Halakha and Jewish Legal Theory 3

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[Rabbi Michael Abraham] But he can ask me for the money back afterward; he doesn’t have to lose out for my sake, at least if I have money. So what does that mean? Even someone who works, you know, at the very least he can ask for watchman’s wages, payment for lost time, and so on. In any case, so there’s a third difficulty here with the explanation of all the medieval authorities (Rishonim) against Rashi. Because on their view, it turns out that the other side of the doubt—which indeed was not ruled as the Jewish law, but still, the other side of the doubt seems very illogical. Fine, I understand the side of the doubt that you gained. But then what was the other side? Is there really a possibility not to pay at all? Why not? So this explanation is very difficult, the explanation of the medieval authorities (Rishonim). But of course we understand why they’re pushed into this explanation, because Rashi’s alternative is basically to include “do not steal” among the severe prohibitions, among the transgressions for which one must be killed rather than transgress.

[Speaker A] But didn’t they say he has to pay? What? Maybe the conclusion of the medieval authorities (Rishonim) is no—the conclusion is that he has to pay. Yes. And what was the other side of the doubt? Maybe it means specifically the opposite: that if you know for certain that you won’t be able to repay, then you have no right.

[Rabbi Michael Abraham] Right, I’m getting to that now. Correct, some of the medieval authorities (Rishonim) write that explicitly. That’s even the language of the Tur and the Shulchan Arukh.

[Speaker A] He asked as a king whether to pay or not. I can’t hear. He asked as a king whether to pay or not.

[Speaker B] What do you mean, as a king?

[Rabbi Michael Abraham] Maybe he didn’t know that he had the law of a king, or that the law of a king is different.

[Speaker A] He asked, and in the final analysis he thought maybe even a king is different, and that’s why maybe I won’t have to pay. That’s the other side—like, why would there even be a possibility that I wouldn’t have to pay? Because I’m a king.

[Rabbi Michael Abraham] But then the answer they would have given him would have had to be: then you don’t have to pay. What do you mean?

[Speaker A] It’s permitted for a person—no, he didn’t know, he thought maybe the fact that I’m a king makes no difference here, it’s not—

[Rabbi Michael Abraham] The doubt was only about a king, and they answered him voluntarily also regarding an ordinary person. Exactly. Maybe, that could be.

[Speaker A] Even according to Rashi that’s how they answered him. What? In any case the answer is like that according to Rashi. No, obviously.

[Rabbi Michael Abraham] The question is what the question was. I asked, regarding the other medieval authorities (Rishonim), how they understood David’s question, and he’s suggesting an explanation: maybe David’s question really was only about a king, because in the case of a king there really is a possibility that he wouldn’t have to pay at all.

[Speaker B] Fine, definitely a possible explanation.

[Rabbi Michael Abraham] Yes. So let’s continue a bit further—so that’s Tosafot. And the Rosh also wrote this, and this is his language. I’m continuing to read from Binyan Tzion: “It was not a question for me whether it is permitted to take them”—to burn them, yes, to burn them for the saving of Jewish lives—“for that is obvious, since nothing stands in the way of saving a life except for the three transgressions. Rather, this was my question: what is the law regarding taking them with the intention of being exempt from payment? And they said to him: it is forbidden to save oneself with another person’s property with the intention of being exempt from payment.” Meaning, he asked the question—this is a slightly different formulation from what Tosafot says; Tosafot is silent here—but in the Rosh there really is something in the formulation you were just saying. And that also explains why David asked this now and didn’t wait until after the war. Because he asked, and this is what they answered him: is it permitted for me to burn this barley with the intention of not paying money? Is it permitted for me to burn these stacks? And to that they answer him: for a king it is permitted; for an ordinary person it is forbidden.

[Speaker A] But a king has money. What?

[Rabbi Michael Abraham] A king has money. Fine, the question is what state he was in there, and that also isn’t important. If the king has money, then let him pay. When he asked, he didn’t know. When he asked, he didn’t know—it doesn’t matter. They answer him; that’s the halakhic ruling. If you have money, wonderful.

[Speaker D] Whenever there’s money, he takes it from people.

[Rabbi Michael Abraham] Yes, but somehow people always end up with money. People themselves don’t have money, but to give to the king?

[Speaker A] But what about David’s kingdom? The Rosh isn’t understandable. What? How can the Rosh say that King David sent soldiers because he didn’t know whether he had to—whether he could burn it without intending to pay?

[Rabbi Michael Abraham] He didn’t know at all whether it was possible to burn it. And what they answered him was that he was allowed to burn it—that is, as a king he could burn it even without intending to pay, but an ordinary person, in order to burn it, has to do so with the intention of paying; otherwise it is forbidden. The question of what he knew relates to what you suggested earlier. What he knew when he asked—that can be debated—but that’s the answer he got.

[Speaker A] That’s why he sent people to bring him water. No, no—

[Rabbi Michael Abraham] Or—obviously, after all this is a midrashic exposition, it’s a homily, it’s not that this literally happened. Well, obviously, it’s a homily. But it doesn’t matter; from the Talmud’s standpoint, that’s the way—the Talmud says, so that’s what happened. Fine, it’s a homily. In the Hebrew Bible (Tanakh) it’s explicit. A homily is also Talmud, but Talmud—making a homily doesn’t mean it’s false; it means it’s not historical. It means that this is the Talmud’s way of conveying this Jewish law to us; it doesn’t mean this is historical documentation of what happened with King David. I don’t think one has to say such a thing.

