Study and Halachic Ruling – Lesson 3

Table of Contents

• Choshen Mishpat as the laws of rights, versus Orach Chayim and Yoreh De’ah as the laws of duties
• Charity and interest in Yoreh De’ah as duties without a right of legal claim
• Rashi’s approach: the prohibition against saving oneself with another person’s money as a matter of “territorial considerations”
• The organ transplant example: sovereignty over the body as a boundary of authority
• Rabbi Shimon Shkop: a legal layer of the prohibition of theft prior to “You shall not steal”
• The laws of gifts in Choshen Mishpat: not an obligation to give, but legal force for rights
• Responsa Binyan Tziyon: extending “be killed rather than transgress” to any violation of another person’s rights
• Rigidity versus flexibility in monetary law: stipulations, local custom, and the law of the kingdom
• Local custom and the law of the kingdom as implicit stipulation, and the implications for state law
• Why study Choshen Mishpat, and why not recite the blessing over Torah study on legal studies: the distinction between Torah and practical Jewish law
• Vows and the determination of facts: Torah is “he shall not profane his word,” while the specific vow is a matter of reality
• Presumptions and assessments in the Talmudic text: “a person does not repay before the due date” as a changing fact and an eternal principle
• Disputes about presumption, “conduct,” and “clarification,” and the authority of the sages to uproot a matter from the Torah
• Rabbinical studies, aggadic literature, ethics / morality, and the blessing over Torah study

Summary

General Overview

The text presents Choshen Mishpat as the halakhic system of monetary and personal rights, in contrast to other parts of the Shulchan Arukh that focus mainly on duties. It argues that the laws of rights create a kind of “territory” belonging to the holder of the right, and that this territory is not overridden even by life-saving necessity. On that basis it explains Rashi’s view that a person may not save himself using another person’s property, and extends this, through Responsa Binyan Tziyon, to other harms done to another person, such as humiliation. Alongside this rigidity, it explains why monetary law is also especially flexible, through stipulations, local custom, and the law of the kingdom, because this flexibility is the right-holder’s waiver, not an invasion by someone who lacks the right. From there it arrives at a fundamental distinction between “Torah” and “practical Jewish law”: Torah is the set of eternal determinations found in halakhic literature, while practical Jewish law also depends on clarifying facts, such as state law, custom, assessments, and presumptions, which are essential for issuing rulings but are not themselves Torah study.

Choshen Mishpat as the laws of rights, versus Orach Chayim and Yoreh De’ah as the laws of duties

The text defines Choshen Mishpat as the collection of rights that appear in Jewish law, so that when people have rights according to Jewish law, that is formulated and discussed in Choshen Mishpat. It presents Orach Chayim and Yoreh De’ah as sections dealing mainly with duties imposed on a person, while in Jewish law there is also a discourse of rights that many people are not aware of. It states that corresponding to every right there is a parallel duty, and connects this to the “Hohfeld table,” where right and duty are mirror images. It emphasizes that in Jewish law there are also duties that do not correspond to anyone else’s right, such as the duty to pray, and therefore the ordinary legal world—which does not deal with the relationship between a person and the Creator, or with one’s private mode of life—is built almost entirely on the reciprocity of rights and duties.

Charity and interest in Yoreh De’ah as duties without a right of legal claim

The text explains that charity and interest appear in Yoreh De’ah rather than Choshen Mishpat, even though they are monetary duties toward another person, because they are not based on the other person’s right that generates the obligation. It says that someone who did not receive charity cannot sue in religious court over the failure to give it, and a borrower who paid interest cannot sue the lender to recover the interest as an ordinary monetary claim. It presents this as a classificatory criterion: when the duty is not derived from the other party’s right, it does not belong in the category of Choshen Mishpat.

Rashi’s approach: the prohibition against saving oneself with another person’s money as a matter of “territorial considerations”

The text presents Rashi’s view in Bava Kamma that a person may not save himself with another person’s money, and emphasizes that most medieval authorities (Rishonim) explain that if he did so, he is liable to pay, not that he was forbidden to do so. It explains that Rashi does not base this on the severity of the prohibition of theft or damage, but on the fact that the other person holds a right over his property, and that this right is not displaced by life-saving necessity even if the prohibition itself is displaced. It argues that the prohibition “You shall not steal” follows from the other person’s ownership, and not the other way around, and therefore even when life-saving necessity permits transgressions, it does not “remove” another person’s rights. It formulates this as “territorial considerations,” according to which, in a sphere of decision that belongs to someone else, only the owner of that territory has the authority to decide, even if he decides wrongly, wickedly, or against the will of God.

The organ transplant example: sovereignty over the body as a boundary of authority

The text offers the example of a person in need of an organ transplant and asks whether he may force another person to undergo surgery to remove a kidney or lung in order to save his life. It says that the prohibition does not stem from the severity of the prohibition against causing injury, but from the fact that a person’s organs are part of his own territory and he alone has the authority to decide about them. It presents this as an intuitive argument that clarifies the principle of territory even beyond monetary matters, and emphasizes that the issue is not one of “importance” versus life-saving necessity, but of authority boundaries and the conceptual fact of ownership.

Rabbi Shimon Shkop: a legal layer of the prohibition of theft prior to “You shall not steal”

The text attributes to Rabbi Shimon Shkop, in Sha’arei Yosher, Gate 5, the position that even before the halakhic commandment of “You shall not steal,” there already exists a prohibition of theft on the legal plane, and on top of that an additional halakhic-religious prohibition is imposed. It brings two proofs for this reading: first, that Rabbi Shimon asks why one must obey a system that is not written in the Torah, which assumes an obligation of obedience already on the legal plane; and second, that Rabbi Shimon attributes a prohibition even to stealing from a non-Jew, according to the view that it is not prohibited by Torah law, as a legal prohibition rather than a halakhic one. It sharpens the point that the meaning of ownership is that others are barred from making decisions about the property; otherwise “ownership” would be an empty word.

The laws of gifts in Choshen Mishpat: not an obligation to give, but legal force for rights

The text answers why the laws of gifts are found in Choshen Mishpat and not in Yoreh De’ah by saying that there is no obligation to give a gift; rather, the issue is how a gift is transferred and what the legal consequences of that acquisition are. It states that from the moment a gift is given, a state of reciprocal rights and duties is created, and therefore the subject belongs in Choshen Mishpat. It distinguishes this from interest and charity, where there are monetary duties that are not claimable as rights of the other party.

Responsa Binyan Tziyon: extending “be killed rather than transgress” to any violation of another person’s rights

The text cites Responsa Binyan Tziyon by Rabbi Yaakov Ettlinger, the author of Arukh LaNer, with the idea that “be killed rather than transgress” applies to all commandments between one person and another. It qualifies this by saying that obviously this does not refer to charity, but to commandments that belong categorically to Choshen Mishpat, meaning those rooted in another person’s rights. It cites the rabbinic statement, “It is preferable for a person to throw himself into a fiery furnace rather than publicly whiten his fellow’s face,” and presents Tosafot as trying to explain this as an accessory form of murder, through the image of blood draining from the face. It argues that the statement may be literary-aggadic, intended to emphasize severity rather than establish Jewish law, as he explains regarding expressions like “redeeming captives is the greatest commandment in the Torah” and “he thereby incurs liability for his own life.” But he then continues and presents Binyan Tziyon’s solution as a halakhic statement: humiliation is a violation of a person’s right over his own honor, and therefore it is an invasion of his territory, so it falls under Rashi’s principle and does not depend on the severity of the transgression.

Rigidity versus flexibility in monetary law: stipulations, local custom, and the law of the kingdom

The text sets up a dissonance according to which monetary law is “the most rigid,” to the point that even life-saving necessity does not override a violation of another person’s rights, yet at the same time it is “the most flexible,” because one may stipulate away what is written in the Torah regarding monetary matters, and apply local custom, communal ordinances, and the law of the kingdom. It gives an example from the Mishnah in Bava Metzia 94, where it is permitted to stipulate regarding the liabilities of bailees, and emphasizes that one cannot stipulate away the prohibition of pork, but one can alter the results of monetary obligations by agreement. It explains that the solution is that these are two sides of the same coin: from the perspective of someone who is not the right-holder, there is no flexibility at all, because he is forbidden to invade another person’s territory; from the perspective of the right-holder, there is full flexibility, because he may waive the exercise of his rights. Therefore a stipulation is effective only when it is a waiver by the right-holder and a mutual agreement in a contract.

Local custom and the law of the kingdom as implicit stipulation, and the implications for state law

The text argues that local custom is binding in monetary law because it is an implicit stipulation of the public, and therefore it operates by virtue of the possibility of stipulating in monetary matters. It presents the law of the kingdom as the king’s ability to establish monetary arrangements in a way similar to a stipulation, out of a power to remove rights, and emphasizes that all these flexibilities rest on the basic point that these are rights that can be waived. It gives the example of a law in the State of Israel concerning the laws of bailees, and says that if the parties did not stipulate otherwise, Jewish law will obligate in accordance with state law by virtue of “everything follows local custom” and the law of the kingdom—to the point of saying that in monetary law, the practical Jewish law is what is written in the statute book, not necessarily what is written in Choshen Mishpat.

Why study Choshen Mishpat, and why not recite the blessing over Torah study on legal studies: the distinction between Torah and practical Jewish law

The text raises two questions: if practical Jewish law is sometimes determined by state law, why study Choshen Mishpat and recite the blessing over Torah study on it, and why not recite the blessing over Torah study on legal studies. It answers that there is a difference between Torah and practical Jewish law: the Torah in the laws of bailees is the eternal determinations in Choshen Mishpat regarding basic rights and duties, whereas practical Jewish law is determined after clarifying circumstances such as stipulations, customs, and state law. It compares this to clarifying facts in religious court, such as whether there was a loan or not, and says that factual clarification is a preparatory instrument for a commandment, necessary for issuing a ruling, but it is not Torah study in itself—just as eating breakfast, which allows a judge to function, does not thereby become eating for Torah study.

