Study and Ruling – Lesson 32

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[Rabbi Michael Abraham] It’s hard for me to answer the question of what the “real thing” is, because in the end, practically, de facto, we work with rules. I’ve said more than once that you must not become enslaved to rules, but we do work with rules. That’s how we exercise our halakhic judgment. So in the end, when you speak about Jewish law as it takes shape over the generations, it’s a collection of rules. The question of what the relationship is between that and a ruling for a specific case is an interesting philosophical or meta-halakhic question, but that’s a different discussion; I touched on it a bit as well. I want to illustrate this through Jewish law rulings during the Holocaust. The Holocaust is of course a super-extreme situation, with a good chance—who knows—that it was unique, at least certain situations within it, even though lately we somehow are experiencing things that maybe are beginning to come close, I don’t know. But still, this is some kind of unique situation, and according to Haym Soloveitchik the claim should be that a ruling in a situation like this would not join the halakhic corpus. Meaning, it was said for its own time and its own hour, and that’s it; there’s nothing to do with it afterward. In contrast, I argue that after we analyze the situation and understand the characteristics of that extreme state, then the halakhic ruling relates to the set of characteristics that we distilled. And suddenly it becomes a rule. If those characteristics appear at another time or in another place, you can use that halakhic ruling for that place too. In other words, the claim is that even if the case is very extreme, and even if I didn’t experience it—and I spoke about this last time too—I can’t really issue a ruling about such a situation if I didn’t experience it directly. But after someone has issued the ruling, I can analyze his ruling, derive principles or forms of reasoning from it, and those can indeed join Jewish law. Because I do not accept Haym Soloveitchik’s claim that these are laws ruled only for their own time and hour. Even very extreme situations are situations for which the ruling is a ruling according to the characteristics of the situation. True, if it’s a terribly extreme case, then those characteristics may never recur. They happened only there. But still. The ruling does not relate to that time. Is it a ruling for 1942? No. It is a ruling for the situation that prevailed in 1942. And if I now distill the characteristics of that situation and they appear at another time, then the same law will apply to that later time as well. Therefore, after I do that distillation, I can take the ruling that was said for its own hour and incorporate it into the halakhic corpus, because suddenly I have distilled general principles from it. And I’ll now try to show an example of this.

The story is actually based on an article I once wrote after reading a series of pieces in Yated Ne’eman, in its magazine supplement, by a Jew named Rabbi Gibraltar, whose father was a rabbi, a Torah scholar in the Kovno Ghetto. There were several Torah scholars there; the author of Devar Avraham was essentially the chief rabbi of the Kovno Ghetto, but there were other Torah scholars there too. There was Rabbi Pogromansky and there was Rabbi Gibraltar, who later survived the Holocaust and served as a rabbi in Italy after the war. But never mind that now—the son wrote a series of articles about what happened there during the Holocaust in the Kovno Ghetto. And there he described a certain halakhic outlook of his father’s regarding monetary law that was surprising, or at first glance unreasonable. He described it in a series of several articles, and after that series an article was published by a man from Bnei Brak who deals with monetary law, and he criticized Rabbi Gibraltar’s approach. He said, fine, maybe he didn’t have books there and so on, maybe he didn’t have the mental space to deal with it properly, but clearly this is not halakhically correct. And when I read it, first of all, it really did seem that what Rabbi Gibraltar had said was not correct; it didn’t fit ordinary halakhic thinking. But on the other hand, it was clear to me—and that’s really where the penny dropped for me, and that’s why this whole discussion I’m doing now came out of that—that because the situation was so extreme, so far removed from us, that anyone who didn’t experience it cannot truly understand what was going on there, then as far as I’m concerned, someone who was there inside the situation is a witness. Meaning, he ruled according to his direct understanding of the situation, and I’m not really in a position to tell him whether he was right or wrong. Again, not because of Holocaust Remembrance Day pathos and all that—I’m not talking about that. I’m talking about the determination, the halakhic conception that I described in the last few classes. In order to rule on a particular situation, you need to understand what it means, to experience it, to know it directly. If you didn’t know it, you cannot rule on it. And this isn’t only true for Holocaust cases and things like that; there are also less extreme things. I talked about liberal communities and a conservative Haredi decisor who can’t issue halakhic rulings for them because he hasn’t experienced the atmosphere there; he doesn’t understand what things mean there, what they do to people. I talked about Mary’s room, right? Knowing what the color red is—not all the equations of how a wave of such-and-such a wavelength behaves as red. So if you don’t have direct acquaintance with the situation, you can’t issue a halakhic ruling about it. And because of that, I, as someone who has not experienced anything even remotely close to it, for me what Rabbi Gibraltar said is testimony. It is testimony from someone who was inside, that this is really how one ought to act. I take that as a given. If he experienced the situation and said that this is the case, then that is how one should act. All I can do is try to analyze that testimony of his and try to understand or distill from it the line of thought, the mode of relating. But I come after he has said it, perhaps even without reasoning—I don’t know whether he gave reasons, it’s unclear because the articles didn’t describe the halakhic details—and for me it is simply testimony from someone who was inside the situation that apparently this is what Jewish law says for such a situation.

