The Thought of Halakha – 5783 – Lesson 9

[Rabbi Michael Abraham] Okay, so we were basically talking about morality and Jewish law, and I tried to present the view that there are really two independent systems here. That Jewish law and morality are two alien value systems, and basically the Holy One, blessed be He, expects us to be committed to both of them, but it isn’t right to identify one with the other. Meaning, we shouldn’t try to look for moral explanations for commandments or halakhic prohibitions, because there aren’t necessarily any such explanations, or maybe there necessarily aren’t. And even if there is some correspondence or overlap, that’s accidental. Meaning, just by chance, for the sake of discussion, it could be that Jewish law also commands us not to murder, not to steal, honor your father and your mother—but basically what it tells us is not that this is the moral way to behave, but that this is how religious values obligate us to behave. What morality obligates us in exists independently of Jewish law. We talked about how, yes, the Holy One, blessed be He, comes to Cain and says, “Where is Abel your brother?” yes, “The voice of your brother’s blood cries out to Me from the ground,” even though we had not yet been commanded regarding the prohibition of murder. And the assumption is that moral commands exist independently of the halakhic command. What the halakhic command comes to add is the religious dimension. In laws that overlap with morality, the religious command basically adds another layer—it says that beyond the moral issue, there is also a religious issue here. In non-moral laws, those that are neutral with respect to morality, it comes to say that there is a religious dimension because there is no moral dimension—meaning there only the religious dimension exists. And in anti-moral laws, it comes and says: this is how the religious value obligates one to behave, even if the moral price exists. It doesn’t come to say there is no moral price; rather, one must behave this way even if one pays a moral price for it. That is basically the claim. I brought the Maharal, if you remember, in Be’er HaGolah, where the Maharal talks there about exactly this point. He talks about returning lost property, and with returning lost property there are situations where morality is stricter than Jewish law, and situations where Jewish law is stricter than morality. And through that he basically says that there is a difference between Jewish law and morality. In my language, this is really religious values versus moral values. He calls it truth versus convention. Yes, convention is basically morality, and truth is the side—I don’t know what to call it—metaphysical truth in some sense, the religious one, however you want to put it. I want to go into another source that says something similar, and that is in Derashot HaRan. Ben, right? Yes. And in Derashot HaRan, in his homilies, in Derashah 11, he basically talks about what is called the king’s law. And there, in that context, he also talks about the relationship between Jewish law and morality, but he’ll also start opening a door for us toward the next stages in our series.

[Speaker C] By the way, do you say stages or phases?

[Rabbi Michael Abraham] I think stages, it seems to me. I’m not a great expert in language, but I think so. Wait, here’s the verse, the verse I’m looking for. Well, by the way, sorry, I didn’t find you. I was here, waiting, I don’t know, he also said he was here, there wasn’t anyone here. Meaning, until around 6:15 I was here. I wasn’t around during the day, so I thought they’d just mistakenly informed you that there was no lecture. I told the secretary that there was a lecture. During the day I couldn’t be here, but… okay, let’s start. Here, I’ll share Derashot HaRan with you, here, this is where he raises it. Fine, yes. “Judges and officers shall you appoint for yourself in all your gates, and they shall judge the people with righteous judgment.” So he says: in my view—he brings Rashi’s explanation, not important right now—but in my view the plain meaning of the verse is this. It is known that the human species needs a judge who judges between its members, for otherwise each man would swallow his fellow alive and the world would be destroyed. And every nation needs this for political order. Political here means social order, justice, yes, that the collective can function, that society can function, and every people needs this, not only the Jewish people. What? Seven? Yes, exactly. After all, one of the seven Noahide commandments is the commandment of laws. The commandment of laws means, according to most opinions, that they create some sort of legal system for themselves so that things can function there, because without that you can’t function. It doesn’t have to be the halakhic system, but there has to be some system with some kind of natural justice so they can manage life in a reasonable way. So he says every nation needs political order for this; this doesn’t make us unique. You can already see the core of what I’m saying. To the point that the sage said that even a band of robbers agreed among themselves on fairness. Even robbers have ethics; even lawyers have ethics, so robbers certainly will. So every group that wants to function in some way needs to establish ethical rules. And Israel needs this just like the other nations. In this sense, the people of Israel are no different from any other nation—we need to function in some civilized, reasonable way so that it will be possible… just a second, I’ve got a short question there.

