Rights and Obligations in Jewish Law – Lesson 1

[Rabbi Michael Abraham] The other side—whether it’s a discourse of rights or a discourse of duties. We hear this kind of statement a lot. By the way, this comes up among scholars of Hebrew law too, but also just out in the street, so to speak—ordinary people are used to saying that in Jewish law we’re talking mainly about duties and not about rights. Meaning, if today we talk about a person’s right to such-and-such—his right to dignity, his right to I don’t know what, to life, to nutrition, to education, whatever you want—in Jewish law, people usually say, what we’re talking about is our duties toward him, not his rights. Meaning, we have to give him because we have a commandment of charity or something like that, but he doesn’t have a right to dignity. He can’t demand all kinds of rights from me. A lot of times my feeling as a citizen, even aside from a halakhic or Torah perspective, is that the use of the concept of rights really is exaggerated. I mean, today in the State of Israel there are people who come with claims that their rights are not being fulfilled over things that are really sheer kindness that society is supposed to extend to them. A single-parent family. Fine, real distress, all true. I’m not talking right now about who is to blame for the situation and so on, it’s not relevant, regardless of the question of blame. Why do they have a right that I should give them money? What kind of right is it that I should give them money? I have a duty to give money to someone who is in a difficult situation in order to help him. That’s a different way of looking at it. Meaning, you can’t demand from me—“you have a right to make a living.” You have a right to make a living? Then make a living. What does that have to do with me? This whole discourse of rights, I think—again, just from a simple ordinary perspective, I don’t think this has anything to do with Jewish law at all—it’s exaggerated.

[Speaker B] All over the world.

[Rabbi Michael Abraham] Yes, right, all over the world. And a lot of times people translate the duties of individuals or of society into rights of the addressee of those duties. Meaning, now it’s not my duty to give him charity, it’s his right that I support him. Okay? Seems exaggerated to me. But we’ll come back to this point later on too. In any case, it’s commonly thought that in Jewish law it’s really not like that. There is no discourse of rights at all. It’s a discourse of duties. Nobody has rights against me to anything. Well, I don’t know in what sense—not to murder him—does he have a right to life? Maybe he does, I don’t know, maybe in extreme cases yes. We’ll talk about that too. But all the things we talk about in daily life—this is not a discourse of rights at all, it’s a discourse of duties. We—and what stands behind that? Often the explanation is that in a secular world, in a secular outlook, what exists is me and you. There’s no one else in the picture. So who imposes duties on me? If you don’t have rights that I have to avoid infringing or have to fulfill—then not.

[Speaker C] Can I ask who determines that he has rights?

[Rabbi Michael Abraham] Yes, of course, that—

[Speaker C] doesn’t—

[Rabbi Michael Abraham] really stand up to scrutiny. But it seems to me that that’s the intuition behind it. And in the religious world, all of us stand before the Holy One, blessed be He. Meaning, He imposes on me a duty to help someone. Not because that person has a right, but because the Holy One, blessed be He, requires it of me. So from a religious perspective it seems to me that it really is more natural to speak in terms of duties than from a perspective that doesn’t bring the Holy One, blessed be He, into the picture.

[Speaker C] There’s society. Society decides. There’s law.

[Rabbi Michael Abraham] No, so I’m saying—obviously once the law has already decided, then yes, now a right de facto is created. But I’m asking whether you can demand that there be such a law. Because once the law has been set, then we’ve already decided to give. You understand? When I decide to give you charity, then I gave you charity, and now that money is yours. But it’s yours because I decided to give it to you. In the end I could also have chosen not to give. Same thing when society legislates—it could also have chosen not to legislate. It has no duty to legislate. After it legislates, every citizen has a right, fine, because the law says he is entitled to it. But the question is whether he has a right—yes, I’m using the concept twice—whether he has a right to demand such legislation. Meaning, after all, “I deserve it—how can it be that the law doesn’t allow me?” You hear this a lot in demonstrations by weak populations, what today they call “marginalized” in the annoying politically correct language. So there are all kinds of protests: “we deserve it,” “how can the law not help us,” “how can the government not help us.” You deserve nothing. You need to ask. I understand that you’re in distress—ask for help. But the demand itself rests on a different conceptual infrastructure. This is not a moral question, or not only a moral question. At the base there is a different conceptual infrastructure. Meaning, if you start from a conceptual infrastructure according to which you have a right, that’s completely different from starting from a conceptual infrastructure according to which the other person has a duty. If the other person has a duty, okay, then he’ll decide whether to fulfill it or not, but you’re not the relevant party here. Meaning, what are you doing in this matter? If you have a right, you can demand that he not infringe your rights or that he fulfill your rights. But really, before I get into the question of whether in Jewish law there are rights—sorry—I think there are, certainly there are, contrary to what people commonly think—but before I get into that I want to define the concepts a bit. What are rights and duties in the first place? In the legal world, when people speak of rights and duties, it seems to me the basic picture is what’s called Hohfeld’s table. Hohfeld’s table is more complex than what I’m about to describe, but I’ll say the most basic thing: the moment you have a right, I have a duty corresponding to it. Let’s say I lent you money, okay? So now I have a right that you repay the debt. I gave money, you owe me, okay? So automatically a duty is born upon you to repay me. Meaning, a duty always stands opposite a right. If I have a right against you, you have a duty toward me. These are two sides of the same coin. There are rights that result from a contract.

[Speaker C] But can’t there be a duty without there being a right? What? Can’t there be a duty without there being a right?

[Rabbi Michael Abraham] In the simple conception, no. In the simple conception, no.

[Speaker D] But I’m obligated to honor my parents.

[Rabbi Michael Abraham] I’m talking about law right now. We’ll get to Jewish law. That’s exactly the difference. So this picture of right opposite duty—the right and the duty always come together as two sides of a coin. Meaning, if you have rights—and rights themselves are also divided into a few types. There’s a right of one person against another person, and that too is divided into two. A contractual right: we signed a contract that you’ll do this and I’ll do that, so by force of that contract I now have a right that you do what you undertook to do. Okay? So that’s a right toward me. There’s a general right toward society, say—it doesn’t matter—the moment the law legislates that you have some right, then the government has a duty to uphold the right, or a person is forbidden to harm another—why? Because the other has a right to his property or things like that. That’s not the result of a contract. He has a right to his property because it’s his property, not because I signed something with him. A right not based on contract, by the way, is against every person. A right based on contract is against the one who signed the contract with me. There’s a difference between those two types of rights. There’s a right against society, not against a person, and that of course is the result of legislation, whatever. But a right is always understood as the other side of a duty. Meaning, these are two things such that one always comes together with the other. Now when we move to the halakhic plane, it’s pretty clear that this does not always come together. For example, I have a duty to give someone charity—a commandment. “Do not harden your hand”—that’s a prohibition—or “you shall surely give him”—that’s a positive commandment. But he has no right to receive charity. If I do not fulfill my duty, he cannot take me to religious court and sue me: “Please give me charity, you owe me.” I don’t owe you anything.

[Speaker C] But a right isn’t something you claim—a right is something you receive.

[Rabbi Michael Abraham] No, no, a right—on the contrary. A right—the indicator, we’ll get to this later—but the indicator of a right is that you can claim it. It’s owed to you. My duty—you cannot claim from me. If I swore to you that I would give you money, and I don’t give it to you—can you sue me? No. I swore. Meaning, it’s my duty toward the Holy One, blessed be He, because I have to keep my oath, but I don’t owe you anything. Who are you? It’s like suing me because I desecrate the Sabbath. You can’t sue me because I desecrate the Sabbath. That’s a matter between me and the Holy One, blessed be He—or, if you like, the public or the religious court—but no private individual can sue me over desecrating the Sabbath. So too, if I swore to give you money, you can’t sue me. If I owe you money because I damaged you, or because I borrowed from you, something like that, then you can sue me, because you have a right to receive the money. A poor person has no right to receive the money; I have a duty to give him. That’s why, for example, there is no concept of charity in law. There is no concept of charity in law, because charity is a duty without a corresponding right. In law there are only duties and rights. Meaning, if I owe you something, the law obligates me to fulfill that duty—that means you have a right, and if I don’t fulfill it you will sue me in court because you have a right. There are no commandments in law—meaning, that you should do this while he has no right. There’s no such thing. But in Jewish law there is. Like the commandment of charity, for example, fraud, interest—well, fraud not really—interest; we’ll see that later as examples. So already here we see that there definitely is one difference between the legal context and the halakhic context: in the halakhic context duties can appear that are not accompanied by rights on the side of the other party, like charity. I have a duty to give charity to a poor person under certain circumstances, whatever; I owe it, even to a private individual—I have to give him charity in those particular circumstances—but he has no right against me to receive that charity. That duty does not stand opposite a right corresponding to it; it appears on its own. In contrast, a loan, damages, and so on—those are of course duties that do also have rights on the side of the other party.