Vows and the determination of facts: Torah is “he shall not profane his word,” while the specific vow is a matter of reality

The text illustrates from the laws of vows and oaths that the Torah law is the prohibition “he shall not profane his word,” while clarifying exactly what the person vowed, what he meant, and what is included in his vow is a matter of factual reality. It says that even when these clarifications are needed in order to know what to do, they still are not Torah study but factual clarification that enables the application of Torah. It applies this distinction also to state legislation: clarifying what the legislator said is factual clarification, whereas the Torah law is that Jewish law gives binding force to those arrangements במסגרת the law of the kingdom and local custom.

Presumptions and assessments in the Talmudic text: “a person does not repay before the due date” as a changing fact and an eternal principle

The text analyzes the passage in Bava Batra 5 about the presumption that “a person does not repay before the due date,” and raises the possibility that in modern reality, with interest rates, people may actually repay early, so the psychological assessment may change. It says there is no need to “tear out the page,” because the Torah in the passage is not the psychological fact, but the normative principle that the burden of proof can shift even to the defendant who is in possession, when there is a factual presumption against him. It concludes that the facts are changing raw material that must be clarified in every time and place, while Torah study is the eternal rules that define how facts affect the law.

Disputes about presumption, “conduct,” and “clarification,” and the authority of the sages to uproot a matter from the Torah

The text rejects the suggestion that a presumption such as “a person does not repay before the due date” is merely a “conduct rule” that does not describe reality, and says that it plainly means what people actually do. It then moves to questions about the sages’ ability to change laws, and presents passive omission as the standard model of uprooting, such as canceling the shofar on the Sabbath, while adding that some medieval authorities (Rishonim) also recognize active uprooting in extreme cases. It distinguishes between market regulation as a monetary matter, where “what the religious court declares ownerless is ownerless” operates, and other areas where intervention is much more difficult.

Rabbinical studies, aggadic literature, ethics / morality, and the blessing over Torah study

The text argues that rabbinical studies in their practical sense are not necessarily Torah study, and distinguishes between the Torah component of normative decision-making and the factual component of clarifying circumstances. It presents a position according to which one should not recite the blessing over Torah study on areas of “Torah in the person,” such as aggadic literature or Guide for the Perplexed, and notes that this goes against the overwhelming majority of halakhic decisors, and that he has a column on his website where he analyzed the issue of the blessing over Torah study in tractate Berakhot. It relates to the study of general ethics / morality as a difficult question and suggests that universal morality may be part of the will of God in a way that could count as Torah in some sense, but he does not conclude from this that there is an obligation to recite the blessing over Torah study.

We’re in the middle of discussing study and halakhic ruling, and last time I started talking a bit about the question of what Choshen Mishpat is, what characterizes the laws that appear in the Choshen Mishpat section of the Tur and the Shulchan Arukh. Today I’ll explain a little more why that relates to our topic, but before that I want to sharpen a bit what we saw and keep going. We saw there that what makes Choshen Mishpat unique is that basically it’s a collection of the rights that appear in Jewish law. When people have rights according to Jewish law, that appears in Choshen Mishpat. The other sections of the Shulchan Arukh, Orach Chayim and Yoreh De’ah mainly, are really sections that deal with obligations, obligations a person has to do various things. But in Jewish law, contrary to what many people think, there is also a discourse of rights. And those rights appear in Choshen Mishpat, and of course those rights generate corresponding obligations. Meaning, if a person has some right that I compensate him for damage I caused him, then I have an obligation to compensate him. In other words, corresponding to his right, I have a duty toward him. So this is what legal scholars call the Hohfeld table: corresponding to a right there is always a duty, corresponding to a duty there is a right. In Jewish law there are sections—and in the legal world this usually doesn’t really exist—there are sections in Jewish law where there are obligations that do not have a corresponding right. The obligation to pray—the Holy One, blessed be He, does not have a right that I pray to Him. It’s an obligation imposed on me, and it isn’t based on some right that somebody else has relative to me. In the regular legal world, we don’t deal with questions between a person and his Creator, or between a person and himself in his own home. We don’t get into his plate about what he’s allowed or forbidden to eat—let him do whatever he wants. The legal world sees its role as regulating relationships between people. So naturally, in the legal world, corresponding to every duty there is a right, and corresponding to every right there is a duty, because it always concerns relations between people, or between people and the authorities, though there too there are reciprocal rights and duties. In Jewish law there are sections that don’t deal with regulating life between people, but with a person’s obligations toward the Holy One, blessed be He, or toward—doesn’t matter—even toward his fellow. But these are obligations of a person that do not begin from someone else’s right. And therefore I said that charity and interest, both of which are halakhic contexts where I have duties toward someone else, monetary duties toward someone else, and nevertheless they appear in Yoreh De’ah and not in Choshen Mishpat. Why? Because the duties in charity and interest are not based on a right that someone else has. It’s a duty imposed on me; it’s a duty toward another person, but the other person has no right that constitutes my duty. If I didn’t give him charity, he can’t sue me in a religious court for not giving it. Or if a borrower paid me interest, I as the lender can’t be sued in religious court if I don’t return the interest to him. And therefore these duties of interest and charity, even though they are monetary duties between one person and another, do not appear in Choshen Mishpat but in Yoreh De’ah, because these are duties that don’t have a corresponding right of the other party. From this we drew a conclusion—or through this I explained Rashi’s puzzling position in Bava Kamma, where Rashi says that a person may not save himself with another person’s property. What the Talmud says there is to be taken literally: one must be killed rather than transgress theft, or causing damage, or things like that. You may not rob someone or damage his property even in order to save your life. Most medieval authorities understand that it’s not forbidden; rather, if you did it, you have to pay. But Rashi reads the Talmud literally: a person may not save himself with another person’s property, unless he is a king like King David, but that’s something else. I’m talking about an ordinary person. And the question is: why? After all, there are three cardinal sins… theft or torts are not among them. In order not to violate the prohibition of theft, or not to violate the prohibition of causing damage—which raises the opening-question issue in Bava Kamma of what exactly the prohibition of causing damage is—so in order not to violate the prohibition of damage or theft, I have to give up my life? Where do we find such a thing, that there are more sins beyond the three cardinal ones? So I said that I think the explanation for this view of Rashi is exactly what makes monetary law, or Choshen Mishpat, unique: these are really laws of my obligations toward another person, whose basis lies in that other person’s right against me. What belongs to him—he has a right to receive something from me—therefore I have a duty to give it to him. And then what? In a place where I need to damage or rob someone, he has a right over his property. Why is it forbidden for me to rob? It is forbidden for me to rob because the other person has a right over his property. To rob, or to damage, and so on. Therefore I am forbidden to rob, and also forbidden to damage, and so on. But it begins with the person’s right over his property. Now, if I am in a life-threatening situation, my life is in danger, and in order to save myself I need to rob or damage, then the prohibition of theft or damage is set aside in the face of danger to life, because it isn’t one of the three cardinal sins—but the other person’s right still exists. And the other person’s right, even if alongside it there is no duty of mine or prohibition—let’s call it not even a duty but a prohibition—still his right is not set aside because of my danger to life. My danger to life permits me to transgress prohibitions, but my danger to life does not uproot the other person’s right over his property. What does that have to do with me? And as long as his right over his property exists, I cannot take the property. Since my refraining from taking his property is not because of the prohibition of “do not steal,” but because it is his. On the contrary, the prohibition “do not steal” stems from the fact that he has a right over his property, not that he has a right because there is a prohibition on me of “do not steal.” And therefore even though the transgression of “do not steal” is not severe at the level of the three cardinal sins that override danger to life, this is not because of the severity of the transgression, but because of what I called territorial considerations. Meaning, there is a certain territory belonging to the other person, and the one who makes decisions within that territory is only him. Only the owner of the territory. I cannot make decisions about his territory even if my decision is halakhically correct. Not because it isn’t right or because it’s halakhically forbidden or anything like that, but because the territory is his. And if the territory is his, he can make the decisions even if he comes out a sinner, even if he does things against the will of God and against the will of the Torah—but he is the one who makes the decisions. Therefore I cannot enter his territory and make decisions in his place. Are territorial considerations more important than human life? They aren’t more important—they’re a fact. I can’t make decisions there. It’s not a question of more or less important. It’s not like the three cardinal sins, where the severity of the prohibition is what causes it to override danger to life. Here it isn’t about severity. Think of it this way: if I don’t deserve to burn, if I’m inside a fire I burn. That’s not relevant—it’s reality.

But Rabbi, seemingly that doesn’t really solve it, because the Rabbi is sort of replacing one difficulty with another. This thing—that it’s a right, and it’s something I have no access to, like a wall, kind of like some metaphysical wall—I don’t really understand it, because it’s something puzzling. Why? Where does this thing come from that I can’t?

It really isn’t puzzling. You can just say: fine, maybe, but it isn’t important enough and therefore it would be overridden by danger to life—that’s what most of the medieval authorities say. But the principle itself is not puzzling. That there is someone else’s territory and he decides—think of a case like this. I need surgery, okay? A lung transplant, I don’t know, kidneys, okay? Am I allowed to seize you, tie you to a bed, operate on you, remove a kidney or a lung that I need so they can transplant it into me? I’m in danger to life—I’m going to die. For you this is just wounding; you’ll be missing something, let’s just minimize it for a moment—you’ll be missing an organ, but it’s possible to live without it. So now the question is: why shouldn’t I do that? After all, the prohibition of wounding is overridden by danger to life. It seems to me that here every sensible person understands that I’m forbidden to do that. With Rashi everyone is puzzled—money and all that—but leave money aside: a kidney, okay? Taking a kidney. Why is it forbidden for me? Danger to life overrides all the prohibitions in the Torah except the three cardinal ones, including the prohibition of wounding. The answer is: because a person’s organs are part of his territory. He is the one who decides what is done with his organs. Therefore I can’t make decisions about that even though in principle, from the standpoint of Jewish law, I’m right—in other words, that the prohibition of wounding is overridden by danger to life. Not because I’m not right, but because it is not within my authority to make the decision even if it is the correct one. The one who makes the decision is him—even if the decision is wicked, mistaken, incorrect, however you want to describe it. But the one who makes the decision is him, because the territory is his. It seems to me that this is not far from common sense.

