Study and Halachic Rulings – Lesson 28

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[Rabbi Michael Abraham] So Rabbi Shimon’s claim, basically, is that the Maharibasaan’s difficulty exists in a case where the plaintiff makes a definite claim and the defendant says, “I’m not sure.” Because there, really, I would have expected us to obligate the defendant to be stringent out of doubt, so that he not stumble into the prohibition of theft. Okay? Then he continues. He says: “And furthermore, according to what we rule like Shmuel, that we do not follow the majority in order to extract from the current possessor’s presumption.” Right, the dispute between Rav and Shmuel on the question whether in monetary law we follow the majority or not—and practically, since this is monetary law, we rule like Shmuel, that in monetary matters we do not follow the majority. What does that mean? That if I’m holding something and someone claims it from me, and he has a majority in his favor, a majority does not help remove property from the one currently in possession. It’s a dispute between Rav and Shmuel, but the practical ruling is that a majority does not help remove from the possessor. So he says: with the claimant there is a majority that is effective regarding prohibition. Meaning, even in such a case the Maharibasaan’s difficulty still exists. Why? Because when you sue me and you have a majority in your favor, the religious court, according to Shmuel, leaves the money with me. A majority does not remove from the possessor, so the court remains in doubt. Now I, right? I really ought to be stringent, because I have a possible prohibition of theft. And if I pay the claimant, the claimant doesn’t have to worry about theft, because he has a majority in his favor—and in matters of prohibition, majority does work; only in monetary law it does not. Okay? So he says: just as in the case of definite claim versus uncertain claim, so too in a monetary claim where the majority favors the plaintiff, the Maharibasaan’s difficulty still exists. “And there is also reason to wonder at his main point, for what difference does it make—at any rate each one can be concerned for himself, and it would have been proper that the court too not leave things this way until both litigants are appeased.” He says: the Maharibasaan’s answer too—what did the Maharibasaan say? That you can’t tell the defendant to be stringent and pay the plaintiff, because then we’d also have to tell the plaintiff to be stringent and pay it back to the defendant, since the plaintiff too must beware of the prohibition of theft. So he says: that’s not an answer. Fine. Then tell them both not to hold the money, so that they can both avoid the prohibition of theft, and let the money remain lying there until Elijah comes—it will stay in the court until one of them brings proof. So what the Maharibasaan said is not an answer. In short, the Maharibasaan’s answer is problematic.

So what does he say? Now he moves on to resolve it. He says this: “But he did well to write on this in the book Kuntras Ha-Sfeikot”—yes, that’s the brother of the Ketzot—“General Principle 1, section 6, though he did not explain the whole matter properly.” And this is his language there: “It seems to me that the resolution of this matter is as follows: the Torah prohibited theft only of that which belongs to one’s fellow according to the law, but what belongs to him according to the law, the Torah did not prohibit to him. Therefore, with doubtful money, where the rule is that the burden of proof is on the one who seeks to extract from another, there is no prohibition involved in his not returning it.” And the Urim Ve-Tumim also wrote something similar to this—that the Torah prohibited only definite theft, and it is like a definite prohibition, not a doubtful prohibition. The Tumim also resolves this difficulty, and the Tumim claims—Rabbi Yonatan Eybeschutz, the author of Ye’arot Devash—he too resolves this difficulty, and basically argues that in the laws of theft there is a special rule. There are a number of areas in Jewish law where the rule is that in a case of doubt we go leniently. For example, a doubtful firstborn. With a doubtful firstborn we go leniently, meaning we do not give it to the priest. “The Merciful One said: a definite mamzer, and not a doubtful mamzer,” and therefore regarding a doubtful mamzer too we go leniently. Fundamentally—that is, by Torah law; rabbinically there is a stringency in questions of lineage—but fundamentally, in the case of a mamzer we go leniently in a doubt. A doubt goes leniently. Doubt regarding impurity in the public domain goes leniently. Doubt regarding orlah outside the Land of Israel goes leniently. Meaning there is a whole series of things where, in cases of doubt, we go leniently, even though these are Torah-level prohibitions; each one has its own source. Says the Urim Ve-Tumim: the prohibition of theft also belongs to that family, where its doubt goes leniently. There is a special novelty in the prohibition of theft, that it is different from other prohibitions, and its doubt goes leniently. And therefore, even though I, the defendant, am here in doubt, I don’t have to be stringent, because doubtful theft goes leniently. Why? Where does that come from? What is the source of that? It’s not entirely clear. I assume he means to say that the source is reason itself. What is the reasoning? The same reasoning I explained at the beginning for why the burden of proof is on the one seeking to extract from another. Either the reasoning that otherwise anyone could pounce on someone else, or the reasoning that in order to obligate the court to do something, you need to give it a reason to act. In any case, according to the Tumim these reasonings basically teach us that the prohibition of theft is an exceptional prohibition. In the prohibition of theft, doubt goes leniently and not stringently. Then there’s no problem—the defendant can keep the money, and we don’t obligate him to be stringent.

That’s a very puzzling answer, because it’s simply not true that doubtful theft goes leniently. We, the court, do not remove the money, because there is no reason for us to perform an action, so we do not act. But you need to be stringent when you might be violating the prohibition of theft—what does that have to do with us? If you’re talking about the question of what the religious court should do, that’s one question. But the Maharibasaan is asking about the defendant himself, the litigant himself: he should worry about the prohibition of theft and be stringent. That has nothing to do with the court. The court does not need to be stringent, because from the court’s perspective there is no such thing as stringency. What is a stringency for one side is a leniency for the other, and vice versa. But from your own perspective there is such a thing as stringency—give him the money in order to avoid the prohibition of theft. So I didn’t understand this answer of the Tumim.

Kuntras Ha-Sfeikot gives a different formulation, even though afterward he adds that the Tumim wrote something similar to his answer. Even though that’s not true—it doesn’t seem to be the same answer. He says it differently. What is he basically claiming? That when—what Shmuel said earlier—that when the law says the money is mine because the rule is that the burden of proof is on the one seeking to extract from another, then from the perspective of the law the money is mine. Once the money is mine according to the law, then the prohibition of theft no longer applies to it either. So I’m not in a situation of doubtful theft, because once the law determined that I may keep the money with me, that it is mine, then the law automatically also says that there is no possible prohibition of theft here. That is exactly what the rule “the burden of proof is on the one seeking to extract from another” means. Therefore, in monetary law, once the law determines what the court is supposed to do, the prohibition of theft disappears. Because the prohibition of theft is determined only after the court determines the status of the money. That is essentially what Kuntras Ha-Sfeikot says.