[Speaker E] Is your duty to a specific poor person? Could that be?

[Rabbi Michael Abraham] Yes, yes, of course. If a poor person asks me for charity and it’s clear that he’s in need, and I haven’t yet given the third of a shekel per year, which is the minimum I’m required to give, then there’s a full obligation to give him. There are specific circumstances—it’s not that every poor person who asks, you have to give. People commonly think that, and it’s not true. But there are circumstances in which yes. So that is one difference, right: in Jewish law there is a discourse of duties that is not a discourse of rights. But the question I want to discuss is not that question. It’s clear that in Jewish law there is a discourse of duties, and in law or in the legal world maybe there isn’t. The question is whether in Jewish law there is also a discourse of rights—not whether there is no discourse of duties in Jewish law. Of course there is. But the question is whether in Jewish law there is also a discourse of rights, not only of duties. I already hinted earlier that there is, but I’ll try to define it a bit more. Maybe one parenthetical remark: the communist conception that wants to obligate—maybe we talked about this when we discussed right and left last year—that wants to obligate people to give charity in an institutionalized way through the government, meaning to divide the means of production, the resources, equally—in effect what it does is turn charity from a duty imposed on me into your right. The law now determines that I have to give you charity, and if I don’t do it I’ll go to jail. That’s not a duty to give charity. The communist conception actually empties the concept of charity of content—there is no charity. You have to give it, and if you don’t give it you’ll be sued. And in law, as we already said, there are no mere duties—a duty is always opposite a right. The moment the law determines that I must give, that means society, or whoever it may be, has a right to receive that money from me, and if I don’t give that money I’ll be sued.

[Speaker C] Let’s look at it a bit more broadly for a second. There are taxes. A rich person has a duty to pay taxes, and the state has a right to collect taxes from him. Then they take those taxes and give them to unemployed people who don’t have work and give them unemployment benefits. Isn’t that exactly this whole cycle?

[Rabbi Michael Abraham] Yes, exactly. That’s the socialist dimension that exists in society too. If we were a capitalist society there would be no taxes.

[Speaker C] You said communist.

[Rabbi Michael Abraham] No, no, that’s communism. Let me say it again, I’ll clarify. We talked about this there too, when we discussed left and right. There are two pure poles. The pure poles are communism versus what people call piggish capitalism—although today every capitalism is called piggish for some reason, but capitalism is always piggish, meaning… But the two pure poles are complete capitalism versus complete socialism. In complete capitalism there are no taxes in that sense. There are taxes in the sense of shared interests—maintaining an army, police, things like that—but not taxes in order to help the weak. Roads, yes, things like that, but not in order to help the weak. In a capitalist world there are no taxes of that kind. We simply are not in a capitalist world. We’re in some mixture between the right and the left, what’s called social democracy. In that mixture there are communist dimensions. It’s not called communism because it’s only part of the mixture, but those dimensions are communist. That’s why I say—those taxes are communism. And the communist conception means that basically we turn my duty into the other person’s right. In a certain sense, all this discourse of rights, this imperialism of rights, this notion that everything suddenly becomes rights—there’s something communist about it. Even though people usually speak that way in a liberal society, there’s still something of communist thinking in it. That’s also why it annoys me, because I also don’t like communism. But I’m saying there’s something in the communist conception that says they’re not willing to leave things as duties imposed on me for my own voluntary decision. Rather, everything they expect me to do is translated into the other person’s right. Meaning, the law will obligate me, and if I don’t do it I’ll go to jail. Meaning, he can sue me over that thing. That is basically communist thinking. So I think that, in a certain sense, these concepts of duty versus right lie at the base of a great many utterly contemporary disputes that we know. Disputes over what kind of social-democratic mixture we choose—whether to be closer to the right or closer to the left. Because there are different dosages, after all. And basically it’s a question of how much you’re willing to accept the communist way of thinking. That’s why people talk about justice instead of charity. The socialists constantly talk about justice instead of charity. Why? Because charity is a capitalist concept. I have the money; you’re not entitled to it; but if I’m a good person I’ll give it to you. Or if I’m a religious person in the religious context—it doesn’t matter—on the moral plane, if I’m a good person then I’ll give it to you. Okay? That’s a capitalist conception, and an essential part of it is the concept of charity. Communism tries to get rid of the concept of charity, and so they invented the concept of distributive justice. Distributive justice means turning charity into distribution. We redistribute resources because the conception is that the resources aren’t really mine at all. They are distributed among us. I just happen to be holding them, and if I’m holding too much of them, then they need to be taken from me—if they’re not distributed equally. Okay? So basically the shift from charity to justice is the creation of a right corresponding to something that in its origin was a pure duty. Originally, charity—helping a weak person—was a duty. I had to help him: a moral duty, a halakhic duty, whatever the context may be. When we move leftward on the capitalist-communist axis, there is a tendency to turn duties into something derived from rights corresponding to them. In a truly communist conception everything becomes that. Meaning, theoretically—they leave nothing voluntary. Of course all this is theoretical. They leave nothing voluntary. Meaning, you are basically obligated to do everything; there’s no dimension—so in a certain sense there’s a heavy price to that conception. It may create a more equal society, but it creates people who are less good as personalities, because these are not people who give; these are people from whom society simply takes. In a certain sense, of course, the people are the ones who created society and the laws that established this, so it’s not exactly that simple—just like the kibbutz.

[Speaker B] They were no less good people.

[Rabbi Michael Abraham] No, so I’m saying—generalizations are always hard to make, I don’t know. But I’m saying, obviously a group that voluntarily decides to establish such a law is itself a good group, because it compels itself to behave that way. Unless, of course, there is a majority of weak people imposing a communist policy on a minority of strong people, and then no. Then the weak are doing it because of their own interest, and the strong are doing it because they are coerced, because they are the minority.

[Speaker E] That’s what happens in democracy, basically. What? That’s what happens in democracy—in every democracy.

[Rabbi Michael Abraham] It can happen, yes. It can happen in such a state. There can also be a situation where the strong cooperate willingly, and then it’s fine. It doesn’t have to be that way. But yes, that is one of the problems. And that’s why, by the way, people always think that capitalism is somehow immoral and communism is moral—it’s the opposite.

[Speaker E] There it’s equality after all. There it’s equality and here it’s freedom.

[Rabbi Michael Abraham] I don’t know who is more moral than whom, but it seems to me that capitalism is more moral on a basic level. Capitalism expects a person to be a good person; it also trusts that the person will be—

[Speaker C] good. It doesn’t force him by law. Capitalism provided we don’t become piggish. Huh? Provided we don’t become piggish.

[Rabbi Michael Abraham] I’m saying—even if it becomes piggish. No, piggish capitalism is a wonderful system.

[Speaker C] Meaning people don’t give.

[Rabbi Michael Abraham] Only it doesn’t work—that’s exactly the problem. The system is a completely moral system. It trusts people. It expects them to give. It trusts them; it doesn’t coerce them because it expects that they’ll give. Of course, people are people, and some are better and some are worse, and therefore it doesn’t work so well. It’s a utopia that doesn’t really work.

[Speaker E] Why in the United States doesn’t it work? One could argue. A tremendous amount works through charity.

[Rabbi Michael Abraham] A tremendous amount works through charity. True, people give a lot. And by the way, that’s no wonder, because there indeed—what happens? That’s exactly the point. Why are people in the United States better in the sense of giving? Because there the system gives nothing. It’s a capitalist system. A capitalist system produces good people, because a capitalist system doesn’t solve the problem in your place. When a poor person comes to me and asks for charity, I immediately ask myself: wait, why didn’t he go to welfare? Why isn’t he handling this through the institutions? Why do I have to support him? There are another six million or eight million residents in the state—why do I have to support him? Right? That’s a natural question.

[Speaker C] Even if less money remains.

[Rabbi Michael Abraham] Okay, that’s true. But what comes out is that the tendency to give gets blunted, becomes dulled, because in the end the system is supposed to solve the problem. Now even when it solves the problem, it’s from our money—again, I’m saying at the base—but not directly. So this goodwill that causes me to give disappears in the socialist world. A socialist world is a world that has no trust in human beings, contrary to what people always think—it’s simply the opposite of what people usually think.

