The Periphery of Halakha – Lecture 2

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[Rabbi Michael Abraham] You got back to me, I understand, right? רגע, there’s no screen sharing here, I think. So he says: “And it seems to me, in my humble opinion” — this is already there in chapter 4 — “that the matter of the body’s subjugation in all monetary obligations is a legal rule: a person stands obligated to provide such-and-such from his assets to his fellow. This obligation is a legal obligation even without the Torah’s commandments, just as the types of acquisitions and the laws of ownership over property are legal matters even without the warning ‘do not steal.’ And as we explained above, it is impossible in any way to say that the reason we attribute an object to Reuven is because Shimon is warned by the Torah not to steal it from him. Rather, it is the reverse: the prohibition of theft comes only after the matter has already been determined by the laws defining the boundaries of ownership.” And that’s what he says here about repaying a creditor as well. So what he’s basically saying is: the prohibition “do not steal” tells me that I’m forbidden to take money that belongs to my fellow, not that the money belongs to my fellow because there is a prohibition on me, “do not steal,” toward him. Now the question comes up: so what really determines that the money is my fellow’s? If it doesn’t come from the Torah’s command “do not steal,” then what really is the force that determines that this money belongs to my fellow and not to me — such that the prohibition “do not steal” applies to it? Rabbi Shimon Shkop says: we have no choice but to say that there is what he calls a theory of law. What does that mean? When I want to determine a prohibition, the Torah says there is a prohibition of theft. Fine — but what is theft? Taking from someone money that is not his — or rather, not mine, but his. Now I ask: how is it determined whether this money is his or not his? The Torah doesn’t say that anywhere. There is almost no reference in the Torah to the laws of acquisition. All the modes of acquisition are basically determinations of the Sages: lifting, pulling, possession, acquisition by money, things like that. The great majority of these are rabbinic determinations. So if the Torah does not determine the laws of acquisition, how do I know how to apply the prohibition “do not steal”? We have no choice but to say that when the Torah says “do not steal,” it already presupposes the existence of property law. Where does that come from if not from the Torah? Apparently there is some legal system that preceded the Torah, which determines what belongs to whom, how things are acquired, how things are transferred — it regulates the whole matter of ownership, how we assign property to a person. After all that has already been regulated, the Torah comes and says: if I take money that, according to the laws of property, belongs to my fellow, then I violate the prohibition “do not steal.” So it turns out that the fact that the money belongs to my fellow comes before the prohibition “do not steal.” The prohibition presupposes it. Where does that come from? From the theory of law. There is some legal obligation, some social convention, some legal system that society accepts, that reason dictates, whatever you want to call it — and it is binding. And the prohibition “do not steal” presupposes it. And after the laws of acquisition determine that this particular money is yours, when I take it, I violate the prohibition “do not steal.” But first of all, before “do not steal,” there is already some determination that it is yours, and that determination is a legal determination. Then Rabbi Shimon Shkop continues and says: “And although at first glance this seems puzzling…” Maybe before that — we need to understand what the difference is between this and the prohibition of pork. He says that the prohibition “do not steal” is exceptional among all the Torah’s prohibitions. The prohibition of pork exists because the Torah commanded it. Once the Torah commanded not to eat pork, now it is forbidden to eat pork. The prohibition is constituted by the command. The prohibition “do not steal” works the other way around. I’m forbidden to steal because it belongs to my fellow, not that it belongs to my fellow because there is a prohibition “do not steal.” First of all it belongs to my fellow, and therefore there is a prohibition “do not steal.” The reverse of the mechanism of the rest of the Torah’s prohibitions. The prohibition of theft is an exceptional prohibition. And about that Rabbi Shimon Shkop says: “And although at first glance this seems puzzling — what compulsion and obligation could there be on a person to do something without a Torah command and warning? If there is no warning, what obligates me to obey? What is this theory of law? The Holy One, blessed be He, didn’t command me, so why should I obey it?” So he says: “But when we examine the matter well, we can understand it. For the obligation and compulsion to serve God and fulfill His will, blessed be He, is also itself a matter of obligation and compulsion according to the judgment of reason and recognition. So too the obligation of monetary subjugation is a legal obligation that one becomes bound by through the modes of acquisition, just as the Torah obligated it…” and so on. In short, what is he saying? You ask me why we should obey the theory of law if the Torah doesn’t command it. Rabbi Shimon Shkop, like a good Jew, answers a question with a question. Why obey what the Torah does command? If you ask me why obey what the Torah does not command, first explain to me why obey what the Torah does command. Rabbi Shimon Shkop says: one must obey what the Torah commands because reason and understanding tell us that if the Holy One, blessed be He, commands, we must obey. So if reason is the basis of the obligation to obey the Torah’s commands, then if reason tells me something else that the Torah did not command, the same mouth that forbade here can forbid there too. So there is no question why obey if the Torah doesn’t command it — on the contrary. The more fundamental basis obligating me is reason, not the Torah’s command. Even the duty to obey the Torah’s commands is grounded in rational recognition. The Torah’s commands are binding for that reason. So Rabbi Shimon Shkop overturns the whole usual order of priorities. We are generally used to thinking that what the Torah commands is binding, and if the Torah didn’t command something, then why on earth should we obey it? He turns it completely