Simplicity, Lesson 3

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[Rabbi Michael Abraham] Of course! He says, since he wanted to say that this is how one ought to conduct oneself according to Jewish law, but without giving it any basis, you ask: why? After all, it’s not true. No, because the determining reality is two thousand years of Torah. Why? Where did that come from? What does “a law given to Moses at Sinai” mean? What do you mean, where did it come from? The determining reality is the incorrect reality. It’s a scriptural decree. Now you know that reality actually is correct, and there’s a scriptural decree to relate to it that way. So then it’s not reality. So tell me that it’s a law irrespective of reality. Maybe. That’s something one can discuss. But why assume that the determining reality is reality? That’s not true either. What does “two thousand years of Torah” mean? Why exactly at the sealing of the Talmud? It doesn’t exactly overlap with two thousand years of Torah either. Fine. There’s no point splitting hairs over this; I find it hard to believe that he himself believed it. Clearly it’s only educational rhetoric. By the way, there are a few things like this in the Chazon Ish. Let’s get back to our subject. What I want to say is that there is basically some process here—now the question is, there is some process of turning entities into phenomena. As I said, memory turns from being part of the thing into a phenomenon or a mental process. You have to remember. And the ancient way of looking at it was: to remember means to hold within me something of the thing that was. A part of it. Physical, material, a spiritual part, it doesn’t matter, but part of the thing that was—that is what it means to remember. The remembrance of Amalek—we talked about the remembrance of Amalek before. “Blot out the remembrance of Amalek.” What is the remembrance of Amalek? There is a commandment to remember and not to forget. “Blot out the remembrance of Amalek” means blot out every part of Amalek—that’s what it means. “Remembrance” means part of the thing. Like what we say today in Hebrew: “I destroyed every trace of him.” What does that mean? I didn’t leave any part of him. And therefore, to remember means to leave within me part of the thing. Okay? Also, once I wrote about this in connection with Memorial Day: why all this pathos surrounding the value of memory? Why is it so important to remember? Historical events too—the Holocaust—and of course further back, the destruction of the Temple and everything else, but in general, what is the value of memory? And even with, say, fallen soldiers, or whoever it may be, there’s a kind of holiness hovering over this whole matter of memory. What is so holy about memory? So when you ask people, it’s very awkward. I tried a bit. They don’t really know what to answer. They tell you something about sharing in the family’s grief or something like that. Not really convincing. Help them, comfort them. But why remember? I’m sitting at home—why do I need to remember? Who cares whether I remember his son who fell or don’t remember his son who fell? I’m at home. I’m not sitting with him and talking to him about it. That I can understand—that’s a kind of participation, giving the person some chance to unload and so on. But if I’m sitting at home, why do I need to remember someone? Who cares? So it seems to me that what’s there is a remnant—and again, a remnant—of that same conception that says that when I remember someone, then something of him is still here. It simply extends his life—he hasn’t completely died. And in that there is quite clearly value. Meaning, if dying is a problematic thing, then keeping the dead alive is something of value. Except that today you can’t talk that way; it sounds mystical. What, some part of him is here? The fellow is already under the tombstone—what part of him is here? I say no: if you understand that his mental part is not only part of him, maybe even the main part of him—the soul or all these things—then you can explain in a genuinely real, factual way that part of him is here; he is alive, literally alive. “We do not make monuments for the righteous; their words are their memorial,” in the simple sense. Because their words or their ideas really are part of them. What do I care about their molecules? Why should their molecules interest me? We always take that as a figurative expression—why? Because we’ve become accustomed to a way of thinking in which what exists in a person is his body, and everything else is some kind of abstraction, I don’t know what—processes in the body—but not entities that exist in their own right. The mental or spiritual part of a person is not an entity in today’s accepted view; rather, it is a property of his physical whole. But if you understand that there is a dimension to his being, a mental and spiritual dimension, then part of him remains here, and it’s therefore like a kind of resurrection of the dead, or preventing him from dying. That is basically the value of memory. But people today won’t speak that way. So they explain it in terms of this emotion or that emotion, nothing that really succeeds in convincing me, and I think not them either. It’s an attempt to make a retrospective rationalization for something else that you don’t recognize, or are not willing to recognize, as existing. Because it’s a kind of outlook that people today—many people—are not really prepared to grasp in the straightforward sense, maybe as a metaphor, but not that in some real sense something of the person whom I remember is actually here. Very few people would agree to say that that is really what’s happening. They’ll say yes, it’s a metaphorical usage, it’s as if. As if he’s here, as if. What do I care about the “as if”? What explanation is that? But people transfer everything into emotional-psychological dimensions, because they’re unwilling to accept the ontic dimensions, the dimensions of being. Now here the question again is: who is right? In this context I actually tend to think more that the ancient outlook is the correct one, unlike in the context of demons.

[Speaker C] What? That mentality exists?

[Rabbi Michael Abraham] Yes, right. That part of the person really is here. And that’s also why memory has value.

[Speaker C] So going up to the graves of righteous figures, that’s—

[Rabbi Michael Abraham] Going up to the graves of righteous figures isn’t really connected to this issue, unless you think it helps you remember him.

