made no stipulation. The Mishnah in Bava Metzia says: an unpaid bailee may stipulate to be like a paid bailee. Meaning, there is no problem stipulating. But Jewish law sets the default. So set the default of bailee law in the statute too. If you didn’t stipulate anything, what’s the problem? The most naive thing possible, the simplest, right? But that is not correct. Why is it not correct? Let’s say we establish the halakhic system as the default in the world of statute law. Fine? Then an unpaid bailee would be exempt for theft and loss, but he would have to swear that he did not misappropriate it. So what now—the secular judge will administer an oath to the Gentile bailee that he did not misappropriate it? Or the atheist bailee, or whatever kind of bailee, that he did not misappropriate it? The oath is part of the system. Meaning, it’s exactly connected to what you said earlier. A person is afraid to swear falsely because he stands before the Holy One, blessed be He. So that is part of the whole thing. I allow him to be exempt for theft and loss because I know that if he says it was stolen or lost, then it probably really was stolen or lost and he didn’t take it. Because otherwise he is risking a false oath, which is very severe, and they frighten him with all the candles and all those things. An oath is severe—like holding a sacred object. But in the legal world, you may adopt the laws of bailees, but you don’t have the backing of the oath, so it will be partial, and then it distorts everything. Because without the oath, who says it was stolen or lost at all? Then the burden of proof should really be on you. In Jewish law the burden of proof is not on him. He swears, and that’s it.

What would a religious court do if an atheist came before it? He can’t swear. So either it would administer the oath to the other side or I don’t know what it would do. Will the rule of “since he cannot swear, he must pay” exist? No, but again—how will he swear? Before whom are you swearing? Will they also do all the frightening candle business of an oath there in court? After all, even a religious court wouldn’t administer it that way nowadays. I mean a God-fearing person—what will a civil court do with him? Make him swear with candles and festivities? Indian dances around a bonfire? What will they do with him there? It’s a foreign implant in a secular legal system. These are examples showing that even the simplest, most banal things—what’s the problem in transferring them from here to there? It doesn’t depend on worldviews, it doesn’t depend on anything—so why not draw from the rich wellspring, with all the usual pathos of all these people: our Jewish law, our heritage, and all that nonsense? You can’t draw from it. There is no such thing. It’s a different system, and the two don’t converse. All these mixtures are completely unnecessary—unnecessary and harmful.

There is another example in this regard. When you come to legal theory and ask what is more severe, theft or robbery, it is perfectly clear that robbery is more severe. Robbery is face to face, it is brazenly… Here it’s the reverse. Because in theft he supposedly regarded it as if… he feared human beings and not the Holy One, blessed be He. God doesn’t play a role there? He plays a serious role. Obviously He is always in the background in many things. In Jewish law, you don’t punish a robber. Right? There is no punishment for a robber, only “he shall restore the stolen object that he stole.” And to run a legal system that way is legal suicide. Meaning, it’s a gamble with only upside. If they catch you, at most they catch you, then you give it back—so what happened? You returned to the same situation you were in before. If they don’t catch you, you profit. The purpose of punishment is to make the expected value negative. So if, say, the chance of being caught is fifty percent and you pay tenfold, then the expected value is negative. Therefore you won’t take that gamble in the first place. That’s at least the basic idea. Where you make it a gamble with only upside, a madman is anyone who runs a legal system that way.

And robbery is where he does it openly in the marketplace in front of everyone? Because robbery is taking it publicly, and if he does it in private it’s theft, no? So what? I don’t understand. Then surely they caught him—everyone saw him. Everyone saw him—but what if the people who saw him are disqualified as witnesses? Or he fled abroad, I don’t know exactly. All kinds of things can happen. The point is that you can’t build a legal system without punishing robbers. So why does it work this way in Jewish law? First of all, in Jewish law too, if there were a phenomenon of rampant robbery, they would punish extralegally—they would supplement the matter. But fundamentally there is the punishment of the Holy One, blessed be He. That is, if you are caught, then first of all you lose your fitness to judge and to testify; you are considered wicked. There is a big difference in Jewish law regarding the robber because he fears neither man nor God. Theft is considered lower. No, I understand—that’s initially. But in the end, even if you aren’t punished and all that happens is that you return the stolen object, still, if they catch you, you are called wicked. In a religious world, being wicked is different than saying, “well, he’s a criminal” or something. He loses fitness for various things; he loses fitness to swear. It is not simple to lose fitness to swear. If someone sues you, the oath is reversed and he swears and collects. Meaning, in Jewish law you take risks. None of this exists in statute law. If they adopted the laws of robbery into the statute book, it would be pure suicide. You can’t run things that way. That’s why I say: the mindset is a different mindset.