upside down. The big question is: why obey what the Torah does command? And the answer is: because reason says so. So if that’s the case, then if reason says something else, we must obey that too. And here I want to sharpen one point. Usually — yes, I’ve already argued about this with several friends — the common understanding of Rabbi Shimon Shkop is that the theory of law determines facts, not norms. It determines what belongs to whom. But before there was a prohibition of “do not steal,” there was no prohibition on me against taking his property. That prohibition was created by the command “do not steal.” Meaning, the theory of law does not contain prohibitions or obligations; it contains facts — what belongs to whom. Without the Torah there is no prohibition on taking, no obligation to pay, nothing of the kind. The obligations and prohibitions — that is, the norms — come from the Torah’s command. So according to that reading, this theory of law is only a kind of preliminary factual infrastructure for the prohibition “do not steal.” That is what some of my good friends claim — some of them even great Torah scholars. That’s how many people understand Rabbi Shimon Shkop. But of course that is a mistake. It’s a mistake — and I also disagree with it substantively — but in any case that is certainly not what Rabbi Shimon Shkop means. As an interpretation of Rabbi Shimon Shkop, it is certainly wrong. Why? Because we just read his question: can it really enter your mind to ask why one should obey what the Torah did not command? According to the interpretation I presented a moment ago, where exactly is there any need to obey what the Torah did not command? There is no prohibition against taking money that belongs to my fellow; that prohibition exists only because the Torah commanded “do not steal.” Without that, there is no prohibition on me taking it — there are only legal definitions of what belongs to whom. So what does it mean to ask why we should obey the theory of law without a Torah command? There is nothing to obey. If Rabbi Shimon Shkop asks why one must obey, that means he understands that even on the level of the theory of law, before the command “do not steal,” it’s not only that the object is defined as belonging to my fellow, but there is also already a prohibition on me taking that money — a legal prohibition before “do not steal.” On top of that comes the prohibition “do not steal,” which adds a religious layer to the legal prohibition. So if I now take my fellow’s money, I have not only violated a legal prohibition — I have violated that too — but not only that; I have also violated a halakhic, religious prohibition, namely “do not steal.” But the theory of law definitely contains norms too, not only facts; it also contains prohibitions and obligations. When something belongs to someone else, I am forbidden to take it. Forbidden by the theory of law even before “do not steal.” And afterward “do not steal” comes and says: this prohibition is also a halakhic prohibition, not merely a legal or moral one. How does all this resolve the Mahari Ben-San’s difficulty? Rabbi Shimon is basically arguing that when you ask the legal system what we are supposed to do when one person sues another, legal reasoning says: the burden of proof is on the one seeking to extract money from another. Now once legal logic says that I, the defendant, can keep the money, then the legal determination — the same one that is responsible for the laws of property — is that this thing belongs to me. Now if it belongs to me, then there is no prohibition of “do not steal” when I keep it. Because “do not steal” comes on top of the legal layer that determines which property belongs to whom. So once the law has determined that I can keep this money, that this money is mine legally, it has not determined whether there was or was not a loan — but legally, this money is mine. Once legally this money is mine, holding onto it is not theft, even if in fact — not if, sorry, even if the truth is that I did borrow, and I’m not paying now because the theory of law says I am allowed to keep the money and not pay. I’m in doubt, after all; I don’t know whether I borrowed or did not borrow. So the theory of law tells me: you may keep the money. Once the theory of law says I may keep the money, then automatically I also have halakhic permission to keep the money, and the prohibition “do not steal” does not apply here — because “do not steal” applies only when I am holding property that, according to the laws of justice, is not mine. But if according to the laws of justice it is mine, then there is no prohibition of “do not steal.” Therefore I am not in a case of possible prohibition, and so I do not need to be stringent. That is the answer he offers to the Mahari Ben-San’s difficulty. So basically what Rabbi Shimon says—

[Speaker A] Shkop,

[Rabbi Michael Abraham] Rabbi Shimon Shkop’s claim, basically, is that there is an infrastructure prior to the prohibition “do not steal” — he calls it the theory of law, or the laws of justice — which determines the entire legal system. On top of that legal determination comes the halakhic, religious prohibition of “do not steal,” adding another layer to the prohibition against holding money that is not mine. Now what this really means is that there is some extra-halakhic system here that has binding force. Again, we are discovering here some kind of periphery of Jewish law. It is a normative system that does not emerge from command and therefore is not Jewish law, but it is binding. It has standing. And the prohibition “do not steal” is basically built on top of it. And now, in light of what I said in previous sessions, we need to distinguish between two aspects of this claim. After the Torah said “do not steal,” the Torah gave halakhic endorsement to the legal determination. At that point, taking this money from someone becomes a halakhic prohibition, a religious prohibition. But what I am claiming is that besides the religious prohibition, there is also a legal prohibition. And that legal prohibition is not Jewish law. It is substantive reasoning, not interpretive reasoning, and therefore it is not Jewish law. It is an obligation that belongs to a category outside Jewish law, another category altogether. And notice, this is an important point. Because the actual determination — say, the reasoning that establishes what belongs to whom in terms of the laws of acquisition — that is indeed part of Jewish law. Why? Because when I look at “do not steal,” I ask myself: how is theft defined? The Torah says “do not steal,” but