[Speaker A] In any case, we have to remember he was redheaded; he had a different kind of mind.

[Rabbi Michael Abraham] Yes, okay. In any case, the claim of the Rosh is basically—notice what’s written in the Rosh. In the Rosh it basically says that if you go to burn these stacks without intending to pay, it’s forbidden. Meaning that in his basic conception, the Rosh is with Rashi, not with Tosafot.

[Speaker B] Forbidden? Yes. Because the whole clause says: I do this with the intention of paying. If I have money—I’ll give you an example.

[Rabbi Michael Abraham] The question is when this is called doing it without intending to pay. Is it when I don’t have money now? Is it when I won’t have money in the future? Or for example if I damage the honor of the dead, for instance? A responsum that Binyan Tzion discusses later. To a dead person, after all, you can’t pay in any case, and then essentially you simply cannot repay that harm. Fine, so there’s room to discuss when it’s called burning without intending to pay. But I don’t want to get into that, because for me what matters is that such a situation exists. Meaning, there are situations according to the Rosh where what you said—“do not steal,” and you’re forbidden to transgress it, you have to die. Because you can’t return it. If it’s not with the intention of returning it, then you see that suddenly the Rosh too joins Rashi’s basic conception. Rashi says that even if you intend to pay, it’s forbidden. The Rosh says if you intend to pay, it’s permitted. But the Rosh too agrees with the basic claim that there can be a situation where “do not steal” overrides saving a life. Now, there is a responsum of Rashba—

[Speaker B] I won’t read it inside, but Rashba says why—

[Rabbi Michael Abraham] Why am I allowed to do this? What?

[Speaker B] It’s even more severe. Meaning, if there are moral problems, then now we’re doubling the double standard. So there’s a moral problem—who’s poor and who’s rich? You’ll bring less money from a rich person than what he spends every day on private medicine.

[Rabbi Michael Abraham] This is a person who has no money and is dying, versus someone who has that every day. No, no, we object to that—

[Speaker B] We object, but that’s the reality—what can you do?

[Rabbi Michael Abraham] No, no, exactly—we say this is a harsh society, an atomistic society. Society is one thing; I’m asking what the law is. So you can say: you’re not giving him money, you’re leaving him poor and needing to die, that’s wrong. Fine, we’re wrong. But can he now take from us? Someone now needs money for an important surgery and doesn’t have it; he’s a poor man. Fine? Is he allowed to rob you? You don’t want to give it to him.

[Speaker A] Is it permitted or forbidden? Not with the intention of repaying?

[Rabbi Michael Abraham] Is he allowed? Jewish law will say it’s forbidden, even though you are in the wrong if you don’t give him—let’s say, never mind, there’s another issue here—but suppose for a moment it’s just you. And he’s on a desert island. Fine? So Jewish law can say that you are not okay, but that doesn’t mean he can take; the Jewish law still is that he may not take. The injustice that poor people have to pay with their lives is a moral injustice, but legally that’s the situation. You can’t deny that legal fact.

[Speaker B] So then he found the explanation of the Rosh, which rejects that this isn’t one of the three, and in the end he says it’s also one of the three.

[Rabbi Michael Abraham] Exactly. That really is a difficulty in the Rosh, because his motivation for disagreeing with Rashi was that “do not steal” is not one of the three severe prohibitions. And in the end he remains with the conclusion that he’s like Rashi. So then how does he himself answer the question why they didn’t count it among the three severe prohibitions? Good question. Okay, we’ll come back to that too. The responsum of the Rosh—the responsum of Rashba, sorry. Rashba too is from the camp, yes, from the opposition against Rashi. But when Rashba explains it, he says as follows—and the reasoning is also somewhat problematic, but this is what he says. That when it is permitted for me to burn this barley in order to save myself, really I’m allowed because I pay. He joins the explanation of Tosafot and the Rosh. But why am I allowed to do this? Because the owner of the barley himself is already obligated to save me due to “do not stand idly by your neighbor’s blood.” After all, in any case he had to give the barley in order to save me. And since that’s so, I’m already taking the barley because in any event he is obligated toward me. That’s basically his claim. Notice, this is a very interesting claim. Because what it basically means is that if, say, hypothetically, he were not obligated to this, then it would be forbidden. Meaning, Rashba too says that if there would be theft here, it would be forbidden to take. He just says there is no theft here because it is already obligated to save me. So Rashba too belongs to Rashi’s camp. He too says that he is always obligated. No, I’ll give an example. What about a gentile? It comes out from this that a gentile’s property is more severe than a Jew’s property. I’m forbidden to save myself through damaging a gentile’s property. A practical difference for the laws of war. Why? There is no obligation on him. Yes, he has no obligation to save me; “do not stand idly by your neighbor’s blood” doesn’t apply to him, he is not my “neighbor,” he owes me nothing. If he wants to come, great, of course, but I can’t compel him; he isn’t obligated to this, so I can’t take.

[Speaker B] Another example is autopsies in the past. What? The dead person isn’t obligated. Ah, that—I’ll get to that in just a moment—

[Rabbi Michael Abraham] I’ll get to that in just a—

[Speaker B] moment, he talks about it. Tzipor Evenstein rules such a law, that it’s forbidden to do autopsies even if it’s saving lives.

[Rabbi Michael Abraham] Okay, that starts here in this Binyan Tzion. So the—

[Speaker A] But Rashba does say that I’m allowed to rob someone in order to do surgery if I know—what you just said, Rashba? Yes.