Now I can try to think how I explain it by means of halakhic patterns. So it’s not that I come, take the halakhic patterns, and say what that means about that situation. That I cannot do, because I do not know that situation. What I can do, though, is take… take something that someone who lived inside the situation said about that situation—and he can indeed rule on that situation—and try to analyze it with halakhic tools. After I do that, the result of my analysis can join the Shulchan Arukh. His ruling itself cannot join the Shulchan Arukh, because it is a statement that is a responsum, right? It is a statement that speaks about a situation he experienced directly. As long as you don’t abstract it, define the principles, say what the characteristics of the situation were and why you reached that conclusion, then it is not part of Jewish law. But because I think this is—contrary to Haym Soloveitchik—I argue that this is indeed Jewish law, then what I need to do in order to understand what Rabbi Gibraltar innovated in Jewish law, what from it should join the Shulchan Arukh, is to analyze his general statement with halakhic tools and understand from that what principles he actually introduced, and then those principles I can incorporate into the Shulchan Arukh. That is basically the point. So that’s why I want to use this case to demonstrate why I do not agree with Haym Soloveitchik. Why I argue that even a crazy ruling that seems illogical—no, after I analyze it, I discover that it isn’t crazy at all. The situation was crazy, but the ruling was a halakhic response to that crazy situation. And therefore it is Jewish law in every sense, even if that crazy situation never returns again. That doesn’t matter. The claim is that in such-and-such a crazy situation, this is what Jewish law says to do. Jewish law also talks about a flying camel, about—I don’t know—wheat that came down in the clouds, about an elephant that swallowed an Egyptian basket, all kinds of cases that never happened and were never created even once. So there is no obstacle to saying that there is Jewish law that speaks about a case that happened only once in history. It is still Jewish law. As long as I can ground it in halakhic principles. Because if I only state the result, that tells me nothing. In this situation, that was the result. So what do I do with that? I can’t derive a general halakhic law from it. And Jewish law needs to contain general laws. Okay? We talked about this when we discussed forced interpretations, right? We talked about forced interpretations in this series. That’s where I spoke about it.

In any case, let’s begin. The claim, in the end, is this. There is—maybe we should start with a preliminary story. The son of Rabbi Gibraltar tells there that there was a case involving the Jews of Yanova. That was a town with a Jewish community of several thousand Jews. The Lithuanian partisans murdered all the Jews of Yanova—speaking of the Nazis, the Lithuanian partisans murdered all the Jews of Yanova—and left 350 people alive. Among them was the rabbi of Yanova, whose name was Nahum Ginzburg, the author of Mekor Barukh. This rabbi of Yanova came to the Kovno Ghetto, where conditions were also terrible: hunger, disease, everything. And he said that the partisans were demanding a ransom of one hundred thousand marks for the 350 Jews of Yanova, in order to release them. More than that: after paying the ransom, those 350 surviving Jews from Yanova would then join the Kovno Ghetto, which in itself would be an enormous burden—they had no food. They had no way to sustain another 350 Jews. Meaning, not only would they give the remainder of the money they had managed to accumulate in order to redeem the Jews of Yanova, but after being released the Jews of Yanova would join the Kovno Ghetto and burden it even more. And here one has to understand: such a burden is a matter of life and death. A burden like that means people will die. There’s no cleverness here. It’s not just a burden, it’s not just difficult. We are talking about danger to life. Every such consideration is danger to life.

In short, Rabbi Ginzburg from Yanova came to Kovno and asked whether they were willing to give the hundred thousand marks. The leadership of the Judenrat refused. Now, it’s very easy for us to accuse them because “Judenrat” has a bad name, but it isn’t true that they were all bad. There were definitely good and righteous people among the Judenrat too. The leaders of the Judenrat there refused on these grounds: this is danger to life. Meaning, we cannot give them money; we don’t have money. The little money we do have we still need, sometimes to ransom somebody or to buy food or whatever. If you give away the money, we will die of starvation. And second, we cannot afford to take in another 350 people, mouths to feed—we simply can’t. Therefore they refused to give the money. This is basically parallel in large measure to the case of two people walking in the desert, right, the sugya with Ben Petora and Rabbi Akiva. Two people walking in the desert, one of them has a flask of water, and if he drinks it, he can finish crossing the desert and reach an inhabited place and survive, but then the other will die. If they divide the water, both will die. Meaning, there isn’t enough water to cross the entire desert. So as is well known, there is a dispute between Ben Petora and Rabbi Akiva. According to Jewish law, Rabbi Akiva rules: your life takes precedence over your fellow’s life. Meaning, if the flask of water is yours, then you should drink it and not give half to your fellow. Okay? Your life comes first.

And there both Rabbi Kook and the Hazon Ish deal a bit with this question—I don’t even remember which of the two, I think it was the Hazon Ish—who asks: why shouldn’t the second person simply steal the water from him? Danger to life overrides all prohibitions of the Torah. I’m not getting into Rashi in the chapter Ha-Kones, who says that it does not override theft. The straightforward view among the medieval authorities (Rishonim) is that it overrides even the prohibition of theft. So what’s the problem? I’ll steal his water. True, I violated theft, but it’s danger to life. So the Hazon Ish argues—I think it was the Hazon Ish—that stealing his water is killing him; it’s not theft, it’s murder. Now, in the legal definitions of Jewish law, this is not murder; it’s indirect causation. I took his water and he will die because he has no water; I didn’t murder him. Okay? In that sense it’s indirect causation. So the Hazon Ish’s argument is very nontrivial, but that is what he argues. He says that if I take your flask of water, I haven’t violated theft, I have violated murder.

And in that sense, the same thing applies regarding the Jews of Yanova and those in Kovno. The Judenrat of Kovno says: if we give them the money, we are simply killing ourselves. The money here is not “money.” I’m not giving them money; I’m giving them my life. It is simply committing suicide. And therefore, your life takes precedence—meaning, you have a flask of water, your money, and you need to use it in order to survive; you cannot share your money with the Jews of Yanova and die as a result. Your life takes precedence over your fellow’s life.

[Speaker H] And there’s a very similar story that Rabbi Joseph Dov Soloveitchik tells about his father, Rabbi Moshe, very similar: during the Holocaust there was someone who wanted to pay an SS commander there not to take one of his children, which would mean he would take another child instead. And there he ruled—he said that his father said that this was because of an accessory prohibition, the way the Ran explains it, that it is an accessory prohibition of idolatry, an accessory prohibition of murder. Right—that this is deriving benefit from the body of the murder.