Now Rabbi Shimon Shkop explains this principle of Kuntras Ha-Sfeikot a bit more, and he wants to say the following: “And the explanation of this matter, in my humble opinion, is based on a general introduction: all the laws of civil justice, the monetary laws between one person and another, are not like all the other commandments of the Torah.” Monetary law between people differs in character from all other Torah law. Why? “For with all the commandments, and that which the Torah warned us regarding positive and negative commands, the main thing is that we are obligated to fulfill them in order to keep God’s commandments.” Meaning, in all the—whatever—observing the Sabbath. Or the prohibition on eating pork, or something like that. Why do I really have to observe the Sabbath? Because the Torah said to observe the Sabbath. So I observe the Sabbath in order to fulfill the Torah’s command. Or I don’t eat pork in order to keep the prohibition, the Torah’s command that told me not to eat pork. So that’s how all the rest of Torah law works.

“But in monetary law it is not so, for before God’s command applies to us to pay or return, there first has to be a prior legal obligation upon us. For even if the robber is a minor who is not obligated in commandments, nevertheless the court is still obligated to rescue the oppressed from his oppressor, and to compel the minor to return the stolen object to its owner.” Right? Say a minor stole an object, okay? Now, if monetary law were basically just the prohibition “do not steal”—meaning, a prohibition or commandment like all the other commandments of the Torah—minors are exempt from commandments. So what’s the issue? I shouldn’t have to adjudicate the minor and obligate him to return the object to the person from whom it was stolen, because the minor is exempt from commandments, so what’s the problem? Clearly the prohibition of theft is not because of the commandment involved. It works the other way around: the commandment involved is because of the theft. The fact that the minor has to return the money to the victim is because the money is his, not because there is a prohibition of theft. Because you took someone else’s money—you have to give it back to him, simply because it is his, not because of one commandment or another. Only after there is already an obligation on you to return the money, or you are forbidden to take it because the money belongs to him, then the Torah comes and says: I also impose upon this a halakhic prohibition, and that is the prohibition of “do not steal.” Meaning, unlike all the rest of Torah law, where the Torah’s command creates or generates the prohibition—the prohibition emerges from the Torah’s command, and without the command there would be no prohibition—in monetary law it works in reverse. The prohibition exists before the Torah’s command, even without the Torah’s command. The Torah’s command comes because of the prohibition, not the other way around. Once I did something wrong, I took someone else’s money, the Torah says such a thing is theft—but first of all, it has to be legally defined as taking someone else’s money. After the legal system determines that I took someone else’s money, then the Torah also says I violated the halakhic prohibition of “do not steal.” So the prohibition does not emerge from the command; the prohibition precedes the command, unlike all the other prohibitions of the Torah.

Now Rabbi Shimon continues: “And there is another main principle here: when we judge some right or acquisition of a person in some object or monetary obligation, we are not at all judging the observance of some commandment.” Even after there is “do not steal,” our discussion is not about who violated—when the court sits and judges between two people, is it really supposed to determine who violated the prohibition of theft here? Of course not. It makes the legal determination of whose money this is. The prohibition of theft is triggered after the court has made the legal determination. The court here is not dealing with commandments or the prohibition of theft or anything like that; it’s simply not related to the halakhic layer. The court is dealing here with something prior to the halakhic layer. It has to determine whose money it is. After the court determines whose money it is, then if someone else is holding that money, he violates the prohibition of “do not steal.” But the court is not clarifying the parameters of the prohibition of “do not steal”; that is not the essence of monetary litigation in court. That’s what he says. “It is not judging at all the observance of some commandment, but a question of reality: to whom does the item belong?” That’s a factual question, not a halakhic one. “And who, according to the legal doctrine, ought to possess the object?” Right, even if we don’t reach a conclusion—say the court found no evidence, and it can’t determine who the object belongs to—it still has to invoke rules of decision. What does that mean? The burden of proof is on the one seeking to extract from another; in the meantime the defendant can keep the object. Not because I know it’s yours—I don’t know it’s yours—but there is a legal rule that the burden of proof is on the one seeking to extract from another. So there’s a ruling here even without knowing that it’s yours, but the ruling says that you may keep the money. So that is still a legal determination that this money is yours—not because we clarified that in fact no loan happened, but because even “the burden of proof is on the one seeking to extract from another” is itself a legal rule. And even if I don’t know what the truth is, the legal rule says that the possessor has the upper hand, the money stays with him. Automatically there is also no prohibition of “do not steal” on this.

“And according to this, what the Sages said—the legal rules in…” and in doubtful monetary cases—right, there’s a whole collection of decision-rules for doubtful monetary cases. There is “they divide,” “the burden of proof is on the one seeking to extract from another,” “whoever is stronger prevails,” “the judges’ discretion,” “let it remain until Elijah comes,” all kinds of—there are many—“one acted like this master, another acted like that master,” there are all kinds of rules in all kinds of doubtful situations. Where do these rules come from? They have no source in the Torah. Where do they come from? From the reasoning of the Sages. None of these rules appears with a Torah source. Except perhaps for “the burden of proof is on the one seeking to extract from another”—“the litigant shall approach them”—and even on that the Talmud says, we saw this in the previous lecture: “Why do I need a verse? It is logical.” Meaning, all these decision-rules for doubtful monetary cases are really principles rooted in the reasoning of the Sages. That’s what he says: “the rules of decision in cases of doubtful money were certainly found in accordance with the decision of reason, for according to legal doctrine this is how the law should be.” In a case of exchanging a cow for a donkey and it gave birth, and there is doubt as to when the offspring was born—if the offspring is found at the time of the doubt in the domain of one of them, then it should remain in his domain. And if it is standing in the meadow, we follow the prior owner. So basically he says that the reasoning, the reasonings of the Sages, the decision-rules for doubtful monetary cases, are really rooted in the Sages’ reasoning, and those reasonings are part of legal doctrine. It’s not connected to the Torah; there is no Torah source for it. It is a legal determination. Just as every legislator in every society does, the Sages here function as legislators, and they establish that legal determination.