[Speaker E] The United States is changing now.

[Rabbi Michael Abraham] Right, the United States—

[Speaker E] is changing.

[Rabbi Michael Abraham] because even if people give, apparently it’s not enough, and the world has reached the conclusion that some kind of mixture is needed. No—pure capitalism won’t work. Not all of us are good people. Not all of us are completely good. And true, there’s exactly—

[Speaker E] One out of fifty in the United States, I read, receives benefits.

[Rabbi Michael Abraham] No, so I’m saying, fine, because even the United States understands capitalism—obviously. So I’m saying, capitalism at its foundation is a moral method. But methods are a nice thing. The kibbutz was also a wonderful method, but it didn’t work. You know, the institution of marriage is also a wonderful institution, but who wants to live in an institution? So here too: the method is a wonderful method, but wonderful methods sometimes carry heavy costs. Okay? So people don’t function that way; human nature is what it is. So yes, the kibbutz on the one hand was probably problematic, and pure capitalism on the other hand is problematic, and today the whole world already understands that we need to create some sort of mixture. And the disputes today are mostly at the margins. To present them as fateful disputes—in the end it’s a dispute over where to place the line, where roughly to position ourselves between the complete right and the complete left, economically of course. Okay. Fine, so that was just a parenthetical remark. Let’s return to the question of duties and rights. So in order to clarify this matter, let’s step back for a moment, and I want to ask a different question, apparently. Then we’ll come back to duties and rights. In the books of Jewish law written over the generations there is a very interesting process of conceptualization and formalization. The Talmud is divided by topics. The Mishnah, and following it also the Talmud, is divided more or less by subjects. Meaning, these are the laws of a Jewish holiday, these are the laws of I don’t know what, mixed species, untithed produce, whatever—there are all sorts of halakhic subjects one way or another. The division is not a conceptual division; it’s a content-based division. Okay? The first one who really made a conceptual division in a sharp way—there were things before him—but it was Maimonides. Maimonides basically redivided Jewish law into fourteen books—“the strong hand,” yes, the Mishneh Torah. Now in the Tur the division is a division by topics, where the categories are only collections of topics. Basically you already have that in the Mishnah too—zera’im, moed, nashim, and so on—there too there are broad categories. Meaning, there’s mixed species, untithed produce, the Sabbatical year, but all that belongs to the order of Seeds. Okay? So Maimonides made a division not into six, and not according to the Mishnah, but his own division into fourteen books, where within each one—for example, Love—there is prayer, circumcision, and things like that. But the category of Love is not a distinctly halakhic category. There’s nothing special about it as opposed to the Book of Acquisition, or the Book of whatever you want, sacrifices. Rather, these are different topics. In the end it’s still a topical division. Maimonides’ great innovation was that he did not follow the order of the Talmud but built a new order, gathered everything together, and also wrote things without the Talmudic give-and-take, but only the halakhic ruling, the bottom line. He basically created what is the closest thing one can think of to a code. Maimonides is the only true code in the history of Jewish law. After Maimonides there was also Arukh HaShulchan, together with Arukh HaShulchan HeAtid—maybe that too is a code, although even there there is more give-and-take.

[Speaker E] The Behag wrote a book of commandments; the Behag is also a code.

[Rabbi Michael Abraham] No, it’s not a codex, because it doesn’t contain everything. By “codex” I mean in the sense that it takes all of Jewish law and codifies it—all of Jewish law. So it has to include everything, including commandments that do not apply nowadays, which you don’t have in the Tur and the Shulchan Arukh, for example, and not in the Rif and the Rosh either—only in Maimonides. It has to be organized by topics and bottom lines, not give-and-take discussions and leaving things open as in the Talmud. It seems to me that only Maimonides did such a project, and then again Arukh HaShulchan following in his footsteps, though of course he relied on him. And the Shulchan Arukh is only partial, because subjects that don’t apply nowadays were not ruled on in the Shulchan Arukh, and so on. Only Maimonides really did a complete job. It’s quite amazing that one person alone did such a thing. Usually projects like this put dozens of scholars to work for decades. I mean, in Turkey there were projects like this, in Egypt there were projects like this—very impressive codification projects were done. Arukh HaShulchan did… yes, yes, I said that, Arukh HaShulchan too, but he relied on Maimonides, say, and it’s also not arranged in exactly the same way, because it’s based on the Shulchan Arukh. Right. So that’s the second station: Maimonides. After the Talmud and the Rif and the Rosh, who follow the Talmud, Maimonides is already some initial emergence of categorizing Jewish law. Where does this reach a sharper point, a fuller conceptualization? In the Tur. The Tur takes all of Jewish law and divides it into four parts: Even HaEzer, Yoreh De’ah, Choshen Mishpat, and Orach Chayim. The Shulchan Arukh of course follows him—the division, the same simanim, everything the same. The division is the Tur’s division. These four columns basically gather the laws—you could call it by topics, but as I’ll try to show later, these are no longer just topics; they’re already categories. That’s not really true of Maimonides, not entirely. And in that sense it seems to me that we owe a great debt of gratitude to the Tur, because people don’t sufficiently recognize the conceptual revolution he carried out. Now of course he didn’t invent anything, but he conceptualized and defined the material and fixed it in place. Today it all seems obvious to us—I’ll bring examples later—it seems obvious, but it really wasn’t so obvious before he did it. Once, I think I told this before, I was at a conference at Bar-Ilan on the Pnei Yehoshua. And I gave a lecture there on Brisker elements in the thought of the Pnei Yehoshua, showing several very Brisker distinctions in the Pnei Yehoshua. And before I brought the examples and discussed them, I said: the history of ideas is a very dangerous thing, because once you put an idea on the table, people will always find it in all your predecessors. I have experience with this. When I published Two Carts and a Hot-Air Balloon, the followers of Rabbi Tzadok told me: it’s all found in Rabbi Tzadok. And the followers of the Maharal told me: it’s all in the Maharal.

[Speaker C] Rabbi Kook—it’s all in Rabbi Kook.

[Rabbi Michael Abraham] And in short, everyone—Rabbi Nachman, doesn’t matter—everyone, and by the way they were all right. I’m not saying that ironically; they were all right. Because once you look through those glasses, you really do see such ideas there, in one form or another. But in Rabbi Kook or the Maharal there are so many ideas, and they’re so unsystematic and unorganized, that I don’t know to what extent you can say Rabbi Kook really had the copyright on the idea.

[Speaker D] Some people see it as an advantage that the ideas aren’t systematic.

[Rabbi Michael Abraham] Fine, not important. But I’m saying that still, to say Rabbi Kook… I’m not talking now about who’s more correct or wise or effective, but rather who has the copyright on the idea. Aristotle didn’t invent logic in his Organon, right? Before Aristotle, people didn’t know that if all walls are white and this thing is a wall, then it’s white? Of course they knew. Every person made arguments like that. But Aristotle was the first one who noticed that there is some fixed pattern here: if every X is Y and A is X, then A is Y. Just plug in whatever you want for A—it will always work. That Aristotle conceptualized, even though everyone understood it earlier too. But he was the one who turned it into a defined tool, a conceptualized idea. And the great advantage of that is that now it stands at our disposal. We can now use it explicitly; we have a toolbox. It doesn’t remain in our intuition, where maybe such an idea occurs to us and maybe not. Aristotle put it there for our use, and we can make use of that toolbox. Just as Rabbi Chaim did with all his conceptual yeshiva-style distinctions. They used them earlier too—that’s what I did there with the Pnei Yehoshua, I showed that he used them. But the one who conceptualized them was Rabbi Chaim. Meaning, these kinds of ideas or forms of thought also exist in the Pnei Yehoshua, and in the Ketzot of course even more so. But Rabbi Chaim was the one who gave them names: this is object and person, this is sign or cause. In other words, those concepts existed earlier, those modes of thought existed earlier, but he conceptualized them, defined them, and understood that there is some pattern here that can be placed as a tool into the yeshiva-style conceptual toolbox. And then you can use it. If not for Aristotle, today there would be no computer. We would all know the logic underlying the computer. It’s not complicated logic; it’s very simple logic. I mean, once you stack many things on top of each other it becomes complicated, but the basic elements… simple logic, any child can understand it. But as long as you don’t understand that there is such a defined tool—that if every X is Y and A is X, then A is Y—you wouldn’t know how to build a device that does it systematically. Whenever someone asked you, you’d answer correctly, because you know how to think about it. But as long as it isn’t conceptualized and defined and turned into a distinct idea that stands on its own, you can’t make use of it. Let’s return to the Tur. All that was a parenthesis about the Tur. In short, how do we divide the Tur? What is the conceptual division of the Tur? First of all, it’s divided into two pairs of columns; the four columns are divided into two groups of two: Choshen Mishpat and Even HaEzer versus Orach Chayim and Yoreh De’ah. What’s the difference between them? Between man and his fellow? I

[Speaker E] I wouldn’t divide it that way.