[Rabbi Michael Abraham] Yes, there were such cases. Anyway, so Rabbi—

[Speaker B] But again, this is a matter of definition. Because to come and say “we, the Jews of Kovno,” as if there is some sort of entity like that which is really substantial, and “the Jews of Yanova” are something else—that’s not necessary. You can say we’re all brothers, and it just happens that you live here and you live there; that doesn’t turn it into something substantial, and then the whole story looks a bit different.

[Rabbi Michael Abraham] No, no. What if there were two Jews in Kovno and the partisans threatened one of them and said to the other, “Give us money for him”? It would be the same thing—he also would not give it. It’s not because they are two different communities.

[Speaker B] Fine, so what separates them? The fact that they’re different people. Right. So why, if the money is found only among some of the Jews of Kovno and they can survive longer, why shouldn’t they also give to the rest of the Jews of Kovno, so they too won’t, God forbid, perish? And whatever they gave—right, basically everyone fights for his own survival here. Right. That Ben Petora case is difficult in itself.

[Rabbi Michael Abraham] Fine, but Jewish law follows Rabbi Akiva; what difference does Ben Petora make right now? Jewish law follows Rabbi Akiva, and therefore, apparently, the Judenrat people were right.

[Speaker B] And according to the opinions of the decisors that say it is permitted—it’s not a commandment, but if you want to go beyond the letter of the law, then yes, you can give it to him.

[Rabbi Michael Abraham] That’s how I remember it. Okay, so what does that mean?

[Speaker B] It wouldn’t be a halakhic mistake, right, not to ignore the Jews of Yanova. That certainty—that if we give, we won’t… there won’t be redemption—after all, things change. At the moment the point is that maybe a solution will be found, a way will be found to get what—

[Rabbi Michael Abraham] Maybe yes, maybe no, and a person is also not required to enter even into possible danger to life in order to save his fellow.

[Speaker B] Very hard, very.

[Rabbi Michael Abraham] What’s hard about it? It’s straightforward Jewish law.

[Speaker B] People are constantly entering into possible danger—not only possible danger, they entered near certainty of danger to life and gave their lives and saved others, many times.

[Rabbi Michael Abraham] So someone will say, what, is an action a refutation? Jewish law says it’s forbidden. That’s all. I once wrote about Roi Klein, this story—that he put himself into definite danger to life, but even possible danger to life is forbidden. What he did was forbidden.

[Speaker B] So the Rabbi really would have forbidden him?

[Rabbi Michael Abraham] What? I would have forbidden him, forbidden him emphatically. Again, I don’t know the situation in all its details, but I’m saying on the principled level—I don’t know the exact situation. I would absolutely have forbidden him. First, because you are forbidden to sacrifice yourself in order to save others, and second, because you’re a deputy battalion commander and they are soldiers, and this is a battalion in a difficult operational situation.

[Speaker B] Rabbi, the story of Elbaz, many years ago, which I read as a child—which story?—that he was some recruit, yes, a recruit who was dismantling grenades and suddenly heard and… so what, he didn’t do the right thing when he saved dozens of people?

[Rabbi Michael Abraham] I’m saying, it is forbidden to do that. What’s the question? You need to separate between the question of whether he deserves appreciation for his self-sacrifice, his courage, his values—certainly yes—and the question whether he did something halakhically permitted. That is a different question. There can be a person whom I greatly admire even though he did not act correctly.

[Speaker B] Did he give pleasure to the Holy One, blessed be He, or not?

[Rabbi Michael Abraham] He gave Him pleasure in terms of his values, and displeasure in that he did not keep Jewish law.

[Speaker B] And in the final analysis?

[Rabbi Michael Abraham] I don’t know; there is no final analysis. From this aspect it’s one way, and from that aspect it’s another way.

[Speaker H] The Rabbi said that sometimes there is a conflict, and it’s not always clear that Jewish law defeats morality.

[Rabbi Michael Abraham] Correct. You can judge a person or a situation from different perspectives, and that can yield different results, and you don’t have to combine everything and arrive at one final outcome. From this perspective, it is like this.

[Speaker B] But the Rabbi taught us that in a conflict between Jewish law and morality, it’s not always Jewish law. Right. So what, also in this case—who says that Jewish law, the outcome that emerges—

[Rabbi Michael Abraham] I didn’t say anything. I said that this is what Jewish law says.

[Speaker F] Rabbi, can one use this ruling also regarding the release of hostages, supposedly? For what? When soldiers enter possible danger to life in order to save—

[Rabbi Michael Abraham] That is a more difficult question, because soldiers have a different status. Meaning, soldiers are some sort of arrangement of the—of all the citizens of the state, that each one in his turn gives his years; not everyone, but some give years of their lives in turn, and all of us, going out to war means taking risks. Altogether this is our way, all of us, of protecting all of us. Each time someone else does it in his turn. But in the end, you are actually saving yourself too, not only them. Because just as you will save them, they will save you. Because if no one risks himself to save the others, we will all die. Without an army we will all die. Therefore, on the public level, it’s a somewhat different story.

[Speaker F] Yes, but in the specific case of hostages—and I’ll say even more, when the hostages are… dead hostages, only bodies—must one take risks for…?

[Rabbi Michael Abraham] If they are bodies—if they are bodies, in my opinion I would not invest even one soldier’s risk in that.

[Speaker F] Halakhically or morally?