[Rabbi Michael Abraham] No, he said not that—he said it’s forbidden. He just says there’s no “do not steal” here because he is already obligated anyway, so this isn’t “do not steal.” But if there were a prohibition of “do not steal,” then it would be forbidden to transgress it even in order to save a life.

[Speaker A] Let’s talk about the ruling you’re mentioning. We’re talking here about the Chazon Ish. The Chazon Ish is against Rashba.

[Rabbi Michael Abraham] He can rob you in order to do surgery. Fine, that’s something else. Obviously, on the practical side, in the bottom-line halakhic ruling, everyone is against Rashi. But what I’m trying to show is that on the conceptual, theoretical level, several medieval authorities (Rishonim) join Rashi’s view that in principle even “do not steal” is in the category of “be killed rather than transgress.”

[Speaker A] So all of these agree that I can rob now in order to save his life? Not to save his life from danger. To rob with the intention of paying. Yes. I now need surgery, there’s no money to pay for me, I rob anyway, take money—

[Rabbi Michael Abraham] On the conceptual level, if you do it with the intention of paying, that’s one condition. A second condition is that you be alone with him on a desert island. Otherwise he’ll tell you: why are you coming to me? There are others.

[Speaker A] And that doesn’t exist—I don’t owe you, you’re not—

[Rabbi Michael Abraham] I’m not obligated to you. Rashba—I’m not obligated. I’m obligated to give my share. Let’s all split it up, everyone puts in a shekel and we save you. You can’t take all the money from me. So under those conditions, yes. All right?

[Speaker A] So what, then Rashba isn’t right? What? Because according to Rashba then I’m not obligated. What do you mean, not obligated? I personally—no, here there’s a specific person.

[Rabbi Michael Abraham] No, but here with this barley, there isn’t—you can’t take someone else’s barley. Obviously. Obviously. If it were a different situation, then not like this. That’s exactly the difference.

[Speaker A] A person has to view him as if he’s dying there next to the owner.

[Rabbi Michael Abraham] No, that’s something else. If you have proof that the owner agrees—

[Speaker A] No, like—as if he’s dying there, and then the owner is obligated.

[Rabbi Michael Abraham] Yes, yes—that’s basically what Rashba is saying. But now Rashba’s words are difficult; we have to understand them. Because “do not stand idly by your neighbor’s blood” belongs to Yoreh De’ah, not Choshen Mishpat. I’m not legally obligated to give you the money. There is a commandment upon me to save you—“do not stand idly by your neighbor’s blood”—or a prohibition if I don’t do it.

[Speaker A] But how does that translate—

[Rabbi Michael Abraham] What’s the connection? But how does that translate—you—what’s the connection? So I’ll do a commandment. Fine. So now you don’t want to give charity to someone. Should I, under the law of acting for someone’s benefit, take that charity from you by force and give it to him? After all, in any case you’re obligated to give him charity. In order to grant you the merit of the commandment of charity, should I rob you? There’s no such thing. Acting for someone’s benefit—what does that mean? It’s not necessarily a benefit. I decide whether it’s a benefit for me or not. I don’t want to do it. You can’t decide for me what counts as a benefit. If I say it’s not a benefit, then there is no acting for someone’s benefit. It’s not like buying him a Ferrari, but—

[Speaker A] So whoever says it’s a benefit—

[Rabbi Michael Abraham] In any case, the claim is that on the conceptual level there’s maybe just a note here regarding the note I already started: that Rashba is problematic, because he takes an obligation that by its essence belongs to Yoreh De’ah—and here you see how it connects to our topic—and he translates it into Choshen Mishpat. He basically says: you are allowed to take because he was obligated to give to you. That’s not true; he wasn’t obligated to give to you. Not obligated in the Choshen Mishpat sense. You couldn’t sue him in religious court and say: gentlemen, he doesn’t want to give me the money that’s due to me. Nothing is due to you. There is a commandment on him to give to you; that is his obligation, not your right. Rashba somehow translates this, and one can try to explain it, but I’m not getting into that now; it’s just a side comment.

[Speaker B] So then why is Rashba like that? Why is Rashba saying he’s obligated to give you?

[Rabbi Michael Abraham] This thesis is correct not because I said it, but because it’s correct. It’s obvious that this is an obligation that is not Choshen Mishpat. Rashba would not say that I can rob someone for the sake of charity, even though he is obligated to give charity; nobody would say such a thing. He is not obligated because I said so; he is obligated because it is true. Those are two different things. We once also spoke about the Talmud in these terms: am I obligated because it’s written in the Talmud, or am I obligated because it’s true? Anyway, returning to our topic, it comes out that there is a respectable camp of medieval authorities (Rishonim) here. By the way, the language brought in the Tur and Shulchan Arukh is like the language of the Rosh—well, the son of the Rosh—they bring it like the language of the Rosh. And Binyan Tzion really says that it sounds like the Tur and Shulchan Arukh ruled like the Rosh, not like Tosafot. He also didn’t include Tosafot there; about that I’m not sure he’s right. But there is definitely perhaps even room to see that this is the halakhic ruling: that what permits you to burn it in order to save yourself is only if you do so with the intention of paying. Now—then Binyan Tzion goes further, and takes it into more far-reaching areas.

[Speaker A] And can he sue for the payment?