And now—here comes the punchline—“And behold, the negative commandment of theft is that a person may not steal from another something which, according to legal doctrine, belongs to the other. And similarly, he may not withhold a laborer’s wages—what according to Torah law he is obligated to pay. So how can one even discuss that someone who withholds money in his possession according to Torah law should be concerned about the prohibition of theft? For if the money is his according to Torah law, what prohibition of theft can there be in that? For the commandment ‘do not steal’ is a general prohibition: it is forbidden to steal from another what is his, whether by inheritance, whether by acquisition through purchase, gift, or ownerless property, and whether if he acquired it according to the legal rulings of the Sages.” What is he basically saying? He is really claiming that the prohibition of theft, as he said above, is an exceptional prohibition, different from all the rest of Torah prohibitions. What does this prohibition really say? There is a legal determination that establishes to whom the money belongs in a given situation. Sometimes I don’t know to whom the money belongs because I don’t know whether there was a loan or not, who is right, the plaintiff or the defendant. Still, I determine a legal decision-rule—for example, “the burden of proof is on the one seeking to extract from another,” or “they divide,” or whatever it may be—I determine according to a legal decision-rule to whom the money legally belongs. Not what the facts are—whether he borrowed or not—but to whom the money legally belongs. So what follows? The entire prohibition of “do not steal” is triggered only after we already have a legal determination. Once there is a legal determination that the money belongs to Reuven, then if Shimon takes the money he violates “do not steal.” But if the legal determination is that the money belongs to Shimon, then you cannot say that when Shimon holds the money he is violating “do not steal,” because “do not steal” means holding money that legally is not yours. But if legally the money is yours, how can it be said that you are violating “do not steal”?

[Speaker C] Rabbi, but it seems to me that we need to distinguish here between the legal determination and reality. Meaning, there could be a situation where the court truly doesn’t have enough evidence, so it uses one rule or another, but in practice it could be that the person really did steal.

[Rabbi Michael Abraham] That’s exactly what he’s claiming. Rabbi Shimon Shkop is claiming that even though in practice it may be that he stole, if there is no evidence, then there is a legal rule. That legal rule is part of the legal system. And if that legal rule says the money should remain with the defendant, then legally the money belongs to the defendant—even if from the standpoint of factual truth he stole it, the legal truth is that it is his. And once legally the money is his, it makes no sense to say that he is violating “do not steal,” because “do not steal” means holding money that legally belongs to someone else.

[Speaker C] Wait—does “do not steal” refer to legal truth or to truth, period?

[Rabbi Michael Abraham] To legal truth. That’s what Rabbi Shimon Shkop is claiming. You can argue otherwise, but Rabbi Shimon Shkop’s claim is that “do not steal” refers to legal truth.

[Speaker D] Rabbi, excuse me, I wanted to ask—does Rabbi Shimon completely ignore the issue of fulfilling one’s obligation before Heaven? No?

[Rabbi Michael Abraham] That’s the next remark I was about to make. Suppose I’m the defendant, but I know I stole. I’m a liar. I’m both a thief and a liar. He comes to sue me and I say, “What are you talking about? Nothing of the sort, it was always mine.” But the truth is that I stole, and I know I stole. Now the court doesn’t know anything, so it rules: the burden of proof is on the one seeking to extract from another. Now obviously in such a case I really am violating “do not steal,” even though legally the court ruled that it is mine. Why? Because it is obvious that the court’s ruling was made in error, because it lacked the information. This whole answer we’re talking about—what?

[Speaker D] Sorry, I understand that, but I meant to ask also about the case where the plaintiff makes a definite claim and the defendant says, “I’m not sure.”

[Rabbi Michael Abraham] There—that is what Rabbi Shimon is talking about, because the whole difficulty was really asked only about that case. So the answer too is said about that. And what does the answer say? That if I do not know the truth and I only say “I’m not sure,” and according to the legal rule this money remains mine, and there is no one here who knows I am a thief and therefore could say this is actually a mistaken ruling—no, nobody knows. So there is no choice: the legal determination is what determines. And if legally I may keep the money with me, then even though the truth is that it does not belong to me, that is only the truth in an abstract theoretical sense. On the legal level it belongs to me; therefore, when I hold this money, I am not even in doubtful theft—there is no theft here.

[Speaker C] No, but according to the previous explanation it doesn’t sound like he distinguishes between definite and uncertain claims, and a case where the person actually knows he stole. He says once there is one legal truth, no matter the case, that’s what determines. No—the opposite.

[Rabbi Michael Abraham] After all, at the beginning when he asked the question he said there is no room to ask the question when both sides make definite claims. Why? Because if I make a definite claim, the court cannot force me to hand over the money, because I can say, “What do you want from me? I know. I’m not in doubt. You judges are in doubt; I’m not in doubt.” So they can’t force me to give up the money. But if you ask, yes, but what if I’m a liar and I know I’m a thief? The court doesn’t know, but I know. Then the court cannot force me to give it up because it doesn’t know I’m lying, but I certainly know I’m lying. So obviously from me, the Holy One expects that I should indeed pay the money. The whole discussion was only about the court, because the court does not know the truth. The entire discussion of the Maharibasaan is only when I myself say “I’m not sure,” not when I make a definite claim. So then I myself do not know the truth. About that Rabbi Shimon Shkop says: in a situation where I say “I’m not sure,” once the court determined that legally this money is mine, then it really is mine.

[Speaker C] But can’t a person falsely say, “I’m not sure”?

[Rabbi Michael Abraham] What does it mean, falsely “I’m not sure”?

[Speaker C] He says, “I don’t know, it’s not clear to me whether it’s mine or not,” but he’s lying.

[Rabbi Michael Abraham] No—if he’s lying even though in truth he does know and he stole? Yes. Then obviously he has to return it. It makes no difference whether he says “I’m not sure” or makes a definite claim.

[Speaker C] Okay, so apparently the difference is not between definite and uncertain claims, or not definite and definite. The difference is whether the person himself is lying or not, regardless of the situation.

[Rabbi Michael Abraham] Yes, we’re talking about “I’m not sure,” we’re talking about—

[Speaker C] Someone who is telling the truth and says, “I’m not sure.”