[Rabbi Michael Abraham] At least—it’s difficult and I can’t judge them, but if… I had a big argument with Aviezer Ravitzky about—there was once a story in Gaza, I don’t know, twenty years ago or twenty-something years ago, I no longer remember, one of the operations, heaven knows which one. It was on the Sabbath, and Rabbi Yisrael Weiss was there; he was the Chief Military Rabbi then. They finished the operation on the Sabbath, meaning they finished the missions, and now they had to return. But there were a few soldiers’ bodies in the field. So there was a dilemma: whether to remain there in the field until Saturday night, and that of course is danger to life, or to leave and come back—reenter on Saturday night in order to try to recover the bodies, assuming it would still be possible to reach them. In short, I no longer remember all the details of the dilemma, but that was the dilemma. And then we had—yes, we ate together, never mind. Why on earth should you endanger soldiers in order to bring back bodies? It’s simply crazy. Later I saw, by the way, in a responsum of Rabbi Goren, that he writes this as a simple matter: under no circumstances should soldiers be endangered in order to recover bodies.

[Speaker B] How did they justify such a really strange thing? What, endangering soldiers for bodies?

[Rabbi Michael Abraham] How did they justify it? To this day it happens; to this day they do it. So there is the issue of morale, right? After all, morale is also a significant factor in war. Meaning, it isn’t entirely absurd that the morale of families, of soldiers, I don’t know exactly what—maybe it really can justify endangering soldiers, because you know they’ll fight for you and so on. I don’t know. As for me, if I were dead, then don’t fight for me. What do I care? I’m already dead. Meaning, it doesn’t lower my morale. My morale doesn’t rise if after I die they bring me back to the country. I don’t care if I die and remain there. Meaning, I care about dying—but if I’m already dead, I don’t care about staying there.

[Speaker B] But what will the morale of the families be if they know that one soldier was killed because he tried, and either failed or succeeded?

[Rabbi Michael Abraham] Excellent question. That’s why I say, there’s no point getting into this discussion. The arguments are clear, I agree, but I’m saying: those are the arguments. The arguments are that morale considerations say that we fight even for bodies. That has always been army policy; it’s a standing policy, not a local decision. In my view it is really, really not justified; I would even say it’s absurd.

Anyway, how did we get into all this in the first place? I’m going back to the Jews of Yanova. So the Jews wanted to collect the money. Now Rabbi Devar Avraham said that the money should be given. He instructed them there to give the money, and he himself brought the example of the two people walking in the desert with a flask of water. And apparently Jewish law follows Rabbi Akiva, that the owner of the flask should drink it himself and not give it to someone else. But Rabbi Devar Avraham said that since in the condition they are in, in the ghetto, everyone is living by miracles, it isn’t really that you are handing yourself over to die—you are already dead. Meaning, you’re dead; if you survive, that will be a miracle. In other words, your actual condition is that you are dead. And in such a condition, he says, yes, you must hand over the money—which is an astonishing argument. He says, basically, we are walking dead. We are still breathing, we are still walking, but we are basically walking dead. Probably none of us is really going to survive. So in practice we are dead; we are not living people who can drink the flask and be saved. There is some chance we will survive, but it is so slim that there is no point taking it into account here. And if right now you are certainly saving lives, then save the other’s life now—not because there’s a small chance that you’ll die, but on the contrary, because there’s a small chance that you’ll live. Since there’s only a small chance that you’ll live, it’s like, okay, so at least let them be saved for now, and then whatever will be will be.

Of course, when you save them, you bring them into the Kovno Ghetto and they too become part of the walking dead. One has to understand that this argument is a problematic argument. Meaning, you aren’t really saving them. You are saving them from the partisans right now—but what will happen to them? They will come to the Kovno Ghetto and go back to being walking dead like us. Is that called saving them? If that is called saving them, then why isn’t this called killing ourselves? It’s a somewhat problematic argument. In other contexts—he didn’t give the details there, so I don’t know, it’s not a halakhic treatise—but in some places, for example, Devar Avraham also argued, he did not permit yeshiva students to eat horse meat. They had nothing to eat. There was nothing to eat and people started eating horse meat. He said yeshiva students are forbidden to eat it, while everyone else yes, because of danger to life. Yeshiva students, no. More than that, by the way: he said yeshiva students do not eat legumes on Passover. He did not permit them to eat legumes, Devar Avraham. Only for yeshiva students; not for the general population. For the general population, certainly yes. What is the idea? He says, because basically we are going to die anyway. A similar consideration: we are going to die, in any case we are not going to save ourselves. But maybe through this self-sacrifice the Holy One, blessed be He, will help and we will survive. So on the contrary, maybe this very thing is our only chance of surviving, and therefore we need to do it.

Again, as I said before about Rabbi Gibraltar’s case, I bring these cases because my feeling toward them is very similar. When you look at this from the outside, it seems fairly far-fetched. These considerations are not very convincing. But as far as I’m concerned, when I stand outside and I do not live the situation and do not truly understand what is happening there and what things mean and what the chance of dying is or the chance of surviving is and how a person relates to the property he has there—in short, as long as I haven’t lived the situation, I don’t think I can judge these rulings. As far as I’m concerned, Devar Avraham, who lived there—if he understood that this is what Jewish law says for that situation, then that is what Jewish law says. And if I now try to decipher his reasoning, like the explanations I brought before—that we are dead anyway, or that maybe through the miracle we will survive, or all kinds of things like that—then now, after I have deciphered it: before that he gave an instruction that was correct for its own time and hour. What am I going to put into the Shulchan Arukh? That yeshiva students are forbidden to eat legumes even if they are in mortal danger? Clearly that is not correct.