[Rabbi Michael Abraham] Certainly. I owe it to him legally, of course. It’s not just because of charity to give it back to him.

[Speaker A] Obviously that’s Choshen Mishpat.

[Rabbi Michael Abraham] Yes, obviously. Now, Binyan Tzion goes further and says: what’s the practical difference? For example, what about desecrating the dead? Or organ donation? Now, organ donation from the dead, not from a living person with all the dilemmas of brain death, cardiac death, prohibitions of murder—leave murder aside, he’s completely dead already; the brain, the heart, everything is dead. Is it permitted to take an organ from him? He says it is forbidden. Why is it forbidden? Because if you can’t take someone’s money, then certainly you can’t harm his honor, because a person’s honor is dearer to him than his body. Therefore you cannot harm him, and here you certainly won’t be able to pay him back, because he is dead. So according to the view of the Tur and the Shulchan Arukh and the Rosh and all these medieval authorities (Rishonim), the only thing permitted is where you do it with the intention of paying; but if you’re not doing it with the intention of paying, then it’s forbidden. That’s what he wants to claim. Again, maybe we have to emphasize: obviously, where the person agrees, there is no such problem. That’s true in monetary matters too. The whole discussion is only where the person does not agree. And even where I estimate that this person would probably agree, maybe it is also possible to take. Again, this is a conceptual discussion; I’m not getting into practice right now. Meaning, as a practical ruling it could be that in most cases one would be able to take it, because all in all people would agree. So perhaps that’s also what Rashba means: since there is an obligation upon you of “do not stand idly by your neighbor’s blood,” presumably the person agrees. But then if he stood here and shouted, “No, no, I’m a criminal, I don’t want to, I don’t want to pay,” then it would be forbidden to take. In any case, that is one implication. Then he continues and says: and what about humiliating someone? Humiliating someone when they threaten him with death—either I humiliate someone or they kill me.

[Speaker A] Who—who goes on and says that?

[Rabbi Michael Abraham] Binyan Tzion. Yes. So he says with humiliation too, it’s the same: be killed rather than transgress. What? But humiliation can be paid for. A big question whether it can be paid for, because even if you pay damages for humiliation, that doesn’t really restore the situation to what it was before—unlike monetary damage, where of course you have to pay; whatever you can compensate, you compensate. But the question is whether compensation really restores the previous state. Simply speaking, you cannot pay for humiliation. There is discussion there on this matter, long discussions in the passages on the topic. In any case, we see that what is commonly said according to the view of Binyan Tzion is that all commandments between one person and another are “be killed rather than transgress.” In fact, more generally, he expands this to any harm to another person, not only theft. So then what you asked earlier—only money? He says any harm to another person and any commandment between one person and another. Now I’ll ask you: does Binyan Tzion also mean charity and interest? Be killed rather than transgress regarding charity and interest? No, because that’s Yoreh De’ah. Right. The definition is not commandments between one person and another; the definition is the other person’s rights. Everywhere your fellow has a right, you cannot violate it even at the cost of life—but only where your fellow has a right. But if there is an obligation on you, like the commandment of charity, and they threaten you: we will kill you if you give charity—you do not have to give charity and die. Because the charity is not something that is due to him. It is an obligation upon me to give him. Now what is the idea behind this? He himself gets a bit tangled in this issue. In my opinion there is a very simple definition that explains this whole story, meaning to understand the reasoning or where it comes from. There he does not give a definitive answer. The point is this. When I weigh saving a life against theft, what am I actually saying? I am not taking your money because there is a prohibition upon me of “do not steal.” No—it is forbidden for me to take your money because of the prohibition of “do not steal.” On the other hand, there is saving a life. Saving a life overrides all the prohibitions in the Torah except for the three severe ones. So there is no prohibition of “do not steal” on me. Therefore I take it. So the fact that there is no prohibition of “do not steal” on me—that’s fine. But therefore I take it—that isn’t fine. Why not? If you remember the very first lecture I gave, I spoke there about Rabbi Shimon Shkop, about monetary law—or what he calls the theory of law, yes? His thesis that “do not steal” sits on a legal platform. Meaning, there is some legal definition of property law—what property belongs to whom, how such things are determined—and that is a social, legal, meta-halakhic determination. Jewish law does not determine that. On top of that determination sits the prohibition of “do not steal.” Meaning, if you take another person’s property, then you transgress “do not steal.” But who determines that this property belongs to the other person? The legal layer. And I said there that many make the mistake of understanding Rabbi Shimon Shkop as though the legal layer merely defines property law, but there is no legal prohibition. All prohibitions are in Jewish law. Meaning, property law simply defines what belongs to whom. But before the prohibition of “do not steal,” it’s yours, yet I can take it—there’s no prohibition. It only defines that it’s yours, and the Torah casts that into the form of a prohibition. The Torah says: since this is property defined as belonging to someone else, then if I take it I violate the prohibition of “do not steal.” For Rabbi Shimon Shkop it is clear that this is not what he means. Rabbi Shimon Shkop claims that there is also a prohibition at the legal level. Meaning, if I take someone’s property, even without the prohibition of “do not steal,” I have violated a legal prohibition. One implication, for example, is stealing from a gentile. Rabbi Shimon Shkop claims that even according to the views that stealing from a gentile is not forbidden by Torah law—and that is a dispute among medieval authorities (Rishonim)—even according to the views that stealing from a gentile is not forbidden by Torah law, it is still obviously forbidden by Torah law to take it from him. Since if he is the owner of the property, you cannot take the property from him because it is his. What is the idea behind this? The idea behind this is that when a person has a right—he owns something—that right creates an obligation on someone else. Meaning, if I have a right to my property, that creates an obligation on others not to take it. And all this happens at the legal level. “Do not steal” is a third story. “Do not steal” says: besides the legal obligation upon me, there is also a prohibition if I take his property, the prohibition of “do not steal.” Now, the prohibition of “do not steal” may not apply to a gentile—that’s a dispute among medieval authorities (Rishonim). But the legal obligation, which is the result of the other person’s right—and I mentioned Hohfeld’s table, yes, that every right of one party creates a duty of the other—that certainly exists regarding gentiles as well. After all, gentiles certainly have property rights. They certainly own their property. So you cannot take it—not because of “do not steal,” but even if you think there is no “do not steal,” there is still a legal prohibition here.