[Speaker C] No, because they’re here.

[Rabbi Michael Abraham] Well, if they’re here, then you don’t need to go to their grave. So study his book, I don’t know, study his ideas, and that’s far better than going to dance around his grave.

[Speaker F] In the Lithuanian yeshiva they told us in Meron, on Lag BaOmer, “Rabbi Shimon is here”?

[Rabbi Michael Abraham] Yes, yes. Exactly. No, and I’m saying: but you know, when people say that—at least in modern times, with a bit of reflection—you smile. Meaning, yes yes, not laugh at it as a joke, but you understand that it’s a figurative expression. When you look at it, okay, I get it, you mean to say that it’s better to study Rabbi Shimon than to go dance around his grave. You don’t mean that it’s really a genuine substitute. But the truth is that if you think about it that way, it is a genuine substitute. It’s not a substitute—it’s the only presence that exists.

[Speaker F] Yes, and also, when you’re happy—what are you happy about? About the lights he brought and the insights he brought into the world.

[Rabbi Michael Abraham] Exactly. So I’m saying, from that perspective, here for example—as opposed to the issue of demons—in this context I actually think the ancient outlook grasps something deeper than the modern outlook does. Regarding demons, I’m less sure.

[Speaker G] Even though in practice it’s presumably more of a psychological phenomenon. What? Even though in practice it really is more of a psychological phenomenon—the people, the desire to remember. Maybe it came from a rational place like that, but the explanation—

[Rabbi Michael Abraham] The explanation for the phenomenon, the retrospective rationalization, is a psychological rationalization. And why? Because people are unwilling to admit to themselves—not that they’re lying, of course—but they don’t, even when they look inward, identify within themselves a view that says: wait a second, something mental of that person who passed away actually still exists here. Understand? So that’s why they offer retrospective rationalizations. They say yes yes, it’s a psychological matter, emotional, identifying with the past, I don’t know exactly, all sorts of things of that kind. I think these are retrospective rationalizations. Deep down, people really do perceive it that way. It’s just that in today’s culture people are not really willing to say that. You can’t really say that seriously, as it were—at least not to themselves. Yes, no, obviously I don’t mean they’re lying; rather, when you analyze yourself, it’s obvious that it can’t be that, so you make these various rationalizations. But in fact that is what lies behind it. But we’ve often talked about the rationalizations people make after the fact for their modes of behavior and thought, when they don’t interpret themselves correctly. People who are committed to morality—morality in the Kantian sense—I think all of them are believers. They are believers, even if they are declared atheists, ideological atheists who studied philosophy and wrote about it—it doesn’t matter, they are believers. They are believers because without that, in my opinion, there is no morality.

[Speaker F] There’s no deep validity to morality.

[Rabbi Michael Abraham] There cannot be real validity to morality without belief in God. So if a person feels that morality has validity—or not feels, but thinks that morality has validity—then he is a hidden believer. Now after you convince him philosophically, very sharply, and if he is honest enough to admit it—which happens quite rarely—then he’ll move to psychological rationalizations. Then he’ll explain to you: yes, morality is simply because that’s how I’m built, and it’s comfortable for me to do good to others, and I want them to do good to me too, and there is utilitarianism and all sorts of such explanations. But to me these are all retrospective rationalizations. And so on—you can show this in many contexts. That is, many times people don’t interpret themselves correctly, because the spirit of the age doesn’t allow you to discern certain forms of thought or certain conceptions even though they exist within you. You’re unwilling to admit, “the heart does not reveal to the mouth.” You’re unwilling to admit to yourself that this is really what you think. In any event, for our purposes, this thing really is a phenomenon in which our thinking moves from thinking in terms of entities to thinking in terms of phenomena. We neutralize all the ancient entities, the ancient primitive thinking with all kinds of entities that nobody sees, and we translate it into phenomena. That is basically what we do. So I’m saying, sometimes the modern form of viewing things goes too far, and sometimes not. I don’t know whether there is some general rule about who is right and who is not, but certainly there is such a process of shifting language: from a language of entities to a language of phenomena. There is also—and maybe we’ll talk about it one of the next times—but scholars have already spoken about this, scholars of the Talmud in several places, that the Mishnah thought in a more concrete way than the Talmud did. The Talmud made abstractions. So in the Mishnah mainly events are brought. Here and there there are also rules in the Mishnah, but generally events are brought, and the Talmud tries to understand what stands behind them, what rule stands behind them, and makes abstractions. Once it makes abstractions, that is why objections arise. Because one case does not contradict another case. A case is a case, and that case is a case. So how does a contradiction arise? When you understand that behind this case there is a principle, but that principle does not hold in the other case—then I have a difficulty. So I come up with answers. So, as we discussed about analogy in previous classes, in order to create an analogy you basically have to create some rule that stands behind the cases between which you are making the analogy. So too with an objection. An objection is an anti-analogy. That is, something is seemingly not similar to something else, but it really ought to be similar. So at the base of an objection there always sits some analogy. It’s supposed to be the same thing, but the law is different, so it’s difficult. It requires analysis. How? What stands behind it? You’re basically saying that there is some general law that these two cases should have obeyed, and this one doesn’t obey it, and that is why it’s difficult for me. Okay? So you’re basically making abstractions. That is why the Talmud is made up more of objections than the Mishnah is, because the Talmud makes abstractions. For example, yes: “The four primary categories of damages are the ox, the pit, the grazer, and the fire.” We already talked about this, and maybe I’ll devote a little more effort to it. But again, I’ll just return to this example. There too the Talmud takes those primary categories of damages and makes an almost wild abstraction from them. Meaning, a pit is not a pit, and goring is not a horn. Anything whose intent is to damage, or something unusual, is “horn.” A biting dog can be a damage category of “horn.” That’s an abstraction, quite a wild abstraction I would even say. Fine? It’s not horns in the concrete sense in which we think of a horn. The same with fire, or similarly, “his stone, his knife, and his load that fell from the top of the roof and caused damage while flying through the air”—that is fire. What fire? What does fire have to do with it? The point is: damage caused through the agency of wind, the energy of the wind causes it to damage—that is called fire. Even though it’s not fire in the concrete sense, that’s an abstraction. Okay? So the Talmud makes an abstraction out of the categories of damages that appear in the Mishnah, and an interesting question is to what extent the Mishnah itself also assumed these abstractions.