Now in this context, what we see here is exactly that—not only a different mindset, but an opposite one. In the legal context, the goal is to return the lost item to the loser. Property law is subordinate to the basic goal of the statute. In the halakhic context, it works the opposite way. There is property law: if from the standpoint of property law the lost item belongs to the loser, then there is an obligation to return it to him. But if from the standpoint of property law the lost item belongs to me, then there is no obligation to return it to him. And indeed, in Jewish law what determines it is despair. Despair is the most basic concept in Jewish law. That is, despair… whether it’s mine or not yours. Despair makes things easier, as our rabbis say. So if he despaired, then it isn’t his; if he didn’t despair, then it is his. In the statute they regard him as though he despaired. Despair is a fictive expression. I play with it only in order to organize things in a way that serves the purposes of the statute. It’s a completely different mindset.

Indeed, Barak in his opinion—I brought a passage here—says as follows: “An examination of the policy of the Lost Property Act leads to the conclusion that the decision as to who should be granted ownership of the lost property—the original finder or the owner of the place where the lost property was found—should not be made solely according to the degree of justice involved in granting ownership to one or the other. According to such standards, it is possible that in every case ownership should be granted to the finder, who in his fairness took the trouble to pick up the lost property, notify the owner of the place, and deliver it to him. But this was not the legislature’s approach.” “This was not the legislature’s approach”—I don’t know where he got that from. He decided it, because the legislature said nothing, after all that was the whole discussion. But he decided that this was not the legislature’s approach. Who? Barak. He is the interpreter. Yes. So he says: “This was not the legislature’s approach”—after, of course, you institutionalize my interpretation of the legislature’s words. The legislature is whoever I see in the mirror.

“Moreover, justice may require dividing ownership between the two. He did something and he did something. There will certainly be cases where justice requires granting ownership to neither. Indeed, the legislature itself foresaw this possibility when it provided that the Minister of Police, in consultation with the Minister of Justice, may prescribe by regulations that with respect to high-value lost property, or lost property reasonably assumed to have special sentimental value to its owners, and other special classes of lost property, the provisions of this section shall not apply, or shall apply with an extension of the periods stated in it beyond four months.” Never mind—there is some degree of flexibility. Now note the key sentence: “It follows that the decision on the issue of ownership is but a means of realizing the main purpose of the law, namely, returning the lost property to its owner.” That is the key sentence. In other words, property law is subordinated to the purpose of the statute, which is returning the lost property. In Jewish law it is simply exactly the opposite. Property law is a fact; it is imposed on us. It may not be just, all true, but it is a fact imposed on us; it is not in our hands. If he despaired, it isn’t his, it’s mine. If he didn’t despair, it is his and not mine. It doesn’t matter what justice says, what morality says, what logic says—none of that matters. It is a fact. If he despaired, yes; if he didn’t, no. How do we know? There are indications—there is an identifying mark, there isn’t one, who usually passes there. Fine, there are various indications of how we know that the loser despaired, because after all we don’t know who he is, so you need to develop indicators. But everything revolves around the question whether he despaired or not.