[Rabbi Michael Abraham] These are different halakhic categories; this is a categorical division, not a topical one. This is judgeship and this is rabbinate. That’s the conventional language, right? Choshen Mishpat and Even HaEzer are judgeship. That’s also what you’re tested on—when you’re tested for judgeship, you’re tested on Choshen Mishpat and Even HaEzer. When you’re tested for rabbinate, you’re tested on Orach Chayim and Yoreh De’ah. What’s the difference? Why is this a rabbi and that a judge? There’s a difference between a rabbi and a judge. It’s not that a judge is just a rabbi for other matters. A judge is a different kind of function. It’s not just a rabbi for other matters. What’s the difference? A rabbi is a halakhic consultant. You come to him with a question whether this chicken is kosher or non-kosher, and he tells you: it’s non-kosher. Fine—so he revealed to me that the chicken I was holding in my hand was non-kosher before and is still non-kosher now; he merely drew my attention to that because he knows the Jewish law and I don’t. Okay? A rabbi has no authority. The rabbi is an expert, just as a doctor has no authority to force me to take the medicine. He just says, “Take this medicine; that’s what will cure your illness,” because he knows and I don’t. That’s professional expertise. A judge is authority; a judge is a governmental institution. It’s not like a rabbi. After the judge rules something, he can also enforce it. More than that: in at least some of his rulings, only after he rules does it exist. Before he rules, I’m not obligated at all. In a loan that’s not the case, but in fines, for example, it is.

[Speaker C] Meaning, he didn’t reveal to me that I’m obligated; he created the obligation.

[Rabbi Michael Abraham] In loans that’s not so—we’ll still talk about that—but in fines, punishments, lashes, and things like that, he created the obligation. Today we don’t have judges with ordination. If I desecrated the Sabbath with witnesses and warning, do I need to kill myself? I’m liable to death.

[Speaker D] No, the obligation wasn’t on you. What?

[Rabbi Michael Abraham] No, the obligation is on society; the obligation is on me, yes. No, no, the obligation is on society, and anyone in society who can carry it out—the obligation on society has to be fulfilled by anyone who can do it. Ah, not only on the religious court.

[Speaker D] No, no, when there are authorized representatives, they have to do

[Rabbi Michael Abraham] it.

[Speaker D] If there are no authorized representatives, then anyone else.

[Rabbi Michael Abraham] If the condemned person fled, then anyone kills him. More than that: he’s forbidden to flee. He’s forbidden to flee. For example, regarding the blood avenger and the accidental murderer, the Mishneh LaMelekh wants to argue that he is allowed to go around and kill the blood avenger. He’s allowed to defend himself. The blood avenger is allowed to kill him; he won’t be judged if he kills him. But I am not obligated to surrender my life. This is connected, by the way, to rights and duties—notice that. He doesn’t have a right that I die. Or maybe let’s put it the other way around: he has a right to kill me, but I have no duty to die. That means I can flee or defend myself, like Pinchas and Zimri, right? The Talmud says that if Zimri had turned around and killed Pinchas, he would not have been executed for it. Pinchas did it, the Holy One, blessed be He, gave him His covenant of peace, but Zimri did not have to submit; he could have killed Pinchas under the law of a pursuer. Why? Because Zimri wasn’t obligated to kill himself. Pinchas has a right to kill him, but I’m not obligated to kill myself—or there’s a commandment on him to kill him if he wants, however you want to define it, it doesn’t matter. But the Mishneh LaMelekh asks: what about someone who became liable to death by the religious court? According to this Talmudic passage. Someone became liable to death by the religious court, and now an agent of the court comes to kill him—is he allowed to defend himself under the law of a pursuer? Am I allowed to kill the agent of the court? He says no. Why not? What’s the difference between that and Pinchas or the blood avenger? The blood avenger is optional, Pinchas performed a commandment, the blood avenger does something that is optional—okay, zealots, but let’s say simply it’s optional. Here I even committed a prohibition, yes, so why can’t I kill the court’s agent?

[Speaker D] What do you mean, I committed a prohibition?

[Rabbi Michael Abraham] I committed a prohibition, I deserve to die. So why is it forbidden for me to kill the court’s agent? What do you mean? He doesn’t explain; he says it seems obvious to him, it can’t be otherwise, obviously he is forbidden to kill the court’s agent. I’m saying the reason for that is simply the answer to what you asked, Ari. The reason is that the duty to kill me is imposed on the public. The religious court is simply the public institution entrusted with carrying it out, but fundamentally this is a duty imposed on the public. Since that’s the case, then I too, as part of the public, must ensure that this duty is fulfilled. Now, maybe I don’t have to commit suicide—that’s another interesting question, by the way. If the religious court sentenced me to death and didn’t kill me, maybe I also have to kill myself. But now, when the religious court has not sentenced me to death, why don’t I have to jump off a roof? Because if it did not sentence me to death, then I’m not liable at all.

[Speaker C] Not liable to death.

[Rabbi Michael Abraham] The duty on the public is to kill me if I am liable to death, but I’m not liable.

[Speaker C] Even if

[Speaker B] you committed the transgression with witnesses and warning.

[Rabbi Michael Abraham] There is—

[Speaker C] some page that says that a woman who…

[Speaker D] He doesn’t tell her to go kill herself or something like that.

[Rabbi Michael Abraham] Yes, I don’t remember, I don’t remember such a thing. If he says that, then he’s wrong. I mean, I don’t know—

[Speaker D] I don’t know the source.

[Rabbi Michael Abraham] They told someone to kill herself? Yes, that’s not correct, it’s simply not correct. There’s no such thing. There are clear proofs. You can look at the Talmud in Makkot page 5; there in the Gilyon HaShas, there’s… it can’t be, it’s not correct.

[Speaker C] But if there’s no religious court that ruled… what? If there’s no religious court that ruled, but only that he is liable to death. Then you’re not liable.

[Rabbi Michael Abraham] What does it mean that Jewish law determined he is liable to death? Jewish law determined that in such a case one is liable to death. But in order to determine about me that I’m liable to death, you need a religious court. For the religious court to determine, that’s the law—but that doesn’t relate to me.

[Speaker C] And this is the case where the religious court has

[Rabbi Michael Abraham] a constitutive role, in punishments and fines. Fine, so until the religious court rules, I’m not liable at all.

[Speaker C] It doesn’t reveal; it creates.

[Rabbi Michael Abraham] Fine? And therefore rabbi and judge—the judge is not just a rabbi for matters of Choshen Mishpat and Even HaEzer. It’s a different function, a governmental function. Not for nothing, in every state system, the judiciary is one of the branches of government. A doctor is not. There is no healing branch of government. Why not? Because a doctor has no governmental powers. The doctor comes to help me if I want help. Depends whether he has them. Today they were talking about compulsion, involuntary hospitalization. But let’s say aside from those cases—there, by the way, he’s not acting as a doctor. Involuntary hospitalization means he is acting as police. He is acting to protect the public, not as a doctor. A doctor is not governmental authority; he is a professional expert. But a judge is governmental authority.

[Speaker C] But there is—for example, a psychiatrist can hospitalize.

[Rabbi Michael Abraham] As I said, he can hospitalize as police, not as a psychiatrist. To protect society he acts as police. The police are governmental authority. In his professional capacity he received governmental authority, but it is not granted to him by virtue of his knowledge. A psychiatrist who is not the district psychiatrist cannot do that, even though he has the same knowledge. Why not? Because he wasn’t authorized by the government to do it. He does not have the authority; he has the knowledge. In other words, knowledge and authority are two different things. In a rabbi there aren’t two things. The rabbi has the knowledge, and that’s all. A rabbi has no authority. I ask him a question because I don’t know; he tells me what the Jewish law says, because he knows and I don’t know. So he’s an advisor, like a doctor. But a religious court is like a judge: it has authority. So Even HaEzer and Choshen Mishpat versus Yoreh De’ah and Orach Chayim—that’s not a topical distinction, or not only a topical distinction. It’s a categorical distinction. Choshen Mishpat and Even HaEzer are halakhic law, Hebrew law if you want to call it that. Orach Chayim and Yoreh De’ah are Jewish law, not Hebrew law.