[Speaker A] Now look, according to Rabbi Shimon Shkop as you explain him, why did we need to add “do not steal”? What does it add?

[Rabbi Michael Abraham] To say that there is a religious problem here and not only a legal problem. A prohibition in the form of a negative commandment, a moral transgression.

[Speaker A] An immoral prohibition, a religious prohibition. Yes, let’s see what that gives.

[Rabbi Michael Abraham] It gives nothing; it’s a religious prohibition. They are telling you there is a religious problem here, not only a legal problem.

[Speaker A] What is that—if you drive through a red light, didn’t you violate a religious prohibition?

[Rabbi Michael Abraham] So he says there are halakhic decisors who maybe say you didn’t swear—

[Speaker A] Fine, never mind, that hierarchy isn’t important.

[Rabbi Michael Abraham] Why is there a prohibition of “do not murder”? Without the prohibition of “do not murder,” would it be permitted to kill? No. Rather it’s to tell you that when you murder, besides being a moral scoundrel, you’re also not a religious person. That’s what the prohibition of “do not murder” is for.

[Speaker A] What is the meaning, in halakhic terms, of describing a legal prohibition? Meaning, what is the meaning—you said it’s not a legal prohibition—

[Rabbi Michael Abraham] No, it’s a legal prohibition and also a religious prohibition; Jewish law contains law as well, as a whole. Yes. Now look—let’s now see the implication. Look carefully. There are two stances a person can take toward Jewish law. This is very interesting, you know—we just came through Purim. Let’s say a person from a walled city wants to send gifts to the poor to someone from an unwalled city. Fine? When should he do that—on the fifteenth or the fourteenth? Yes.

[Speaker A] When he is—

[Rabbi Michael Abraham] obligated, or when the other person is obligated?

[Speaker A] On the night after Purim I was at the Western Wall, and a man came up to me and said, “It’s a commandment to give.”

[Rabbi Michael Abraham] I told him, “That’s a Tel Aviv custom.” It depends how you understand this commandment of gifts to the poor. If the commandment of gifts to the poor is basically a commandment where you see yourself as someone who is obligated here to fulfill your duty, and the poor person doesn’t interest me—he’s just a prop. Meaning, from my standpoint, he is here only so that I can fulfill my obligation and come out best in this world—maximum commandments, minimum transgressions—then of course I give it to him on my day, because I have to fulfill my obligation. But if I give it to him because he needs it for his Purim meal, then why are you giving it to him the day after Purim? He already starved through his Purim meal the day before. So why are you giving it to him on Shushan Purim? You’re giving it to him for him, not for yourself. So the question is whether the commandment of charity is for the recipient or for the giver.

[Speaker B] But the Talmud says that we give gifts to the poor to poor people who go from door to door, and because there is the reading of the Megillah the poor come, so we don’t check whether the poor—

[Rabbi Michael Abraham] If they are here, then they are here. What? There are no buses that arrive? On Shushan Purim do poor people from walled cities, from unwalled cities, come to Jerusalem and beg—or the opposite? If the poor person is here, then he belongs here. Fine, so never mind the specific laws of gifts to the poor right now. What I want to say is that there is a certain conception—and I think it is very common in Lithuanian-style thinking—that basically the whole world is a world of shadows. Meaning, the only ones who really exist are me and the Holy One, blessed be He. Meaning, I stand before the Holy One, blessed be He, and I have to fulfill my duty, or achieve maximum commandments with minimum transgressions. The people and factors I see around me are objects for the fulfillment of commandments. Meaning, if for example there were no suitably poor person on Purim, I’d rob someone just so there would be a suitably poor person to whom I could give gifts to the poor properly. Yes, I’m taking this to an extreme, of course. Meaning, there is a certain outlook—and I can show you halakhic implications of this outlook—but there is a certain outlook that says my entire relation to the other does not stem from the other—to start talking like Levinas—but from my thinking vis-à-vis the Holy One, blessed be He. I need to fulfill my duty, to be all right. The other person is merely the one who generates tasks for me. I don’t really see him in front of my eyes. Now, when such a person looks at someone else’s money while he is in a life-threatening situation, he asks himself whether to rob the other person in order to save a life or not. What’s the issue? I’m making a halakhic calculation. “Do not steal” is not one of the three severe prohibitions, right? Excellent. So it is overridden by saving a life, and I take his money. But the second conception says: not like that. You do not take his money because it is his money. Not because of the prohibition of “do not steal.” It has nothing to do with the prohibition of “do not steal.” You cannot take his money. The Torah also placed the prohibition of “do not steal” on top of that, but you don’t refrain from taking the money because there is a prohibition. You don’t take his money because it is his. And how can you take his money? Meaning, this is a completely different way of looking at the world. I am actually acting for the sake of the other person, for the other person—not in order to fulfill my duty. So the calculation is not made within my own domain: “do not steal” versus saving a life, and now is it overridden or not? I make some halakhic calculations—correct calculations, good calculations—and my conclusion is that there is no “do not steal,” so I take the money. Wait, you’re shouting. You’re shouting—so what? I’m making calculations with the Holy One, blessed be He. “Do not steal” is overridden by saving a life, everything is fine, I’m all set. What do you mean, you’re all set? It’s my money. I’ll perhaps give you another example. Just one second—I simply want to define the point better. Maybe I told this once, I don’t remember. I have some clownish friend from Bnei Brak. Once we were sitting around a table and he saw some book he had been looking for for a long time in the possession of some friend—a third person who was sitting there. He said to him, listen, I have two options: either rob the book from you, or leave it with you and violate “do not covet.” So since in any case I’m violating something—either “do not steal” or “do not covet”—then at least let the book be with me. So I’ll rob the book from you and at least the book will be with me, because in any case I’m violating something if I leave it with you. Now, obviously that’s a mistake in the parameters of “do not covet,” and he knew that too, but let’s assume for the sake of discussion that this argument is correct. What’s the problem here? Let’s say the argument really is correct.