[Speaker J] But here there was—

[Rabbi Michael Abraham] A terribly complicated situation, about which Devar Avraham said what he said. But if I decode the situation and say no, no—there is a consideration here, I can present it, show what the rules are, what the principles are, and so on—once I’ve done that, the result can enter the Shulchan Arukh. If you have a situation where you have no chance of survival unless you do something involving self-sacrifice and then maybe the Holy One, blessed be He, will have mercy and help you, then you are allowed to do acts of self-sacrifice, to give your life rather than eat legumes on Passover.

[Speaker D] If that’s how I deciphered it, then maybe—

[Rabbi Michael Abraham] It may be that I can put that in as a clause in the Shulchan Arukh. What do you say?

[Speaker D] No, sorry—what kind of gamble is this? What kind of gamble is it to say that by virtue of this self-sacrifice we will survive? Who revealed such a secret to him, that he should do—

[Rabbi Michael Abraham] No, no. I’m saying: you started by calling it a gamble, and then you asked who revealed this secret to us. That is exactly the point. He says: I don’t know, nobody revealed it to him, but there is some chance this will help, that the Holy One, blessed be He, will help us because of it. The alternative is that in any case we will die, so let’s go with that chance. He is not claiming that it will certainly happen. It’s a choice between two bad options.

[Speaker D] He’s not claiming that it will certainly happen, but on that basis he rules not to save oneself even for a little more temporary life.

[Rabbi Michael Abraham] Because here we have some chance of gaining eternal life. Again, I’m saying: on the face of it, this reasoning seems to me very problematic. But as I said before, for me the words of Devar Avraham are testimony; they are not the expression of a position that I can now begin arguing with. Because as long as I haven’t lived the situation, I don’t think I have the mandate to express an opinion on whether he was right or wrong. One has to understand what it means to live there. As long as you don’t understand that, you can’t really issue a halakhic ruling for such a state. And therefore I say: I do the opposite move. I do not check whether he was right; I assume he was right. And assuming he was right, let’s see what the reasoning could be. Part of the reasoning he did say, but to complete the picture, to plant it within ordinary halakhic patterns—and now, after I’ve done that, suddenly I have another piece of Jewish law that was innovated by Devar Avraham, and that can be added to the Shulchan Arukh because it is no longer a ruling for its own time and hour; it is a ruling for certain circumstances, for certain characteristics. And a ruling that speaks about certain characteristics—not about a particular case at a particular time, but about characteristics, about types of characteristics—that can enter the Shulchan Arukh.

[Speaker H] I just wanted to note: Rabbi Soloveitchik understood… not the Rabbi—this Haym that the Rabbi mentioned—Haym Soloveitchik understood that it really was said for the hour, as the Rabbi explained in Maimonides there, really in the sense of the time itself.

[Rabbi Michael Abraham] I don’t think so. Look, he’s not a philosopher, and I also don’t think he formulated it to himself in this way—and not a mathematician either. But when I do the analysis, only in this way can you say what you’re saying. Because otherwise, if it doesn’t depend on time but on circumstances, then what difference does it make that the circumstances are rare? Couldn’t there be Jewish law, for example, that deals with a solar eclipse? A solar eclipse is a very rare phenomenon.

[Speaker H] No, right, clear. But I’m saying maybe all he meant to say was that since—as the Rabbi said—we have not experienced those situations, then maybe they weren’t entered into the Shulchan Arukh because we don’t know exactly why, from what circumstances, they ruled as they did.

[Rabbi Michael Abraham] So you can say I’m not sure, and enter it as a doubt. I don’t know. A judge has only what his eyes see, so I can try to find an explanation for what Devar Avraham said. And if, as far as I’m concerned, this is a sufficiently convincing explanation for what he said—regardless of whether I think he was right, meaning whether I have criticism of him; I am not in a position to criticize him—then in my opinion this is already a halakhic ruling. This can already join the halakhic corpus and be passed to later generations as a halakhic precedent or a halakhic determination.

[Speaker H] Yes, and by the way, besides that, really regarding—as the Rabbi mentions several times—that there is sometimes a conflict between morality and Jewish law, so let’s say if they had asked the Rabbi, then surely the Rabbi would sometimes instruct even against Jewish law in the name of morality, when the Rabbi saw fit that here morality prevails. So maybe that too is part of the DNA here—that these rabbis saw this, and that certainly doesn’t enter Jewish law.

[Rabbi Michael Abraham] Maybe, I don’t know. I don’t see it; I don’t think that’s what they thought. It doesn’t seem that was the reasoning. On the contrary, in a certain sense he went against that. Meaning, if you go with morality, I would have expected him specifically to be lenient and give people dispensations to live. But to go with morality? Morality says not to eat legumes on Passover when you’re in mortal danger?

[Speaker H] No—yes, not in this example, just in general.