So the right a person has over himself—is that not halakhic? I mean, this right he has over himself—isn’t that halakhic? Don’t we define it as a halakhic right?

But it doesn’t stem from any commandment or prohibition in the Torah.

So then why do I need “do not steal”? What do I need “do not steal” for? I mean, if he already has the right that I can’t take from him, that’s enough.

“Do not steal” adds a religious prohibition on top of the legal prohibition. That’s Rabbi Shimon Shkop in Sha’arei Yosher, Gate 5.

Yes, so the Rabbi is saying, as it were, that the metaphysical ownership is the very right he has—it’s the ownership he has. And I’m forbidden to infringe his right even without the Torah’s command of “do not steal.” And the right—ownership—is understandable to me even without “do not steal,” and then “do not steal” comes on top of that.

I didn’t understand.

No, I’m saying: what the Rabbi says in the name of Rabbi Shimon—the intention isn’t what Rabbi Shimon says, that ownership itself is something I understand even without the Torah, because the Torah didn’t tell me that he has ownership over his things, and then afterward the Torah tells me: listen, you’re forbidden to touch his ownership?

No, no—that’s a common mistake. Incorrect. Rabbi Shimon Shkop claims that before the Torah’s command of “do not steal,” there is also a prohibition against stealing. Not just a definition of ownership, and then along comes the prohibition of “do not steal” and says don’t infringe someone else’s ownership. No. There is also a prohibition of theft on the legal plane, and on top of that there is another halakhic prohibition of theft. But even on the legal plane there is a prohibition against stealing. I have two proofs that this is what Rabbi Shimon means, besides the fact that it’s also true. But I also have two proofs that this is what Rabbi Shimon intended. First proof: after Rabbi Shimon introduces this novelty, he asks why I need to obey something that isn’t written in the Torah. Now if this were only a neutral property-law definition that imposed no duty on me, then in what sense am I supposed to obey? I’m not obeying anything. I obey “do not steal”; it’s just that the definition of “do not steal” follows the property laws in the law of civil matters. So there is no question why I need to obey the legal system without the command of “do not steal.” I don’t need to. If Rabbi Shimon Shkop asks why I need to obey, then he understands there is an obligation of obedience even before “do not steal.” And what is this obligation of obedience? That if you are the owner, I’m forbidden to rob you. It’s not only a definition that you are the owner, but there is also a legal prohibition against robbing you. That’s proof number one. And proof number two—Rabbi Shimon writes this somewhat indirectly, but it’s pretty clear that this is what he means—that even regarding theft from a gentile, according to the opinion that theft from a gentile is not prohibited by Torah law—and this is a dispute among medieval authorities—according to the opinion that theft from a gentile is not prohibited by Torah law, it is still forbidden by Torah law. It is forbidden by Torah law as a legal prohibition, not as a halakhic prohibition. Now here it is already stated explicitly. It says that in the end, this means there is a legal prohibition, not just a definition of ownership on the legal plane; there is a legal prohibition. On top of that there is also a halakhic prohibition. And these are two different prohibitions. Two prohibitions layered on top of one another: legal and halakhic.

Okay, so the Rabbi is saying that essentially the right of the person to whom ownership belongs is not from the law of Jewish law, but from the law of jurisprudence.

It belongs to Jewish law, but not by force of the commands. It is prior to the commands. Jewish law recognizes it de facto.

Yes, okay. So then he really doesn’t say about “do not steal” concerning someone who steals in order to save himself…

No, if you take from a gentile then you won’t violate “do not steal,” but you will violate the legal prohibition of theft, according to the opinion that theft from a gentile is not Torah-level.

And that stems from, like, something moral? Something like that?

Legal, not moral. The claim is that if someone has ownership over property, what does that mean? That is the meaning of ownership—otherwise what? What is ownership? It’s just a word.

Okay.

So in the end the claim is what?

Rabbi, Rabbi, why do the laws of gifts appear in Choshen Mishpat and not in Yoreh De’ah?

I didn’t understand?

Why do the laws of gifts—when a person gives his brother so-and-so an object, or such-and-such movable property—appear in Choshen Mishpat and not in Yoreh De’ah?

Because in the laws of gifts we are not dealing with an obligation to give a gift—there is no such obligation. In the laws of gifts we deal with the question of the legal consequences of giving a gift, or how one transfers ownership of a gift, and that really is related to Choshen Mishpat. Once you acquired it, it is yours, and I’m forbidden to rob it from you; that already generates rights and obligations. In interest and charity there is an obligation to return fixed interest, there is an obligation to give charity, and then the question arises why this is in Yoreh De’ah and not in Choshen Mishpat. In the laws of gifts there is no obligation to give a gift; rather, if you gave a gift, it creates a legal state of reciprocal rights and duties, and therefore it appears in Choshen Mishpat. Okay? Okay.

So what are we actually seeing here? That the laws that concern money, Choshen Mishpat, are special laws. These are duties imposed on me toward someone else whose basis lies in that other person’s right against me. So one implication of this is that even in a life-threatening situation, I cannot save—I cannot, sorry—enter another person’s territory and make decisions there in his place. I gave all kinds of examples of this; I won’t go back to them here. But I’ll continue now with one more point. In the responsa Binyan Tzion—did I mention this? I don’t remember. In the responsa Binyan Tzion there are several responsa by Rabbi Yaakov Ettlinger, the Arukh LaNer. So his responsa are called Binyan Tzion, and there are several responsa there—six, I think, five, six, seven—quite a few responsa that expand this idea to all obligations between one person and another. His claim is that for all interpersonal commandments there is “be killed rather than transgress,” not only for theft and damage. Now it’s quite clear that he does not mean to say that concerning the commandment of charity a person should be killed rather than transgress. He doesn’t write that; he writes interpersonal commandments, but it’s clear he doesn’t mean that. What does he mean? He means commandments that belong categorically to Choshen Mishpat. Meaning commandments of the sort whose basis lies in the rights of the other person. For example, the Talmud says that it is preferable for a person to throw himself into a fiery furnace rather than publicly shame his fellow. Tosafot there are astonished: where does that come from? Is there really “be killed rather than transgress” for humiliation? It’s not one of the three cardinal sins. So Tosafot there say some strange little homiletic twist, that when a person is shamed his blood drains away—that’s what the Talmud says there—so the blood drains from his face, and therefore this contains some kind of subsidiary element of murder. As if the blood leaves the face and therefore it’s like murder, and that’s why there is “be killed rather than transgress” here. Fine, I don’t know what that is. It’s a nice homily. It sounds to me completely unreasonable as a halakhic rationale. But the distress is obviously real, meaning what pushed Tosafot to say this strange little insight? I can understand. There really is a genuine difficulty here. Now in truth, in parentheses I’ll add, the difficulty isn’t really all that genuine, because when the Talmud says “it is preferable for a person to throw himself into a fiery furnace rather than publicly shame his fellow,” it doesn’t mean to make a halakhic statement. It means to say: look, this is a severe thing. Literarily, they say it in that way. But they don’t really mean to make some halakhic statement that there is “be killed rather than transgress” for humiliation, at least not necessarily. Therefore I’m not sure I would go all the way with Tosafot here. It appears in the Talmud in aggadic contexts; it’s not some halakhic statement.

So it’s not certain—what? Maybe if there is no obligation to be killed rather than transgress, then according to some there’d automatically be a prohibition to be killed rather than transgress? So then how—this statement itself would seemingly also be incorrect?

Incorrect, because it’s only literary. They don’t mean that you should actually throw yourself into a fiery furnace, but rather that it would be fitting to throw yourself into a fiery furnace rather than publicly shame your fellow. Okay? It’s like “an eye for an eye,” but we extract money. So why “an eye for an eye”? Because it would be fitting to gouge out your eye. But we don’t do that. They’re trying to convey to you the severity of the matter. So I spoke there, among other things, about all sorts of statements that everyone quotes, that redeeming captives is the greatest commandment in the Torah. Yes, it appears in the Shulchan Arukh and in Maimonides and so on. Of course that’s nonsense. What do you mean the greatest commandment—why is it the most severe commandment in the Torah? They bring all sorts of things there: “do not stand idly by your neighbor’s blood,” and this prohibition and that prohibition, okay. There are various prohibitions that the Shulchan Arukh itself brings. But you know, when people collect a bunch of prohibitions, it only shows the foundation is weak. Very often when you say such a thing, that it’s the greatest commandment in the Torah, you mean to say that it’s an important commandment, or that you want to spur people to engage in it and not ignore it. So you use a kind of intensified metaphor. You say this is the most important commandment in the Torah, you say he is liable to death—yes, “one who walks on the road studying and says, ‘How beautiful is this tree,’ such a person bears guilt for his life.” Do you really think he is liable to death? Someone walking on the road and learning, and he says “how beautiful is this tree,” for neglect of Torah study he is liable to death? No. The meaning is to say that this is serious—don’t do it. They use figurative, extreme language to sharpen the seriousness of the matter. Sometimes when the Talmud says literally “liable to death,” Tosafot say: what are you talking about? It’s a rabbinic prohibition. But they mean to say that it is extremely severe. Okay? That’s the claim. So here too I think one could at least have said that when the Talmud says “it is preferable for a person to throw himself into a fiery furnace,” the meaning is: this is so severe that it would have been fitting to throw himself into a fiery furnace if that were permitted. But it isn’t permitted.