I don’t know what counts as stealing; define theft for me. I need the laws of acquisition in order to define the act of theft. If I take money that belongs to someone else, I am a thief. But for that I need to know what it means for money to belong to someone else and not to me. So the laws of acquisition are what actually define the prohibition “do not steal.” In that sense, the laws of acquisition are interpretive reasoning: they interpret the prohibition “do not steal.” Therefore it is clear that the laws of acquisition are indeed part of Jewish law. What I am claiming here is not about the laws of acquisition. It is precisely the point that was under dispute between me and my friends, which I mentioned earlier. They argued that all there is in the laws of justice is the laws of acquisition — what belongs to whom — but there is no legal prohibition against taking it; the prohibition against taking is only religious, “do not steal.” According to them, there is indeed some dimension of reasoning or some legal extra-halakhic dimension, but that dimension merely defines the boundaries of the prohibition “do not steal.” So on their view, this is simply using reasoning to define the prohibition “do not steal”; it is reasoning at the Torah level, and therefore part of Jewish law. But according to my view, in the laws of justice there is not only a factual definition of what belongs to whom; there is also a prohibition against taking property that belongs to someone else — a legal prohibition before “do not steal,” or alongside “do not steal.” That is no longer part of Jewish law, because this reasoning is substantive reasoning, like the reasoning that one should bless over food beforehand. It is reasoning about what is proper to do, not reasoning that interprets “do not steal.” It is reasoning that constitutes an independent prohibition, and therefore this is not part of Jewish law. It is an obligation that belongs to a category outside Jewish law. Now, it could perhaps appear in the Shulchan Arukh, because the Shulchan Arukh collects all the obligations incumbent upon us. It does not appear there, but it could have appeared there, because the Shulchan Arukh gathers all the obligations incumbent upon us. But on the theoretical level, this is not part of Jewish law. Let me sharpen this a bit more. Another use of this same procedure, in my reading of Rabbi Shimon Shkop, was for explaining another statement of his. He actually alluded to it in the passage I read, but later he expands on it more. There is a dispute among the medieval authorities (Rishonim) as to whether the prohibition “do not steal” applies to a non-Jew as well. Is stealing from a non-Jew prohibited by the Torah or not? Some medieval authorities say not. Rabbi Shimon Shkop says: according to all opinions, it is forbidden to steal from a non-Jew on the level of a Torah prohibition. Why? Because the very fact that the money belongs to the non-Jew means that I am forbidden to take it, even if the prohibition “do not steal” does not speak about a non-Jew. So here, in my terms, I would say: there is only the legal layer, and not the halakhic-religious layer. Okay? This is further proof that Rabbi Shimon Shkop does not settle for saying that the laws of justice merely determine the property facts; they also determine a prohibition. Otherwise, what he says here would make no sense. According to my friends’ approach, there is really no prohibition against stealing from the non-Jew; there is only a definition that the money is his. But if “do not steal” does not speak about non-Jews, then there is no prohibition on taking the non-Jew’s money. According to what I’m saying, what do you mean? The very fact that the money is his yields the conclusion that I am forbidden to take it. That is the meaning of saying that this money belongs to him — that I am forbidden to take it. Independently of “do not steal,” there is a legal prohibition. Besides that there is also the religious prohibition of “do not steal,” but according to those medieval authorities, the religious prohibition does not apply to non-Jews, so that religious prohibition does not exist. But the legal prohibition definitely exists, because the legal prohibition is a consequence of the laws of acquisition, and non-Jews certainly do have property rights. Jewish law also recognizes that a non-Jew can own property; that is obvious. Whether I am forbidden or permitted to steal from him has nothing to do with whether the money is his or not. And that itself is proof that the laws of acquisition are not determined by the prohibition “do not steal.” Look — with regard to a non-Jew there is no “do not steal,” according to those medieval authorities, but the laws of acquisition certainly apply to a non-Jew. A non-Jew certainly has property; there is no doubt about that. Therefore, the claim is that the prohibition against stealing from a non-Jew is not part of Jewish law, because it is reasoning that generates a new rule, not reasoning that interprets an existing rule. The laws of acquisition — what belongs to whom — are part of Jewish law, because that is essentially interpretation that determines the scope of “do not steal,” and that is interpretive reasoning, so it is part of Jewish law. But the prohibition against stealing from a non-Jew, the legal prohibition against taking money that is not mine, is not part of Jewish law, because it does not interpret any command; there is no command about it. It is my obligation as a member of human society, which is governed by a legal system, and therefore I must obey that legal system. This has various implications, and I took it pretty far in different articles. My claim was that, for example, in a place where society truly does not recognize property law — where there is lawlessness regarding other people’s property, total lawlessness — meaning there is no law and no judge, no police, no enforcement, nothing; places of absolute anarchy with regard to another person’s property — in such places there would also be no prohibition of “do not steal.” Because once there is no legal determination of what belongs to whom, there is nothing for “do not steal” to apply to. “Do not steal” says that I am forbidden to take money that legally belongs to my fellow. And in a place where there is no effective legal system, then the money does not belong to my fellow in that legal sense, and therefore there is no prohibition of “do not steal” either. This has many implications. I wrote about this regarding the Kovno ghetto. My argument there was that the prohibition “do not steal” did not