[Speaker I] Maybe—there is in the Talmud, no—

[Rabbi Michael Abraham] “This is not like that,” and so on. “This is not like that” still does not mean that it assumes those are the defining features. That’s an additional step. There is definitely a difference between horn and pit. The question is whether everything similar to horn will really be considered horn—that’s an additional step. Maybe it was already in the Mishnah, maybe not. I said, I’m not entirely sure. There’s Avishalom Westerich—Avishalom Westerich wrote a dissertation on the categories of damages, and there he showed that the Talmud went further than what one sees in the Mishnah in this matter of the categories of damages. Fine, I’m just bringing this example; there are many examples in which we see that in the Mishnah they took certain events and the Talmud made some abstraction out of them. Which of course then becomes generalization, and that is part of the same process that I’m describing here. You take the concrete and turn it into the abstract over time. And the later you are, somehow, as the generations pass, as the generations advance, thought becomes more abstract. Okay? But sometimes that abstraction is deepening, and sometimes that abstraction is a miss. In the examples I brought earlier, I think there is something missed in that abstraction. By the way, this is another example of the confusion I talked about in previous classes, because drawing the conclusion that there are demons behind the feeling of crowding—you can also call that abstraction. That is, what is concrete before my eyes is the feeling of crowding; nobody sees the demons. In the Talmud too they didn’t see demons. They took, yes, the black cat and all that, and made the whole algorithm there for how to discover demons.

[Speaker K] In other cases where it says they saw demons—usually not.

[Rabbi Michael Abraham] In “the crowding at the public lecture”—the fact that they ask, where does this crowding at the public lecture come from? It is because they are crowded there by them, meaning by the demons. That is, they did not see the demons. Nobody saw the demons. It was an explanation for the feeling of crowding. Okay? So what here is abstraction and what here is concretization? It’s very far from unequivocal. You could say that the concrete sensations that I experience directly are the feeling of crowding, and now I abstract from that and say that behind it sit demons. Demons are abstract entities. Earlier I described the opposite move: the demons are entities, they are something, and I turn that into ideas, into phenomena, into sensations—so that is abstraction. You can treat this as abstraction and you can treat that as abstraction. Meaning, the direction of what counts as abstraction is itself not simple. Now, fine. That’s in connection with abstract concepts. Maybe one more example of abstraction and generalization, and this time it does touch a bit on Jewish law. There is—yes—Yeshayahu Leibowitz always used to bring that Mishnah in Kelim, about the holiness of the Land of Israel. He would say: “And what is its holiness? That one brings from it the omer and the two loaves.” As if the holiness of the Land of Israel—there’s no such thing; its holiness means that commandments are performed there. That is the holiness of the Land of Israel. The truth is that when you read the Mishnah, and also the Talmud, I think that’s not correct. Meaning, he is not right about that. Clearly, in the general conception there is indeed an assumption that behind these commandments there also stands something because of which there is such a halakhic difference among these ten levels of holiness. It’s not just out of the blue.

[Speaker F] But it seems to me that this is a question that goes to the essence of the essence of everything. You say the Sabbath has begun—so what? In that second, what happened? Some people describe for you a descent of holiness into the world.

[Rabbi Michael Abraham] No, you can say that in fact nothing happened, but we need to define this stretch of time as something holier. That’s something subjective.

[Speaker F] So either you come and say that it’s purely—as you say—subjective or behavioral, but really nothing happened. On Yom Kippur the Holy One, blessed be He, is not sitting there forgiving and pardoning; rather, you repent and therefore forgiveness is created. But you’re saying it really is a holy day and really this—

[Rabbi Michael Abraham] You can view it in two different ways, yes. Right. But I’m saying that the holiness of time is in a certain sense a figurative expression, whereas “there are ten levels of holiness”—the concept of holiness in the ordinary halakhic sense—there it’s quite hard to explain it in that kind of subjective Leibowitzian way. Because holiness is almost the prototype of a law that inheres in the object. Meaning, yes, when the Talmud in Nedarim says that there is a law in the object and a law in the person, the canonical example of a concept of a law in the object is holiness—vow and holiness. Impurity and purity?