[Rabbi Michael Abraham] Ah, okay. Yes, so to me that seems obvious. If he’s a liar, it makes no difference whether he says, “I know,” or “I’m not sure.” If he’s a liar, he has to return the money. So what if the court doesn’t know the truth? You know the truth—you have to return the money, you’re a thief. Right. So that’s what Rabbi Shimon is really claiming. Later on he wants to explain why it has to be this way. Because he says that when the Torah said “do not steal,” after all “do not steal” is not a prohibition that can stand on its own. Before you can state the prohibition “do not steal,” before you can fulfill or violate the prohibition “do not steal,” you first have to define what the laws of ownership are, right? You have to define what belongs to whom. Now there has to be a whole legal doctrine that establishes the laws of property. After there are property laws, if I take money from someone that belongs to him in terms of ownership and not to me, then I’m a thief. But if there are no property laws, you can’t talk about the prohibition of “do not steal,” right? There have to be property laws, and then if you violate someone else’s property rights, you’ve violated “do not steal.” The problem is that the property laws mostly have no source in the Torah—almost none of them do. Here and there a few isolated ones, but in most cases the property laws have no source in the Torah. Like the rules of decision in doubtful cases, which have no Torah source, so too the property laws—acquisition by lifting, acquisition by pulling, all those forms of acquisition have no Torah source. So what are they? Where do they come from? Again, they are part of the legal system. So when the Torah says “do not steal,” what we really understand is that the Torah is already presupposing that some legal system of property laws exists. Because otherwise it couldn’t issue the prohibition of “do not steal.” But that system doesn’t exist in the Torah. So that means the Torah presupposes that the legal system established by human beings has validity even before it begins giving its commands. And after there are property laws—which were established by the legal system—now the Torah comes and says: if you violate another person’s property, you have violated the halakhic prohibition of “do not steal.” But clearly there first has to be a property determination regarding who owns each object, because otherwise you cannot speak about the prohibition of “do not steal.” Therefore this is proof that the Torah in fact recognizes a legal determination that precedes the Torah’s commands: the determination that establishes the laws of property. That is the proof Rabbi Shimon brings for the principle he wrote here, that there are really property laws that precede the Torah, and “do not steal” applies only after we determine the legal dimension.

Rabbi Shimon says: if so, then decision-rules too are part of the legal dimension. And if decision-rules, as part of the legal system, say that you may keep the money if you are the defendant currently in possession, then automatically, in legal-property terms, this money belongs to you, and therefore your holding the money will not involve the prohibition of “do not steal,” nor even a doubtful prohibition of “do not steal,” because “do not steal” is only a violation of another person’s ownership. But if the legal system determined that this is your ownership, then you have not violated another person’s ownership. Even though the truth is that you really are a thief—the Holy One knows the truth—still, if legally it was determined that it is mine, then automatically there is no prohibition of “do not steal,” because the prohibition of “do not steal” comes only to reinforce or anchor the legal system. It does not stand against the legal system, and it is not detached from the legal system. Once there is a legal system, the prohibition of “do not steal” comes to reinforce it. Okay? That is basically the claim.

He says—maybe just one more sentence—here he gets to the Tumim that I mentioned at the beginning: “And according to this, it seems clear in my humble opinion that doubtful theft is forbidden by Torah law just like any doubtful Torah prohibition.” Not like the Tumim, who said that the prohibition of theft is one of those prohibitions where doubt goes leniently. No—doubtful theft is a doubtful Torah prohibition, and its doubt goes stringently. “Rather, doubtful theft is something rarely found in reality.” Meaning what? He says: it almost never happens that there is a case of doubtful theft. Why? “Because in every monetary doubt, the Sages instructed us regarding some legal rule according to legal doctrine. And since there is some legal rule here, there is no longer any doubt about the prohibition of theft; rather, it is either definite theft or definite permission.” What does that mean? Once the Sages established a whole set of decision-rules for doubtful monetary cases—all the things I mentioned earlier: the burden of proof is on the one seeking to extract from another, they divide, let it remain, judges’ discretion, all those things—once the Sages established rules for what to do in doubtful monetary situations, those rules eliminated the doubt from the standpoint of legal doctrine. They did not eliminate the doubt in truth—I don’t know who the thief is here in the real factual sense—but they eliminated the legal doubt, and they determined legally who the money belongs to. Once that is so, how can you apply the law of doubtful theft? There is no doubt. So it is not because, as the Tumim says, that in doubtful theft we go leniently. No, there is no such rule. The prohibition of theft is like every other rule: its doubt goes stringently. It’s just that in all these cases this is simply not a case of doubtful theft. There is no doubt because the legal system resolved the doubt. He says there are rare cases where there really will be doubt—for example.

[Speaker D] It seems to me, Rabbi, that this statement is a bit paradoxical—that “the Sages instructed us in legal doctrine.” The Sages came after legal doctrine, and they explained what legal doctrine is, what the principles are, what the concepts are, everything you mentioned.

[Rabbi Michael Abraham] Why? What’s the problem?

[Speaker D] Because we’re saying that legal doctrine is a concept that precedes the Torah, that precedes the prohibition of “do not steal.” And he writes—I don’t remember the exact sentence—but “the Sages instructed us what the rules are in legal doctrine.” Right.

[Rabbi Michael Abraham] You mean chronologically—it’s a bit awkward: if it preceded the giving of the Torah, then how can the Sages determine it? It’s already fixed and standing.

[Speaker D] It’s not a chronological priority but a theoretical priority.