really apply there at all, because there was no property. Everyone did whatever they wanted there; there was no police, there was no effective legal system, so in effect there was no prohibition of theft either. In any case, you can take this to all sorts of other places, but that is not our topic. What I basically want to say here is that we see a category that lies outside Jewish law, even prior to command and prior to Jewish law, but it is binding. It is a peripheral category; it is not part of Jewish law, but in certain ways it can affect, first, Jewish law — and then I will view it as part of Jewish law. That is the laws of acquisition, which determine the definition of “do not steal.” But it can also affect my actual conduct, what I may and may not do, even though it is not part of Jewish law. I am forbidden to steal from a non-Jew even though Jewish law does not prohibit it, because the law prohibits it, and law is something valid. The Holy One, blessed be He — I’ll say here what I said about morality — expects us to obey the instructions of the legal system as well, not only the instructions of Jewish law. That is, this too is part of the will of God. I am not claiming that this is some other thing that obligates me even if I were an atheist. I am saying that it is part of the will of God — at least for me, as someone who believes in Him, so from my standpoint this is part of the will of God exactly as I said about morality. But it is a different kind of divine will from what is called Jewish law; it is a different kind of will. And now, once there are conflicts, everything I said about conflicts between Jewish law and morality can also be said about conflicts between Jewish law and the theory of law. There too there can be conflicts, and there too it is not clear which one prevails. One can begin to discuss what we do in situations of conflict, because this is an extra-halakhic category on the one hand, but on the other hand it has a status like Torah-level law. It has standing because the Holy One, blessed be He, expects us to do it. And now the question is what prevails over what. Everything I said about clashes between Jewish law and morality I can now repeat about clashes between Jewish law and legal reasoning or legal categories. I want to sharpen a bit more the significance of Rabbi Shimon Shkop’s picture here. There is a common conception in the halakhic-analytical world: Jewish law — command — basically constitutes the halakhic legal acts and the halakhic norms. That is, command creates the concepts and the norms, and so on. For example, once the Torah commanded betrothal and divorce, then there is an act of betrothal and an act of divorce. As long as the Torah had not commanded, there was no betrothal and no divorce. Those concepts were created; the Torah constituted them. Okay? These concepts were created by the Torah’s command to betroth a woman or divorce a woman and the like. But I want to argue that at least some of the Torah’s commands are directive commands and not constitutive commands. What do I mean? This is a distinction in analytic philosophy. Some analytic philosophers distinguish between constitutive rule-systems and directive rule-systems. What does that mean? A constitutive rule-system — the usual example people give is the rules of chess, the rules of a game. Okay? In chess, someone who moves the knight incorrectly has not committed a sin; he is simply not playing chess. Meaning, someone who does not follow these rules is not playing that game. The rules constitute the game. They do not direct how to play it properly; they constitute it — that is the definition of the game. If you play with different rules, or not according to the rules, then you simply are not playing chess. By the way, this is a nice point I made earlier; I don’t remember anymore in what context. I once heard a lecture in a pub in Tel Aviv — there were these public lectures in various pubs in Tel Aviv — so some friends of ours took us to one of those pubs for a lecture by two lecturers in philosophy from the Open University, and they were talking about the philosophy of soccer. It was during the World Cup. They talked there about the philosophy of soccer, and they discussed the question: what is the status of a foul in soccer? In my terms, the question is: when I commit a foul, that means I am not really playing according to the rules. But if I’m not playing according to the rules, then I’m not playing soccer at all, because the rules of soccer constitute the game. If I don’t play according to the rules, then I didn’t play soccer. But that’s not true. The game continues, and the rules of soccer themselves contain rules about what to do when a foul is committed. Free kick, this, penalties, whatever — each situation and the law that applies to it. But the law itself relates to the case of an infraction. By the way, this is like a prohibition linked to a positive commandment in the Torah. The positive commandment to restore stolen property addresses the offender who violated Jewish law and stole. The law tells him what Jewish law commands him to do now. In other words, a legal system often relates to situations that contradict the system itself. It tells you what to do when there has been a deviation from what I command. So in soccer too, the claim is that a foul is part of the rules of the game. In a certain sense one could say — although I don’t think it’s fully accurate there — one could say that the system of rules in soccer is not exactly constitutive but directive. Because it tells me how to play correctly, but one can also play incorrectly and it is still that same game. What is the classic example usually given in this context? Traffic laws. Traffic laws tell me that if I drove through a red light, I committed an offense. So what does that mean? That if I drove through a red light, then I simply did not drive? It doesn’t constitute anything. It is a directive rule-system. It tells me how to drive correctly. But clearly, even if I drive incorrectly, I am still driving. It does not constitute the act of driving or the concept of driving. It directs it. It tells me what it means to drive properly and what it means to drive improperly. That is called a directive rule-system. By contrast, the rules of chess are a constitutive rule-system. Now the question is how I relate to Jewish law. The common conception is that Jewish law is a constitutive rule-system. The concept of divorce or betrothal is constituted by the halakhic command. Before the halakhic command, it simply did not exist. But I think that is not correct.