[Speaker C] So everything that happens there in Samuel, where they asked for a king like all the nations—and that’s not a bad thing? Right, but he got angry with them.

[Rabbi Michael Abraham] He got angry, yes, so all the commentators deal with that. Abarbanel takes it in one direction, others in the opposite direction, an apparent contradiction to the Torah’s position.

[Speaker D] Because in the Torah too it says, when you ask for a king like all the nations.

[Rabbi Michael Abraham] Yes, so Samuel kind of interprets the Torah as saying that this is a demand the Torah responds to after the fact. Ideally it shouldn’t have been, but if you want it after the fact, fine. So therefore—but that’s not… Abarbanel says the opposite. Anyway, it’s not… we won’t get into it.

[Speaker C] Abarbanel usually has this kind of anti-civilizational streak, doesn’t he? Also in Genesis, in his first chapter there, where he says the ideal was that they should have been a state not…

[Rabbi Michael Abraham] Yes, people tie that to his biography of course; after all he was an exile after the expulsion from Spain and so on. Okay, in any case, so he says: and in addition to this—yes, besides order and proper functioning, social organization—and in addition to this they need it for another reason. The king among the people of Israel has another role besides organizing life, and that is to uphold the laws of the Torah and punish those liable to royal punishments and those liable to court-imposed death penalties who transgress Torah law, even though that transgression causes no loss to political order whatsoever. Meaning, even in places where that transgression does not create a social-moral problem, we can still function without it—even if people eat pork, society here won’t collapse. Eating pork is not a condition for proper moral social management. Between man and God.

[Speaker B] What? Between man and God?

[Rabbi Michael Abraham] Yes, exactly. Sometimes it’s also between man and his fellow, but there are also commandments between man and his fellow that aren’t necessarily connected to morality. Interest, for example.

[Speaker B] What do you mean?

[Rabbi Michael Abraham] Interest—there’s no moral problem at all with taking interest. It’s a halakhic prohibition.

[Speaker B] Maybe when it’s biting, no?

[Speaker D] No, why?

[Rabbi Michael Abraham] You’re allowed to rent someone a house, right? So why are you forbidden to rent him money? A person bites there. What?

[Speaker D] It talks there about human usury. “Do not take from him usury and increase”—the commentators say about that that it’s like a snake whose venom keeps getting stronger.

[Rabbi Michael Abraham] But there’s no moral problem here at all. I’m saying again: you can rent him a house, can’t you? So why are you forbidden to rent him money?

[Speaker D] When you take, you…

[Rabbi Michael Abraham] You give him money, he pays you a usage fee—what’s the problem?

[Speaker B] But there is a distinction here, because you rent out money due to the fact that he doesn’t have enough for what he needs.

[Rabbi Michael Abraham] And with a house, you’re not giving it to him because he doesn’t have enough house?

[Speaker B] You’re there with millions, he wants something just half-big enough for a house…

[Rabbi Michael Abraham] That’s irrelevant, there’s no difference between a large amount and a small amount. You’re allowed to rent him even a floor tile, a hammer—you’re allowed to rent him a hammer, right? Not a house, a hammer. I rent you a hammer, pay me ten shekels a day for using the hammer. Permitted? So what’s the problem? Why isn’t that…

[Speaker B] That too is comparable to charity. That also…

[Rabbi Michael Abraham] Then a loan too is comparable to charity. Is a loan not moral? I’m asking, what… not that charity isn’t moral. Am I allowed to give you money not as charity but as a rental—what’s the problem? Morally I’m allowed to. The Torah forbids it.

[Speaker D] By the way, the Torah also forbids…

[Rabbi Michael Abraham] taking interest, not only giving interest. Taking interest—is that also immoral? I can’t find anyone willing to lend to me, so I borrow with interest—what am I supposed to do? Am I immoral too? What does that have to do with morality? There’s a book by Professor Haym Soloveitchik, I think it’s called Jewish Law, Economics and Self-Image, yes, he’s Rabbi Soloveitchik’s son.