But the proof from Tamar makes it a little hard to say that, no?

What?

The proof from Tamar—that Tamar…

The Talmud learns it from Tamar. The proof from Tamar—you know, who says Tamar did the right thing? And that was before the giving of the Torah. It’s like bringing proof from Lot’s daughters, or from “such is not done in our place,” which is the Magen Avraham, that one doesn’t marry off the younger before the elder. Lavan the Aramean is a somewhat dubious source from which to derive halakhot. And especially since Lavan the Aramean doesn’t even say something normative, but merely reports what the custom in his place was. Why should I care what the custom in Haran was? Why do I care now that some collection of primitive gentiles five thousand years ago thought such-and-such? So what? It’s a bit like—well, not exactly, maybe yes maybe no, I don’t know—many times in the Shulchan Arukh the Rema writes: and in Krakow they practiced such-and-such, that a menstruating woman should not touch a Torah scroll. Why should I care what they practiced in Krakow? Yet everyone relates to it as if it’s Jewish law—the Rema ruled that way. The Rema didn’t rule anything. The Rema told you that this was the custom in Krakow. Fine, I’m not sitting in Krakow. There’s some kind of assumption that if something is written somewhere, that means it is Jewish law. And the Rema is not Tamar and not Lavan the Aramean. The Rema is a halakhic decisor, but even so he is telling you that this was the custom in his place. Anyway, let me get back to our point. So I’m saying, fine—in parentheses I added that I’m not even sure how strong the difficulty is. But assuming one sees the Talmud there as a halakhic Talmudic statement, then Tosafot are forced into a very, very strained answer because the difficulty really is difficult. How can there be “be killed rather than transgress” for humiliation? Binyan Tzion says: there is “be killed rather than transgress” for humiliation because there is “be killed rather than transgress” for every injury to another person, for every interpersonal commandment. The same approach as Rashi. By the way, I also have proof for Rashi from a passage in Ketubot—that I wrote in one of the columns on the site, I talked about it. So Binyan Tzion’s claim basically says this: what is the prohibition of humiliation? The prohibition of humiliation is not like charity; it belongs to Choshen Mishpat. Right? Humiliation damages appear in Choshen Mishpat. Why? Because a person has a right to his honor. A person has a right to be respected, not to have his honor injured. If I injure his honor, I have to pay humiliation damages. But that payment stems from the fact that a person has a right over his honor. Just as he has a right over his life and his property, he also has a right over his honor. Therefore what makes it forbidden for me to humiliate another person is that this is an invasion of his territory. The right over his honor belongs only to him. He makes the decisions about his honor—whether to allow injury to it or not. I cannot make that decision even if it’s the right one. Therefore even in a life-threatening situation I cannot decide to injure his honor, to enter his territory. And Binyan Tzion takes Rashi’s principle and expands it to all territorial laws—not only theft and damage, but anywhere there is an injury to another person’s right. In other words, in Choshen Mishpat, wherever my obligation is based on the fact that I am entering another person’s territory, infringing another person’s right—every place like that, there will be “be killed rather than transgress.” Now it’s not four severe transgressions; it’s not—I don’t know—seventy severe transgressions. A huge amount. Everything that appears in Choshen Mishpat. But the idea is the same idea. Because there really is nothing special about theft and damage. What is special there is that the prohibition begins from your right. Therefore in all such places, including humiliation, the claim is that humiliation is not like murder. You don’t need to get to what Tosafot say. And it’s not because humiliation is such a severe prohibition that therefore there is “be killed rather than transgress”—it’s not because of the severity of the prohibition. It’s because I am injuring, entering, or invading another person’s territory. That I cannot do without his permission. Not because of the severity of the prohibition. That is also why none of these things appear in the count of the cardinal sins, because the cardinal sins are only sins which, because of their severity, override danger to life. But here what danger to life does not override is not because of the severity of the transgression, but because of its character. This is a Choshen Mishpat transgression; it’s a transgression that begins from the right of the…

Where does it say that it’s forbidden to invade another person’s territory?

It doesn’t say it. That is the meaning of the fact that this territory belongs to the other person. When you say the territory belongs to someone else, you’ve said that he is the owner of the house; nobody else can make decisions there. That is the meaning of saying that this is another person’s territory. It’s like what they asked before: where does it say that stealing is forbidden even before “do not steal”? From the very fact that you are the owner. So what if the legal system determines that you are the owner? The answer is that determining that you are the owner means that only you decide what is done with this property, and not someone else. That is the meaning. So in the end, after Binyan Tzion’s expansion, this becomes much stronger: we basically see the severity—or not severity, but the special character—of the laws of Choshen Mishpat, because of which there is “be killed rather than transgress” regarding them. Again, it is not because of their severity, which is why I corrected myself, but because of their character. There is something here that is another person’s right; only he makes decisions there, not me.

Now, that’s on one side. On the other hand, there is a set of laws that seems, apparently, to flatly contradict what we’ve seen until now. Until now we’ve seen that the laws of Choshen Mishpat are the most rigid laws there are—even danger to life does not override them. On the other hand, the laws of Choshen Mishpat are the most flexible laws there are. Every ordinary breeze overrides them. For example, one can stipulate against what is written in the Torah, right? In monetary matters. Or the law of the kingdom is law; or communal ordinances or custom; everything follows the local custom, as the Mishnah says at the beginning of Bava Batra. All these things exist only in monetary matters. Only there can I stipulate against what is written in the Torah and change Torah law. For example, the Mishnah says in Bava Metzia 94: an unpaid bailee can stipulate to be like a paid bailee, or a paid bailee like an unpaid bailee. I can stipulate that. The Torah said a paid bailee is liable for theft and loss; we stipulate against that and you’ll be exempt from theft and loss, and nothing happened. Very flexible. Obviously one cannot stipulate against the prohibition of pork, right? I can’t stipulate against the prohibition of pork and then pork will become permitted for me to eat. But I am allowed not to pay for theft and loss if I stipulated so. Why? What’s the idea? You see that monetary law is actually the most flexible part of Jewish law. Same thing with the law of the kingdom, or the local custom. What does the Mishnah say? Partners who want to build a wall in a courtyard build according to the custom of the locale—whether with rough stone, hewn stone, half-bricks, whole bricks—everything according to the custom of the locale. Why everything according to the local custom? Because in monetary law the local custom is binding; the custom of the place can shape monetary law. It cannot shape any other laws. Likewise with stipulation: an unpaid bailee can stipulate to be like a paid bailee—I can stipulate not to be liable as the Torah said, or to be liable more than the Torah said. In both directions. I can’t stipulate not to be forbidden pork. Why? Because in monetary matters one can stipulate against what is written in the Torah. This is the dispute between Rabbi Meir and Rabbi Yehuda, and we rule in accordance with Rabbi Yehuda, that in monetary matters his stipulation is valid. And I’ll say more than that: I don’t think there is any halakhic decisor who says—I think at least, certainly not among the major ones—that there is some ideal preference not to do this in the first place. You can stipulate against what is written in the Torah freely; there’s no problem with it at all. It’s not just that it takes effect after the fact if you did it. You may stipulate from the outset, whatever you want. There is no problem at all. Which only strengthens this dissonance I’m pointing out here: on the one hand, monetary law is the most rigid law there is in Jewish law—even danger to life doesn’t override it. On the other hand, it is the most flexible—one can stipulate about it, local custom, the law of the kingdom, you can move it this way and that, any ordinary breeze shifts it. It’s—yes—it’s a kind of “Adino the Eznite,” like the midrash says about King David, that in life he would soften himself like a worm—Torah study, or in life—and in war he would harden himself like cedar wood. So monetary law is, in a sense, a kind of Adino the Eznite. On the one hand it is hard as cedar—even danger to life does not override it; on the other hand it is as flexible as a worm—you can stipulate, local custom, state custom, the law of the kingdom, everything can move monetary law from here to there, and only monetary law. So how do we understand such a thing? In light of what we saw before, the answer is very simple. Why? Because monetary law is not more severe and not more lenient. The issue is not its severity but its character. And what is the special character of monetary law? That my duties are grounded in the rights of the other person. Consequently, if the other person does not waive his right, then I cannot infringe his right without his agreeing, because it is his right. I cannot invade his territory. But on the other side of the same coin, if the person decides to waive his right, then what’s the problem? Good health to him—let him waive it. Stipulating against what is written in the Torah—notice, the direction is the opposite direction. When I speak about danger to life, that means I want to invade your territory because I’m in a life-threatening situation, okay? I can’t do that because the territory is yours. In stipulation, the one stipulating regarding your right is you, not me. You are stipulating regarding your right. I can’t stipulate with the bailee that he’ll be liable more than the Torah requires him to be, unless he stipulates—that is, unless he agrees to that stipulation. If he doesn’t agree to that stipulation, the fact that I stipulated means nothing. Why, if he agrees, does it work? Why does stipulating against what is written in the Torah work? Because what is written in the Torah in monetary law consists of rights that you have. You have the right to receive payment for theft and loss from a paid bailee. If theft or loss happened to a paid bailee, the depositor has a right to receive payment. What does “right” mean? It means that if you want, you receive it, and if you don’t want, good health to you. Who obligates you to receive it? That is the meaning of a right. So if you stipulate that you waive payment for theft and loss, good health to you—what’s the problem? This derives from exactly the same aspect from which the stringencies derive. The stringencies and leniencies of monetary law are two sides of exactly the same coin. It’s not a contradiction, they are complementary sides. Because in monetary law my duty begins from your right, therefore from my side there is no possibility of infringing your rights—even danger to life won’t allow me to do that. But from your side, if you waive your rights, good health to you. If I have a right to receive a thousand shekels from someone, am I forbidden to say to him, leave it, I waive it? What’s the problem? A stipulation is a kind of waiver. When I stipulate, I’m essentially saying: look, if such-and-such happens, I waive it for you. Don’t give me my right, don’t pay me what you owe me. If I agree, good health to you.