[Speaker A] And one of the nicest demonstrations of this point is the well-known words of Maimonides — I’m bringing them up now — the well-known words of Maimonides at the beginning of the laws of marriage.

[Rabbi Michael Abraham] Let me share with you: before the giving of the Torah, if a man encountered a woman in the marketplace, and he and she wanted to marry, he would bring her into his home and have relations with her privately, and she would become his wife. Once the Torah was given—this is the well-known ruling of Maimonides, that kiddushin is a positive commandment. People commonly think this is his dispute with the Rosh, and with most of the medieval authorities (Rishonim), who say there is no commandment in kiddushin; it is only an instrument, an instrument for the commandment of procreation. I think that even in Maimonides it is not certain that this is a commandment, but that is another discussion. So this Jewish law, Maimonides’ first law here—in my opinion, what Maimonides wants to say here is not just some historical description, to give us historical background to the matter. He is giving us a foundation here that is very important for the law itself. And what he is basically telling us is: look, there was a legal order in the context of personal status—not in the context of monetary law. In the context of personal status, society determined for itself that there is such a thing as a couple-unit, and a man and woman can marry, and they can separate, and there is, as it were, something like buying and selling—which is a relationship between members of society—and personal status is also a relationship, in a different context, between members of society. And the legal system, in every legal system in the world, determines both monetary relations between people and also personal status, a person’s status in relation to the society in which he lives. If a woman is my wife, then another man is forbidden to have relations with her. If she is my wife, then she has rights that follow from that, and I have rights that follow from that. There are definitions of what society owes that couple, what that couple owes society, and of course what they owe one another. Okay? That is a social status. Therefore Even HaEzer belongs to the legal part of Jewish law. Right? To what religious courts deal with. These are not questions for a rabbi; this is not just a decisor of practical law—these are questions for a judge, okay? Like monetary law. And what Maimonides is basically saying here is the same thing Rabbi Shimon said about legal systems: there is a certain foundation that precedes the prohibition of “do not steal,” namely the foundation of civil law. So too in the laws of marriage. The laws of marriage have a legal foundation on which the laws of marriage are built. And what that legal foundation basically says is that if a couple—yes, a man and a woman—decide to establish a household and live together, they can agree between themselves, enter a home, have marital relations, live together, and in that way a couple-unit is created. And that thing is legally binding. On top of that the Torah came and said: I require that before you establish the couple-unit, you first perform an act of kiddushin. And it defines what kiddushin is: money, document, intercourse, and so on, all the definitions. The entire tractate Kiddushin basically deals with kiddushin; there is almost no discussion there about marriage proper. Tractate Kiddushin. Kiddushin is the legal—halakhic, sorry—act that we are supposed to place before the legal or natural life together. The accepted view is that after the Torah introduced the concept of kiddushin, it erased the previous state of affairs. It has no significance whatsoever; it was erased. From now on, when a man and woman decide to live together, if there was no kiddushin, then they are simply an unmarried man and woman, just as they always were. Their decision has no significance if it is not backed by the halakhic act of kiddushin. That is the accepted view. I think that view is incorrect. When a couple decides to live together, they are a married couple, they are husband and wife, even without an act of kiddushin having taken place. The Torah tells us: there is a system of laws that directs the establishment of the couple-unit; it does not constitute it. It tells us how to do it properly. How do you do it properly? You precede marriage with a halakhic-legal act of kiddushin. And that is the proper way to marry a woman. But it is not that if I did not sanctify her in kiddushin, then there is no bond whatsoever between us. Anyone familiar with the controversy around Rabbi Dichovsky’s proposal about Noahide marriage—he proposed allowing a system of civil marriage in the state and defining it not as kiddushin according to Jewish law but as Noahide marriage. Now, he also introduced concepts there like a get and so on, following the Rogatchover. I do not think one needs to go that far; in my view that is even a mistake. I think there is Noahide marriage—what is written here in Maimonides in this law. Noahide marriage is a concept that is valid today as well. But it is obvious that it is valid for gentiles. I argue that it is valid for Jews as well. When Jews begin living as a couple, husband and wife, when they decide to live together, they are a married couple. They are a married couple in the sense of Noahide marriage. If they preceded this with an act of kiddushin, then they established the couple relationship in the fullest way, as Jewish law directs us to do. But it is not that Jewish law constitutes the establishment of the household, the marriage. Even without Jewish law there is marriage, and there was marriage before Jewish law; that is what Maimonides is describing here. Jewish law tells us how it requires us to do this properly. In that sense, this is directive law, not constitutive law. There are a great many implications to this. For example, if you look at the dissolution of the couple-unit. In