[Speaker B] He’s…

[Rabbi Michael Abraham] a historian, and he wrote a book—it’s basically a book about the laws of interest, about the history of the laws of interest, how they implemented the laws. The laws of interest in the East and the West, among Jews in the East and the West, yes. And his claim there, he surveys the commentators, and he says he didn’t find anywhere anyone who ties the prohibition of interest to a moral issue, contrary to what people think. He didn’t find a single commentator who explains that there is some moral problem here. I didn’t check him because I don’t deal with commentators on the Torah, but that is his claim, and on the level of logic it’s clear that he’s right—there’s no moral problem in this at all.

[Speaker C] So basically this is a command driven by, I don’t know, some social commandment?

[Rabbi Michael Abraham] I don’t know, I have no idea, just like I don’t know why eating pork is forbidden. I don’t know. It could be they want you to give some kind of preference to your own people, and to them you lend without interest, even though there is no moral problem with lending at interest. That’s why to gentiles you may lend at interest. If there were a moral problem, then it would also be forbidden with gentiles—what difference would there be?

[Speaker D] What, we have lots of differences like that. We now see some vessel, a fellow’s vessel on the floor—if it belongs to a Jew or a gentile, it matters a lot, I can…

[Rabbi Michael Abraham] No, there is no difference at all. The Meiri says there is no difference at all. Is that according to Jewish law? Yes, the Meiri says there is no difference at all. What is written, that a gentile’s lost item is permitted—that’s because the gentiles of old did not keep the seven Noahide commandments and were not deserving of humane treatment.

[Speaker D] But the gentiles…

[Rabbi Michael Abraham] Wait, but the gentiles of today, who do behave in a reasonable way—the Meiri says there is no difference between them and Jews regarding returning lost property, regarding violating the Sabbath to save their lives, and in any moral matter whatsoever.

[Speaker D] But…

[Rabbi Michael Abraham] When the issues are not moral issues, then there is… marrying gentiles is forbidden even if they behave morally, because that doesn’t belong to morality.

[Speaker D] And they don’t keep the seven Noahide commandments.

[Rabbi Michael Abraham] The Jews don’t keep the seven Noahide commandments either, a lot of Jews. In my opinion there’s no difference between Jews and gentiles in their moral level today. I…

[Speaker D] think there is.

[Rabbi Michael Abraham] Okay, believing is nice; the question is what the facts are. Anyway, so…

[Speaker B] No, just statistically. Yes.

[Rabbi Michael Abraham] No, you can look and see. I think it’s pretty clear, reality is pretty clear, but okay. You can always find the biggest criminals among gentiles and ignore the crimes committed among Jews, and then the picture comes out wonderful.

[Speaker B] No, I’m not talking about the past.

[Rabbi Michael Abraham] No no, today. I’m talking about today. I don’t know what was in the past, I’m talking about today.

[Speaker B] Still, in terms of…

[Rabbi Michael Abraham] the percentage of gentiles, there are also lots of criminals.

[Speaker B] Fine, no…

[Rabbi Michael Abraham] matter, let’s look at percentages here and percentages there. Yes, everything is relative, fine. Okay. We’ve already…

[Speaker B] reached a situation of smugness; let’s get back to the original topic. What are we talking about?

[Rabbi Michael Abraham] Wait, we were talking about… I don’t remember what was two hours ago. We’ve already been through this a few times. But let’s move on; I still do want to continue. So the claim basically is that the king in Israel has two roles. One role is like all the gentiles: to make sure things function properly, that there is order, that there is justice, and so on. And the second role is to uphold the laws of the Torah—even those laws that have no introduction into social political order. Political there means not specifically statehood but society. Okay? “And there is no doubt that in each of these two areas two things may arise: one that requires punishing a person according to true justice, and another where it is not fitting to punish him according to true righteous justice, but it is necessary to punish him for the sake of repairing political order and according to the needs of the hour.” This is really parallel to the distinction the Maharal made, if you remember, between truth and convention. Okay? It’s exactly the same thing. “And God, blessed be He”—this is an important point—“assigned each of these matters to a separate class. And He commanded that judges be appointed to judge the true righteous judgment,” and this is what is meant by “and they shall judge the people with righteous judgment,” meaning it comes to explain for what purpose these judges are appointed and where their power is great, and he said that the purpose of their appointment is to judge the people with truly righteous judgment in itself, and their authority does not extend beyond this. And because political order cannot be completed by this alone, God completed its repair through the commandment of the king.” What is he saying? By true righteous judgment he means Torah law, like truth. The Maharal also called it that. We often attribute justice to what we call morality; what they call justice means truth—which isn’t always what really, sometimes “let the law pierce the mountain,” and the truth comes out somehow problematic morally.