[Speaker F] Again, impurity—

[Rabbi Michael Abraham] Impurity and purity is a not-simple question.

[Speaker J] He uses the concept of holiness in a vow. Why all of a sudden holiness? Holiness? No holiness—there’s a law in the object.

[Rabbi Michael Abraham] No, that’s a vow. I’m talking about holiness. In the medieval authorities there, when they say, for example, association, they learn association from consecrated things, and therefore in all vows too there is association, because consecrated things are the prototype, the example, for vows. But first of all I’m talking about holiness not in the sense of the general category of vows. Yes, there is misuse of sacred property with konamot, and the Mishneh LaMelekh was astonished: where do they learn misuse of sacred property with konamot from? Where did this invention come from, that there is a sacrifice for misuse of sacred property for someone who violated a konam? These are completely ordinary non-sacred things—vows. What does that have to do with holiness? What misuse of sacred property is there in this? So there are those who want to claim that there is holiness in it, but that seems absurd to me. Meaning, it has nothing to do with holiness. But it is something that is in the object. In that sense it is similar to holiness, in that it is something object-like; it is something that exists in the object, a law in the object. And therefore the prototype for a law in the object is holy objects.

[Speaker F] Yes, but even that itself needs explanation. What is a law in the object? You vow about it, so it becomes—what does that mean, a law? And if it becomes forbidden, then it’s not a vow, it’s pork. So it is in the object. Here I was talking about the level of prohibition.

[Rabbi Michael Abraham] I don’t remember if I talked about it here—I think some time ago, no? About what a law in the object is. Right? Or am I mistaken. For some reason I remember it either here or in Ra’anana, I don’t remember. I tried to discuss a bit the question that in the end it rests on you—what is called a law in the object. Yes, but I’m saying that the simple understanding in these contexts, in the contexts of holiness in the Talmud, is that “one brings from it the omer and the two loaves” is an expression or implication of the fact that the Land of Israel has holiness. It is not the definition of the holiness of the Land of Israel, but an expression of holiness. Since there is more holiness, there are more commandments in it.

[Speaker F] But that itself is what we’re talking about—what is the meaning of holiness? Whether it’s something that begins from you toward it, or something that exists as though like some material thing, some atom of holiness.

[Rabbi Michael Abraham] I’m saying, even if you raise those two possibilities, there is still a difference between the holiness of the Sabbath and the holiness of a geographic region. Because a geographic region is an object in the world. When you say it is holy, it more naturally invites you to say that there is probably something in it. It’s not the result of your decision. With the Sabbath, it’s time—what is going to be holy there? Is there a law in the object of the Sabbath? What does that even mean with respect to time?

[Speaker F] Time is also a thing—what is it?

[Rabbi Michael Abraham] That’s a question in itself.

[Speaker G] Why did they call it “ten holinesses”? They could have called it “ten levels.” Why invent another name for it? And that name brings with it—

[Rabbi Michael Abraham] That’s exactly what I’m saying. Therefore the straightforward view is that there is something in the things themselves, and the halakhic expressions are only expressions of that thing. But they are not its very definition.

[Speaker B] There is the—

[Rabbi Michael Abraham] Meshekh Chokhmah also brings this.

[Speaker B] Yes, fine, and there too I think he isn’t right. No, but I’ve read that Meshekh Chokhmah twenty times.

[Rabbi Michael Abraham] It says there that the Land of Israel is not holy. Not holy in and of itself. And that is not what the Lubavitcher Rebbe says. What is written in Meshekh Chokhmah is not what the Lubavitcher Rebbe says. What is written in Meshekh Chokhmah—what I’m saying is what is written in Meshekh Chokhmah. And that is not what the Lubavitcher Rebbe says. Leibowitz argues that there is no holiness in itself. But what is written in Meshekh Chokhmah is that there is no holiness without faith / belief in the Holy One, blessed be He. But once there is faith / belief in the Holy One, blessed be He, then there is holiness even in the tablets that Moses broke. He just says that otherwise this is idolatry—to treat the thing as holy in and of itself, not because of its connection to the Holy One, blessed be He. Holiness means the Divine Presence resting in something. But that does not mean that this is not part of the reality of the thing—that the Divine Presence rests there more than in other places, like in the Temple, like in any other place. This is again that same extremism that Leibowitz takes from these statements. I don’t think he is right about this; at least in these contexts, that is not the simple understanding.