[Speaker A] That’s your calculation, and it’s not his calculation—

[Rabbi Michael Abraham] Exactly. You’re making your calculations. You don’t refrain from taking his book because of “do not steal” or “do not covet.” Those are your halakhic calculations with the Holy One, blessed be He. You don’t take the book because the book belongs to him. Your halakhic calculations you should make with your own money, not with someone else’s money. And note—this is a novel point—because I’m talking about a situation where the calculation is correct. There is no flaw in your calculation; you are right in the calculation. It’s not that I found a mistake, that you made some error in the calculation—no. “Do not steal” is overridden by saving a life. Excellent—you really are right from the halakhic standpoint. But this money is mine. So kindly be halakhically correct with your own money, not with my money.

[Speaker A] What do you mean, correct? Excuse me a second. Here he used both “do not covet” and “do not steal” in order to save his life.

[Rabbi Michael Abraham] No, I said there’s a mistake in his understanding of “do not covet,” but let’s say, fine, let’s go with the assumption that it was a valid argument. There’s still something problematic here, because even if that argument is correct, if you want to make correct arguments, make them about your own money, not about somebody else’s money. Meaning, there’s a claim here that my relation to another person is not determined by the halakhic calculations that the Torah imposes on me. Notice, this is a novel point; it’s not so simple. In other words, the claim is that even if my calculation is correct—not because it’s incorrect, I’m right in the calculation—“do not steal” is overridden in the face of saving a life. But when I make correct calculations, I can do that only regarding things that are in my own territory. I can’t make correct calculations about things that belong to you. And they really are correct, not because they aren’t correct. In other words, the claim… just one more second—the claim is this: when I come to steal from someone else in order to save myself, the prohibition of “do not steal” is overridden by saving a life. Of course it is; it’s not one of the three cardinal sins. So what? Does that mean I’m allowed to take the money? I’m forbidden to take the money not because “do not steal” is not overridden—it is overridden. But the reason I don’t take the money is because it belongs to the other person. If the other person does not agree, then even if I’m making a correct halakhic calculation, I cannot make it regarding someone else’s property. So what are we really saying here? That the prohibition of “do not steal”—all the medieval authorities (Rishonim) asked: after all, the prohibition of “do not steal” does not appear on the list of the three cardinal sins. Correct. Why not? Because it isn’t one of the three cardinal sins; it is overridden by saving a life. So what’s the question? The reason I don’t take the money is not because of the prohibition of “do not steal”; it is because you have a right, and here I return to right and duty. Since you have a right to the money, and it’s not merely that I have a duty not to take it, then my duty is overridden by saving a life, because those are my calculations. But your right to the money—what does that have to do with my life-threatening situation? The dilemmas that exist within me, on which I make this calculation, are dilemmas about my own things. So when a duty rests on me, I can examine whether it is overridden by saving a life or not. But if that duty is grounded in your right, then even if my duty is overridden by saving a life, your right still exists. And as long as it exists, it of course also generates a duty on me. And therefore I cannot take that money even though the prohibition of “do not steal” really is overridden by saving a life. It does not need to appear among the three cardinal sins. Just a second—I simply want to… before people ask, because I want to finish the line of thought. What… what did Tosafot actually say? Tosafot said: why doesn’t this appear among the three cardinal sins? Remember what his answer was? Because the transgression of humiliating someone publicly is not stated explicitly in the Torah. So everybody asks—and Binyan Tziyon himself asks here—what do you mean it isn’t stated explicitly in the Torah? “You shall not bear sin because of him”—there is an explicit prohibition about it. That’s what the lady asked earlier, I think. There is an explicit prohibition here; certainly it’s a Torah-level prohibition. I don’t think that’s what Tosafot means. What Tosafot means is this: it’s not because of the prohibition that appears in the Torah. The reason you do not humiliate him in a case of saving a life is not because of the prohibition of humiliation; the prohibition of humiliation is not one of the three cardinal sins, it is overridden. The reason you do not humiliate him is because his dignity is his domain. You should not make correct halakhic calculations about his domain. And this is not only money; it’s also humiliation; it’s all… all the rights of the other person, not only monetary law. Monetary law was just an example. The whole of Choshen Mishpat—and here I return to the basic distinction—the whole of Choshen Mishpat, which includes the rights of the other person, is “be killed rather than transgress.” Not charity and Yoreh De’ah—after all, charity and interest are in Yoreh De’ah—but Choshen Mishpat. And why? Because in Choshen Mishpat my duty is grounded in your right. And when I apply rules of override, rules of override always apply to duties. In other words, my duty is nullified in the face of saving a life; I am not obligated regarding the prohibition of “do not steal,” that is very true. But what about your right? Your right clashes with nothing; it remains. And your right I cannot violate without your permission. If you do not agree, I cannot take… Now, if I violate and do it, there will be no prohibition