[Speaker B] So therefore…

[Rabbi Michael Abraham] Not the High Court, just saying.

[Speaker B] Not the High Court, just saying.

[Rabbi Michael Abraham] Yes, okay. Depends how you look at it, but yes. So what he calls here justice and truth is the laws of the Torah—what I called religious values. And then there is political repair and social order, how life is conducted—that is basically what we call morality. Okay? And his claim is that when it says—after all, this whole homily begins from that verse: “Judges and officers shall you appoint for yourself in all your gates,” okay? “And they shall judge the people with righteous judgment.” So Rashi explains that there is a command to the judges to judge righteous judgment. The Ran disagrees with him. The Ran argues: no, it explains to you what their role is; it doesn’t impose an obligation on them. He says: who are these judges? They are judges responsible for the judgment of truth, as distinct from moral judgment. And this describes their role, it does not command the judges appointed here to judge justly, as Rashi says. I didn’t understand.

[Speaker D] No, because later in the verses I think it says, “Justice, justice shall you pursue.”

[Rabbi Michael Abraham] Fine, not important, I’m not getting into how he interprets the continuation of the verses right now. This verse, he comes to say, contrary to what Rashi says, that basically you have to appoint righteous judges so that they judge the people with righteous judgment. In a certain sense it’s almost the opposite of Rashi. Because when Rashi says righteous judgment, what he means is, sometimes the laws of the Torah—Jerusalem was destroyed only because they insisted on strict Torah law. Sometimes Torah law does not really come out just. There is someone here who is in the right, but according to the rules, somehow he does not come out vindicated in court. So you have to be wise and judge the people with righteous judgment. Basically Rashi tells us that righteous judgment means morality and not always Torah law. The Ran says the opposite. “And they shall judge the people with righteous judgment”—he says that the judges, the dayanim of Torah law, are responsible for truth and justice, not for morality. And that’s what the Ran says here. In a moment I’ll keep reading and then you’ll see that this is what he means. He says: “and their authority does not extend beyond this.” Even in a place where they see that it isn’t just, isn’t moral, but the Torah’s rules say so—that’s your mandate. You must judge according to those rules. You can’t deviate from the rules right or left even if it isn’t moral and isn’t just. In a moment we’ll see that in practice this doesn’t happen, but that’s the principle. Now he says: “and because political order cannot be completed by this alone.” In practice, you can’t run a society this way. For example, yes, according to Torah law you cannot punish a person unless you warned him in front of two witnesses. He said, “yes, and on that condition I act.” You’ll never punish anyone in your life. No one. Who, nobody is going to practically commit suicide and say he’s desecrating the Sabbath. Two people come and say to him, listen, if you desecrate the Sabbath, know that Jewish law obligates the death penalty of stoning, and he has to say, “yes yes, certainly, and on that condition I act.” And then he desecrates the Sabbath for the sake of the unification of the Holy One, blessed be He, desecrates the Sabbath, and now they stone him. I wouldn’t stone him because he’s simply not sane. He’s exempt due to insanity. Obviously no one is going to say such a thing, “yes, and on that condition I act”—is he crazy? Meaning, de facto, the punishments the Torah imposes are not implementable. You really can’t impose them. Not for nothing does the Mishnah in Makkot say, yes, that a Sanhedrin that executed one person in seventy years is called destructive. It doesn’t happen. You can’t—it’s not workable. Or robbery, for example. Someone robbed—there’s no punishment for robbery in Jewish law. No punishment? No, there’s no punishment in Jewish law even if you warned him. No punishment. All he has to do is return the stolen item. You caught him? You didn’t manage, you tried, you didn’t manage, they caught me? I return the stolen property, everything’s fine, nothing happened. For theft there is, for robbery there isn’t. What’s the difference between robbery and theft? Some discussions, not important right now. Simply put, yes, in theft you do it not in front of people.