[Speaker C] It’s not law. But even in Choshen Mishpat there are things I’m obligated in even without authority.

[Rabbi Michael Abraham] I said—a loan is different from a fine, for example. We’ll talk more, we’ll talk more. Yes.

[Speaker C] So I don’t think the categorical order is that complicated, because when they issued a ruling about what is forbidden and permitted, that too is a legal ruling here.

[Rabbi Michael Abraham] Of course he issued a legal ruling here, but this chicken was non-kosher before he ruled. No, but it wasn’t known. You don’t need him in order for it to be non-kosher; it’s just that I didn’t know the law and he revealed the law to me. No, he introduced a novelty. He did not introduce a novelty. No.

[Speaker C] He uncovered something that already existed. This chicken was already non-kosher before.

[Rabbi Michael Abraham] I didn’t know, because I’m not a sufficient Torah scholar. But there are cases where it depends and it’s not unequivocal. It doesn’t matter if it’s not unequivocal. After he rules, the rabbi does not create law here. If he was wrong, if he was wrong then he was wrong.

[Speaker C] And if I ate the chicken?

[Rabbi Michael Abraham] No problem, I did nothing.

[Speaker C] Why? Because you ate non-kosher food.

[Rabbi Michael Abraham] What are you talking about? If he was wrong, you ate kosher food. He said it was non-kosher, yes?

[Speaker C] He said no, he said it was kosher.

[Rabbi Michael Abraham] He said it was kosher and was wrong, then you ate non-kosher food, obviously. That’s what I’m saying. Everything is determined by reality; it has nothing to do with the rabbi’s ruling. By the way, of course if you trust him, then you believe that if he says it, it’s probably right. Fine. But the rabbi does not constitute the Jewish law. The rabbi simply reveals to you what is true, just as the doctor tells you this medicine helps this illness. He’s a professional expert, that’s all.

[Speaker B] By the way, no matter what he said, if I ate it, he can’t do anything to me.

[Rabbi Michael Abraham] Obviously. He also cannot force you to obey him. Of course not. By the way, coercion regarding commandments—there is such a thing as coercion regarding commandments also in Yoreh De’ah. If someone wants to commit a prohibition, we coerce him; if someone doesn’t want to fulfill a commandment. Who coerces? The religious court. The religious court, not the rabbi. Because the rabbi has no authority. The rabbi is not an authority on the governmental map. The rabbi belongs to the professional map. A judge is authority. So even in matters of Yoreh De’ah and Orach Chayim, if authority is needed, like coercion regarding commandments, you go to the religious court, not to the rabbi. And legislation, for example—that’s something else. Who has authority to legislate? The Holy One, blessed be He. No, the religious court—not only the Holy One, of course, but not only. The religious court can legislate. Rabbinic law is legislation by the religious court. Only the religious court, not a rabbi. A rabbi cannot legislate. A rabbi can say what is forbidden and permitted given the law. He cannot innovate another new rabbinic decree.

[Speaker C] The religious court can establish a new rabbinic decree. In our system, separation of powers—the legislator and the judge are the same authority.

[Rabbi Michael Abraham] Yes, but it’s not the rabbi. Not the rabbi—something else. The Sanhedrin is both legislative and judicial, but it is not the rabbi. That’s exactly the point. When the Sanhedrin says something, it is binding; it’s not a professional opinion. Even in the area of Yoreh De’ah, when the Sanhedrin forbade fowl cooked in milk—well, no, it doesn’t matter, the Sanhedrin didn’t forbid fowl cooked in milk; that was a dispute of the tannaim, in Rabbi Yosei’s place they would eat fowl cooked in milk, never mind, the Talmud, which has some status like the Sanhedrin. Fine—when it forbade fowl cooked in milk, it added a clause to the table—the Shulchan Arukh. That is governmental authority; it is a legislative body. A legislator is governmental authority. A rabbi cannot tell me, look, this is rabbinically forbidden, if he can’t find a source for it. If there isn’t some existing decree or Torah-level law, he cannot create a rabbinic prohibition. The Chazon Ish comments on this in—

[Speaker E] Rabbis, say in the system of the German rabbis, the SHY and so on, where every community rabbi is the authority, and ninety-nine percent of the rabbis can say otherwise, but he is the authority, he decided this way and that’s how it is.

[Rabbi Michael Abraham] So a community rabbi is something a bit different. The local halakhic authority has authority over his community. You can argue about how much and what exactly “local” means, because today in our virtual world it’s not geographic like “do not form factions,” you don’t have two religious courts in one city. The law of “do not form factions,” right? Today we have lots of them. Why? Because a city is not the geographic city. A city is a community; it’s something more virtual. But never mind—the local halakhic authority has authority, but that authority stems from the fact that the community accepted him upon itself as governmental authority. It’s not that the fact that he is a Torah scholar gives him the authority. If there were another Torah scholar who said the opposite, that’s exactly the point: if there were a greater Torah scholar than he who told you something else, that would change nothing. Why do they say the local authority decides? Because the authority of the local authority does not derive from his being a good professional, from his knowledge. He must know in order to be the local authority, but that is not his source. His source is governmental authority: the public established that he is the halakhic authority in that community. Therefore that is exactly the difference—that this is governmental authority, not his professional authority as a rabbi. Greater Torah scholars than he have greater professional authority than his. But professional authority is not authority. They can give their opinion, and if he is persuaded then he is persuaded and he will thank them, but they do not have authority; they have an opinion. They can determine what, in their opinion, the Jewish law says. That’s all. So what comes out of this? I return to the Tur: that Choshen Mishpat and Even HaEzer are basically the legal part of Jewish law, and Orach Chayim and Yoreh De’ah are the ordinary halakhic part. Ritual, if you want to call it that, halakhic, whatever—but not the legal part. When people speak of Hebrew law, for some reason it has become a synonym for Jewish law; I don’t like that term at all, I wrote about it once too. But even when people already use that term, they speak about animal suffering from the standpoint of Hebrew law. An article by Vigoda, right? Around the High Court case on force-feeding geese. What does Hebrew law have to say about animal suffering? Animal suffering is Yoreh De’ah, not Choshen Mishpat and not Even HaEzer. What does that have to do with Hebrew law? It’s Jewish law. You should say animal suffering in Jewish law. If animal suffering doesn’t appear in Even HaEzer—

[Speaker D] If I remember correctly, animal suffering appears in Even HaEzer regarding the laws of castration.

[Rabbi Michael Abraham] Castration is in Even HaEzer? Yoreh De’ah.

[Speaker D] No, Yoreh De’ah?

[Rabbi Michael Abraham] In any case, those are the parts. Therefore when the Tur made his four-part division, first of all there is some larger division into two and two. He suddenly put on the table—again, he didn’t invent it, obviously; even in Jewish law it says “monetary law is not derived from ritual prohibition,” meaning in the Talmud. So everyone understood earlier too that there are two kinds of laws, but the Tur was the one who put it on the table. He made a categorical division: two columns deal with law, two columns deal with Jewish law. Within the legal domain there is a division into Choshen Mishpat and Even HaEzer. Even HaEzer is what today is called personal status, and Choshen Mishpat is civil law. Civil and criminal, really—civil and criminal—because capital punishments and all these things, theft and all those things are also in Choshen Mishpat. By the way, criminal law is in Choshen Mishpat only because there are punishments for it. If there were no punishments for it, it would be in Yoreh De’ah. You’re forbidden to steal—so what? Fine, I’ll get to that too. In any case, even within the legal part—now I’m going into higher resolution—there is a division between Choshen Mishpat and Even HaEzer. This is personal status and this is civil and criminal law. Okay? You see that this really parallels modern legal divisions. Meaning, with the Tur, for the first time on the table, there is a division of Jewish law according to categorical criteria, not topical ones. Not a division by topics, which existed earlier too. In Maimonides too you could make something like that—say the Book of Acquisition, Damages, Judgments, and something else I’m forgetting—those are the legal parts of Jewish law. But Maimonides doesn’t put those three into one thing; they are three books like all the other fourteen books. He doesn’t even hint that they belong to some common category. Fine? Therefore in Maimonides you don’t have this categorical division. In Maimonides the division is what I said before: it is mainly topical. This deals with bailees, this with damages, this with acquisition. But the fact that damages and acquisition both belong to the legal world, as distinct from seeds, for example, which belongs to the halakhic world, Yoreh De’ah—there’s no hint of that in Maimonides, in Maimonides’ division. Even though clearly he understood it; it’s not the Tur’s innovation. But the Tur put it on the table in a conceptual definition—he conceptualized it. Okay? And now I want to try to define a bit more what that means, and thus we’ll return to the question of duties and rights. So let’s try to think: what defines Choshen Mishpat? I’ll get to Even HaEzer later, but what defines Choshen Mishpat? What is Choshen Mishpat? How would you define that halakhic-legal category? First of all, as I said before, yes, it’s civil and criminal law.