[Rabbi Michael Abraham] Right. He means that the laws of justice need to be determined before you begin applying Torah law. But who determines them? In every society, the legislators of that society. Our legislators are the Sages. He does not mean chronological priority. The laws of justice, for example, need not be universal. There could be another society in which the laws of acquisition are not pulling and lifting, but dancing. You dance, and then you acquire the field. Whatever the legislator established—that will be the laws of justice there. The priority here is not chronological priority. Okay? So his claim is basically that the Tumim is wrong to say that in doubtful theft we go leniently. In doubtful theft we go stringently. It’s just that in all these monetary doubt cases, once the Sages established the deciding rule—which itself is also part of legal doctrine—then there is simply no longer any doubt. So it’s not doubtful theft, because there’s no doubt. Where, then, would the rule that doubtful theft goes stringently actually apply? What happens, for example—and this is what he says here—“in doubtful theft where there is no legal rule of monetary law at all.” Where is there such a case? In a place where there is no legal determination. Then the situation really is defined as doubtful theft, and there we really would need to be stringent. That is, for example, “to steal from a person who is of doubtful status, whether he is a gentile or an Israelite, according to the view that stealing from a gentile is permitted.” Okay, there is a dispute among the medieval authorities (Rishonim), but some of them say that stealing from a gentile is permitted at the Torah level. “Do not steal” does not apply to a gentile. Fine. If I have a person about whom I am unsure whether he is a Jew or a gentile, then stealing from him is doubtful theft. And therefore there I really do go stringently, and it is forbidden to steal. So the basic rule in the laws of doubt is that even doubtful theft must be treated stringently. It’s just that in all these cases of “the burden of proof is on the one seeking to extract from another,” and “they divide,” and “whoever is stronger prevails,” and all those things, these simply are not cases of doubt. Because there is an instruction of legal doctrine what to do in such a case. That instruction removes the doubt, so there is no reason to apply the laws of doubtful theft here—not because doubtful theft goes leniently, but because this is not a doubt. But if there is a situation where it really is a doubt, what would the Tumim say? Doubt whether he’s a gentile or a Jew? According to the Tumim, we’d be lenient, because the Tumim says doubtful theft goes leniently. Rabbi Shimon says: what are you talking about? Doubtful theft is like every doubtful Torah prohibition—you have to be stringent. It’s just that in all these situations of “the burden of proof is on the one seeking to extract from another,” etc., if it were a doubtful prohibition I would indeed have to be stringent, but there is no doubt because legal doctrine resolved the doubt. Okay? Is the difference between him and the Tumim clear?

Therefore he says, for example, that this is the intention of the author of Kuntras Ha-Sfeikot. We read him above, and indeed his language sounds similar. What I said—that he says what Shmuel suggested earlier. But the problem is that Kuntras Ha-Sfeikot says the Tumim said something similar to him. And the Tumim says doubtful theft goes leniently. That is really a different principle. So it’s not entirely clear what Kuntras Ha-Sfeikot means. Rabbi Shimon Shkop himself notes this. But it doesn’t matter—even if it wasn’t Kuntras Ha-Sfeikot, it was his cousin who was also called Kuntras Ha-Sfeikot. I don’t care who said it; the point is the principle, the answer is this answer. So this is Rabbi Shimon’s answer, not necessarily Kuntras Ha-Sfeikot’s. It doesn’t matter for our purposes who said it.

[Speaker D] So now he’s basically claiming—the example he gave, sorry, the example he gave of a doubt where I don’t know whether the person is a Jew or a gentile—that according to what you explained in a different series, to distinguish between kinds of doubts, ontic doubt and epistemological doubt, as you called it—here we’re talking about a doubt where I don’t know if he’s Jewish or gentile. Why?

[Rabbi Michael Abraham] What difference does that make here?

[Speaker D] No, because I classify this situation as a case of doubt due to my lack of knowledge about what this person is, whether he’s a gentile or a Jew.

[Rabbi Michael Abraham] Every doubt is like that.

[Speaker D] You distinguished between doubts, right? You divided them into what you called two categories of doubt—ontic…

[Rabbi Michael Abraham] That’s a different discussion. There are doubts, for example, if I effect betrothal in a case of betrothal not fit for consummation. I come to a father and betroth one of his two daughters, without specifying which one. So that’s not really a doubt. There’s no uncertainty there as to which one is betrothed in the sense that one of them is really betrothed and I just don’t know which. Rather, one of the two is betrothed, but neither one in particular—even the Holy One does not know which. That’s called an ontic doubt, but it’s not a doubt in the usual sense. Every doubt in halakhic jargon—“doubt” always means epistemic doubt. Doubt always means lack of knowledge of information. What I called ontic doubt—that’s vagueness, not doubt. There we would use fuzzy logic, not statistics or probability. That’s another world in principle. Very often the behavior is quite similar, but in principle it’s another world; it doesn’t belong to the world of doubts. Doubts always mean epistemic doubt.

Now there’s an addition here that I don’t really understand, which Rabbi Shimon Shkop adds there regarding doubtful theft. He says this: “And doubtful theft where there is no legal rule of monetary law at all”—how can there be doubtful theft that requires stringency? “For example, to steal from someone who is of doubtful status, whether gentile or Israelite, according to the one who says that stealing from a gentile is permitted. In such a case it would be a doubtful prohibition like all Torah prohibitions. And in such a case it is not a matter of legal doctrine at all.” Right? Here there is no legal determination whether he is a Jew or a gentile. It remains doubtful. So here it really will be doubtful theft, and what must I do? Go stringently. Now he adds an addition that I don’t understand why he adds. I actually think it’s true, but I don’t understand why he adds it. On the contrary, it shows that it’s irrelevant. He says—look here—“For even according to the one who says that stealing from a gentile is permitted, he still has no right or power to rob the gentile. And as the Magen Avraham wrote in the laws of lulav in the name of Sefer Yere’im, that even according to the one who says that stealing from a gentile is permitted, it is still not considered ‘yours.’” Right? What happens according to the one who says that stealing from a gentile is not prohibited by Torah law? Then I stole an etrog from a gentile. Can I fulfill the mitzvah with it on the first day? On the first day there is a requirement of “yours”—it has to belong to you. Now I stole the etrog or the lulav from the gentile, and I want to fulfill my obligation with it on the first day. Is that considered mine? Stealing from a gentile is permitted. So the Magen Avraham in the name of the Yere’im says no. The fact that it is permitted only means you didn’t violate a prohibition, but it still belongs to the gentile. The halakhic prohibition does not exist, but legally—let’s now call it in our language—legally it belongs to the gentile. Okay? That is basically the claim.