[Speaker D] Which is not…

[Rabbi Michael Abraham] quietly, but you do it openly and by force. So isn’t he liable in the heavenly court? That’s called liable in the heavenly court. What the Holy One, blessed be He, will do with him, I don’t know. But a human court does not impose punishment on him. There is no punishment. At most, return the—but returning it isn’t punishment. It’s monetary, collection, it’s mine, bring it back. Punishment is when they do something more besides simply returning the money to the owner. Returning the money is obvious—it’s mine, why should it stay with him? Punishment is, for example, double payment in theft—that is punishment. They obligate you to pay something beyond simply returning the money. Or fourfold and fivefold. Okay, but in robbery there is no punishment. One who causes damage indirectly is exempt. Today there’s hardly any damaging party in the world who isn’t indirect. All computer damages, of course, everything is indirect. What—

[Speaker C] Like we talked about with that waterfall he opens and it destroys.

[Rabbi Michael Abraham] For example, yes. Now how can you run—how can you run a society where someone who causes damage indirectly goes free? The world would become lawless; it would be impossible to live here. Okay?

[Speaker D] Seemingly the Holy One, blessed be He, should solve these matters.

[Rabbi Michael Abraham] The question is whether that’s effective enough for people really to be deterred. Apparently not, because the Torah in fact says that a court should punish in certain cases. They don’t rely on the idea that in the heavenly court you’ll get hit. So what’s happening here? You really can’t run a society this way. So Derashot HaRan says—what? Seemingly the Holy One, blessed be He, should solve these matters. The question is whether that’s effective enough for people really to be deterred. Apparently not, because the Torah in fact says that a court should punish in certain cases. They don’t rely on the idea that in the heavenly court you’ll get hit. So what’s happening here? You really can’t run a society this way. So Derashot HaRan says: political order cannot be completed by this alone. If all you had here was pure Torah law, yes, just with the judges as the Torah says, it would be impossible to function. Life can’t be run that way. So what do you do? God completed its repair through the commandment of the king. There is another judicial system, the king’s law. And the king judges according to justice, morality, according to the conduct of life, practical constraints—but that is not the truth. Truth and justice are what the Torah determines. But practically, no, you can’t conduct life that way. To complete those practical aspects, you have the king. Notice, the picture that emerges from here is basically a picture of a double legal system. The king’s law is like that of all the other nations, and it operates according to rules of political order—how to run life, justice, morality. There are no halakhot for how the king judges. In principle there are no halakhot at all. There are here and there a few disputes, there’s a dispute between Maimonides and I don’t remember who, about self-incrimination—whether a person renders himself wicked in the king’s law or not. Simply speaking, the king can do whatever he wants.

[Speaker D] If…

[Speaker B] If a person bows, say, next to the king before the High Priest?

[Rabbi Michael Abraham] No, I’m not talking about bowing, I’m talking about judgment between people.

[Speaker B] The king…

[Rabbi Michael Abraham] can judge anyone however he wants.

[Speaker B] If someone came, say, and confessed in court and thereby rendered himself wicked?

[Rabbi Michael Abraham] Did you prove it? He confessed. Self-incrimination, not self-conviction. He confessed. He comes and says, I admit I stole, or I admit I murdered. According to Jewish law he is exempt. According to Jewish law he is exempt; a person does not render himself wicked. They do nothing to him. What about David and the Gibeonites? But the king can do something to him, because in the end he did murder. A religious court cannot judge a person on the basis of his own testimony; he is invalid as a witness about himself. A person is considered related to himself, so of course he is invalid. But the fact is—it’s not that I don’t believe him. If he said it, then he probably really did murder. So the question is whether the king can punish him, and simply speaking yes; in Maimonides there are discussions about this. But under Torah law, no, he goes free. Now what does this basically mean? In monetary law, a litigant’s admission is like a hundred witnesses, yes, but in self-incrimination in criminal law—what we would call not monetary law, but offenses—then regarding punishment he is exempt, exempt from punishment; a person does not render himself wicked. Now, so he says: if so, the king’s law is supposed to handle all the aspects of running life that Jewish law does not regulate. All the holes that Jewish law leaves in terms of how to conduct life practically. So that means that the king’s law is basically like all gentile legal systems. Exactly the same, because the same standards, it runs the same way—justice and social order, the same considerations. Jewish law is something else. Jewish law has a different role, not political order. Otherwise, if the role of Jewish law were political order, then why would there be holes like this? Why, if halakhic law were meant to manage our life, would it be impossible to run life that way? If the goal of Jewish law is to manage life, then that is what it should have done. If we see that managing life according to Jewish law does not make it possible to run society properly, what does that mean? It means Jewish law has other goals, not managing life. What I called earlier religious values. It comes to achieve other things. It tells us how to achieve them, what is permitted and forbidden from the standpoint of religious values. But from the standpoint of managing life, there are other considerations. That is the role of the king and the judicial system operating under the king. So according to the Ran there are two legal systems: a legal system of the religious courts, and a legal system of the king’s law. And there too there are courts that judge according to the king’s instructions, and they are not bound by halakhic rules. And therefore, every time, say, with a robber, they will punish robbers. If the king sees some phenomenon where robbers are starting to rob and don’t care because there is no punishment, then the king will start punishing robbers. He can kill them if he decides to.