[Speaker E] Between man and his fellow.

[Rabbi Michael Abraham] So at first glance I would say some kind of monetary law between man and his fellow. Because not every matter between man and his fellow—for example honoring parents or something like that, though that itself is a question whether it’s between man and his fellow—but that is in Yoreh De’ah. Fine? Charity is also in Yoreh De’ah. But maybe monetary law between man and his fellow, maybe.

[Speaker D] No, laws that deal with man and his fellow.

[Rabbi Michael Abraham] Ah—that doesn’t pass the test; I’ll get to that in a moment. Because there are monetary laws between man and his fellow that appear in Yoreh De’ah. Examples? Return? Charity, as I mentioned before. What? A loan? No, a loan is Choshen Mishpat. Charity and interest—those are the two examples. Honoring parents too, if you want, whether it comes from your own money or theirs—that’s a dispute in the Talmud. But there are monetary obligations of a person toward another person that appear in Yoreh De’ah. So what really defines Choshen Mishpat? It’s interesting, because notice: the Tur, who did this conceptualization, apparently meant these divisions very precisely, because in fact he redefined the system as four distinct columns. And nevertheless he chose to place interest and charity in Yoreh De’ah.

[Speaker C] Where there is restitution of rights.

[Rabbi Michael Abraham] Right, I’ll jump to the end and give away the conclusion to close the circle, and afterward I’ll elaborate.

[Speaker C] Where there is restitution of rights.

[Rabbi Michael Abraham] Choshen Mishpat is the halakhic book of rights—that is its definition. It is the book that gathers all rights. There are many duties in Choshen Mishpat, but they are duties that are always derived from corresponding rights.

[Speaker C] Something that can be claimed.

[Rabbi Michael Abraham] Exactly. And therefore it belongs to the legal dimension of Jewish law. But the fact that it belongs to the legal dimension of Jewish law is a reflection; the categorical definition is that it is the collection of rights. That is Choshen Mishpat. The implication is that because of this, if someone was harmed, he can go to a religious court and sue. In contrast, interest and charity—which are also monetary obligations toward another, matters between man and his fellow—are located in Yoreh De’ah. Why are they located in Yoreh De’ah? Because here these are duties imposed on me that are not founded on the rights of the other. I am obligated to give you charity, but you do not have a right to receive charity from me. I am obligated to return the interest to you, or forbidden to take interest from you, but you do not have a right that I return the interest to you or not take interest from you. Interest is extracted by judges as coercion regarding commandments; it is not a right. We’ll get to that later too. You do not have a right to sue me in religious court, and therefore interest and charity are in Yoreh De’ah even though they too are commandments between man and his fellow in monetary matters. Meaning, the Tur—notice how precise he was, how deliberate and exact this conceptualization was—everything is accounted for. If there are things that seem similar to Choshen Mishpat but are not located in Choshen Mishpat, there is a good reason for it. A categorical reason: categorically, charity and interest do not belong to Choshen Mishpat; therefore they are in Yoreh De’ah. Interest and charity should be areas tested in rabbinate exams, not in judgeship exams. What does that basically mean? It means that the legal part of Jewish law is basically—or at least Choshen Mishpat; I’ll get to Even HaEzer later—Choshen Mishpat is duties imposed on me whose basis lies in the rights of another. By contrast, the other laws are duties not founded on the rights of another. And if we return to the beginning of the lesson, when I spoke about the fact that in Jewish law there are duties to which Hohfeld’s table does not apply, that are not based on rights, that are not accompanied by rights on the other side—that’s only Yoreh De’ah, that’s in Jewish law. In halakhic law it works like general law: every duty has a corresponding right, and vice versa, every right has a corresponding duty. That is what defines halakhic law. Why is that part the legal part of Jewish law? Because in every legal system that is how it is built. So too in Jewish law, the part built that way is the legal part within Jewish law. It’s just that in Jewish law there are also non-legal parts, and therefore in Jewish law there are also duties not derived from rights. But there are also duties derived from rights, like in an ordinary legal system, and the things that are rights in an ordinary legal system are also rights in Jewish law. The things that in Jewish law are not rights simply won’t appear in a legal system at all, because a legal system does not impose commandments on human beings. It has no interest in commandments. It regulates relations between people. It determines that if that person has rights, it ensures that you do not infringe those rights; it imposes on you a duty not to violate the right. It does not regulate our morality and our commandments; it does not see that as its business. And therefore—what?

[Speaker D] Sometimes it does; there are laws…

[Rabbi Michael Abraham] No, basically it does not see that as its business at all.

[Speaker D] There is a concept of a victimless crime.

[Rabbi Michael Abraham] What do you mean by a victimless crime?

[Speaker D] I’m not harming anyone’s right.

[Rabbi Michael Abraham] No, you are harming.

[Speaker D] What, my own?

[Rabbi Michael Abraham] No, you are harming the rights of others, because if you do that, in the end you’ll get to robbery and you’ll harm society, and therefore they enforce it on you.

[Speaker D] I’m not sure that’s the—

[Rabbi Michael Abraham] There’s no such thing. You don’t enforce anything on a person—in the accepted conception—if it doesn’t harm someone else and it’s not—again, there are exceptions like homosexuality, and that’s exactly the point. Why was it rehabilitated? Not because they thought it wasn’t forbidden, but at the most basic level, first of all because it harms no one. If it’s by agreement between two sides and between adults doing what they want, then it’s not our business even if we think it’s forbidden, first of all. After that there are also those who say it isn’t forbidden and there’s no problem with it—but I’m saying that’s stage two. First of all the question is: what harm does it do? And then of course all the questions begin: what about incest and things like that between adults—say a brother and sister who want to live together as a couple. Fine? That too harms no one, so why does the law forbid it? Fine, time will pass, and that too will come to this. Yes, that too will eventually come.

[Speaker D] There is a trend to move the law in that direction,

[Rabbi Michael Abraham] because fundamentally that is the conception. That’s exactly the point. The basic conception is such a conception. The argument behind those things basically says that a brother and sister living together harms society. That is how people look at it, and therefore they intervene in their lives. It’s different from suicide, say. The only justification, if any, for intervention by law or by others in someone’s suicide attempt is because we think he does not have proper judgment, that he himself would regret it, and we are in effect acting on his behalf.

[Speaker C] And a helmet for a motorcycle rider?

[Rabbi Michael Abraham] A helmet for a motorcycle rider is because afterward we’ll have to spend money treating him. What do you mean? Yes, if you want to kill yourself, kill yourself—but not at my expense.

[Speaker D] It seems to me what you’re saying is excuses.

[Rabbi Michael Abraham] No, they’re not excuses. I think that is the conception—

[Speaker D] that all safety regulations are required because afterward they have health insurance—it could also be the other way around, someone once

[Rabbi Michael Abraham] calculated that— It’s not health insurance; there’s an obligation to treat him even without health insurance.

[Speaker D] Doesn’t matter, yes, an obligation to spend money on his treatment, whether through insurance or not, that I have to spend money on his treatment.

[Rabbi Michael Abraham] Yes. Otherwise why are you interfering in his life? He eats unhealthy food—can you interfere in his life? He wants to eat unhealthy food.

[Speaker D] So about that too one could say: what, we’ll spend money on him afterward.

[Rabbi Michael Abraham] Correct, correct, and therefore indeed—

[Speaker D] people will say that’s too much of a private matter

[Rabbi Michael Abraham] and that would be an excessive step.

[Speaker D] Obviously.

[Rabbi Michael Abraham] There is obviously some judgment here, but the degree of damage to society determines how far you are willing to interfere in a person’s life. But fundamentally, without damage you don’t interfere. It’s not that whenever there is damage you do interfere, because there is also the person’s right to do what he wants, so there’s some balancing. But if there is no damage, there is no justification to interfere. You can’t interfere—again, not because you think he’s right. Even if you think he’s wrong, even if you think he’s immoral, as long as it doesn’t concern you, what are you doing there?

[Speaker D] It seems to me that usually people don’t justify it that way.

[Rabbi Michael Abraham] I think they do, but fine. “Do not stand idly by your neighbor’s blood.” The argument over the law of “do not stand idly by your neighbor’s blood”—what?