And if it’s the opposite direction? Sorry, sorry—and if it’s the opposite direction, I want him to be liable even in a case of unavoidable accident where he isn’t liable?

You can’t—that’s what I’m saying.

Ah, so only in the direction of the right.

Obviously. A stipulation is only a stipulation by the holder of the right. And if you want him to be liable also in unavoidable accident, then he has to stipulate that, not you. Or at least agree to the stipulation—it doesn’t matter, yes? It’s a contract. The second party has to agree.

And if he agrees, then it’s okay?

Of course, because it’s his right; he has the right to waive it.

But wait, there are two rights here, mine too, or his? Both of them?

His right is not to pay in a case of unavoidable accident. I have no right to demand money from him for an unavoidable accident. But if he wants to undertake to give me payment also for an unavoidable accident, and I agree and we both agree, then good health—why not? That is called waiving a right.

Okay, so both sides here basically have a right. My right to receive, and his right not to pay.

Exactly. On both sides, yes. A contract is always bilateral. Now when you stipulate in a contract, both sides have to agree. And why? Because only the owner of the right can waive a right. You cannot stipulate about his rights, and he cannot stipulate about your rights. You can stipulate about your rights, not about your duties.

I thought it was his duty to pay, not his right.

No, he has no duty to pay in a case of unavoidable accident.

No, I mean—no—he’s the obligated party.

What do you mean, he’s the obligated party? But in unavoidable accident he isn’t obligated. Meaning, he has the right to keep the money with himself if an unavoidable accident happened. Now he wants to waive that right, to give me the money even though in unavoidable accident he is exempt. So he is waiving a right. So if he stipulated, it is his right to waive the right. Okay?

Yes, yes, yes.

So what this means is that the stringency in monetary law, that danger to life doesn’t override it, and the leniency or flexibility in monetary law, that one can stipulate and local custom and the law of the kingdom and so on, are two sides of the same coin. From the side of the owner of the right, he can do whatever he wants with the right—that’s as flexible as it gets. From the side of the one who is not the owner of the right, it’s as rigid as it gets. You can’t do anything with someone else’s rights. And neither side has anything to do with the severity of the matter, but with its character—that there is someone else’s right here. Therefore one can stipulate against what is written in the Torah in monetary matters. There is a big question why according to Rabbi Meir not, but never mind; according to Rabbi Yehuda, which is how we rule in practice, yes. And even according to Rabbi Meir, as Rav and Shmuel famously say, never mind, there are limitations to that. In any case, this is really the solution to this double aspect of monetary law.

Now let’s look a bit further. In fact, what this says is that if I can stipulate regarding monetary law, that is also the basis for why local custom has force in monetary law. Because what is local custom? Let’s say that in a certain locale, the custom is that an unpaid bailee is also liable for theft and loss. Let’s say, for the sake of discussion, there is such a place. If that is the custom, then it is binding. Why? Because there is some sort of implied stipulation of the public—not specifically of these two particular parties to this specific contract, but a stipulation of the public. A stipulation of the public, that the public decided that in a contract of unpaid safekeeping there will be liability for theft and loss. And since one can stipulate against what is written in the Torah in monetary matters, therefore local custom is also binding in monetary law. And the same with the law of the kingdom. The law of the kingdom just means that the king can stipulate regarding monetary law. If the king establishes something, it takes effect just like a condition takes effect. He changes monetary law because he can expropriate rights. He is the master of the house. Meaning that all these flexibilities—stipulation, local custom, and the law of the kingdom—are all grounded in the same point, that this is a matter of right.

Now notice, when we’re dealing with a right—and I’ll sharpen this now—when we’re dealing with a right, the Torah does not say that there is a commandment for a paid bailee to pay me for theft and loss. It merely says that it belongs to me—that’s all it wants. Now when I stipulate in the contract of a paid bailee and I say the paid bailee will be exempt for theft and loss—I, the depositor, agree that he be exempt for theft and loss—am I going against the Torah? Of course not. I cannot nullify the right that the Torah gives, because that right remains mine forever. Even a thousand stipulations will not change that right by a millimeter. All that the stipulation says is that I waive the realization of that right. It was owed to me; I could have chosen not to waive it. That is what the Torah says. I waive it. Certainly if waiver is considered as though “I already received it”—there are discussions among the medieval authorities whether we say waiver is as if I already received it—then that basically means that de facto you paid me. Let’s say after you paid me the thousand shekels, I can give it back to you as a gift, right? Obviously. So let’s save the time: instead of your giving me and then my giving you the thousand shekels back as a gift, I tell you don’t give it to me in the first place. But it’s the same thing. So when I stipulate against what is written in the Torah in monetary matters, this is not really called stipulating against what is written in the Torah at all. To stipulate against what is written in the Torah means to change a law the Torah established; that one cannot do. But here I’m not changing the law. The right truly remains mine even after I stipulated; the stipulation only means that I won’t actualize it. I won’t demand it. And I also don’t touch the right. I only say: I waive the realization of this right, that’s all. You owe me a thousand shekels—take them as a gift. Fine, gifts can always be given. So basically this is what we brought from Rashba. Rashba says that there is an obligation to waive, and from that he derives that therefore I also don’t violate “do not steal,” and I objected to that: the fact that there is an obligation to waive doesn’t mean I don’t violate “do not steal.” There is an obligation that he waive, so let him waive, but that doesn’t mean that if he doesn’t waive, I’m allowed to take. That’s a discussion we had in the previous class.

In any event, the claim here is that there is—and here I arrive at the important point for our purposes—the claim here is that in the legal world, say in monetary law for our discussion, there are two levels before we get to Jewish law. The first level is the Torah’s determination. The Torah’s determination cannot be touched. It is eternal, it cannot be changed by anyone in the world. On top of the first level—the first level determines the reciprocal rights and obligations, and that cannot be stipulated away, cannot be touched, nothing can be done to it. And there is a second level. The second level says that if I have a right, I can waive it. If I waive it, fine, good health to you—I gave you a gift, I’m allowed to give gifts. Okay? That is the second level. And that is where stipulations operate—in the second level, not in the first.

Now let me ask a question. Suppose we live in the State of Israel—not suppose, for now we still live in the State of Israel, at least most of us, there are some here who don’t. And in this state there is some statute, say for the sake of discussion, regarding bailees. And suppose it makes an unpaid bailee liable for theft and loss, for the sake of the discussion. Now when we made a safekeeping contract between us, if we didn’t say anything, there is also freedom of contract in the law. Meaning, if I deposit an object with you and we sign a contract between us saying that this goes according to Jewish law and not according to statutory law, of course the law recognizes that. Because you are allowed to make whatever contract you want—for the same reason, by the way, that Jewish law recognizes stipulation. The law says there’s no problem; it’s your right. You want to waive your rights—good health to you. I’m only establishing what your rights are. There are only certain things that are mandatory, meaning they cannot be waived, like workers’ rights. Those cannot be waived because there they are concerned about the power imbalance between employee and employer, and therefore there the law does not even allow waiver and stipulation. But in principle, in every contract there is freedom of contract. You can make a contract that is not according to the regular legal rules; establish other rules. These legal rules are a kind of default. Jewish law is like that too. Now say I signed an unpaid safekeeping contract with someone, and we said simply: you are my unpaid bailee, and that’s it, all fine. We didn’t get into the question of what you’re liable for and what you’re exempt from. Fine, now theft or loss occurred. We go to state law and we see he has to pay. We go to Jewish law and see he is exempt. What do we do? The answer is: he is liable. Why? Because everything follows the local custom. And if you want, also the law of the kingdom. In any case, the law is what obligates. Even if Jewish law says he is exempt, Jewish law recognizes this. It’s not that there is a clash here between Jewish law and state law. Jewish law itself gives force to what the law determines. Local custom and the law of the kingdom have force according to Jewish law. Now what does this actually mean? It means that at least in the area of monetary law, Jewish law is what is written in the statute book and not what is written in Choshen Mishpat. Since in monetary law the local custom, or the public or social stipulations, are what determine things.

So the Rabbi is saying there is no justification for going to a religious court rather than a civil court?

That too I say, but for that I need more assumptions. I wrote about that in books and articles, but I need more assumptions in order to say that. This is one of the assumptions. But there are others. In any case, the claim is that in the end, the laws of bailees are what is written in the law, not what is written in Choshen Mishpat. Now I ask two questions. First: why study Choshen Mishpat? Why recite the blessing over Torah study on it? None of this is relevant at all today. Alternatively: why not recite the blessing over Torah study on legal studies? After all, in the end this is the binding Jewish law today. I’ll say it again: this is the ideal situation. It’s not that Jewish law recognizes it de facto because what can you do—no. If we stipulate, perfectly fine; one may stipulate from the outset, one may determine whatever one wants, and it is valid and binding. So if that’s the case, if today I want to study the laws of bailees practically, I need to go to the law faculty, not to Choshen Mishpat. So why in yeshivot do they study Choshen Mishpat and not the statute book? And why do they recite the blessing over Torah study on Choshen Mishpat and not on the statute book?