And therefore he says: “From this a further conclusion follows. It seems to me that in deciding whether a lost item was found on the premises of another person, there is no need to resort to the question whether that other person is regarded in law as already holding the lost item before it was discovered by the finder.” Like the bank—in the case of the bundle of papers lying on the floor of the bank, the bank had already found it before the finder arrived, because the premises had already acquired it for him. He is really alluding to the halakhic conception that one’s courtyard acquires for him. Meaning, in Jewish law, if someone lost something on my premises, then I really am the finder; my premises acquired it for me. So he says: “This approach—who was the first possessor—does not seem to us relevant for the principal purposes of the Lost Property Act.” Again, because the purpose is return—enhancing the chances of return—and not the question of who really acquired it according to property law. “Indeed, it seems to me that the legislature did not adopt the test of possession as the criterion for deciding whether a lost item was found on the premises of another person.” It is not the question of who is the possessor, as in Jewish law; that is not the point. “Premises” and “possession” are not identical. Whatever the laws of possession may be—the bank is in possession of this area of the bank—but “the premises of another person” is not “the possession of another person”; it is something else. “The premises of another person” for the purpose of the Lost Property Act will not be determined by that, but by the principal purpose of the statute: returning lost property to its owner. That’s it.

So I think that really states in concise form this difference. Now, this essentially means that from the standpoint of Jewish law—now of course Jewish law also wants the lost item returned to its owner; in a moment we’ll see that more clearly, and that’s completely obvious. So what? Fine. More than that: morality also says that even if the person despaired, you know it is his—it isn’t yours—so why are you taking it? Return it to him. So he despaired—so what? He despaired because he didn’t think it would be found; now it turns out it was found. Why not return it to him? The fact that he despaired in the interim destroys morality? It has no bearing on morality whatsoever. Why all this business about despair? Why is it relevant? The claim is that once he despaired, factually it is no longer his. That is a legal fact. It isn’t because of justice, not because of one purposive consideration or another. Once he despaired, the lost item is not his.

Now how do I know—returning to my opening comment—that this is not… some uniquely halakhic morality or Jewish morality different from ordinary morality, legal morality, or universal morality? Because the Sages themselves say that Jewish morality does not say this. The Talmud says: if most of the city’s inhabitants were Gentiles, if one found an item in a place in the city where most who are found there are Israelites, he must announce it, because the assumption is that Israelites return lost property and therefore the person does not despair. If he lost it in a place where the majority of passersby are Israelites, then he does not despair. But if he found it on a broad thoroughfare or plaza, in synagogues or study halls where Gentiles are always present—yes, righteous Gentiles who frequent study halls; the Talmud is amusing, as is well known, yes, Gentile study halls—and in any place where the multitudes are present, then the found item is his. Even if an Israelite then comes and gives identifying marks, for he despaired of it when it fell, because he says: a Gentile found it. So he despaired. If he comes to me now and gives signs—again, this is a lost item with clear identifying marks—but he lost it in a place where the majority are Gentiles. Now his luck turned out one way or another and a Jew passed by and found it, not a Gentile, so I took the lost item. Now he comes to me and gives identifying marks, okay? So the finder says to him: not interested, it’s mine. You despaired, because where there is a Gentile majority you did not expect it to be returned, so clearly you despaired. Now it’s obviously yours—I even agree that it was yours. You gave clear identifying marks, so it’s obvious it was yours. Doesn’t matter. You despaired. If you despaired, it’s mine.

Now the Talmud continues—or Maimonides continues; again, this is all from the Talmud: “Even though it is his, one who wishes to walk in the good and upright path and acts beyond the letter of the law returns the lost item to an Israelite when he gives its identifying marks.” What? But to announce it? It doesn’t say he has to announce. I assume that would also be a virtue. I don’t know to what extent one “has to,” because the word “has to” is doubtful here. You also don’t have to return it; it is desirable that you return it. And I assume that it is also desirable that you announce it, on some level. I don’t know how to define the scale of desirable things.

In any case, what do we see here? Morally too, the Sages say that after despair one should return it. Meaning, the halakhah is not moral. In other words, the moral rules say that even after despair one should return the lost item to its owner. So why does Jewish law say not to? Why leave this in the realm of morality while Jewish law says not to return it? Why? Let the halakhah be determined by what morality says, what justice says. What’s the problem? This is perhaps the sharpest formulation of the dichotomy I mentioned earlier, between Jewish law and morality as two categories. Morality is the question of what is appropriate, what ought to be—we think this way, what the outcomes are, purposive thinking, and so on. In the legal world there are factual questions. If it’s mine, it’s mine; if it’s not mine, it’s not mine. It has nothing at all to do with the question of what is proper and what is moral; that doesn’t interest us. These are facts imposed on me.