[Speaker C] In suicide there are no costs to society if he dies.

[Rabbi Michael Abraham] No, so that’s why I said that there the intervention is only because we think he has no judgment, like a child. Why do we compel a child? Compulsory education law—he doesn’t want to be educated, what do you want from him? Why do parents compel even inside the home? Because we assess that the child still does not have sufficient judgment, and therefore in the meantime there is justification to compel him.

[Speaker D] And that’s also the issue with safety regulations.

[Rabbi Michael Abraham] Maybe, doesn’t matter. But still there is justification for compulsion—it requires justification. You can’t do it just because he’s not okay. That’s enough for me; I don’t care right now exactly what the justification is. Look at the law of “do not stand idly by your neighbor’s blood,” by Hanan Porat. When he passed the law, he was really happy and cheerful, everyone celebrated: at last Jewish law has entered the law books; a verse is written in the statute books: “Do not stand idly by your neighbor’s blood,” and everyone celebrated. This whole business is of course against Jewish law; it’s simply utter nonsense. Because in Jewish law there is no punishment at all for someone who stands idly by his fellow’s blood, and when this enters the law books it means there is a punishment, because there is no law without a sanction. Okay? So to put this into the law books is to act against Jewish law. But never mind—everyone enjoyed it enormously because something from Jewish law was written in the law books. So what was the argument there about? Look at the committee protocols where they debated this issue. Yossi Beilin was there and others; I read some of them. The main argument was about this. We all agree that one ought to help someone in distress, and someone who doesn’t help someone in distress is not okay. But we are not responsible for people’s morality. As long as he is not guilty and does not owe the other person rescue, then he’s not okay—we’ll condemn him—but how can you prohibit that by law and impose a sanction? In other words, the claim that the law does not intervene does not mean that the law approves of what you are doing. But even if it’s not approved, it’s your business. You choose to be wicked—what can I do? I don’t impose commandments on you.

[Speaker E] Wait, wait, but even in Jewish law we compel against the trait of Sodom, so that exists too. There?

[Rabbi Michael Abraham] In Jewish law of course it exists—what’s the question?

[Speaker E] So what’s your problem with Hanan Porat’s law?

[Rabbi Michael Abraham] No, no—the law is not Jewish law. In Jewish law he wanted to implement Jewish law into the statute books, and to implement Jewish law into the statute books would have meant not putting it into the statute books. Why? Because then it would remain a moral imperative without a sanction, exactly as in Jewish law. The moment you put it into the statute books, it became a moral imperative with a sanction, which is not like Jewish law. Now, I’m not saying I oppose what he did as a man of Jewish law because it’s a transgression. The public is allowed to impose a sanction on a moral duty, just as we compel against the trait of Sodom. But exactly—that is not a halakhic achievement that you did that; on the contrary, you deviated from Jewish law. It’s like those who want to put the laws of bailees into—if

[Speaker E] If they compel against the trait of Sodom, then they deviated from Jewish law? That’s a rabbinic enactment. Deviated from Jewish law—certainly, it’s a legislator. He enacted a decree.

[Rabbi Michael Abraham] No problem. I said: I don’t oppose what he did from what you might call halakhic glasses. It’s not that it’s halakhically improper. But he meant that he was now implementing Jewish law. So no, he wasn’t; he deviated from Jewish law. The achievement he waved around and everyone celebrated—at last Jewish law is being realized in the Israeli statute books—well no, Jewish law ceased being realized in the Israeli statute books because of this law. But yes, true, it’s not a transgression—I’m not claiming that. I have no criticism of what they did. I’m only saying that the achievement they boasted of was not an achievement. By the way, I’m also not at all sure that this law led people to help more. I don’t think so. It’s the same effect as capitalism, by the way.

[Speaker C] You can blame more.

[Rabbi Michael Abraham] Because now, yes, now you can blame him, so maybe there was fear or something like that before, but now all that remains is that you’re escaping the law. Meaning, it’s no longer that you’re not being moral if you don’t help. Before, it was clear that there was a moral claim on you; it wasn’t a matter of law — be a human being, help him. Fine, sometimes legislation is harmful; legislation doesn’t always help. Not always, but sometimes. Okay, in any case, for our purposes: Choshen Mishpat is basically the collection of halakhic obligations whose basis is the right of the other person, as opposed to Yoreh De’ah, which is obligations that are not based on the right of the other person. Okay? Also halakhic obligations, even monetary ones, that are not based on the right of the other person. That’s the definition of Choshen Mishpat. And from that derive all the special characteristics of Choshen Mishpat — and there are quite a few — that one can bring a claim about it in a religious court, and therefore the ones who study it are judges and not rabbis, and there is governmental authority over this matter. All these things are rooted in that. Why? Because essentially this concerns not the private individual. Yoreh De’ah and Orach Chayim are laws that concern the private individual. Choshen Mishpat — and here Even HaEzer joins it too, by the way — consists of laws that concern the public dimension of Jewish law, relations between people. Your right, my obligation; my obligation toward you, right? Regulating relations between people. Charity and interest are not about regulating relations between people. Of course there is some relation to another person here, but he is not really a party to the matter; he has no such right. In the end it is an obligation on me. It is a completely private law, a halakhic law imposed on me. True, in this case there’s someone in the background toward whom this obligation is directed, as opposed to desecrating the Sabbath, which is only my business and unrelated to other people. But still, in the halakhic conception this is law that concerns the private individual, a halakhah that concerns the private individual, and therefore it is in Yoreh De’ah. In Choshen Mishpat — and here too, this includes Even HaEzer, not only Choshen Mishpat — this is the definition of law, halakhic law, and that’s why in the world of halakhic jurisprudence too, it is about regulating relations between different citizens in society. So that the right of the other person will not be harmed, they impose an obligation on the one who must not harm the right of the other person. That’s basically personal status; that too is a public matter. To determine that you are married is a legal determination. The fact is that every legal system in the world insists that there be registration of marriage; without that, they do not recognize the marriage. Why? Why is it your business whether they are married or not married? Let them decide whatever they want. It has implications: he can’t marry another woman, who are his heirs? It has many implications. This has to be legally regulated. Therefore Even HaEzer also belongs to the legal part of Jewish law, because it too is public. It may not speak about rights and obligations in exactly the same sense as the monetary rights and obligations in Choshen Mishpat, but it too is a public matter; society has to dictate what is happening here. Because this little anecdote — an amusing anecdote, maybe I’ll say it parenthetically — in recent years there’s been some trend of private marriages. About a year ago or something like that there was some report on Channel 2, on the Channel 2 Saturday night news, about this matter. They interviewed me about it too, and I supported it enthusiastically, as part of my struggle with the Rabbinate, as you know. But afterward I suddenly realized that people were doing it not the way I thought. They were doing private marriages and not registering. That’s the accepted practice; I know, I know people like that, and people approached me afterward too. People heard, so they approached me to marry them. And then I suddenly understood that someone here was making colossal mistakes. Because these rabbis who perform private marriages are marrying people and not registering them in order to protest against the Rabbinate. They’re not willing to go through the Rabbinate and through it register for marriage. And I said: this is outrageous. It’s outrageous not because I want to give a monopoly to the Rabbinate, but despite the fact that I do not want to give a monopoly to the Rabbinate. But there’s no choice — right now they are the registrars, and there has to be registration. Every orderly legal system: if you’re married, society or the legal world has to recognize it; it has to be registered; that is legal regulation. Forget the halakhic prohibitions and the halakhic complications — this is a civic duty to register it. It is not a halakhic duty. I am against coercion of halakhic duties, but I am in favor of coercion of civic duties. And you must register. And then I basically came up with the idea that — I’m continuing the parenthesis here — on the contrary, what should be done is private marriage and then registration. But what will you say? The Rabbinate won’t register it. They don’t recognize you; you did it privately; you’re not a rabbi authorized by them, and so on. But then amendment section 7 of the Marriage Ordinance came my way, which everyone in the Rabbinate was thrilled about, like finding great treasure: finally, anyone who performs private marriages is subject to up to two years in prison. A great victory for the Rabbinate, establishing the Rabbinate’s monopoly. So I wrote on the website there, and then I read the language of the law. That’s what they said on the news and everyone — this was well known and publicized among people — today private marriage is already a criminal offense, meaning punishable by up to two years in prison. There’s Tomer Persico, I know, who always performs private marriages, and he calls the police beforehand, informing them: I’m about to perform a private marriage, come arrest me. In any case, then I saw the language of the law, and the language of the law says exactly the opposite. These bunglers don’t even know how to legislate. The language of the law says that someone who arranges a marriage — a rabbi or a couple who marry and do not register — is subject to up to two years in prison. Excellent. So if that’s the case, I perform a private marriage, which is perfectly fine, and now I come to fulfill my civic duty as the law requires me, and I come to register the marriage that I performed. Now the Rabbinate doesn’t want to register it because I’m not authorized, so they are the ones subject to up to two years in prison. In fact, this law finished off the Rabbinate’s monopoly.