[Rabbi Michael Abraham] On the contrary, morality says save the life even if halakhically maybe it’s questionable, I don’t know, let’s say. Still, fine, but there’s danger to life here. Anyway, that’s what I want to argue. The main case I wanted to discuss is actually the case of Rabbi Gibraltar himself. The claim, basically, is that there was a dispute among the sages of the ghetto about how to relate to private property in general. So there was the view of most of the public. Most people saw the property of those who were murdered as ownerless. Meaning, if someone was murdered, what about his property? Ownerless. Anyone can take it. They even made a distinction there: if he had heirs inside the ghetto, then they inherited him. But if the heirs were outside the ghetto, then it was ownerless and anyone could take it. That too is unclear—why is there a difference? Either there is inheritance or there isn’t inheritance. If there is inheritance, then why shouldn’t there be? So where did this distinction come from between inside the ghetto and outside the ghetto? But that was the prevalent approach, the main approach. There was Rabbi Pogromansky, whom I mentioned earlier, and he argued that it was forbidden to touch the property of murdered people even if you were in a life-threatening situation. The opposite extreme approach. Meaning, not only is it not ownerless—you may not touch it even in order to save your own life. Fine. It doesn’t say there what his reasoning was, so I don’t know. Because the subject of those articles was Rabbi Gibraltar’s approach. But he mentioned that there were two other approaches. What the reasoning was there is really hard to know. It could be that he says a person may not save himself with another person’s money, like Rashi in HaKones, I don’t know exactly. But that was the second approach. Rabbi Gibraltar’s third approach was that there simply are no monetary laws, no ownership of property at all in the ghetto—even for a living person, not only for a dead person. There is no ownership of property at all. For example, he tells there that Rabbi Gibraltar lent money to people. After the Holocaust, they came to him in Italy and wanted to repay the loan. He said, you owe me nothing. The money was never mine. Since in the ghetto your property is not yours. There is no ownership of property. That was Rabbi Gibraltar’s view. So he expands on this matter; he even offers a few explanations, or brings them in the name of his father. As I said, the article is not a halakhic article, so the explanations there aren’t formulated, not with sources and not sharply defined. But what I was able to extract from those articles is that basically one can suggest three explanations. One explanation is that a Jew in the ghetto is not really a living human being. As the Devar Avraham also said. Any Lithuanian child can, and is even commanded to, kill any Jew he wants. If he feels like it, he kills him. So basically the people living there are dead men walking. They are essentially walking corpses. And a dead person has no ownership of property. Now, he says there that this is not the same, for example, as the case the Talmud brings of someone being taken out to execution, to the gallows, yes, to a death sentence. There… his property passes to his heirs. So Rabbi Gibraltar says that is not similar to the case of the ghetto. In the case of the ghetto it does not pass to the heirs. There is no ownership of property, and it does not pass to the heirs. The ownership of the property has lapsed. Because in the case of someone being taken out to execution, he is in a situation in which he has incurred the death penalty, but in principle there is a functioning legal system there. If he says this property should go here, that property should go there, if he wants to give this property as a gift, then what he says will be carried out. The system is an orderly system. It just includes capital punishment, but it is an orderly system. By contrast, in the ghetto nothing has any meaning. You want to give property, you don’t want to give property, they’ll take your property, they won’t take your property—the world is ownerless. It’s not the same thing. So here a slightly different consideration already enters. Namely, it’s not just that he’s a dead man walking. Because if it were just that, then suppose the person dies, his property passes to his heirs. So what does it help me that he’s a dead man walking? He apparently wants to argue something a bit different. And in another moment I’ll sharpen that more. I just want first to bring one more formulation. He says: for there to be ownership of property, you need some minimal order in life. If life is ownerless chaos, then there is no ownership of property. Here he doesn’t need the notion of a dead man walking—not because the person is about to die, but because the world is ownerless. Meaning, the property is ownerless. Any Lithuanian child can take your property even if he can’t kill you. So it doesn’t hinge on the person being a dead man walking. Rather, it says this is not a functioning society, not an ordered society that has some form of life with regulation of how people live, what is right and what is not right, what is permitted and what is forbidden, what belongs to whom, and so on. And a third formulation was—and this is somewhat similar to the Devar Avraham—that one may not benefit from miracles. And since one may not benefit from miracles, then basically as long as I am alive, I am a miracle, and this money that I managed to save is also a miracle. And one may not benefit from miracles. That is a law in the Talmud, yes, that one may not benefit from miracles. Fine, I don’t know—again, you can see that these are kinds of hand-waving arguments. Meaning, let’s say if I heard this just on its own, it would sound to me like problematic arguments. I had a study partner that I would argue with about something, and I started moving my hands around enthusiastically and explaining, come on. He told me, put your hands behind your back, clasp them behind your back, and tell me only with your mouth what you want to say. Meaning, no hands. Because he felt that the moment I start waving my hands too much, it’s probably because my arguments don’t hold water. So you have to show enthusiasm instead of arguments. Yes, I think it was Levi Eshkol who said, if he raises his voice, the argument is weak. They found it in notes on one of his speeches. That’s the story; I don’t know. So here too the feeling is that, I don’t know, these are all kinds of hand-waving, but the arguments themselves aren’t really convincing. That’s the initial impression. But as I said earlier, from my point of view I’m not going into all the details there; I had quite a long discussion there about all these possibilities and distinctions and practical implications and so on. It’s an article I wrote in Tzohar. But as I told you before, my basic approach is this: if someone who lived inside the ghetto said this, then it is probably correct. What does “correct” mean? It means it is a valid halakhic position, because there were three positions there. So which one is correct? The point is that these are three halakhic opinions, each of which is valid, and each has a halakhic explanation. And now what I can do at most is try to understand what the explanation is. To try to analyze what he said and try to explain it in terms of the regular halakhic categories. Which that commenter, yes, in Yated Ne’eman, did not do. For him, according to the rules of Jewish law, it’s obvious that this is wrong and that this is not a correct halakhic ruling. And I say no—this is testimony, and for me this is a correct halakhic ruling. Now I just have to try to think why. What the explanation could be. And the claim I ultimately arrive at—and I am taking a few shortcuts—the claim I ultimately arrived at is the one I began with from Rabbi Shimon Shkop. Rabbi Shimon Shkop, in Gate 5 of Sha’arei Yosher, says that the laws of acquisition, ownership of property, belong to what he calls the theory of civil law. They are not part of Jewish law; they precede Jewish law. And one of his proofs, for example, is that it says, “Do not steal.” But in order to define the concept of theft, you need the laws of acquisition to already be given. What belongs to whom, and how things are acquired and how not, because in order to define that I stole, you have to define that it was yours and not mine and I took it without permission—then I am