Now I completely accept that determination—I’ll come back to that in a moment. I just don’t understand what it is doing here in Rabbi Shimon Shkop. Because what is Rabbi Shimon Shkop trying to say? He’s trying to say that if I have a doubt whether a person is a Jew or a gentile, then the doubt whether I may steal from him is a case of doubtful theft, and there legal doctrine gives no determination, so there indeed we go stringently like with every doubtful prohibition. But then his next sentence undermines the claim on which he based himself. Because what actually happens? On the side that he is a Jew, then I have the prohibition of “do not steal,” right? On the side that he is a gentile, I don’t have the prohibition of “do not steal.” Okay? So out of doubt I need to be stringent, meaning not to steal. But after all, even on the side that he is a gentile, it is still forbidden for me to take it. It is forbidden because it is a legal prohibition, not because of a halakhic prohibition. So it turns out there is no doubt here. Whether he is a gentile or a Jew, I may not take it. So why is this an example of doubtful theft requiring stringency? There is no doubt. At most he could say: it’s not a doubt whether I may take it. Obviously I may not. The doubt is if I did take it, whether I violated “do not steal,” because the religious prohibition, the halakhic prohibition of “do not steal,” exists only if he is Jewish. If he is a gentile, then it’s a legal prohibition, not the halakhic prohibition of “do not steal.” Then there would be a doubt regarding the prohibition of “do not steal,” and we go stringently—meaning I violated “do not steal” out of doubt, because on the side that he is a gentile it is indeed forbidden for me to take it, but there is no prohibition of “theft” in the sense of that verse. Theft from a gentile is not included in “do not steal.” Fine, that’s a bit forced; it’s not exactly what his wording implies. But that’s what one would have to say, otherwise I can’t make sense of it.

But for our purposes, notice what he is really saying. He is really claiming that even if I say that the prohibition of theft regarding a gentile does not exist—that stealing from a gentile is halakhically permitted—still, legally I may not take it from him. Now what does it mean that legally I may not take it from him? Usually, when people learn Rabbi Shimon Shkop, they understand him as follows: before the Torah commanded “do not steal,” there are the laws of justice that establish the laws of ownership, which object or which money belongs to whom. But still, before there is a prohibition of “do not steal,” even though the money belongs to you, I would be allowed to take it from you. It is factually defined as yours, but there is no prohibition against taking it. Only the prohibition of “do not steal” introduces the novelty that I am forbidden to violate your property. That’s how people usually understand Rabbi Shimon Shkop. Meaning: there are no prohibitions that precede the Torah. There are definitions that precede the Torah. That is, before the Torah commanded “do not steal,” the ownership definitions already exist—what belongs to whom. But that doesn’t mean that without the prohibition of “do not steal” I would already be forbidden to take money that is yours. There are no prohibitions before the Torah; prohibitions come only from the Torah. There are only definitions. But that can’t be right, Rabbi.

[Speaker B] Rabbi, that can’t be right. After all, even before the Torah was given it was forbidden to steal—the generation of the Flood, and other prohibitions the Rabbi mentioned, Cain and Abel. What does that have to do with it? What—the Torah invented prohibitions, moral norms? Before that there weren’t any?

[Rabbi Michael Abraham] It doesn’t have to be because there is theft among the seven Noahide commandments. It’s not the prohibition of “do not steal”; it’s from the seven Noahide commandments.

[Speaker B] So what? Then it also exists from the dawn of the world. What? Then it also exists from almost the very beginning of creation.

[Rabbi Michael Abraham] Yes, it exists, but it’s not the same theft prohibition; it’s the Noahide prohibition of theft, a different prohibition. So what?

[Speaker B] But at the end of the day a person is forbidden to do it.

[Rabbi Michael Abraham] But it is still a prohibition by force of the Torah. The seven Noahide commandments are from the Torah. Fine. Sure, the Torah… No, but I’m talking about a foundation that precedes the Torah. Suppose the Torah had not commanded against theft. Then there would still exist the legal rule that this money belongs to so-and-so. But okay, now if there is no prohibition of theft in the Torah—and for the sake of the discussion, not even for Noahides—there is none. The Torah introduced no prohibition of theft at all, neither the one in the seven Noahide commandments nor the “do not steal” in the Ten Commandments. Okay? So now the question is whether I may take this object even though according to legal doctrine it belongs to someone else. Then what does “belongs” mean?

[Speaker B] What does it mean that it belongs to someone else? That phrase itself—“belongs to someone else”—already carries a normative prohibition with it. And if it carries no prohibition, then what does “belongs” mean? Just a statement?

[Rabbi Michael Abraham] A legal definition without normative content—until the Torah comes and pours normative content into it. That is the standard understanding of Rabbi Shimon Shkop. But again, I’m not going to defend that position because I don’t agree with it, so it’s a waste of discussion. Clearly that’s not right. Clearly Rabbi Shimon Shkop means that even before the Torah’s command, it’s not only that there are ownership facts as to what belongs to whom—there is also a prohibition against harming another person’s property. It’s just that the prohibition is a legal prohibition, and the Torah comes and adds a halakhic prohibition of “do not steal,” a religious prohibition. But there is a legal prohibition—it is forbidden to steal. How do I know that? First, from the passage we just read. Rabbi Shimon Shkop says that if I have a doubt whether someone is a gentile or a Jew, then even on the side that he is a gentile I am forbidden to take from him. Why is it forbidden? On the side that he is a gentile, it is his—and still it is forbidden to take it? Yes. So you see that even without the command “do not steal,” there is also a prohibition against taking it, not merely a factual determination of the laws of ownership. That’s one point. Second, later on in the next chapter, Rabbi Shimon Shkop raises a question. After he states this principle of legal doctrine, he asks a question.

[Speaker C] Rabbi, Rabbi, but what if this gentile were in the Land of Israel and what determined things would really be only Torah law?

[Rabbi Michael Abraham] It has nothing to do with the Land of Israel. The law regarding a gentile applies in the Land of Israel too—what does the Land of Israel have to do with it?

[Speaker C] No, fine, what I’m saying is—that’s exactly my point—it has nothing to do with whether according to the Torah I’m stealing or not. Meaning, if the only governing law were Torah law and I stole from him, then it would still be included, it would still be called theft, there would still be a prohibition of theft here.

[Rabbi Michael Abraham] Obviously—a prohibition of theft of…

[Speaker C] That according to the Torah it’s not called theft—meaning,

[Rabbi Michael Abraham] When the medieval authorities (Rishonim) say that stealing from a gentile is permitted, they mean that there is no prohibition of “do not steal” in it.

[Speaker C] So what is there?