And here too there really are, again, two ways of looking at it. This time it is very similar, actually, to what I said earlier. That is, there is some kind of certain reality that has practical implications, practical halakhic / of Jewish law implications. There are those who deny the reality dimension of the matter and say that what exists is only the practical implications—the halakhic / of Jewish law implications, sorry—and the reality dimension is just some kind of fiction of ours. It is just our way of relating to these Jewish laws, but it is not really something that exists there. On the other hand, in the opposite outlook, there are those who do say—something like “the Merciful One wants the heart,” that sort of thing—a kind of Christianity, saying that there is holiness, but the practical implications are not indispensable. You don’t really need to give yourself over to Jewish law, to commitment to Jewish law, because what really matters is the concept of holiness, or various expressions like that—exactly—the intention is what matters, or attachment to holiness is what matters, not the expressions.

And I think that in the more natural and straightforward view, both of those sides are only partial sides. What really exists is some sort of reality, and it has practical expressions in the halakhic / of Jewish law sense. Now, what in that is concretization and what is abstraction—again, you can argue about it, as I said earlier. That is, the question whether to infer the existence of holiness from the commandments or from the Jewish laws—is that abstraction or is it concretization? It is abstraction in a certain sense, because the Jewish laws are something we received; it is written, it is clear. The concept of holiness—whether it exists or does not exist here—that is a question of interpretations; you can argue, or not argue. In that sense, it is abstraction. But in another sense it is of course concretization, because basically you are saying that you turn the laws, which are parallel say to the phenomena of entities, into entities, and you are talking about reality. Holiness is a reality. So that is really some kind of concretization and not abstraction, in that outlook. And again, there are different ways here of seeing the relation—indeed even opposite ways—between abstraction and concretization.

By the way, this is actually—this is the weekly Torah portion, right? Or this week? Ki Tavo? Ki Tavo. Ki Teitzei was last week, or two weeks ago. The weekly Torah portion, yes. First-fruits, when they enter the Land—everyone says that when they enter the Land, basically we move to a more natural kind of conduct. And then the first-fruits come to remind you that the Holy One, blessed be He, is still in the background, even though He is no longer present in the way that He was present in the period of the wilderness. You are already working the soil, you are not receiving manna from heaven, you are working the soil, you are growing what you need, and you eat. And then you can forget that the Holy One, blessed be He, is actually there in the background. So it says to you: bring first-fruits in order to remember this matter.

And I don’t think it is by chance that when they ask, “And what is its holiness? That they bring from it the omer offering and the two loaves”—why not tithes and terumot? So I don’t know—regarding the omer, I’m not… first-fruits too it says there, basically, doesn’t it? Or am I mistaken. Only the omer and the two loaves? Is there also first-fruits? I need to look; for some reason first-fruits is in my head. Maybe I’m wrong, I need to check again. Because first-fruits, I think, really are the point: that you need to remember that beyond, behind the phenomena—that your grain has grown—there sits the Holy One, blessed be He. But same thing—why not? No, because regarding first-fruits we were commanded “when you come into the Land”; first-fruits are there in the Torah passage. But every time you take an apple and eat it and make a blessing, it’s the same thing. But with first-fruits the Torah says it, it gives us that for this very reason. Really, “when you come into the Land and plant every fruit tree, and the tree gives its fruit and the land its produce,” then you have to bring first-fruits. Why? First-fruits, in their essence, are really meant for that—to remind you who stands behind these things even though you do not see Him.

Therefore the Mishnah—again, I need to check this; for some reason I have in mind that this idea is indeed brought there—maybe that is why the Mishnah brings first-fruits as an example of the holiness of the Land. Because even in the holiness of the Land you can tie it to the Jewish laws dependent on the Land, and it tells you: no, behind the law there is actually some sort of reality from which the Jewish laws are derived.

Okay, so this took me too much time. I want to move to a somewhat more specific example, but with it too I’ll do it from two sides. In the previous topic we talked a bit about what Torah is, right? I think that was the previous topic, and I started there through three levels of abstraction. And I said that there is the abstract Torah, and there are its concrete expressions—say, in the world of the angels and in our world—with that midrash about Moses ascending on high and arguing with the angels, yes, “what is one born of woman doing among us?” And then the Holy One, blessed be He, tells him to answer them, so he says to them: Do you have a father and mother? Do you work, such that you need to rest on the Sabbath? I don’t remember all of it, yes. Is there murder among you? Honoring parents? Do you have parents, that honoring parents would apply? So really, what did they think from the outset? What did the angels think? It is all aggadic literature, but what is it trying to say?

Apparently the angels—the point of that midrash is to say that Torah is not at all honoring parents or keeping the Sabbath. Torah is some kind of abstract ideas, and those abstract ideas exist in the world of the angels exactly as they do in our world. The concrete garment of those abstract ideas is a different garment in our world and in the world of the angels. In our world the concrete garment is honoring parents, keeping the Sabbath, eating kosher, all kinds of things of that sort. But that is only the garment in our world; it is not really the body of Torah itself. And we talked about this. In that sense, I think this is also the meaning of “Torah preceded the world.” There is some abstract something called Torah, which is really Torah itself. The implications are implications—you see the connection between the holiness of the Land of Israel and the Jewish laws, yes, it is a very similar relation between this abstract thing and its concrete expressions. It has concrete expressions, those concrete expressions also get translated into certain Jewish laws, and that passes through further concretizations. We talked there about three levels of concretization; I won’t go back over all of that again.