The answer to this—and here is the punchline I wanted to reach through this whole long process—is that there is a difference between Torah and halakhah. What do I mean? When I ask: what is the Torah in the laws of bailees? The Torah in the laws of bailees is what is written in Choshen Mishpat. That is what the basic rights are of an unpaid bailee, a paid bailee, all the regular laws. Practical halakhah is something else. In practical halakhah, if there are stipulations that cancel some of those laws, then those laws will not be actualized. But that is only halakhah; it is not Torah. When I study what the legislature established, I’m not studying Torah. I’m studying things which, as facts, I need in order to issue a halakhic ruling. But that doesn’t mean I am studying Torah. Two completely different things. Suppose I’m sitting in a court. In order to rule I need to clarify the facts: did so-and-so borrow or not borrow? Two witnesses, I examine them, I check evidence, here, there, and I reach a conclusion whether so-and-so did borrow or did not borrow, stole, did not steal, whatever. Was what I just did Torah study? Without it I can’t issue a ruling, and issuing a ruling is certainly Torah study. But without this I can’t issue the ruling, right? I can’t issue the ruling without it, but it is not Torah study. At most it is preparation for a commandment, because without it I can’t issue the ruling. But that doesn’t mean it is Torah study. Even if I hadn’t eaten breakfast I wouldn’t have the strength to issue the ruling—so does eating breakfast become Torah study? There are many things one needs to do in order to issue a ruling, but that doesn’t mean that all the things I do are Torah study. So when I want to rule in the laws of bailees, I need to clarify what the law says. Just as I need to clarify—I don’t know what—whether he is really an unpaid bailee or a paid bailee. I need to clarify the facts. All these clarifications are not Torah study. They are necessary in order to issue the ruling, obviously—without them I can’t issue the ruling. But that is not Torah study. Torah study is what the Torah establishes as something unchangeable, fixed, clear, not subject to change, and eternal. That is Torah. Therefore the Torah in the laws of bailees is what is written in Choshen Mishpat. But what does that have to do with halakhah? Practical halakhah—what one needs to do—is not the same thing as what the Torah says, in the case of monetary law I mean. It is not what the Torah says, but what the Torah says subject to various factual circumstances that need to be clarified.

Maybe let me give another example to make this sharper. There are laws of vows and oaths in the Torah. So when I vow not to eat bread, not to derive benefit from bread, then I’m forbidden to eat bread. Now there is something in front of me and I need to clarify whether it is bread or not. Is that Torah study? Obviously this is necessary in order to know practically whether I’m permitted or forbidden to eat it. No—I’ll say more than that. To clarify all kinds of vows a person made, what exactly he meant, whether he vowed or didn’t vow—is that Torah study? Of course not. The only Torah study here is the prohibition of “he shall not profane his word” and understanding the parameters of that prohibition. Specific vows that a person made are in the category of facts. Once you vowed, that is the fact that you vowed; on that the law of “he shall not profane his word” takes effect. But the Torah in the matter is only the law of “he shall not profane his word.” Clarifying the circumstances—what you vowed, whether you vowed, and what is included in what you vowed—is not Torah clarification at all; it is clarification of facts. Facts that are necessary in order to know what to do. So when I engage in that, I am indeed engaging in halakhah, because it is part of issuing a halakhic ruling, but I am not studying Torah.

What? Even when they study the Talmud, where the Talmud does this, according to the Rabbi that also wouldn’t count as part of Torah study?

Correct. Not Torah study. In a moment, in a moment, I’ll get to that.

Rabbi, is this basically a distinction between Torah as relating to the person and Torah as relating to the object, or is that not connected?

No, no, that’s not connected. Torah with respect to the person and Torah with respect to the object is a different distinction. But halakhah is Torah with respect to the object, so we have no problem. Halakhah is Torah with respect to the object. But even within Torah with respect to the object, I want to claim that something is not Torah at all. It is only preparation for a commandment. For example, very often in academia they examine things, and there are always claims against traditional learners—in yeshivot. Why don’t you clarify the realia? Tractate Kelim, yes? There were such utensils and other utensils. What did cisterns look like there? What did houses look like? The laws of Sabbath boundaries and courtyard joining and all sorts of things like that. This requires clarification of the realia that prevailed in that period. Without that it’s hard to understand the passages. And very often there is criticism of the yeshivot that somehow they study it in a detached way and don’t go in to clarify what was really there—archaeology and history and all sorts of inquiries of that sort. Now, for practical halakhic ruling that is a good claim. But for Torah study it is a poor claim. Because clarifying the realia is not Torah study. True, I need to do that in order to know how to rule, but that doesn’t make it Torah. In Torah I need to study the concepts, the forbidden and the permitted, how it applies and what it applies to. But whether there was this kind of vessel or that kind of vessel, whether the vessel looked like this or like that—those are factual clarifications that you need in order to know what the halakhah says. But that is not Torah study. That is studying history.

If I may—how does this fit? There’s the case where someone betroths a woman on condition that he is not obligated to provide her with sustenance, clothing, and conjugal rights. He is stipulating against what is written in the Torah, and those betrothals don’t take effect, after all. And that’s true even though…

What, what?

The dispute of Rabbi Shimon and Rabbi Yehuda, and in practice we rule like Rabbi Yehuda, that in monetary matters his stipulation is valid. That’s the case brought there.

I understand, okay, so I didn’t remember correctly. Because I wanted to ask: how can it be that this condition is void even though she can say “I do not wish to be supported and I do not work,” and seemingly that is a right she can waive, but despite all that one may not stipulate about this matter.

Exactly—you may. That’s what I said. So exactly, it is permitted.

Okay. By the way, she can say “I do not wish to be supported and I do not work” even after the betrothal already took place without a condition.

Correct, correct, I understand. That’s even stronger. In any event, for our purposes, what I basically want to say is that clarifying what the law says is very important in order to know what to do. It is very important preparation for a commandment in order to know what to do on the halakhic level, how to issue a halakhic ruling. But that does not turn legal studies into Torah study. Torah study is learning the Torah truth, the spiritual truth, I don’t know what you want to call it, which is eternal and one cannot stipulate against it and one cannot touch it in any way. And there, what am I studying? I am studying what the rights of an unpaid bailee and a paid bailee are, and of the depositor with an unpaid bailee and a paid bailee. That determination is Torah. That is what the Torah says, and that is an eternal truth. The question whether to actualize it or not depends on the parties’ will, depends on social stipulation, depends on the law prevailing in that place. Clarify the facts and check what to do in practice. But that doesn’t turn it into Torah study.

Rabbi, so what does the study of law add? Of legal systems, I mean. It doesn’t add facts on the ground? So what does it add for us?

Yes, it adds facts. Exactly, it adds facts.

What does it add? It adds laws. Meaning, what is the law…

No, no—facts. From a halakhic standpoint, only facts. It doesn’t add laws.

Why is that called facts? It’s not facts.

Completely facts. The question what the legislature said is a factual question.

Yes, but based on that we don’t… it’s not a fact like whether there is a bowl here or there isn’t a bowl here, whether it’s like this or not. That’s a fact.

Again, notice: there is a difference between clarifying whether murder is permitted or forbidden, and clarifying whether the statute book says murder is forbidden or doesn’t say so. The first question is a normative question. The second question is a factual question. I am not asking whether the legislature prohibits it; I’m asking whether it is written in the statute book that it is prohibited. Why? Because the Torah established that if it is written there, then from the standpoint of halakhah it is forbidden.

Yes, but the moment I accepted these laws upon myself, then that itself is the law—it becomes Torah law itself, no?

No. Why not? What is Torah law? It becomes what is halakhically binding. So doesn’t that belong on the plane of facts?

It belongs to the fact that once I made a condition, it became…

I don’t understand. At that moment it became…

From the halakhic perspective, what the law says is a fact. Since its authority is because halakhah recognizes it as authoritative, not because the legislature recognizes it as authoritative. I only need to clarify factually what the legislature says. Halakhah doesn’t recognize that in the sense that the jurist himself legislates for us? It doesn’t… One could also explain it that way.

No, no. Halakhah gives force to what the legislature says, and therefore for me clarifying what the legislature says is only factual clarification. Once I’ve clarified the fact, then halakhah comes and says: ah, if that’s the fact, then that’s what must be done.

You could also explain it differently—you could say that it gives the legislature the power to say what the Torah law will be. Meaning, it’s not only that it gives weight to what is written there; rather, he himself legislates what the Torah wants.

That’s just a different formulation of the same thing. If the Torah gives him the power, then essentially you’re saying that the Torah is what determines that it’s binding.

No, that’s a practical difference, because then it’s not facts.

No, no, it makes no practical difference at all. If the Torah gives him the power, then basically you’re saying the Torah is what determines that it’s binding.

Yes, but that’s like all interpretation. It’s like any interpretation where I interpret the Torah—the Torah also gave me the power to interpret the Torah. It gave me “study the Torah.”

No, the Torah didn’t give you the power to interpret the Torah. You interpret the Torah because you have no other way to understand what it says. Because it’s obvious that the Torah wants me to interpret it, because if not, who will interpret it? I need to interpret it.

It doesn’t want you to interpret it. You interpret it because you want to know what it says. The Torah doesn’t need to give you power to interpret it. That’s just word games. You want to know what it says, so you have to interpret—what can you do? Otherwise how will you know what it says? But with the legislature it isn’t like that. With the legislature, if he said it and there were no doctrine in halakhah of the law of the kingdom, then what he says wouldn’t bind.

Ah, I understand.

But Rabbi, how can it be that according to Torah the conclusion would be A, and we would follow a different conclusion because of this? Wouldn’t that be considered a transgression?

No—that’s what I’m saying. There is a difference between Torah and halakhah. That is what I’ve been driving at the whole time. Halakhah means what needs to be done. Torah is a collection of truths; it’s not tied to the question of what has to be done right now. Those truths also say things about what has to be done, but obviously on the way to the bottom line those truths alone are not enough for me to determine what has to be done. That depends on other things as well. So that is the distinction I’ve been aiming at all along: there is a difference between Torah and halakhah.