[Rabbi Michael Abraham] There are the seven Noahide commandments. If a gentile is forbidden to steal from his fellow gentile, then how could it be that I would be permitted to steal from a gentile? So then—

[Speaker C] After I stole from a gentile, what did I violate?

[Rabbi Michael Abraham] You violated the prohibition of the seven Noahide commandments.

[Speaker C] Which is not “do not steal,” it’s something else? Yes. What is it called?

[Rabbi Michael Abraham] Laws—the commandment of laws.

[Speaker C] And what practical difference does it make? What difference does that make?

[Rabbi Michael Abraham] It’s not the prohibition of “do not steal”; it’s the prohibition of laws.

[Speaker C] Which is also Torah-level?

[Rabbi Michael Abraham] It’s Torah-level for… yes, with respect to gentiles, yes, it is from the Torah.

[Speaker C] So I don’t see any difference here.

[Rabbi Michael Abraham] The commandments of unloading and loading, for example—I don’t know, maybe. Anyway, for our purposes, the claim is that what I want to show is that there is also a prohibition against taking; it’s not just a factual determination that you have ownership of something. And here is my proof. In the next chapter Rabbi Shimon Shkop asks—he says: “Even though at first glance this is a puzzling matter, what necessity and obligation can there be upon a person to do something without the Torah’s command and warning?” What is he asking? He’s asking: how can it be that obligations are imposed on me not by force of a Torah command? Even without the Torah commanding it, I’m obligated. Obligated by what? Who obligates me? Now, if indeed the law of monetary relations merely established facts of ownership, then there would be no room for this question. Nobody is obligating me to do anything. I really could take this money. So what if it belongs to you? I can take it. Clearly, if he asks this question, then he means to say that in monetary law it’s not only that the money belongs to you, but that I’m also forbidden to take it from you. And about that he asks: how can that be? Who obligates me? Who forbids me to take it? If it’s not the Torah, then who is it? So this is proof of that—another proof, a second proof—that when he speaks about monetary law, monetary law is not just ownership facts, what belongs to whom; rather, within monetary law there is also a normative prohibition: it is forbidden to take what is not mine. So then what is “You shall not steal”? “You shall not steal” adds another prohibition. Beyond the legal prohibition there is also a halakhic-religious prohibition, let’s call it that. So what is he really asking? And what is the answer to that question? Right? After all, if the Torah is not the source of the obligation, then what is the source? I don’t know of other sources of obligation. But when we examine the matter carefully—this is the answer he offers—“but when we examine the matter carefully, this is to be understood, for the obligation and necessity of serving God and fulfilling His will, blessed be He, is also itself an obligation and necessity according to the law of reason and recognition. Likewise, monetary obligation and subjugation are legal obligations, whether established according to the laws of acquisition or imposed by the Torah, as in damages, redemption of the firstborn, and the like. And for this, one must be one who acquires and gains this right.” What is he saying? He says—yes, like every good Jew, I’ve mentioned this already in other series—like every good Jew, he answers a question with a question. And what was the question? If there is no halakhic prohibition on me against stealing—for example, in the case of stealing from a gentile—then by what force is it forbidden for me to take it? What is this “law of monetary relations”? What is its source? Who gives it validity? So he answers with a question: and the laws that are written in the Torah—who gives them validity? The things that are written in the Torah. The Holy One, blessed be He. And who gives validity to the fact that the Holy One, blessed be He, said it? So He said it—so what? So what if He said it? Why do I have to listen? Because the judgment of reason and recognition says that if the Holy One, blessed be He, commands, one must obey. Meaning that even what is written in the Torah I am obligated to obey because of reason. So what is the question about obligations whose entire basis is reason and which are not written in the Torah? Reason is more fundamental than the Torah; the Torah is not what is fundamental—reason is what is fundamental. After all, the question says: why must you obey if it isn’t written in the Torah? So what if reason says so? It isn’t written in the Torah; only what is written in the Torah must be obeyed. What does that mean? He says: and why must you obey what is written in the Torah? Reason says to obey what is written in the Torah. So reason is the basic source of obligation. So reason also says to follow the law of monetary relations. The same mouth that prohibited can prohibit further. And it’s a wonderful line of reasoning.

For our purposes, what we actually see here from this analysis of Rabbi Shimon—what we actually see from this analysis of Rabbi Shimon is that even before I continue further, Rabbi Shimon’s own analysis is itself some kind of analysis of the sort I’m talking about here. You see how Rabbi Shimon goes right into the theoretical, meta-halakhic roots of the whole story. He makes distinctions between the prohibition of theft and other prohibitions. He explains the law of monetary relations; he looks at monetary law; he places it in context—the context of monetary law in general. This isn’t just a difficulty. We started with a halakhic difficulty that most people dealing with it answer with one local workaround or another. What happens—why, if “the burden of proof rests on the one seeking to extract money from another,” is there a doubt about the prohibition of theft? When Rabbi Shimon Shkop encounters such a difficulty, he immediately starts looking: wait, wait—what is Jewish law in the first place? And what is the difference between ordinary laws and laws of monetary relations? And why must one obey monetary law? And what is the relation between Torah law and the law of monetary relations that precedes Torah law? And is it merely definitional, or is it also normative? You see, all these foundations, all these discussions, are discussions you won’t find among the later authorities. Rabbi Shimon Shkop is unusual in this respect. He really enters into meta-meta-halakhah. And he asks meta-questions. He places things within context. Therefore this analysis we’ve just seen in Rabbi Shimon Shkop—for me, first of all, this is only an opening; I’ll continue next class—but one has to notice that already this analysis gives a good example of what I mean when I speak about first-order thinking. He goes straight to the roots of the matter; he doesn’t quote Maimonides and find some distinction between one Talmudic passage and another Talmudic passage. He goes to the roots of the issue, analyzes the underlying reasoning a priori, and from that immediately infers the conclusion: why in fact you do not need to be stringent in a case of doubt if you are in possession. He doesn’t bring a source from the Torah, Maimonides, or something like that. He performs a conceptual analysis, and from the conceptual analysis he goes straight to the answer. He doesn’t need to examine sources. On the contrary: the sources he does bring—he very quickly discovers that they didn’t mean this at all, and he still sticks to his own view. The Tumim, for example, who says that in a case of doubtful theft one is lenient—he certainly didn’t mean this. The Ketzot HaChoshen, in his discussion of doubts, apparently did mean this, but the Ketzot himself says that the Tumim says as he does. So it’s not clear what the Ketzot is saying. But he isn’t interested in what the Ketzot says or what the Tumim says. He’s interested in what is true. And once he does an a priori analysis, a conceptual analysis, he has reached his conclusion. Why should he care about all the sources?