I’ll tell you more than that. What is the source for the idea that through despair a person loses the lost item? What is the source for despair? It is nowhere written in the Torah, as far as I know. There is no source. It is a reasoning of the Sages. Which is itself surprising—that despair terminates ownership? Yes. It’s surprising, because if I say this is not a moral principle but some other principle—metaphysical, legal, meta-legal—then how do the Sages know it if it isn’t written in the Torah? What we know from our own reason are moral rules, justice—that we can discuss on our own. But if you say this is not a moral principle, and morality actually says otherwise, then how do you know, without the Torah writing it, that it is nevertheless yours if he despaired? That despair strips the thing from its owner? That’s much stronger. Meaning, the claim is that this too is some sort of reasoning. It’s not a biblical decree where the verse says, okay, morality says one thing and a scriptural decree says another. If the verse says it, then there is some reason behind it too; the verse doesn’t say it for nothing. True, that reason is not morality and justice in the senses we are used to. It is some reason—call it metaphysical or meta-legal, as I said before. The legal state of ownership has lapsed. The metaphysical situation is different. The ownership status of the loser simply no longer exists. So it is not his factually anymore, and that has nothing to do with morality and justice.

Now how do the Sages know this? I don’t know. By reasoning, they understood that when a person despairs, the bond between him and the object is severed. Just as when one performs legal acts there is some kind of bond or status, all the things we discussed in earlier classes, so despair severs that bond. By the way, there is a dispute among the later authorities—the Netivot is famous here—that despair is not ownerless status; rather, despair is only permission for someone else to acquire it. It’s not that if I despair the item becomes ownerless, but that if I despair you have permission to acquire it. So it isn’t even entirely clear what the status of despair is. It isn’t a legal status… yes, the result is the same result, but I’m saying that this idea of despair is an insight of the Sages, and it is an insight drawn from reasoning, not from verses. And not from morality. It isn’t moral principles, because the Sages themselves say that from a moral standpoint, even after despair you should return it.

Is there a practical difference—can he retract the despair? What? Can he retract the despair before someone acquires it? If it is ownerless, he can’t retract. But if it is only despair in his heart, then he can retract. And if he does it before, say, two witnesses or something like that, he would need to bring evidence that he retracted, but perhaps he can. No, I don’t remember what the Netivot does with this when he says that principle. He certainly wants to gain something from it. Fine, theoretically. He doesn’t say that… yes, no, no. But any reasonable person—that’s an assessment of a reasonable person. A reasonable person who lost an item in a place where no one who passes by returns lost property—such a person despairs. So he can’t retract? There’s no such thing. He can’t fight the objective circumstances? No, he can. He can say: I’m an unusual person; I don’t despair even in a case like this. Why not? I’m saying: if there is no indication of what he thinks, then I go by the reasonable person—presumably he belongs to the majority group. But if he says: listen, friends, I’m different—even before it was found, not now, because saying it after the fact is no great wisdom. But if beforehand he said: I know, I lost a lost item, it was in a place with a Gentile majority. If he stands before two people and says: “Friends, I’m one of those people who never despair. I have great faith in the morality of the Gentile.” Fine, I do not despair. I’m holding onto that. It could be that it really would not become the finder’s. Now the finder, of course, cannot know that, because he doesn’t know who the loser is. If he knew who the loser was, the matter would be different. He doesn’t know who the loser is. Fine. But in principle, let’s say that later he comes and claims it—then maybe he really would win. I don’t remember what the Netivot does with that.

But there is an explicit halakhah that in cases where the Sages determined there is despair, even if he says he does not despair, it is still… yes? There is the concept of “his view is nullified before everyone else’s.” They say his view is nullified before everyone else’s, but I don’t know. In a case where the person says before two witnesses… “his view is nullified before everyone else’s” is when he argues it later. But if he says it in real time, not after the lost item was found, when he has an interest—rather in real time: “I do not despair, I lost it,” before two witnesses—would that not help him? I don’t know. It’s worth everyone checking that. Right. And in the case of “despair without knowledge,” where he does not even know that it fell from him, then of course he cannot say it before two witnesses, and then you always go by the reasonable person.