[Speaker C] Like when they say that because murderers multiplied, then…

[Rabbi Michael Abraham] Exactly, right. They suspended the Torah’s legal rules, they suspended the death penalty, from the time murderers became numerous. So there are all kinds of considerations like these that are extra-halakhic considerations, and that’s the king’s mandate. The king has to deal with all these aspects. And then he says, and we’ll explain further when we set aside one side of the issue. After all, we learned in the chapter “They Would Examine” in tractate Sanhedrin: “The rabbis taught: Do you recognize him? Did you warn him? Did he accept the warning? Did he in effect accept liability for death? Did he commit the act immediately, within the time of speaking?” And there is no doubt that all this is appropriate from the standpoint of just judgment. Because why should a person be put to death unless he knew that he had entered into an act carrying the death penalty and still transgressed it? And for that reason he must receive warning and all the other things taught in that baraita, and this is true just judgment. True in itself, entrusted to the judges. But if an offender is punished only in this way, then the political and social order will be completely ruined, what we said before. Meaning, if you don’t punish anyone unless two witnesses warned him, and he accepted the warning and said yes, I’m doing it despite that, and then immediately within that short time committed the transgression—for if even a bit of time passed, again you can’t punish him—if you conduct things that way, there won’t be punishment, there won’t be deterrence, and you can’t run life like that. Okay? That’s what he says. Truth and justice are with what the Torah says, but practically it can’t work. And therefore the blessed God commanded—yes, that’s what he says—that the political order would otherwise be completely ruined, and murderers would multiply and not fear punishment, yes, they wouldn’t be afraid. Therefore the blessed God commanded, for the sake of settling the world, the appointment of a king, as it says in this passage, “You shall surely place over yourself a king,” which is a commandment, and so on. So that’s what he says, as comes down in the tradition of our rabbis, and the king can judge even without prior warning. Yes, all these details of the baraita—that you need warning, acceptance of warning, and immediate commission within the time of speaking—the king is exempt from all these constraints. He can do what he sees fit. Okay? It turns out that appointing a king is the same in Israel and among the other nations, because all require political order. So from the standpoint of the king’s law, there is no difference between the Jewish people and the other nations. Or in my own language I would say: from the standpoint of morality, justice, and social order, there is no difference between Israel and the nations. There is no Torah morality and some other morality. There is Jewish law, which is the Torah-specific matter, and there is morality. From the standpoint of morality, it is true for all peoples in exactly the same way. Besides that, there is also Jewish law, which obligates us. Two things. And the appointment of judges is unique and needed more in Israel, as he mentions further when he says, “And they shall judge the people with righteous judgment.” Meaning, the appointment of judges and their authority is that they judge the people with judgments that are truly and inherently just. The judges must judge according to Torah law, which is just and true in itself. And then he says—and I’ll explain this further—really almost everything I’ve told you until now is written here almost explicitly. And I explain further and say that just as our Torah is distinguished from the legal systems of the nations of the world by commandments and statutes whose purpose is not political order at all—right? We have rules in Jewish law that are non-moral and even anti-moral, not only moral rules, right? That’s the distinction I made in previous times. But what results from them is the application of the divine overflow upon our nation and its attachment to us. So what are all the other laws for? What I earlier called religious values. The application of divine overflow and its attachment to us. Meaning, this is to cleave to the Holy One, blessed be He; there are certain religious values, like the prohibition against eating pork or the commandment to keep the Sabbath. Even in the legal parts of Jewish law there are religious aspects, whose role is not to organize society and the state, but to cleave to the Holy One, blessed be He. Even Choshen Mishpat is part of Jewish law. Okay? And that’s what he says: whether the matter appears to us like the sacrifices and everything done in the Temple, where it’s clear that this is meant for cleaving to the Holy One, blessed be He—yes, there there’s no question that it isn’t intended for social order, right? There it’s obvious with sacrifices. Or whether it does not appear so, like the other statutes whose reason was not revealed, in any case there is no doubt that the divine overflow attached to us and rested upon us through these acts, these deeds, even though they are far from rational inference. We don’t see the reason to do this morally, socially, in terms of order—it doesn’t look that way—but its role is to bring down the divine element. And there’s nothing surprising about that, because just as we are ignorant of many causes in natural phenomena, and yet that does not reduce their existence—even in the natural world we don’t always understand why things work this way or that way. So all the more so in spiritual worlds, which are less accessible to us. All the more is it fitting that we should not know the causes of the application of divine overflow and its attachment to us. How can we know what helps bring divine overflow upon us and what interferes with it? We can’t know; we don’t understand these things. So the Torah tells us what yes and what no. And this is what distinguishes our holy Torah from the legal systems of the nations mentioned above, which have no involvement in this at all, but only in correcting the affairs of their collective society. What is he saying? What distinguishes us from other legal systems and societies? The halakhic aspect. In the moral sense, in social and political ordering, it’s the same thing. That’s the king’s responsibility. And the king of Israel is exactly like the king of the nations. Therefore when the Jewish people ask for a king like all the nations, they are right—that is exactly the king’s role. Okay? Now of course, if the Jewish people were perfect, then there would be no need for a king, because then people wouldn’t steal even without punishment, because they would be righteous. Fine. But what can you do? We’re not all righteous. And therefore there’s no choice: we need a king like all the nations. Like all the nations. So on the one hand you can rebuke the people and say, look, you’re not as you should be, therefore you need a king like all the nations. On the other hand, the people are right when they say, look, we’re human beings; among us there are better people and less good people; there’s no choice, we also need someone to close those gaps that exist if we judge only according to Torah law. It simply won’t work. Right, this is after the fact, it’s because we’re not righteous, but what can you do—that’s what we are. So on the one hand you can rebuke the people of Israel for being like that; on the other hand, there’s no choice, you need to place here a king like all the nations—really like all the nations. That’s not an insult; that’s what’s needed. The king has to judge us like all the nations. And that is a stringency.