I’ll remind you of the example I brought from Zen, yes, from that German philosopher, who explains there that you learn Zen through archery, wrestling, fencing, or flower arrangement. Basically you learn the same thing; it makes no difference at all through which medium you learn it. Why? Because what is this “same thing”? This same thing is some kind of abstract orientation that can be expressed in all sorts of media, but it is the very same thing itself. Zen and the Art of…? No, Zen in the Art of Archery, a different book. So the claim there too is that we were basically talking about a kind of abstraction versus concretization, where behind the concrete things—in this case not entities but Jewish laws—there stand entities, but abstract entities, again exactly as I said before.

And I talked about the relation between the Written Torah and the Oral Torah. I said that in the Oral Torah there is holiness of the content, and in the Written Torah there is also holiness of the wording and holiness of the object. The Torah scroll itself is holy; the Talmud is not holy. In principle, according to the strict law, you can throw the Talmud in the trash if you have no use for it. These are not sacred objects in principle; they are ritual-use objects. But a Torah scroll is a sacred object; there is holiness in the object itself. And also in a Torah scroll the wording is indispensable, whereas in the Talmud if it is translated into English it makes no difference—it has the same holiness as the Talmud in Hebrew or Aramaic, because the main thing is that the content is the same content. The holiness is holiness of the content, not of the wording and not of the object. So here too, it is the same abstrac… we talked there about how this is part of those same abstractions in which, in the end, ideas become patterns in certain objects. And now suddenly the holiness of the ideas is also holiness of the objects. And we talked about the holiness of the blank spaces between the lines, which is really saying that there is something beyond the wording itself. The wording is what is written, and there is holiness of the margins, which is what is beyond what is written—yes, things that perhaps the text expresses, but they are too abstract to grasp directly. So there too you see processes of abstraction and concretization, two anti-parallel processes of abstraction and concretization that are very similar to the processes I spoke about earlier.

Now I want to go into a bit more detail, as much as I’ll manage, with the example of intellectual property. I want to talk a little about copyright. Because basically there too there is a phenomenon similar to the one I described here regarding Torah. Torah, basically, takes, say, ideas that are expressed in a certain wording, and now the holiness is not only in the idea but also in the wording that expresses the idea. And even in the object in which the wording is written—the book, right? So basically the abstract thing is the idea, and the concrete thing is the book. Now this is exactly the question of copyright. Exactly the question of copyright.

Because with copyright, the dilemma they grapple with is this: when you take a disk that belongs to someone, I don’t know, and you steal it, you have not violated copyright—you stole an object, your fellow’s object. Copyright is when you took nothing from him. What you took was only the information, not the book in which the information is written. The book you bought; the book is yours. When you make use of the ideas in the book, beyond merely reading the book—which is why you bought it, and that is fine, permitted—when you make use of those ideas in problematic ways, that means you have violated copyright.

Now this raises some not-simple halakhic / of Jewish law problems. Because how—how exactly should we view infringement of copyright? What is the problem with it? So of course you can come and say there is no problem at all, everything is fine, there is no such prohibition. Who says there is a problem? I am presenting something as a problem, so the assumption is that there is such a prohibition, except that I do not understand how to define it and from where to derive it. But if I do not understand how to define it and from where to derive it, then who says there is a prohibition? There is a sense among the great majority of halakhic decisors, it seems to me, a sense that obviously there is some prohibition here. There has to be some prohibition here. But there is very great confusion about where to derive it from or how to define it.

Why? Because I’ll read you perhaps Maimonides—we’ll jump ahead, but never mind. Maimonides, Laws of Sale, chapter 21—chapter 22, sorry—says there: “A person transfers ownership, whether through sale or gift, only of a thing that has substance. But a thing that has no substance cannot be acquired. How so? A person cannot transfer ownership of the smell of this apple, or the taste of this honey, or the appearance of this crystal, and likewise anything similar.” Yes? So a smell, or abstract things, intangible things—you cannot transfer ownership of them. And straightforwardly, the intention is that there is no ownership over a thing that has no substance. Maybe I’ll comment on this later. It does not have to be about the act of sale; fundamentally it does not apply. It is a question, but I think it is quite clear that the problem is really the ownership, not the act of sale. There is some book called Emek HaMishpat, I think by a judge from Netanya, by Rabbi Nissim, I think, Stern maybe was his name, I no longer remember exactly. No—Cohen, sorry, Cohen something. He wants to argue that the problem is only in transferring the ownership, not in ownership itself. I do not think that is correct. You can show from many places—at least in the accepted understandings. You can force it and find methods, but in the accepted understandings it is certainly not correct. The problem is ownership itself over the abstract thing, and therefore you also cannot transfer and convey ownership. But the problem is ownership itself over the thing.

And then the question arises: so what do we do with intellectual property? With a right over an idea? Why really is there a problem? A problem, yes—if there is a problem, there have to be two sides. So on the one hand, the problem is that you cannot define ownership over this abstract thing. On the other hand, the simple assumption is that clearly there is such ownership, or clearly it is forbidden to violate copyright. Ownership is already too specific a definition, but clearly it is forbidden to violate copyright.