the dissolution of the couple-unit there are all kinds of obscure hints to this in the Talmud and in the medieval authorities (Rishonim). The clearest place is perhaps a passage in tractate Gittin on page 17, I think. The Talmud says there that from the moment he sets his mind to divorce her, he no longer has rights to the produce. A husband has rights to the produce of his wife’s nichsei melog. The property itself belongs to the woman, the corpus, but the produce that comes from that property belongs to the husband. That is part of the ketubah arrangement; not important right now. So the Talmud says there: but from the moment he sets his mind to divorce her, he no longer has rights to the produce. What does it mean, from the moment he sets his mind to divorce her? He has not yet given her a get; he only decided to divorce her. So what? He decided, so he decided—what happened? If he decided to divorce her, he has no rights to the produce. My claim is: why does he not have the produce? Because just as in the process of building the couple-unit there is a process built of two stages—first of all, well, not really first chronologically—there is the basic stage, the stage of marriage. That stage exists everywhere in the world, existed before the Torah was given, the division into couples, into households, right? That is the natural plane. On top of that is a second story: the Torah requires us to precede this with an act of kiddushin. In terms of temporal sequence, the kiddushin comes before the marriage. But in essence, the kiddushin builds a certain legal layer, and on top of that we build the couple-unit. And the couple-unit is something that belongs also to the Noahides. In the process of dissolving the couple-unit, I claim that this also happens in two stages. Even though usually I give a get and the whole thing falls apart—she is no longer married to me, no longer bound to me by kiddushin, nothing; she is completely free. But my claim is the reverse. Suppose I did not give a get. But we decided—or even it is enough that I decided—that I no longer want to live with her. Right? “From the moment he sets his mind to divorce her.” He decided to divorce her; he has not yet written the get, not yet given it to her, but for him it is already decided. They have returned to the state of kiddushin, of betrothal. The marriage has been nullified. From when does the husband have rights to the produce of his wife’s nichsei melog? Not from the kiddushin—from the marriage. By virtue of the ketubah obligations. Therefore, when the marriage is nullified and they return to the state of a man and his betrothed woman—now in Jewish law, of course, that means after kiddushin; if someone has relations with her, it is a capital prohibition. But it is called erusin in Talmudic language. Okay? So they returned to the state of a betrothed man and woman; they are no longer married. The social-legal dimension no longer exists; what remains is only the halakhic remainder. In such a state, all the obligations that exist toward a married couple—I continue—all the obligations that exist toward a married couple, not a betrothed couple, are nullified. And since they are no longer married, only betrothed, of course the capital liability for anyone who has relations with her remains, because she is still a woman under kiddushin. But she is under kiddushin and not married. There is, for example, a Rashbam in Bava Batra. Rashbam says—it needs more digging, but my claim is that what Rashbam says is that from the moment he sets his mind to divorce her, he no longer becomes impure for her and no longer inherits her. Those are already Torah-level laws, not like nichsei melog, which are a rabbinic enactment. Torah-level laws are nullified. Why? Because becoming impure for one’s wife and inheriting her applies only after marriage. It does not exist for a woman under kiddushin. The moment he set his mind to divorce her, all obligations connected to marriage and not to betrothal are nullified. We have gone back to stage one. Now of course he still has to give her a get as well, in order to release her completely, so that she is no longer even under kiddushin and can marry someone else. Usually this happens in one stage: I give the get and it dissolves everything. But in principle, if there is a distinct stage in which it is clear that the husband has decided to divorce, only the get has not yet been written, then an intermediate state is created here, like the state after betrothal during the twelve months between betrothal and marriage—in the Talmudic period it was twelve months. And what does this really mean? It means that the laws of marriage and kiddushin are directive laws, not constitutive laws. The couple-unit exists even without the Torah’s definition; it existed beforehand. It exists among gentiles too. Not because of a commandment of the Torah; it exists because the legal system and human culture created it. So what does this really mean? That the laws of marriage and kiddushin are directive laws, not constitutive laws. The couple-unit exists even without the Torah’s definition. It existed beforehand. It exists among gentiles too. Not because of a commandment of the Torah. It exists because the legal system and human culture created this social-legal-cultural construction. Therefore it exists. What the Torah did was not to constitute it; it did not define the concept of the couple-unit, in its formation and in its dissolution. It said how to do it properly; it directed us, it did not constitute the concept—it directs us how to do it properly. For example, I will perhaps give an example that illustrates this point. The Sefer HaChinukh, in the portion Ki Tetze, speaks about the important commandment of divorcing one’s wife with a get. Yes, there is a commandment in the Torah to divorce one’s wife with a get. Usually people understand—this actually came up for me this morning in another class I gave—people understand that divorcing one’s wife with a get is not a commandment