[Speaker B] That is a stringency.

[Rabbi Michael Abraham] People say that when they asked for a king—

[Speaker B] —like all the nations, that was the problem there.

[Rabbi Michael Abraham] Fine, so right now I’m not getting into how to interpret the verses. I said earlier: the commentators discussed this from one end to the other.

[Speaker B] What? So it’s after the fact?

[Rabbi Michael Abraham] What do you mean, after the fact?

[Speaker D] One of the three commandments when they entered the Land…

[Rabbi Michael Abraham] And the punishment for a thief—is that not after the fact?

[Speaker D] One of the three commandments when they entered the Land…

[Rabbi Michael Abraham] The punishment for a thief—is that not after the fact? It is after the fact, but there are thieves. If there were no thieves, you wouldn’t need it, right?

[Speaker D] One of the three commandments when they entered the Land is to appoint a king. Right.

[Rabbi Michael Abraham] One of the three commandments when they entered the Land.

[Speaker D] Who says that?

[Rabbi Michael Abraham] Maimonides, right? What does he say? The Talmud says: cutting off Amalek, building the Temple, and appointing a king.

[Speaker D] Okay, that doesn’t sound after the fact. Why? Unless entering the Land is after the fact.

[Rabbi Michael Abraham] No, entering the Land is not after the fact, but appointing the king could be after the fact. What does one have to do with the other?

[Speaker D] If it’s one of the three commandments? “When you go out to war against your enemies”—is that not after the fact? The sages say the Torah spoke in response to the evil inclination, in permitting the beautiful captive woman.

[Rabbi Michael Abraham] The Torah spoke in response to the evil inclination—that’s after the fact, but the Torah permits it. Why? Because we are human beings, and human beings have weaknesses, and those weaknesses have to be dealt with, just as the Torah imposes punishment on murderers and punishment on thieves because it understands that there are murderers and there are thieves, even though it’s forbidden. So is that after the fact or ideal from the outset? Define it however you want—it’s just terminology. Bottom line, there’s no choice. There are people who need discipline, because otherwise it won’t work. Even so, it doesn’t always work. Therefore the Torah also relates to people as they are, not only to ideal people as we ought to be.