So the point is that this is a very interesting thing, because on the one hand it means that these are not ordinary principles of justice and morality. They are imposed on us; they are some kind of facts imposed on us. On the other hand, we learn these facts not necessarily from the force of verses. Through contemplation—some sort of observation of the metaphysics of the world, of the meta-law of the world—we understand from reflection on the concept of despair that when there is despair, the connection between a person and his property is severed. And that’s it. Therefore we understand logically—logically, not morally—that he is not the owner. And that’s very far-reaching. And it is hard to say, because logic and law and other legal systems also proceed according to logic… No, that is exactly what they… They do not proceed according to this logic. They say… that’s exactly what Barak wrote there. They do not. They shape property law in order to improve the chances of return. It may be that if you asked Barak: leave the chances of return aside; there is no chance of return—tell me, does despair remove the object from the owner’s possession or not? Maybe he too would agree. I don’t know. But the claim is that if you look at property law independently, not as subordinate to the purposes of the statute, but really look at reality itself, then that is the required conclusion.

Now there is… where I wrote this here… yes. The Maharal, in Be’er HaGolah, the second “well,” says as follows: “In chapter two of Bava Metzia they said there that one need not return a lost item after the owner’s despair. And this matter seems far-fetched to people: that a person should take what is not his.” Meaning, it’s not moral. Why are you taking something that is not yours? He despaired, but morally why are you taking it? It’s his. You didn’t work for it, you didn’t toil for it. And he gives you identifying marks, meaning you know it is his; it’s not that you don’t know whether he is the owner or not. Why would you take it? So he says: “And this matter is not according to the conventional law.” “Conventional law” means the rules of morality and justice of human beings. That is, it does not accord with the rules of ordinary reason, justice, and morality. “For conventional law requires returning the lost item even after the owner of the lost item has despaired of it.” Meaning, it is obvious that morality requires returning the lost item.

“And the reason for this is that conventional law requires what is fitting to do for the sake of repairing the world.” What does he mean? Purposive considerations. Exactly what we saw here, right? Purposive considerations—repairing the world means returning the lost item to its owner. We shape the rules of returning lost property to bring about repair of the world, to bring about… to return the lost item to its owner. “Even though reason does not require that thing.” Very interesting, because we would not choose that wording. We would choose a formulation in which morality and justice are reason, but then there is scriptural decree, which is not reason, I don’t know, something else. But he says no: these scriptural decrees we are discussing are reason. Conventional law and repairing the world are social rules of justice and uprightness and morality—he is not disparaging them—but that is not reason. Reason is exactly what I spoke about before: contemplation of the concept of despair and understanding what it means. And that is intellectual contemplation. Meaning, you can do it even without verses, as we saw earlier. And that is what is called reason. The reasoning we call moral reasoning of justice—that, for him, is not reason; that is “repairing the world.” It is simply social conduct.

“Even though that is indeed repairing the world, therefore conventional law is sometimes stricter in some matter”—sometimes stricter than halakhah, than what he calls reason. Why? Because after despair, according to conventional law the finder should return it; according to halakhah, no. Meaning, the ordinary legal system is stricter than the halakhic system. “Even though according to reason and straight justice he ought not have to do so.” That is what the Sages themselves say, that the spirit of the Sages is pleased with one who returns the lost item even after despair. “And sometimes conventional law is more lenient, when that matter need not be done for the repair of the world, even though according to reason it is not fitting—only according to conventional law.” Meaning, there are situations where conventional law is actually more lenient than reason, meaning the halakhic conception. Where?