But saying there’s a difference is true—but for example, in the market regulation enactment, how can it be that by Torah law the object belongs to the original owner, while according to the market regulation the halakhah says the object belongs to the buyer, the final buyer? What’s the problem? Because enactments have force. Yes, but that’s exactly what it means to go against the Torah. The Torah says A and you do B. And the Torah gives force to rabbinic enactments so they can go against the Torah. What’s the question? Do sages have authority to enact against the Torah? Obviously. When the sages canceled sounding the shofar on Rosh Hashanah that falls on the Sabbath, isn’t that against the Torah? Even when the sages forbid poultry with milk—isn’t that against the Torah? The Torah permits it.

No—prohibiting, yes. But changing, no.

Why, what’s the difference? There’s only a difference between positive action and passive omission, but several medieval authorities already discussed that even with positive action the sages uproot something from the Torah. Right, that’s another discussion, but to go this directly against what the Torah says…

That is positive action. What do you mean another discussion? It’s the same distinction I just made. It’s uprooting by positive action. In principle the sages have authority even in positive action, only only when it’s really necessary.

May I ask another question please?

But ordination studies—a great question—in my view that really is not Torah study.

May I ask one more question?

Yes.

I’ve noticed that you’re very insistent on always talking about this group called Choshen Mishpat, and in that context talking about this. But I can bring an example now that you yourself brought in previous classes, for example regarding tractate Berakhot, the passage about forty days before the formation of the fetus, that one doesn’t pray for something regarding something that already happened. And I think you gave the example also in a book…

A fetus is something else. You’re talking about an embryo up to forty days, that one can pray that it be male.

Exactly, exactly. That’s what I mean, yes. That in their time the sages understood, based on the medicine and science of their day, that up to forty days the sex of the fetus had not yet been determined, so one could pray. But today, when we know factually that that was the reality then too—they simply weren’t aware of it—then you said one can assume that that’s what they meant, that they themselves would rule that way if they knew. Meaning that one doesn’t pray from that point onward.

Correct.

So my question is: why are you careful to say that this is only in Choshen Mishpat? It’s really applicable to every halakhah, because it isn’t Choshen Mishpat. I mean Torah and halakhah, and facts.

I didn’t understand—I don’t see any connection at all between the two things. I couldn’t understand. What’s the connection?

You said that you claim there is Torah—which is the truths, the laws that don’t change—and there is halakhah, which is basically taking those laws and then connecting them in some way to the existing facts, and then ruling halakhically. Okay, so this doesn’t exist only in Choshen Mishpat; it also exists in…

Where? Where else?

What I gave as an example—isn’t that the same thing?

I don’t see why it’s the same thing. Can you explain? I don’t understand.

I mean looking at the facts, and then the halakhic ruling changes according to the facts.

Well of course. So what? Every halakhic ruling depends on facts—that’s obvious. If you’re checking whether a chicken is non-kosher or not, first you need to check factually whether it is non-kosher, and then a halakhic decision comes and forbids it. Every halakhic ruling begins with facts. That’s not the point. What I want to say is that in Choshen Mishpat, even the supposedly normative decisions, and not only factual clarification, are in fact themselves facts. Because the decisions—part of the normative decisions—consist of stipulation, or local custom, or the law of the kingdom, or all sorts of things like that. Which ostensibly is a normative system; it’s not just clarifying a fact like whether there’s a hole in the lung or no hole in the lung. But even there, even the normative system is in the end just a question of facts. Because in Choshen Mishpat you can change the—or influence the realization of—the rights. That does not exist in the other parts of Jewish law. And that influence is a factual question. The study of the rights is Torah study. After I understand the rights, now I have to see whether the person wants me to realize them or not. If he doesn’t want it, I won’t realize them. But is the fact that he doesn’t want it Torah study? I need to learn whether he wants it or not—is that called Torah study? What does that have to do with it? I learn what is owed to him. Now if he doesn’t want to receive what is owed to him, good health to him. That’s a question for a psychologist or for a witness who will tell me what the person wants. But that has nothing to do with Torah study. Though of course it will determine what I do. Obviously in every halakhic ruling there are factual clarifications. I brought examples like vows and everything, or just a court, or any ruling in matters of prohibition and permission, not only a court. Obviously you first need to clarify what the facts are. Like with non-kosher defects, what I said before. Clarify: is there a hole in the lung, is there no hole in the lung, exactly where is it, what kind of defect is this. After you clarify the facts, you determine whether it is non-kosher or not. Obviously, every halakhic ruling is like that. But there it’s a clear case. There it’s obvious that clarifying the facts of where the hole is certainly isn’t Torah. But here it is less trivial. You’re right that there is a similarity. Here it is less trivial because these are things—and this was the argument I had earlier—these are things that apparently look like norms. And I claim that from the halakhic point of view these are not norms but facts. Because from my perspective, the fact that the legislature determined something does not obligate normatively. What the legislature determined is a fact. Halakhah normatively obligates what the legislature determined, and now it becomes binding. It’s as if halakhah is value-neutral regarding the norms of the state, and it looks at them as facts and uses them as foundational facts. The norm is a norm of halakhah, not of the state.

Ah, I understand.

If I study the parameters of the law of the kingdom, and when I study the passage whether halakhah recognizes state legislation or not—that’s Torah study. But when I study the state legislation itself, that isn’t Torah; that’s simply knowing the facts. It’s like when I study the laws of vows, that’s Torah, but when I study what the person vowed and what he didn’t vow, that is factual clarification. Obviously I need to do that to know what the prohibition of the vow applies to. So that is factual clarification; it’s not part of Torah study.

I once gave an example of this in other contexts from the Talmud in Bava Batra regarding the presumption that a person does not pay before the due date. On page 5 there in Bava Batra, the Talmud discusses a case where a person borrowed money—Reuven borrowed money from Shimon. Now Shimon sues him after a week, and in an ordinary loan the term is thirty days, yes? He sues him. He sues him after a week. Reuven could say to him: listen, come back in another three weeks, in thirty days I’ll return it, after thirty days I’ll return it. But no—Reuven says to him: no, I already paid you, what do you want? That’s his claim. So the Talmud says: there is a presumption that a person does not pay before the due date. In fact the burden of proof is on you if you claim you paid, because paying before the due date—you can keep it for thirty days—it’s not likely that you held the money only a week. Okay? Now suppose we live in an environment where people do pay before the due date. For example, in our environment there is interest. Heter iska—they dress it up in all sorts of words, but practically speaking there is interest. When there is interest, a person has an incentive to pay the debt early if he can. Say someone inherited a lot of money; he’ll pay off the mortgage so as not to pay interest over the years. Then he pays before the due date. Now someone will come, the bank will sue him, and he’ll say: I paid. I got an inheritance and I paid. What are we going to rule? “A person does not pay before the due date,” there is a presumption that a person does not pay before the due date, bring proof? Today, normal people do pay before the due date. The Talmud says a person does not pay before the due date. Fine, the Talmud says that was the custom, that back then a person did not pay before the due date. But it could be that in a different time and place ordinary people will also pay before the due date, can pay even before the due date. That can change. Now suppose I live in such a place. Do I need to tear page 5 out of my Talmud and throw it in the trash? It stopped being Torah, it’s no longer interesting, it’s no longer relevant. What does it say there? That a person doesn’t pay before the due date. Why is that interesting? That’s their psychological estimate. Today I know that a person does pay before the due date. But that isn’t really the Torah there. Exactly—that’s why I bring this example. My claim is that when I study page 5, whether I am in a place where indeed people do not pay before the due date or where they do—it makes no difference at all. Because when I study the Talmud on page 5 in Bava Batra, I’m not studying the psychological estimate that a person does not pay before the due date. That I study in the psychology department. I’ll check there what people tend to do in such situations: do they pay, do they not pay—it can vary between people, between places, between times. Obviously there is no sanctity in that. And in the Talmudic period apparently people didn’t pay before the due date. If I want to know what to do today, I’ll go check what people do here today. And I won’t check that by flipping through the Talmud or asking a sage. I’ll simply conduct a survey or get an impression and I’ll see what people tend to do. So what do I learn from this Talmudic passage, if that is the case? The Talmud doesn’t come to teach the psychological estimate that a person does not pay before the due date, right? That’s a fact. A fact is not Torah. What does the Talmud teach me? It teaches me that if there is a presumption against the one presently holding the money, then the burden of proof shifts onto him. After all, usually the rule is “the burden of proof is on the claimant.” The plaintiff must bring evidence. Here there’s a big novelty. I’m the defendant—after all, he is claiming money from me. I’m the defendant, and nevertheless the burden of proof is placed on me. Why? I’m the defendant—“the burden of proof is on the claimant.” Answer: there is a presumption that a person does not pay before the due date. What does that mean? I learned a halakhic principle from the Talmud, not a fact. The fact only served the Talmud in order to demonstrate the halakhic principle. The fact is not what matters. The fact can change. The halakhic principle is eternal. That is the Torah in the matter. What is it? That if there is a factual presumption against the one currently holding the property, then the rule “the burden of proof is on the claimant” flips. The burden of proof is placed on the defendant even though he is the one in possession. That is a halakhic statement, not a factual statement. And that is what I learn from the Talmud in Bava Batra—not the psychological presumption that a person doesn’t tend to pay before the due date. That’s a fact. It may be true, it may not be true, it can change from place to place. For that I don’t use the Talmud. I’ll run a survey and get an impression, I’ll ask psychologists, I don’t know—I’ll check it the way facts are checked.