a thief. So the laws of acquisition are a necessary foundation, without which it is impossible to define the concept of theft. Now where does the Torah describe the laws of acquisition? It doesn’t describe them. Aside from here and there some detail that maybe can be found in the Torah, the laws of acquisition generally do not emerge from the Torah. The sages established them, or through enactments—or not enactments—but the sages established them. Acquisition by lifting, acquisition by pulling, this type of acquisition, that type of acquisition, document, money, and so on. Modes of acquisition are something that, for the most part, are not derived from the Torah. So Rabbi Shimon Shkop says: what is the significance of this? If the Torah says, “Do not steal,” then apparently it presupposes some system of property law, because otherwise there would be no room to talk about theft. What is theft if there are no laws of acquisition? Since there is no Torah source for the laws of acquisition, this is proof that the Torah recognizes the validity of a legal system established by human beings that preceded the Torah, and that is the system that determines the laws of acquisition. On top of that, the Torah comes and says that if according to the laws of acquisition this property belongs to you and I took it from you without permission, then I violated “Do not steal.” And this is basically recognition of the validity of property law that preceded the Torah. From the fact that the Torah speaks about theft, it is proven that it recognizes the legal system of property law. That is Rabbi Shimon Shkop’s argument—again, I’m abbreviating a bit—and his argument in practice says that the laws of acquisition are determined by social agreement. That is, they either precede the Torah’s commands—“social agreement” is already a certain formulation—but they precede Torah law. They do not depend on the Torah; they came before it. That is the claim. Now this itself can be understood in two ways. It can be understood that there is some objectively correct system, in quotation marks, that determines the laws of acquisition. It is not written in the Torah; reason tells it, or I don’t know exactly what, and the sages grasped it or formulated it—lifting, pulling, yes, document, all the things we spoke about earlier. The sages merely formulated what reason dictates. But this is a reason that precedes the Torah. That is one possibility. A second possibility is that there is no correct system that reason dictates and that the sages merely formulated. Each society determines for itself its own system of acquisition law according to what seems right to it, and that is the basis on which the prohibition of theft is built. But in each society it can be different. There is not one correct system that reason gives us and that is universal, just one that happens to precede the Torah. It precedes the Torah precisely because it is not a universal system, but rather each society can determine for itself its own system of acquisition law as it understands it. Now, if we assume the second view, that it is subjective, entirely by agreement, conventional—that each system, each society or each community determines acquisition law for itself according to what seems right to it, and from there one begins to speak about the prohibition of theft. And what the sages said about pulling and lifting and so on—the sages are simply the legislators who determined the acquisition laws for the Jewish people. Not because that is objectively correct, but because that is the determination that binds our group. But other groups have their own legislators, and they can determine whatever they want to determine. No problem. There is nothing special about or more correct in the sages’ determinations. The sages are simply our legislators, the legislators of the Jewish people. Other nations have other legislators, or other communities have other legislators, and there is no problem. Each community determines for itself; the main thing is that they have laws of acquisition so that there will be order in law, yes, legal order. Now if I understand it according to the second formulation, then basically the question is: what happens in a society that did not establish such a system of rules? Such a system of rules simply does not exist. A corrupt society, a rotten society—there is no regulation of private property, of acquisition law. According to the first formulation, that changes nothing, because the binding legal system of acquisition law is that universal rationality. It doesn’t matter whether that society established it or didn’t establish it; if it didn’t establish it, then it is wicked, but that changes nothing. The laws of acquisition exist by virtue of being correct. Reason itself—why do I need a verse, reason says it. But if I accept the second formulation, then the second formulation basically says that if society did not establish acquisition law, then there is no acquisition law, no private property, because the whole meaning of private property is determined by convention in the society in question. But if society did not establish acquisition law, then there is no acquisition. Yes, in a kibbutz there is shared property—that’s what they decided. Once you establish the laws of acquisition, the prohibition of theft will then come. But if in the laws of acquisition I determined that there is no private acquisition, then there will be no prohibition of theft. Now here there are two possibilities. If there is a wicked society that does not establish acquisition law, then it is a wicked society. Maybe there won’t be a prohibition of theft there, but it is still a wicked society. But if, as in the ghetto, it is not that society is wicked and did not establish acquisition law—rather, it has no power to establish it. There is no valid legal system there that the Jews can use in order to create legal regulation of property. It is in the hands of the gentiles, and the gentiles are savages, and there is nothing there—no property. Everyone takes whatever he wants, and that’s it. So this is forced upon them; it’s not that we are at fault. What can we do? There is nothing we can do. And either way, whether we are at fault or not, there is no prohibition of theft in such a situation. There is no ownership of property, because ownership of property is the result of social convention. But if society did not establish a convention in this area, then there is no ownership of property. And my claim is that—just one second, I want to finish this point and then I’ll stop—that if I really take Rabbi Gibraltar’s words as testimony, then it seems to me that what he was basically saying there is that when you live inside such a lawless environment, where there is nothing—you can rely on nothing, not property and not anything else. Anyone can take from you whatever he wants and you have no one to complain to. There is no police, no courts, nothing. There is no legal regulation. And when there is no legal regulation, there is no acquisition, no private ownership of property. So if that really is the situation, if that is how he experienced the situation, then that basically means that he experienced—yes, it’s an interesting formulation—it means that he experienced Rabbi Shimon Shkop’s principle in its second formulation as the correct one. That in a place where no system of acquisition law has been established, there is no private acquisition. That is how Rabbi Gibraltar understood it. I am saying others disagreed with him, but that is how Rabbi Gibraltar understood it. And if that is indeed so, then now I take this justification that I found for Rabbi Gibraltar’s ruling, and now I can insert a section in the Shulchan Arukh. There, I have conceptualized it; now it has become a rule, a halakhic rule that perhaps I did not know before. But Rabbi Gibraltar, from his immediate experience of the situation he lived through, is for me a witness who resolved my conceptual inquiry in Rabbi Shimon Shkop. And he tells me: yes, the halakhic conception is that if the laws of acquisition were not established in a certain place, then there are no acquisition laws. There are no acquisition laws. And now I can write that as a section in the Shulchan Arukh. A section in the Shulchan Arukh: if there is a place that functions like the Wild West, with no legal regulation whatsoever, no oversight, no police, no courts, no anything, then there is no private ownership of property. Yes, it does not exist.