“Therefore according to conventional law one should return a lost item after the owner’s despair, and this is the stringency. And likewise the opposite: if one found silver vessels, gold vessels, and announced them once or twice, and no one claimed the lost item for a year or two, then he keeps it for himself and uses that vessel, because there is no issue here of repairing the world. After he announced it several times and waited a year or two, the owner will no longer come. And this is not according to the Torah.” According to halakhah it does not work that way, because if one found silver or gold vessels—things over which people do not despair—and announced them many times, they are forbidden to him forever. A year, two, ten, a hundred—it doesn’t matter. It is forbidden to you forever. It remains until Elijah comes. But “let it remain until Elijah comes”—you may never touch them. So you see that halakhah is very strict. What does that mean? You find silver or gold vessels, you announced them, a year, two, three pass, the loser never came. So what sense is there that I shouldn’t use them and no one else should take them either? There is no logic in that from the perspective of repairing the world, so give it to me. More than that, if you give it to me, I also have motivation to do what I am obligated to do—exactly the legal consideration we saw. Therefore here conventional law is more lenient; it would allow me to take it, right? But halakhah does not. Why? Because it belongs to him. How can you take it? We do not shape property law according to what we want. It depends on the facts. And the fact is that it is his because he had not despaired at the moment of lifting it. The moment he had not despaired, it is his. You didn’t find him for a year, two, ten—then it remains until Elijah comes.

And why doesn’t he despair? Because it is valuable. No—even if he later despaired. But if he despaired after I found it, that no longer helps. The moment of lifting is what determines it. If at the moment of lifting he had not yet despaired, I am obligated to return it. Even if he despaired afterward, it does not matter. Therefore, despair does not work once the lost item is already in the finder’s possession. Despair works only beforehand. So there are leniencies and stringencies here, but the common denominator of both the lenient and stringent sides is the difference in mode of thought. From the standpoint of halakhah, this is a legal fact imposed on us: despair—then it isn’t yours; no despair—then it is yours. It does not depend on whether this helps repair the world or does not help repair the world. By contrast, in ordinary legal or moral definitions, you are shaping the property rules according to repairing the world. And that is exactly what Aharon Barak says in what I read earlier.

So here too you see—even the terminology, his calling it “reason,” shows that he does not view this as some sort of scriptural decree contrary to reason. No. It is reason. Reason is not morality. Reason is metaphysical reason. It is simply, as I said earlier, a kind of observation. How do I know it? The way one knows any fact. It is a legal fact; it is imposed on me. If he despaired, then it is no longer his. It does not matter whether it is just or unjust. That is the fact, just as fire burns. Fire burns even if it is not just, because that is its nature—it burns. Okay? How do you know facts? Through observation. But of course this is not observation with the eyes or the senses. Rather, it is some sort of observation with the eyes of the intellect. Meaning, I contemplate the concept of despair with my intellect and I understand that this is its meaning: if someone despairs, then the bond between him and the object is severed. And that’s all. And that is what reason says.

And if he despaired after I lifted it, why then not? Then not. Why? Because reason says not—the reason of halakhah. I also don’t know how to explain why reason says that if the despair was before, then yes—because he became detached, as though emotionally no longer… You are translating it into the emotional. I’m speaking about the metaphysical. Not emotional. There is some sort of thread, so to speak, a metaphysical thread connecting him to his property, and despair simply tears it, cuts the thread. So there is no thread anymore. The metaphysical thread has been cut. Just as there are acts of acquisition that create legal-metaphysical statuses, there are other acts that sever metaphysical states, okay? This is exactly… I’m trying to show this conceptual world in which we see law as though behind it there is some whole world of these metaphysical shadows, and the legal norms are merely an expression of them, of the metaphysical state. It does not depend on me; I do not determine it. It is imposed. I simply need to look and see what is true. And this is not a question of considerations of what is right and what is not. That is on the level of rabbinic understanding. On the Torah level, this is the truth. That is basically the claim.

All right. Actually, maybe we’ll start the topic of intellectual property. With intellectual property, something very similar happens. There is a great deal of hesitation—I also once wrote about this—about what to do with intellectual property. Everyone agrees there is an interest in protecting rights in intellectual property. Everyone agrees, both halakhic decisors and jurists, of course. But from the fact that it is clear there is value in this, it still does not follow that there is intellectual property in the ownership sense. And therefore if you look at halakhic sources dealing with intellectual property and copyright, you’ll see they struggle terribly. They try to find something from here, something from there—rabbinic enactment, the law of the kingdom is law, I don’t know exactly what—but it is clear to everyone that there is no property ownership as such. Why isn’t there? Because there is a rule that one cannot have ownership over something that has no tangible substance. As Maimonides writes, a person cannot transfer ownership in the eye of a honeybee or the scent of an apple. Things with no substance—you cannot transfer them. Perhaps you cannot even be an owner of them; that is another question.