So when I study Talmud, and this is an important point, when I study the Talmud, then in essence the dimension—the answer to what Naama is asking here in the chat—Torah. Meaning there is no difference between two people studying the passage; both are learning the same thing. For both of them, what is Torah is Torah for both, and what is not Torah is not Torah for either of them. The difference between them may be whether it is halakhah, not whether it is Torah. A person who lives in a place where people do not pay before the due date, then the presumption written in the Talmud is a relevant practical halakhah for him. A person who lives in an environment where people do pay before the due date, then the psychological fact written in the Talmud is not relevant for him. It doesn’t matter for halakhah. But that is not the dimension of Torah in the passage. The Torah in the passage is the normative determination that the burden of proof shifts and is placed on the possessor if there is a presumption against him. What is the presumption? Look outside and see how people behave. That is not the Talmud’s concern. So the Talmud teaches—when I am discussing a place where people behave differently, that is only an indication. I’m speaking even in a place where people behave as in the Talmud. Even there, the claim is that when I study page 5 in Bava Batra, what Torah did I learn here? Not what halakhah, what Torah did I learn here. The Torah I learned here is that the burden of proof depends on presumptions and not only on the question of who is the current holder. Fine—and that cannot be changed, and it is always true in all places and at all times.

Rabbi, why are ordination studies not Torah? Wait, wait a second, don’t pull me there yet. So that—that is the Torah in the matter. When I clarify what the relevant psychological presumption is, because I need to know that in order to apply the Torah I learned on page 5 in Bava Batra, that is already factual clarification, and it can also change from place to place. But whether it changes or not, engaging in it is not engaging in Torah. It is engaging in preparation for the commandment of issuing a halakhic ruling.

So according to the interpretation that says a presumption is not clarification but a mode of legal conduct, would that count as Torah?

I didn’t understand.

There’s an interpretation that says a presumption isn’t clarification of reality but a policy the sages established for reality. Some interpret it that way.

There is no such interpretation—it’s nonsense.

You don’t agree with that?

Of course not.

Why not?

Because when they say a person does not pay before the due date, they mean that a person does not pay before the due date. Okay? When you talk about a status-quo presumption, there are all kinds of conceptual analyses there—that’s a completely different meaning of “presumption.” A status-quo presumption—there are discussions whether it is clarifying or merely directive. And there too, by the way, the “clarifying” language is nonsense, because clearly it is directive. It’s just that when people say it clarifies, they probably mean that I treat it as though it were the clarification, but nobody really wants to claim that it actually clarifies. Nonsense. A status-quo presumption doesn’t clarify anything. Sometimes the yeshivish slogans kind of take us captive. We need to think a little, after we get used to those yeshivah-style sayings.

Anyway, that is the Torah in the matter.

Rabbi, if a person studies ethics, studies the world of general values, today’s philosophy—is that Torah study or not Torah study?

That’s a difficult question. It’s a difficult question. There’s room to say that it is Torah study. Torah with respect to the person, no?

Yes, Torah with respect to the person, but Torah. I said that it’s not connected; my previous distinction is not connected to Torah with respect to the person and object. Why? Because general morality and Torah morality are the same thing. And the will of God includes halakhah—it is one subcategory of God’s will—and morality is another subcategory of God’s will. And that second subcategory of God’s will is universal, and one can reflect on it not only through study of Torah verses but through study of moral theory. Therefore specifically in morality, unlike in halakhah, there is more room to define this as Torah.

So not philosophy, only morality within philosophy?

I didn’t understand. Not all philosophy is Torah. Regarding Torah with respect to the person, maybe yes. After all, Maimonides in the parable of the palace placed it at an even higher level.

I’m not talking about levels. I also don’t agree with all of Maimonides’ hierarchies. But this isn’t a question of levels; it’s a question of type. This is Torah with respect to the person and this is Torah with respect to the object.

So then according to the Rabbi, would a person recite the blessing over Torah study on that?

I think not. One does not recite the blessing over Torah study on Torah with respect to the person. Therefore in my opinion one should not recite it over aggadah, one should not recite it over Guide for the Perplexed, one should not recite the blessing over Torah study over anything that is not halakhic study, in my opinion—plus verses, and Talmud, and Scripture.

So the Rabbi is basically against the Talmud?

No. In the Talmud itself it’s not… I wrote a column about that on the site. Not exactly against the Talmud; of course it’s against the overwhelming majority of halakhic decisors. In the Talmud it doesn’t say that one recites the blessing over Torah study also on aggadah and also on… not exactly, no. There’s a column where I analyzed the passage in Berakhot there about the blessing over Torah study.

Rabbi, but halakhah changes according to changes in values—we talked about that once in another series—so how can that not be Torah study par excellence?

Changes—what does that have to do with it? In that sense, that too is once again preparation for a commandment. If changes in values affect halakhic ruling, fine—then that Torah with respect to the person has projections onto the halakhic plane. That still doesn’t mean that when I study it I studied Torah, just as when I clarify what the psychological presumption is here I didn’t study Torah, even though it affects halakhah in practice.

Actually Maimonides is speaking about itself, not about its significance afterward if it’s also translated into halakhah. What the Rabbi said that academia says about yeshivot—that there’s a problem of facts, that they don’t explain the realia—is the Rabbi in favor of introducing that into yeshivah, maybe not as part of the regular study sessions, but something, say another short half-hour session that would explain these things?

It’s possible, though in my eyes it isn’t essential.

The Rabbi sees that in his book he constantly emphasizes—and also on the site he constantly emphasizes—the issue of the problem of mixing facts with values. The Rabbi keeps talking about it all the time; even one of the problems of providence, the Rabbi keeps discussing that. Could it be—that’s how it seems to me anyway, I think, not feel—that all the time you see that in yeshivah they mix all these things together? And then you go out, and there are people in their fifties who still continue with the same mindset.

What does that have to do with facts and values? Mixing facts and values?

No, brother—the Torah with facts. They mix facts with Torah and with values—they don’t separate. What the Rabbi does in all his books and on his site, they simply don’t do. It just keeps coming up.

That’s not related to the question of realia.

Why isn’t it related? Because obviously in yeshivot they’re used to thinking that the whole Talmud is sacred, that all of the Talmud is Torah in the same way.

No, so I’m saying according to the Rabbi’s approach that he wrote, distinguishing in the object between facts and…

I agree. No, it is related to realia, because facts are not only whether there is an object here or not; it also relates to realia, understanding that there is a world of its own and Torah of its own, that these are two different things. People just don’t separate those things. A person can understand that if he sees the name of some vessel in tractate Kelim, then in order to understand what that vessel is, maybe it would be worthwhile for him to take interest in archaeology. He doesn’t do that because it doesn’t interest him and at the moment it isn’t relevant to him. But there is no mixing there. It’s not a question of mixing. There is mixing because in reality people go on—even after yeshivah—they don’t understand the matter. Even seemingly simple things that the Rabbi writes in the book, which are seemingly simple—things that changed, shifted—and people just… you tell them there’s a responsum of the Rosh that says an enactment changed, and they look at you like a goose. They don’t understand what you’re even saying. People, like, much more—I don’t know—people who have been learning all their lives.

I agree with many of the deficiencies of the yeshivah world, but I don’t think that has to do with the question of studying realia. I also don’t deal with the study of realia, even though I think I am quite aware of the distinction between facts and values. I hardly deal with it; I’m not at all expert in academic research in this field. Why? Say books like those of Professor Halivni that explain, for example, things that apparently separate certain matters, the realia of generations, things like that—when you look at it separately you can suddenly grasp things you hadn’t thought about before.

Maybe that’s true. I think the added value of that is very limited, and therefore in my time-allocation considerations I don’t invest in those things.

No, I wasn’t talking about the Rabbi, but in general for yeshivah, say.

I’m talking about myself because I want to show you that in my view it isn’t essential. Meaning I am aware of the distinction between facts and values, and nevertheless I think—I don’t engage with this because of my allocation of time. I take into account that I may miss some point if I didn’t check the realia. Okay, I took the risk. Therefore I’m not saying it has no value. I’m not saying someone who does it is a heretic, of course, or all kinds of statements like that. It’s a question of what interests you, what matters to you, what you invest time in.

Thank you.

Rabbi, if a rabbi—for example, someone comes to ask him a halakhic question—does he need to recite the blessing over Torah study before answering him or not?

It is conventionally thought that yes. Every halakhic ruling, and judges in a religious court as well, is considered Torah study. “God stands in the divine assembly,” there. But again, if he is only going to clarify the factual dimension, then in my view no. But obviously within halakhic clarification there are also dimensions that are not factual but Torah dimensions. If he tells the questioner, “In your circumstances, you are obligated to do such-and-such,” is that Torah study? That is pure Torah study.

Okay. Because the circumstances you don’t clarify—you say if these are the circumstances, then this is what you need to do, so that’s pure Torah.

On the contrary. When you clarify the circumstances, that’s what I’m saying is not…

Yes, right, okay.

Okay, and a second question: could there be something like market regulation in the area of Yoreh De’ah? For example, sages come and enact that eating kosher will create problems in society and so on and so on, so we cancel it, as we canceled that. The Talmud in Bava Kamma, ruled in practice also by Maimonides and the Shulchan Arukh, says that an informer of money may be killed. Now that’s the prohibition of murder, not just Yoreh De’ah; it’s the prohibition of murder. And they permit the prohibition of murder—there’s no source for it—I’m talking about someone who informs on property. There are indeed halakhic decisors who want to claim that it can lead to danger to life, and then it’s just the ordinary law of a pursuer, but there are decisors in whom you can see that that is not so, and that is the plain sense of the Talmud—that it is not so.

So do they have permission to say that if we obey the laws of the Torah…

Again, that goes back to the same question whether sages uproot something from the Torah by positive action. In extreme cases, yes. Usually the rule is—as in the Talmud in Yevamot—that sages uproot something from the Torah only by passive omission. But they still uproot it, like sounding the shofar on Rosh Hashanah that falls on the Sabbath.

Right.

Uprooting by positive action is in extreme cases. Several medieval authorities write that it is possible.

So market regulation was an extreme case?

Market regulation is monetary, so in monetary law “what the court declares ownerless is ownerless,” so it’s easier.

Okay, fine.

Okay, we’ll stop here. Any more questions? Thank you very much, have a peaceful Sabbath.