There are—I’ll perhaps bring you a few examples. In Shoel U’Meishiv, he writes in part 1, siman 44 or so, he says: “Regarding this, certainly, when an author prints a new book and merits that his words are accepted throughout the world, it is obvious that he has a right to this forever. And shall our complete Torah not be like their idle conversation? And this is something that common sense denies, and every day we see that a printer of a work has, and his heirs have, a right in it.” Okay, common sense is a nice thing, but what is the source for it? Who says it really exists?

Rabbi Shimon Shkop at the beginning of tractate Bava Kamma writes: “Just as in matters touching human rights it is agreed, according to the laws of the Torah and the laws of the nations, that whoever invents a new thing in the world is its owner with respect to every right.” Yes, same thing. Rabbi Wosner says, regarding patent registration—yes—“And as for the law itself, certainly the Torah’s view inclines that there is a prohibition of theft, etc., regarding that which one’s fellow invented completely anew, whether in a Jewish law book and the like, and likewise in other things.” Because there are those who argue that in Torah novellae there is no ownership, because Torah novellae—you are not their owner. Perhaps there is a moral right, meaning to say something in the name of the one who said it, to say who invented it, but not a property right. Meaning, to make use of the thing is permitted. But Rabbi Wosner argues that even with Torah novellae it is so. “And so too under the law of the land everywhere in the world.”

But ownership in general—there is that well-known thing in legal theory that asks: how do we know there is even such a concept as ownership over a thing? Because if there is theft, then there is ownership. That is, it developed from one place to another, basically. But in Jewish law it says there is no ownership over an abstract thing. How does that fit? Because then it was not yet something fit… I mean it changed. Yes. But that does not seem to be how they learn from these sources. No, I’m saying—inherently it is not written in the Torah from the outset as ownership. First of all, ideas existed back then too. True, today it is much broader, already concerning abstract matters, but certainly there were ideas then too. There were various crafts there—the Talmud says that there were families who held the craft of how to make the incense, and there were all sorts of things there, and there really were questions of property rights there; definitely it already existed then. True, it was much less common than today. Usually the objects were tangible and not ideas, but the problem existed then too.

Beyond that, when you read these decisors, they do not claim that today is a different situation. It is simple, clear, that it was so then too. At least I’m not sure they really thought that back then, but the decisors of today do not view their words as some kind of novelty; from their standpoint it is obvious that it was always true. That is, it is simple.

And how does that fit with Maimonides saying there is no abstract thing—just, how do they give themselves some account of this matter? So there are various proposals for this, none of which really gives a full answer. There are proposals to base it on the law of encroaching on another’s trade, unfair competition, all kinds of abstractions like that that do contain something of the point, but in each of those things there are problems. That is, it does not really explain this matter of copyright. And it is also not theft. Yes, that does not matter, but you can indeed say: true, it is not theft, but there is still a halakhic / of Jewish law problem here that belongs to unfair competition. Unfair competition—it is not clear that it is not theft; that is not a simple question. Although that applies only in the Land of Israel. The tension between unfair competition and theft is very interesting in Jewish law, very unclear what the relation between them is.

And in approbations to books they usually use the concept of unfair competition. That is, when they forbid a person to print the book, they say that this is encroaching on another’s boundary. But unfair competition is going down into another’s trade, not specifically about ideas. If a person is a barber in a certain place, you cannot open a barbershop near him, at a sufficiently close distance. So that has nothing at all to do with an idea he invented; it is simply encroaching on another’s trade—you are pushing him out in terms of livelihood. It does not really hit the concept of a property right; it is also not a property right, it is just a prohibition on harming another. And when we talk about copyright, we are talking about a property right. It cannot really be exhausted by unfair competition. Of course, one who says that it is unfair competition is simply claiming: true, there is no property right.

There is—what’s his name—that yekke, that zealous yekke—I don’t remember if I brought his words here before, I no longer remember. Somewhere I brought it, where he shouts at all these decisors: what are you learning from the gentiles at all? These gentiles—and this is our source, to learn from them that the Torah too forbids it? After all, I brought here several later authorities (Acharonim) who say, “Shall our complete Torah not be like their idle conversation?” So obviously, if the gentiles forbid it, then we too forbid it. What do you mean? Exactly the opposite—if the gentiles forbid it, then apparently we permit it, because obviously the gentiles are mistaken. But it is clear that the decisors understood that it is not because the gentiles forbid it. The fact that the gentiles forbid it means that any reasonable person understands that such a thing cannot be permitted; that is only an indication, not because you want to adopt gentile laws.

There are those who want to base it here on “acting contrary to the owner’s intent,” which is an innovation of Rabbi Zalman Nechemia Goldberg, but really a far-reaching innovation. There are claims that it is payment for benefit—that once you benefited from someone’s idea, you owe him payment for benefit, like “this one benefits and that one does not lose,” where they discuss payments for benefit, although with payment for benefit there needs to be a loss—“this one benefits and that one loses”—well, that too is a question. In short, none of the accepted explanations really succeeds in explaining this law of copyright.