at all; it is only a definition, a procedure. If you did it with a get, then she is divorced; if you did not do it with a get, then she is not divorced. But in what sense is this a commandment? It is a procedural definition of how one separates. But in Sefer HaChinukh, at the end of the commandment of divorce, it says that one who violates this and divorces his wife not in the way the sages established, not with a valid get, has nullified this positive commandment and his punishment is great. Meaning, it is possible to nullify this positive commandment. If you were to ask a yeshiva student and say to him: what happened if a person divorced a woman with an invalid get? No—invalid is rabbinic; void, a void get. A get that is no get at the Torah level. He would tell you: obviously he did not commit any transgression; he simply did not divorce her. He did not perform the procedure that successfully dissolved the couple-unit, so the couple-unit still exists, that is all. He did not violate any prohibition; she is simply not divorced. But Sefer HaChinukh writes that he nullified a positive commandment, that he committed a transgression. What does it mean, he committed a transgression? The simple meaning is that what Sefer HaChinukh is actually telling us is that if he divorced the woman with a void get, the woman is divorced. He simply did not do it properly, and therefore he nullified a positive commandment. The proper way to do it is with a valid get, but it is not that if the get is invalid then nothing at all happened. The validity rules for a get are directive rules, not constitutive rules. Therefore, if I divorced my wife—yes, I sent her out of the house, okay?—then we are divorced, but I did not do it properly. Why not? Because although the couple-unit no longer exists, the prohibition on her marrying or entering kiddushin with someone else still exists, because formally she is still under kiddushin; I have not yet dissolved that so long as I have not given her a valid get. Sefer HaChinukh says: in such a case, I am essentially keeping her chained. That is what happens today with get-refusers. I am keeping her chained. Why? Because the couple-unit no longer exists, but the prohibition on her entering kiddushin and marrying someone else remains in force, and that woman is an agunah. And one who keeps a woman chained is nullifying a positive commandment; he is committing a transgression. It is not only that he is morally wrong; he is committing a transgression. He did not fulfill the commandment of divorce. The commandment of divorce tells me that if the couple-unit has broken apart, then break it apart all the way: give a valid get, release the woman completely even from the kiddushin, not only from the marriage. Once you decided to separate, the marriage evaporated. But the kiddushin—how is it dissolved? Just as I sanctified her by a halakhic-legal act, so too its dissolution is done by a halakhic-legal act, namely the giving of a valid get. There is a halakhic obligation to give a valid get and release the woman. Whoever does not do that has nullified a positive commandment. That, in my opinion, is the intent of Sefer HaChinukh. And what this really means is that the act of divorce is, like the act of kiddushin, essentially a directive act and not a constitutive act. Therefore, for example, if a couple were now to live together without kiddushin, my argument against Rabbi Dichovsky is that in order to dissolve that couple-unit, one also does not need a get. Because all the get does is dissolve the act of kiddushin. It is a halakhic-legal act, so when the get dissolves it, it too has to be halakhic-legal. But if the marriage runs on the platform of the universal legal level, like gentiles, which existed before the giving of the Torah, like legal systems in the monetary sphere, then its dissolution is also done as Nachmanides described. I remind you again what Nachmanides described. Nachmanides described that from the moment the person wants to, he sends her away, and then they cease to be—right? He brings her into his house and then they become a couple, and if he sends her away then she ceases to be his partner. That is all. That is what you are really supposed to do if you are not playing on the halakhic field but on the universal legal-cultural field, of couplehood and of marriage and divorce without the Torah. Exactly as we saw with respect to monetary law, we see here also with respect to the laws of personal status. And what I really want to say now more generally is this: my claim is that the entire legal layer of Jewish law—both personal status, Even HaEzer, and Choshen Mishpat, which is the monetary-legal part—is built on top of an infrastructural platform of a legal system that precedes Jewish law. With regard to the legal system, Jewish law is always directive and not constitutive. Jewish law tells me what is correct to do and how to do it correctly, and not that Jewish law defines the thing itself such that without it, it would not exist. There is a nice example that I once thought of, from the language of the Torah, to bring for this issue, and it is in the portion on tzitzit. The Torah says—describes, yes—”and you shall place on the fringe of each corner a thread of blue, and it shall be for you as tzitzit.” Think about that sentence. What does “and it shall be for you as tzitzit” mean? “And it shall be for you as tzitzit” is seemingly superfluous. The concept of tzitzit is defined in these verses. You take a four-cornered garment, put the strings on it, make the necessary knots—it does not matter, at the Torah level one knot is enough—but you tie them, and that is tzitzit. Obviously. That is the definition of tzitzit. So what does the verse add when it says, “and it shall be for you as tzitzit”? What do you mean—obviously. You defined the concept of tzitzit here, so what is “and it shall be for you as tzitzit”? It is like my saying to you: a triangle is a figure that has three sides, and from now on any figure