[Speaker H] Rabbi, I remember we discussed this in the middle of the series, or maybe even at the beginning of the series—we discussed this story of Rabbi Gibraltar, and the Rabbi also said there that this doesn’t contradict Platonic ownership. Meaning, the essence—maybe the mechanism of ownership is conventional, but in the end, even if it’s conventional, there is still Platonic ownership.

[Rabbi Michael Abraham] Why? How is there if there’s no convention?

[Speaker H] That’s what I remember—we talked about it then, and the Rabbi wanted to say that it doesn’t contradict Platonic ownership, the idea that there is ownership.

[Rabbi Michael Abraham] Maybe you could say that since the Jews did agree—true, they had no enforcement power and anyone could do whatever he wanted with their agreements—still, maybe that could have validity. I don’t know, maybe. I don’t remember saying something like that, but I don’t know.

[Speaker H] No, in principle, in the sense that human action ultimately produces Platonic ownership, even if— even if whether there is acquisition or not is determined by them.

[Rabbi Michael Abraham] I didn’t understand.

[Speaker H] Even if it is determined by them whether there is acquisition or not, they can still create ownership.

[Rabbi Michael Abraham] Why? But they didn’t determine anything, so what acquisition is there? No, no.

[Speaker H] No, right, not there—not here, where they didn’t determine anything. Not specifically there; I was talking about the conception itself. The conception itself—we asked there whether Rabbi Gibraltar’s conception contradicts the idea of regulation in Platonic terms, where the Rabbi explained that there is Platonic ownership.

[Rabbi Michael Abraham] Ah, ah, I’m starting to remember a little. Okay. What human beings determine is the…

[Speaker H] Yes, so the Rabbi said no, and I just wanted to make sure—the Rabbi said that this does not contradict Platonic ownership.

[Rabbi Michael Abraham] Correct. I agree with that now too.

[Speaker H] Okay, okay, okay, I just wanted to make sure.

[Rabbi Michael Abraham] No, it does not contradict Platonic ownership, but it still means… that if there is no legal regulation in that place, then there will be no ownership. With all due respect to Plato’s world of ideas, when it is not enforceable, when there is no way to regulate it and implement it, then it does not exist. Yes. Fine, I’ll stop here. We’ll continue next time. Any questions or comments?

[Speaker K] Something is a little unclear to me. Why, basically, Choshen Mishpat? Let’s just make it a law: we’ll look at the law of the state, the law of the place, and in the end why isn’t that all there is—just all monetary law?

[Rabbi Michael Abraham] No, no, I didn’t understand.

[Speaker K] If monetary law is ultimately a matter of agreement or some kind of social regulation, then let’s discuss the social regulation and that’s it. Why faith-based? What is this?

[Rabbi Michael Abraham] The laws of ownership.

[Speaker K] Yes, but even with the laws of ownership there are plenty of halakhot that describe how it happens and which acts of acquisition take effect or don’t take effect, and so on. So why—why are they there at all? What are we supposed to do with them?

[Rabbi Michael Abraham] Why not? Because that’s what the sages determined.

[Speaker K] Yes, but if society determines otherwise, then it will be otherwise.

[Rabbi Michael Abraham] No problem, let it determine otherwise. So—

[Speaker K] So it’s like a default situation? Is that the point? Yes. And also, if it’s impossible to enforce it, then it is automatically canceled, because in the end it’s also a matter of enforcement. Yes. Meaning, is there some motivation to arrive at this kind of Jewish law? Meaning, given that I have two options of what I can enforce, is the point to get to this place of the sages, or is this just a kind of… what exactly gives this more force than just an ordinary social collective?

[Rabbi Michael Abraham] According to the view I presented here, at least in its narrower version, no—it has no priority at all. But in light of Didi’s comment earlier, that there is indeed some Platonic truth even in the area of acquisition law, except that it will not be valid if we do not establish it, then it could be that the sages’ determination also has some superiority. But that takes me into… I have an article on Choshen Mishpat, what rights and obligations are—there I deal with this question a bit.

[Speaker K] So okay, we’d maybe be glad for a little expansion on that point, because there’s a somewhat subtle point here. It seems from the sages that there is some motivation toward something. There is an aspiration to reach a certain kind of social regulation.

[Rabbi Michael Abraham] I agree. That’s what I wrote there.

[Speaker K] What, which column number?

[Rabbi Michael Abraham] It’s not a column, it’s an article on rights and obligations, “What Is Choshen Mishpat?” Search for something like that and you’ll find it. If not, send me an email or something, I…

[Speaker K] No, I get too many Michael Abraham results on Google.

[Rabbi Michael Abraham] Not on Google—search within the site.

[Speaker K] Ah, okay, fine. There’s a Google search on the site. Yes, yes, I know it. Fine.

[Rabbi Michael Abraham] Okay. Anyone else?

[Speaker J] I have a question, Rabbi, not related—not related to the class. I can’t hear. I have a question that isn’t directly related to this class.

[Rabbi Michael Abraham] Okay. Fine, so what—should we end here? Do you want to speak with me privately afterward? After the recording, I mean.

[Speaker I] No.

[Rabbi Michael Abraham] I hear.

[Speaker I] After the recording.

[Rabbi Michael Abraham] Ah, okay.