of “do not steal” here, because the prohibition of “do not steal” is overridden. There will be no prohibition of “do not steal”; there will be the legal wrong, in Rabbi Shimon Shkop’s sense, that I took money from someone to whom it belongs—not because of the prohibition of “do not steal.” And that thing even saving a life does not permit. Why does it not permit it? Because only I am responsible for my rights—that’s what I said earlier. On the one hand, I can waive it without any problem; it’s the most flexible thing in the world. They are my rights; I can waive my rights. But if I do not waive them, only I can decide about them. And therefore, even if you are in mortal danger, you would still be forbidden to infringe my right. And maybe that is what Tosafot means when he says that the transgression of public humiliation is not stated explicitly in the Torah. So everyone asks: what do you mean? It’s a Torah-level transgression. Right—but I mean: it’s not because of the transgression explicitly stated in the Torah that the rule of “be killed rather than transgress” applies here, but because of the legal layer. And the legal layer is not overridden by saving a life. And therefore that is what I asked about the Rosh and what we asked about the Rashba. You begin from the fact that “do not steal” is not among the three cardinal sins. Right? And then in the end you reach the conclusion that even according to your own view… in certain cases at least, “do not steal” is not overridden by saving a life. So then where is your difficulty? So they say: no, the Rosh and the Rashba are like this too. The Rosh says that if I steal with the intention to pay back, then there is no problem; there is no prohibition at the legal level, because I’ll return the money to him. The prohibition of “do not steal” certainly still exists even if it is with intent to pay back—or at least it may exist; that is a dispute—but at least there may be a prohibition of “do not steal.” Fine, but the prohibition of “do not steal” is overridden by saving a life. So what’s the problem? And the legal problem does not exist when I do it with intent to pay back; you will remain with your money. So what’s the problem? Therefore the Rosh, who disagrees with Rashi, does not disagree with him in principle; he agrees completely. It is exactly the same line of thought. He only argues that stealing with intent to pay back does not involve violating the other person’s right. Rashi claims that it does. But both agree that if there is violation of the other person’s right here, then it is “be killed rather than transgress.” And when we asked: so according to the Rosh, how does he himself deal with the difficulty he raised, namely that “do not steal” does not appear among the three cardinal sins? The Rosh answers it the way I said before: correct, because “do not steal” really is overridden—what do you want? What I told you is forbidden is in a place where there is no transgression of “do not steal,” but rather a legal transgression; that is not overridden. So yes, that’s right, and it’s not relevant, because what gets counted there are only things explicitly stated in the Torah, as Tosafot said. In other words, only the halakhic prohibitions are counted there, not the legal prohibitions; that is why “do not steal” was not counted. And the same with the Rashba. When the Rashba says that I am allowed to take another person’s property because it is obligated for my rescue, I asked: so with a non-Jew, or someone not obligated for my rescue, is it then forbidden? So the Rashba too agrees that the prohibition of theft is not overridden in the face of saving a life. Well then, how does he himself answer the question why it does not appear on the list? And again the same answer. When the Rashba says that if you are obligated for my rescue, then when I took your money there is no prohibition of “do not steal”; you are obligated for my rescue. But where you are not obligated for my rescue, it is forbidden to take it—not because of the prohibition of “do not steal”; there is no legal prohibition, not because of the prohibition of “do not steal,” but because of the legal prohibition, my right. You cannot apply correct calculations if this is done with my money. And really what I just want to sharpen here is the point that I won’t have time now to continue developing. In Jewish law there is an area, or a type of consideration, called territorial considerations. The terminology is mine; it doesn’t matter. But you can see it in several places. Territorial considerations are very special considerations, and often people are not aware of them, including halakhic decisors, in my humble opinion, but I think they are still correct. I’ll try to show this maybe later. And what is a territorial consideration, and what is unusual about it? It is unusual in that I tell you that you are forbidden to do something, or that one thing does not override another, not because of the halakhic consideration—in the halakhic plane it does override—but because even if the halakhic consideration is correct, there is a limit up to which you may apply it. In other words, the criticism of you is not that your halakhic consideration is incorrect, but that you took a correct halakhic consideration and applied it to something that is not in your territory but in someone else’s territory. And then I cannot fault you by saying that “do not steal” is not overridden by saving a life, because it is overridden. In the halakhic calculation you are right. In other words, there is no bug, I find no flaw in your halakhic consideration; your halakhic consideration is correct, there is no defect in your reasoning. But even correct considerations have a certain radius within which you may apply them. Outside that radius, it may be that the other person is wicked for not giving the money to save you, it may be that you are halakhically correct and will not violate the prohibition of “do not steal,” everything may be true—but you are still forbidden to take it.