So that is the meaning—that is the connection between placing things in context and thinking in a first-order way. Once you place it in context, you actually see the answer even without resorting to sources. You understand—you understand what the logic says. If you allow yourself to get into questions of what logic says and what the logic behind things is—which is usually what first-order decisors do—second-order decisors look for precedents and rule based on what this one said or what that one said, without entering into the logic of the matter itself. When you enter into the logic of the matter itself, it is always tied somehow to understanding the context of the issue: to what context it belongs, to what it does not belong, making distinctions of that kind. And later on, I’ll continue with this issue of possession, and we’ll see it further as well. I’ll go into an even deeper layer, one level more fundamental. But that will be next time. Any comments or questions?

[Speaker D] Rabbi, a small question. In this law of monetary relations that Rabbi Shimon talks about, does he also include reasonable prohibitions—murder, false testimony, things like that? Even though there’s no practical difference…

[Rabbi Michael Abraham] He doesn’t—he doesn’t discuss that in the context of the law of monetary relations, because in that context he’s talking about monetary law.

[Speaker D] But the question is what—what practical difference would there be?

[Rabbi Michael Abraham] You’d have to think of a practical difference, and then think about it. On the face of it, it’s pretty clear that murder is forbidden even before the Torah commanded it. But what am I supposed to do with that? Meaning, what practical difference would there be here?

[Speaker D] Right, that’s what I was asking. Since there’s no practical difference, there’s really nothing to address—but it seems reasonable to say that he would also regard those as things that preceded the Torah, right?

[Rabbi Michael Abraham] Yes, I assume so. Let’s say,

[Speaker D] The practical

[Rabbi Michael Abraham] difference is that the Holy One, blessed be He, came with a claim against Cain after he murdered. Even before there was “You shall not murder,” and before there was “Do not stand idly by your neighbor’s blood,” and before there was “Whoever sheds human blood, by man shall his blood be shed.” Meaning, it’s clear that there was a demand upon you for having murdered, even before the Torah was written.

[Speaker D] Right, and it’s also interesting that when the Talmud derives the seven Noahide commandments, it derives them from a verse said to Adam. Before Noah—I mean. As if the very fact that he’s a human being means he should understand this.

[Rabbi Michael Abraham] Yes, but I think the seven Noahide commandments are really binding from Noah onward, though there are things that preceded that. The seven were finalized—or the Noahide system was finalized—in the days of Noah. And it may be that there were things that preceded it. By the way, even in our own law, Maimonides in the Laws of Kings begins the order of the giving of the commandments even before Israel. There were commandments given in Egypt. The commandment of circumcision was given already to Abraham our forefather. There were commandments—three commandments—given at Marah. And after that everything at Mount Sinai. Even for us there were commandments that preceded Mount Sinai, but Mount Sinai was what gave the official stamp and turned it into one binding system. Anyone else?

[Speaker C] Can I ask something unrelated to the class, Rabbi? Yes. I wanted to ask whether you saw the film about the mystery of Shushani?

[Rabbi Michael Abraham] Yes.

[Speaker C] What does the Rabbi think about it?

[Rabbi Michael Abraham] Entertaining, but in my view worthless. I mean, I saw it in the cinema; there was also a discussion with the

[Speaker C] director

[Rabbi Michael Abraham] a few months ago, I don’t remember when it was.

[Speaker C] Wonderful work, by the way.

[Rabbi Michael Abraham] No, he did good work. That’s all true. But basically, in the end, he found out that it wasn’t Shakespeare, it was his cousin, who also wasn’t called Shakespeare. Why does that interest me? If he had brought me smart things that Shushani said, that could have been interesting. But nobody knows anything about what he said. He has all kinds of notebooks that they’re now trying to decipher; from the little he brought there I didn’t see anything smart. But again, Shalom Rosenberg is a very intelligent man, and if he says Shushani was a genius, then he probably really was a genius. So it’s not that I doubt it. I’m just saying: what use is that to me? Meaning, so now I know that it wasn’t Hillel Perlman but Moshe Zochmir. Fine, so what? Why should I care?

[Speaker C] Yes, no, really I think we were left with a question mark regarding all his writings.

[Rabbi Michael Abraham] If they discover the gems he came up with and there turn out to be beautiful things there, that would be wonderful. But none of that appeared in the film. There was a grain or two that appeared in the film, and those were completely banal things.

[Speaker C] I understood that there’s a woman doing a doctorate on this now, on his writings,

[Rabbi Michael Abraham] At the Hebrew University, I understand they’re digging into it a bit. My bet is that they won’t find any gems there. But not because he wasn’t smart—rather because, I don’t know, maybe these are things that can’t be written down; maybe that’s why he was a man of the oral Torah. And the people deciphering the writings—it’s highly doubtful how capable they are of understanding genius-level ideas. These are generally not great Torah scholars. So I’m almost sure they won’t find any gem there.

[Speaker C] But how does the Rabbi explain this figure of Shushani? Is it simply a genius?

[Rabbi Michael Abraham] Apparently. People testify that he was a genius. I don’t know—that’s what they say. But what is there to explain? There are geniuses in the world, fine.

[Speaker C] No, because it’s on a completely different level—it’s something totally different.

[Rabbi Michael Abraham] I don’t know. Who said he was more of a genius than Einstein? Einstein was known, and Shushani hid himself. There are geniuses in the world; that’s fine, it’s a known phenomenon—what can you do? What can you do? It’s good that there are such people, but what am I supposed to do with that?

[Speaker C] No, there are many who say that maybe it was something, like, not human at all—I don’t know, I heard people say maybe it was a revelation of Elijah the Prophet, I don’t know, all kinds of things like that.

[Rabbi Michael Abraham] I don’t know. In these matters I don’t— I have no position. I don’t understand it and I don’t express myself about it. I assume they don’t know either. So, fine, I don’t know. Okay, all right then, good night, Sabbath peace.

[Speaker C] Thank you, Rabbi, Sabbath peace, thank you.