with three sides is what we will refer to as a triangle. That is not a claim; it is a definition. It is not that earlier I thought a triangle was something else, and now they tell me no, no, no, the previous triangles are disqualified, this is the new triangle. No. It defines the concept of triangle. Here it is not like that. Here, when the Torah says “and it shall be for you as tzitzit,” the Torah apparently assumes that the concept of tzitzit exists without it, before it. The Torah tells us how to make tzitzit properly—like this, with a blue thread, with four corners, with tying, and all those details. That is how you properly make the concept of tzitzit. But the concept of tzitzit already existed beforehand. Therefore this is what the Torah is saying: after you do all this, I require that this be your tzitzit, not something else. But what do you mean—what is the concept of tzitzit if not this? How could there be something else that would be our tzitzit? For example, Ibn Ezra claims that tzitzit is like the lock of hair on the head. Meaning, something that symbolizes me. Tzitzit is some kind of symbol. By the way, according to this view it is pretty clear that one should wear the tzitzit outside. Okay, yes, there is a dispute between Sephardic and Ashkenazic decisors, but according to this interpretation at least, it is very plausible that one should wear the tzitzit outside because it is a symbol. That is the meaning of tzitzit. Now if that is indeed so, then the claim “and it shall be for you as tzitzit” means: we could have chosen a different symbol. I could have written a big sign, “I am a Jew,” and walked around with it openly, put it up top, and that would be my symbol, the clearest and most unambiguous symbol. The Torah says no, I require that this be for you as tzitzit. That your symbol be this and not something else. So the concept of tzitzit is essentially a symbol. And symbols existed before the Torah commanded tzitzit and things like that. In various cultures there are symbols; this is part of life. The Torah tells me: we want—rather, I want—your symbol not to be something else that you place in the hair on your head, but rather your symbol should be tzitzit with four corners and a blue thread. That is what shall be your tzitzit. So once again we see here an expression that indicates that the commandment of tzitzit is a directive commandment and not a constitutive one. Because the concept of tzitzit existed before it; it did not constitute the concept of tzitzit. Tzitzit is a symbol. I could have made my tzitzit with a sign, I could have made my tzitzit with tefillin, for example, with tefillin being my symbol, and I would walk with them all day. The Torah says no, your symbol will be this: a four-cornered garment with a blue thread and so on. That is what shall be your tzitzit. So I think this form of expression in the verse is an indication that the commandment of tzitzit too is a directive commandment and not a constitutive commandment. For our purposes, I will just summarize what we saw today. Essentially what we saw is that at the foundation of the legal layer of Jewish law—there may be other things too, but certainly in the legal layer; tzitzit does not belong to the legal layer of Jewish law—but in the legal layer of Jewish law, and perhaps also parts of the regular halakhic layer, the non-legal one, Orach Chaim and Yoreh De’ah, there is some foundation that precedes Jewish law, that existed before it, and Jewish law comes to direct it, or add to it, or direct how to do it properly, how not to do it. When Jewish law determines something regarding an existing thing, then Jewish law functions as a directive system, not as a constitutive system. Yes, like traffic laws and not like the laws of chess. And that basically means that the primary system which Jewish law comes to direct is in fact a system that is peripheral to Jewish law. There is some legal, or cultural, or moral, or whatever other system here that is not Jewish law, and it does not draw its validity from Jewish law. Its validity exists beforehand, like Noahide marriages, whose validity exists independent of Jewish law; basically the cultural-legal determination that these are a couple—that is binding. And Jewish law adds a religious layer onto that, directs it, exactly as we saw with “do not steal.” So there is a system peripheral to Jewish law that borders on Jewish law; it determines various things about what we are supposed to do and not do, but there are aspects of it that really entered into Jewish law, such as the property laws that we saw, and there are aspects of it that are extra-halakhic norms, peripheral norms, that impose obligations on me regarding what to do even though this is not part of Jewish law. Jewish law recognizes this de facto, but it did not come out of Jewish law. If, say, society changes it and reverses it, Jewish law will recognize that too. Jewish law recognizes it de facto, but it is not part of Jewish law. Nor are the sages of Jewish law the ones who determine what will happen there. What determines it is society, or its customs, or however it sets its legal rules for itself. Okay? That is basically the claim. Fine, so all in all we have become acquainted with yet another peripheral system. Here I will stop.

[Speaker A] If anyone wants to ask or comment, you are welcome.

[Speaker D] I just wanted to say, Yitzhak Brozen delivered the class. If anyone has comments or questions, you can reach out. Ilan and Chayota, send me a phone number or email so I can pass on receipts.

[Rabbi Michael Abraham] Chayota disappeared from here because she dropped off Zoom. Did she leave?

[Speaker D] Do you have her phone number or something?

[Rabbi Michael Abraham] Yes, I…

[Speaker E] Ilan is here, and I sent you an SMS with all the details.

[Speaker D] Ilan, you sent it? Good.

[Rabbi Michael Abraham] Chayota, I’ll send you the phone number. Okay. All right then, good night, goodbye.

[Speaker D] More power to you, it was very nice.