Therefore, intellectual property—that is, ownership of an idea—cannot exist. There is no ownership of an idea in Jewish law. An idea is an abstract thing. When we talk about ownership of a disc, there is no problem. But ownership of the content encoded on the disc—ownership of what? Of an abstract thing. There is no such thing as ownership. And therefore, the routes the decisors find in order to solve the problem of copyright are very, very twisted. They twist and turn because everyone understands that they need to… so they hook it onto unfair competition, and it is pretty clear that it doesn’t really come out of the prohibition of unfair competition. That prohibition applies only to land and only in the Land of Israel—“You shall not move your neighbor’s boundary marker.” The idea is that you move the fence between you and your neighbor. And that is only in the Land of Israel. Land cannot be stolen, meaning the law of theft does not apply to land. There is no theft prohibition regarding land. There is unfair encroachment regarding land, but that is only in the Land of Israel. So abroad, is it permitted to encroach? There is no Torah-level prohibition of boundary encroachment. A religious court does not punish for it. Maybe there is some rabbinic prohibition, I don’t know. In any case, the claim that one can expand the concept of encroachment to intellectual property is obviously some sort of fairly wild association.

But people clearly feel it must be prohibited. So they lean on this, they lean on that, but it doesn’t really work. Therefore they establish enactments or bans. By the way, that is the most common technique. They place under ban anyone who infringes someone’s copyright for a certain number of years. You may not infringe; only he may sell the book he wrote. But they frame it as a ban. Why as a ban? Because there is no prohibition. You cannot impose a sanction here as though someone violated a prohibition, so you create a communal ban over it. There is no choice.

Now, in the legal world, whenever you hear lectures about this—as always with jurists, when you hear lectures on something they present all the possibilities. But in practice, not all the possibilities really exist. So on the subject of intellectual property too, there are conceptions that see intellectual property as an instrument for advancing society—that is, to enable people to create and to give them motivation and all sorts of things like that. That is the prevalent approach. There are also certain approaches—and they always mention them as an option—that see this as some kind of natural right. That is, it is simply mine because I created it. No one really goes with that. They always describe it in the general scheme—you present all the options—but in practice it doesn’t work like that. There were some traces of such views in the past, and as we move forward the law is going entirely in the contractual direction, the direction of social utility. And there it is very clear that copyright rules are shaped in order to maximize utility. So they determine until when there is protection, and over what there is protection, and what kind of use is permitted and what kind is forbidden—various discussions that in the end are purposive discussions. Why? Because law says: I shape the property rules for the sake of the goals I want to promote. That is the accepted legal conception.

Now, in Jewish law, all the decisors want to promote exactly those same goals, but they twist themselves into knots from here and there and nothing works. It doesn’t work because none of them can say, fine, since there are goals, therefore it is prohibited. No—there is no such thing. If there is no ownership over something abstract, then there is no ownership over something abstract, and taking it cannot count as theft. This is exactly the same difference we see in the law of lost property: property law is some sort of legal fact imposed on me. If there is no ownership of it, then there isn’t. By the way, in my view there is halakhic ownership of intellectual property—that’s the article I wrote; maybe we’ll talk about it. I think there is ownership. And certainly today—and this is an interesting point—today when we talk about the virtual world, and for us it is very, very tangible, there is definitely room to make some sort of revision in the conceptual system. Today, in meta-legal reality, even if we adopt the perspective that there is some sort of contemplation of metaphysics here, the metaphysics too has changed. There is something here: virtual reality today is reality in every sense. People sail on the internet, not only at sea. So the very meaning of what is called “nature” is different. Yes, exactly. So now when you look at ideas and want to understand the metaphysical structure, it may be that the metaphysical structure is different. And today there is room to say that there can be ownership over such a thing, even though there is no source for it in the Talmud or in the medieval authorities (Rishonim).