Copyright, in the simple understanding, and also in the legal world by the way—and there too this is another example of what we spoke about earlier—in the legal world every lecture in law school on copyright will always open by saying that there are two tracks for explaining copyright. There is the property track, that a person has a right in his creation, he owns it, and one who takes it is a kind of theft or infringement of rights or damages or theft—but it is infringement of a property right, yes? And there is an outlook that this is a social arrangement. Meaning, for example, utilitarian considerations: usually the rationale for copyright in Israel, certainly over the years, is moving more and more toward the second direction—throughout the world, but also in Israel—that society has an interest in protecting the creator’s right. Because if you protect the creator’s right, people have motivation to create. That is the great tension in the pharmaceutical world today in the United States. Right. On the one hand, you want to preserve—they completely believe in capitalism and in their right to develop medicines and have that, and then it comes out expensive and people cannot buy it, and then prices are gouged, and then yes, there is regulation on it. Right. And this is exactly that consequentialist tension. Basically the question is a consequentialist one: how do we create a society in which there is motivation to create on the one hand, and on the other hand we also care for the interests of the public at large so that there won’t remain sick people who don’t have money to buy—never mind, all sorts of examples from medicines.

And that is of course a completely different way of thinking. It is a way of thinking that is consequentialist. In the first mode of thought, it does not depend at all on what the outcome will be. If you created something, then you are its owner—that is a fact. It has nothing to do with what you want to achieve and whether society will be more ordered or less ordered. And about this, I think we once said that in Jewish law, I think the typical mode of thought is the first one. That is, we are dealing with facts, not with consequentialist questions of how society will be structured. Perhaps that is on the rabbinic level, not on the Torah level. On the Torah level, usually the conception is an essentialist conception and not a conventional, agreement-based one. In many places you see this; I have written about it several times.

Is the concept of property acquisition itself also not conventional? It is the same question. The concept of ownership itself as well—the question is whether it is a natural right, that simply it is yours, or no, it is an efficient social arrangement. Okay? Efficient for what need? What? If you do not protect a person’s property, then there is uncertainty, you cannot rely on anything, and it creates a very problematic society. It will be based just on violence, everyone being a wolf to everyone else all the time. It is very difficult to live in a world where property rights are not protected. Never mind copyright. Right. And with copyright this comes up especially strongly. With ordinary property, the argument is a philosophical one—where does it come from? But today it is clear to everyone that there is a property right over things you own. That is clear. The question is whether there really is such a thing—is this natural law, or is it only a social agreement that created it—but now de facto it is clear that it exists.

With copyright, to this day, even on the practical level there is an argument about how to view it. Because where there is a public interest, for example, in somewhat infringing the right—will we do it, or not, because it is your right and no public interest will help? Okay? So in that context legal thought moves very strongly in the social-consequentialist direction and less toward the property right. And here this is part of that same phenomenon I described earlier. That way of looking at it is now attributed to the Statute of Queen Anne in Britain. In that period there was this conception of copyright as a property right, and even there, in my opinion, it was not fully a property right, but it is generally viewed as the clearest expression of a proprietary conception of copyright.

And the fact that this usually comes from religious directions, as though God gave a person a right over the children of his spirit, so to speak, over the things his spirit creates—because otherwise in what sense is it yours? People will say, what do you mean? There is a social agreement about it? Fine. And if not, then not. So very often it comes from some kind of religious conception. And as the world detaches itself from the religious roots of its legal conceptions, it really goes more and more in conventional, agreement-based directions, and not some kind of essentialism that says this is simply how it is because this is truth, or reality. There is no truth. The question is what we decide. And then, of course, it is shaped according to the question of social interest.

Now that does not mean—there is also the law of the kingdom is law, or ownerless declaration by the religious court, so obviously even in an essentialist conception the king or the religious court can come and expropriate, even if this thing really belongs to you. But when there is a public interest, a religious court can expropriate your money. But an act of expropriation is needed. Okay? In the natural-right conception, you need an act of expropriation for that to happen. In the consequentialist conception, you simply discuss what is most efficient, and if that is most efficient, then that is the law. You do not need to sit and expropriate property; if that is most efficient, then copyright is defined that way, so no further act of legal determination is needed. The judge, the moment he decides that this is the most efficient thing, thereby has revealed that that is the law of copyright. As opposed to Jewish law, where the judge cannot expropriate property. The legislator can expropriate property, or the king, but not a judge, or not a dayyan in a given religious court—he cannot expropriate property.

So this tension, where on the one hand with copyright there is a very strong proprietary intuition—it is not just that this is how things ought to be. This is what many decisors say, because they really do not find a proprietary basis. So they say, fine, apparently it is indeed acting contrary to the owner’s intent, unfair competition, all sorts of things like that, but it is not really a property right in the full sense, because there is no ownership over an abstract thing, because they cannot really anchor it. But the basic intuition from which they start is: obviously this is a property right. And then the question is whether it can be anchored in some clearly halakhic / of Jewish law way also as a property right. That is really the question. It seems to me that here I need to stop, but I’ll talk about this next time as well.