[Speaker D] Why? Doesn’t the law say that someone who didn’t register the marriage—

[Rabbi Michael Abraham] No, the law says—

[Speaker D] Registered and wasn’t registered.

[Rabbi Michael Abraham] Fine, but I am registering. You are preventing me. You are criminal offenders, preventing me from fulfilling my legal duty.

[Speaker D] Is there an obligation on someone who doesn’t allow it, on someone who won’t register it?

[Rabbi Michael Abraham] The clerk who isn’t willing to accept my income tax — I come to pay income tax and he says, I’m not willing. What’s his status?

[Speaker C] He’s not obligated to accept you, just as you have an obligation to go to a doctor.

[Rabbi Michael Abraham] No, he’s not obligated, but I’m obligated to pay income tax. What does that have to do with recognizing doctors? He doesn’t have to recognize every doctor, but I have to pay income tax. Now the clerk who is supposed to implement that obligation, or receive the income tax from me, is a tax clerk, okay? He says, I don’t want to. Obviously he has to accept it. So too in the Rabbinate, the law requires me to register. How do you register? You go to the Rabbinate, and that’s the clerk who registers, the receipt book. Fine, I’ll register in the receipt book, whatever book they want, I have to register.

[Speaker C] You have to register a child who was born, you have to register him at the Interior Ministry. You come to register him and he doesn’t want to register him. You have to register and he doesn’t want to.

[Rabbi Michael Abraham] Never mind. In short, regarding the punishment of up to two years in prison, by the way, there’s some room for legal hair-splitting. I spoke afterward with jurists, some of them real experts in personal-status law, and everyone agreed with me. By the way, that’s the novelty. Because everyone had lived with the feeling they heard on the news, that whoever performs a private marriage is subject to two years in prison.

[Speaker C] They didn’t read the law.

[Rabbi Michael Abraham] Everyone I spoke to agreed with me, and that was at least five people. But they only told me: look, the Rabbinate probably won’t get up to two years in prison, because there’s some rule in criminal law that the law has to state explicitly who will be punished if he doesn’t do it. And it doesn’t say there that the punishment is on the Rabbinate; it says either the rabbi or the couple. But I am certainly exempt, because I went to register. Meaning, that’s not the issue. So they won’t be punished, but they are certainly not acting properly. Okay? So therefore, actually, I’m now putting this to the test. Two weeks ago someone came to me and asked me to marry him — a friend of my son’s. The first time I did this. So I married them privately, but I told them in advance: you are committing yourselves to register. Now, you can do this through Cyprus, the way people usually do, and that’s to run away from the problems. If you’re willing, I don’t demand that — it’s a mess. If you’re willing, I would prefer that you go to the Rabbinate to register, and that they refuse, and then we’ll go to the High Court. Fine, so in the meantime they went to the Rabbinate and they refused, and afterward they nevertheless told them, fine, open a file in a rabbinical court so they can check that the marriage was done properly. I told them, open it, open it, because that’s fine, it’s reasonable. Meaning, if the rabbi isn’t recognized, then you need rabbinic authority to verify that the marriage was in fact done according to law. And that’s a reasonable procedure. Now, they didn’t want to open a file for them. Never mind — in short, so far everything has gone through. Now we’ll see; we’re waiting to see by the end of the year whether they’ll approve it, and then de facto we’re finished with their monopoly, because anyone who performs marriages can now be registered in this way. And if they don’t agree, then the High Court. I hope — I don’t know, maybe it’ll fail — but if it succeeds then of course there will be new legislation. Never mind, but the High Court will force them to do it. So we’ll see how it ends. But I’m saying all this only in order to—

[Speaker C] To emphasize that there’s some rabbi somewhere, in Sderot? Not in Sderot, in Beit Shemesh or somewhere else. They talked about him — some forty people yesterday in Beit Shemesh or somewhere else.

[Rabbi Michael Abraham] The one who supports enlistment?

[Speaker C] Be careful. Enlistment. Kiryat Gat, Kiryat Gat and some Shikma, I think. What is he?

[Rabbi Michael Abraham] He supported enlistment, something? Supported enlistment. Kiryat Malakhi. They said Kiryat Malakhi on the news, I don’t know.

[Speaker C] Fine, in any case, never mind, guys, everything’s okay. I don’t know what they are.

[Rabbi Michael Abraham] Fine, they can complain here too. Fine, Neturei Karta won’t listen to the authority of the Rabbinate in any case, so about that you can relax. In any case, to our subject, I’m closing the parenthesis. I only wanted to use this to demonstrate why Even HaEzer also belongs to the legal part, because I explained what Choshen Mishpat is. But why does Even HaEzer also belong to the legal part of Jewish law? Because Even HaEzer too is the regulation of a social institution. It’s not personal halakhah — keeping the Sabbath, eating kosher, niddah, or things like that — but regulation of relations between people that society is supposed to recognize. Therefore it is a clearly legal matter. Anything that appears in the law books of legal systems around the world, when it appears in Jewish law it belongs to the legal part of Jewish law. Things that appear in Jewish law but do not appear in the law books of the world — that is called the non-legal part of Jewish law. That is halakhah itself, the halakhic norm; it is not law. Okay? The indication is simply to see how the world views it. It’s a good indication. Anything that in the world is treated as a legal issue, as something the legal system handles, should probably go into Even HaEzer or Choshen Mishpat. The main thing is missing from the book: all the laws of kingship, laws of the state, laws of the army — they don’t appear there. What do you mean they don’t appear? Where don’t they appear? In Even HaEzer. Of course they don’t appear, because anything like that is irrelevant in this time. They don’t appear anywhere, not only in Even HaEzer. They appear in the fifth part of the Shulchan Arukh. What you’re saying is that all public law appears in Even HaEzer? Except for ninety percent? No. All the public law that exists in the Shulchan Arukh appears in Choshen Mishpat and Even HaEzer. There are many laws that do not appear in the Shulchan Arukh — I said that at the outset — because it does not deal with laws that did not apply in its time. In Maimonides it appears, but in the Shulchan Arukh it does not appear. But within the Tur and the Shulchan Arukh themselves, when the laws are classified, everything that is the public legal part appears in Choshen Mishpat and Even HaEzer. There are laws that do not appear in the Shulchan Arukh at all, fine, because he chose to focus only on laws that apply nowadays. But why is the definition based on whatever is accepted in the world? No, that’s an indication, not a definition. I’m saying it’s an indication: if you want to know what belongs to halakhic jurisprudence as opposed to what belongs to halakhah, look at how other legal systems in the world treat it and you’ll see. There are other formulations, for example everything that needs to come before a religious court. But how do you know? How do you know what has to come before a religious court? How do you know that this is an obligation corresponding to a right? How do you know that interest and charity are like this, but damages and loans are not like this? One of the indications is: look, no legal system in the world imposes obligations regarding interest and charity; it doesn’t care. But a loan has to be repaid in every legal system in the world, and damages require compensation, and personal status has to be regulated, registered in an orderly way before a judge — however that may be, a mayor, it doesn’t matter, each system according to how it works — but it is legally regulated. So if that’s the case, then in Jewish law too it belongs to the legal part of Jewish law and not to the halakhic part. This is only an indication to show that the concept of law in halakhah is entirely similar to the general concept of law. And in the concept of halakhic law too you have Hohfeld’s table, exactly as in general law. Because corresponding to every obligation there is a right, and corresponding to every right there is an obligation. When people speak in the language of obligations in halakhah, they are not speaking about Choshen Mishpat at all. They are speaking about parts that do not appear at all in legal discourse, not that they appear there as rights — they do not appear there at all. In halakhah they do appear, and there these are indeed obligations not derived from rights, because this is not the legal part of Jewish law. Jewish law is more imperialistic than legal systems, because it wants to take over even our private domain; that is, it tells us what to do at home too, not only how to regulate relations between us. A legal system does not see fit to have a right or an obligation to do that. It does not interfere in what a person does at home as long as it does not concern the public domain and the public. So by definition.