[Speaker E] And could this be the kind of thing that depends on social agreement—that I’m willing for you to steal from me in order to save yourself, on condition that I could steal from you?

[Rabbi Michael Abraham] No problem, no problem, you can absolutely agree to that. If there is such an agreement, then there is no problem at all.

[Speaker E] We’re talking about a situation where there is no agreement.

[Rabbi Michael Abraham] That’s what the medieval authorities (Rishonim) assume. That there is no—

[Speaker D] Reciprocity, meaning—

[Speaker E] That only—

[Rabbi Michael Abraham] If you know that someone really agrees, then you can rely on that. If not, then at least according to those medieval authorities (Rishonim) we just saw, it is forbidden to take it. There is no simple assumption that everyone agrees. Now again, this is not a question—well, again, it is a question that has to be discussed on its own merits. Meaning, if for example today, you think that today’s reality—this is your assessment of reality—is that nowadays it seems to you that people, the reasonable person, does agree to this, no problem, then it would be permitted; there is no need to get into those medieval authorities (Rishonim) here. The fact that they assessed their surroundings in a certain way does not mean that the same is true today. Today we need to assess what the reasonable person thinks today. No problem. But at the principled level, if we were to assume that our assessment is that the reasonable person does not agree, then even in a case of saving a life, the conclusion would be that it is forbidden to take it.

[Speaker F] Today he would justify the same thing from the other person?

[Rabbi Michael Abraham] So I’m saying, good—that’s a wonderful argument. The question is whether it convinces him. If you convinced him, fine. But if you did not convince him, then even though you’re very right… it’s an excellent argument, talk to him. Excellent argument—talk to him, try to persuade him. But if you didn’t persuade him, the fact that you have arguments means nothing. As long as he doesn’t agree, you can’t take it. So that is basically the claim.

[Speaker A] And Tosafot didn’t—he didn’t agree with Rashi on the matter of theft, but he says there is the same thing regarding someone who breaks in; he says yes.

[Rabbi Michael Abraham] Yes, so Tosafot elsewhere—so it’s not certain that you can connect one to the other. Yes.

[Speaker A] Yes. You kept talking about the legal layer as something on which Jewish law relies: even when Jewish law permits, the legal layer forbids, and then the halakhic consideration doesn’t apply. And you’re speaking in particular…

[Rabbi Michael Abraham] Of course it doesn’t apply. After all, there is a prohibition from the legal consideration.

[Speaker A] A halakhic consideration may be fine, and still it is forbidden to me. And this is based on the other person’s rights, which I’m not… I’m forbidden to bring into the calculation. First of all, it’s not so clear to me what exactly that legal layer you’re talking about includes and what it doesn’t include in terms of rights. I’ll give you an example from my own life. Sleeping at night—is that a right of mine? No, no, no, no—this is a very important principled question, yes.

[Rabbi Michael Abraham] If someone disturbs your sleep, can you sue him in religious court? No—that is really the question.

[Speaker A] No, at the legal layer—

[Rabbi Michael Abraham] That is the legal layer: whether you can sue him in religious court.

[Speaker A] In religious court, not in civil court. The way of the world—I think it’s agreed everywhere—that at two in the morning a normal person is supposed to be sleeping. Okay. Is that…

[Speaker B] Is he permitted to sleep, or does he have a right to sleep? That’s not the same thing.

[Rabbi Michael Abraham] Once there is a law that says you may not make noise, that law apparently…

[Speaker A] No, I’m talking about the legal layer. Just as I have a right to my money, I have a right to my sleep. I’m just… I’m not asking for no reason, no, no. Now, I live in a place where in the normal course everyone is asleep at two in the morning. Now I need, in order to save my life, to wake up the whole neighborhood. And that I can’t repay. Right. Meaning, everyone will lose sleep. So because of the legal layer here, even if there is no Torah prohibition against waking someone up—

[Rabbi Michael Abraham] Or if there is a Torah prohibition and a legal prohibition… even if there is a Torah prohibition, it is overridden, and then I have a right…

[Speaker A] I want you to help me… to wake you up in order to save the money.

[Rabbi Michael Abraham] But if you assume that this thing is a right, then yes, exactly. Unless you say that this thing is not a right but only a duty on the other person not to disturb.

[Speaker A] Which gets to my difficulty with everything you’re saying. The legal layer—how is it defined? So I said that the layer…

[Rabbi Michael Abraham] So I talked about this in that class and said that at the legal layer it is determined by the legal system practiced in that society. Therefore it is not universal; it can change. In other words, you have to check how the society in which you live perceives the matter. If that society, for example, says that if someone disturbs your sleep you can take him to court and sue him for compensation, then that means society sees your right to sleep as a right. You understand? And then the halakhic laws that follow from the fact that this is your right would arise. But if society does not recognize it as a right, then no. And that’s the test? And doesn’t that take us back to the dead person from whom you take a cornea? He won’t sue me. In principle he could have sued you if he were alive. But he wouldn’t have taken… after the fact he wouldn’t have taken… the lawsuit is an indication.

[Speaker A] It doesn’t matter whether he would actually sue, but whether the matter is legally actionable.

[Rabbi Michael Abraham] It is actionable. Of course it is actionable. He cannot sue… he cannot sue, but it is actionable; if he were alive he could. He could have done it.

[Speaker B] So that’s the claim. The Rashba, on the story of the digger, that story—the Rashba…