[Speaker C] The Torah provides a solution to every problem that will arise.

[Rabbi Michael Abraham] I don’t know if to every problem, but to problems too.

[Speaker C] The Torah—

[Rabbi Michael Abraham] —doesn’t deal only with utopian worlds, with ideal worlds. That’s clear. So this is basically what he says.

[Speaker C] Rabbi, a question? Yes. One could understand from his words that what makes the Torah unique is that besides political-social correction it also has the matter of adding divine holiness, and it’s not that the Torah doesn’t include political-social correction…

[Rabbi Michael Abraham] What is called Torah? What is written in Jewish law that addresses judges is not connected to political-social correction. That’s what he says. Therefore the king has to complete it.

[Speaker C] He says the Torah was distinguished by this, meaning one could understand that besides political-social correction there is also…

[Rabbi Michael Abraham] There is—the king! Not in Jewish law. The king. That is the king’s extra-halakhic role. Otherwise you wouldn’t need the king; what’s the problem with the religious court doing everything, doing both the political-social correction and… But he makes a distinction. He says the courts operate according to Jewish law; the king is free, he has no halakhot. Why? Because the role of the courts is to ensure the application of the divine element; it has nothing at all to do with political order. There are places where conduct for the sake of applying the divine element can harm political order; there the king intervenes. He’s making a very sharp distinction here between these two functions.

[Speaker C] But the king too is recognized from the standpoint of Jewish law. Fine, obviously. Meaning Jewish law has in mind… meaning it has some balancing factor…

[Rabbi Michael Abraham] What we call Jewish law—what is written in the Shulchan Arukh, that’s what we usually call Jewish law—is the matter of applying the divine element. That’s it, only that. Morality belongs to the king. The Torah says to appoint a king, right? Obviously. The Torah also says “and you shall do what is right and good,” even though we discussed that this is not counted among the commandments. Okay? The Torah wants everything. Jewish law is that part which belongs to the application of the divine element. The Torah also wants there to be morality, that there also be justice, and therefore it says to appoint a king. All of that is true. But Jewish law does not deal with that; Jewish law is only part of the Torah, it is not the whole Torah. Okay? So that’s what he says.

[Speaker C] Rabbi, another question? Yes. Why shouldn’t Jewish law, from the outset, also try to take moral considerations into account? I mean, Jewish law is trying to come and realize a proper way of life according to the Torah, according to the divine will.

[Rabbi Michael Abraham] No, no, that is the incorrect conception.

[Speaker C] So what is it then, basically?

[Rabbi Michael Abraham] Jewish law tells us how to bring the Divine Presence into Israel. The application of the divine element.

[Speaker C] So does bringing in the Divine Presence not also come from morality?

[Rabbi Michael Abraham] No, that’s a condition. But it’s not one of the ways of bringing in the Presence… It’s like this: if we don’t eat breakfast, we won’t have the strength to serve God. Jewish law doesn’t say you are obligated to eat breakfast. Obviously that’s an infrastructure without which we won’t be able to serve. Same thing with morality and the king. Morality and the king are a kind of infrastructure for there to be a healthy society. Once there is a healthy society, it can of course perform commandments and avoid transgressions, and then the Holy One, blessed be He, will rest His Presence. Certainly it’s a condition. But that condition lies outside Jewish law; it is a basic platform. On top of that we build Jewish law.

[Speaker C] But say, with the example now of breakfast, Jewish law does relate to breakfast—what is proper to eat, what not,

[Rabbi Michael Abraham] when—

[Speaker C] —to eat, no, no—

[Rabbi Michael Abraham] Jewish law does not relate to anything connected to the health aspect of breakfast. It says how to do it properly: make a blessing before, make a blessing after, and so on, because that has nothing to do with health. It has to do with the whole divine matter. That is exactly the point. But the obligation to eat breakfast is not a halakhic obligation. Understand? If you eat—going to the bathroom is also not a halakhic obligation. But if you go to the bathroom, there are ways of how to do it and what not to do there.

[Speaker C] There is a general command, “You shall carefully guard your lives.”

[Rabbi Michael Abraham] Fine, that’s true, but I’m saying on the principled level: Jewish law accompanies very many steps, because they can be done correctly or incorrectly. But the very need for that step is not connected to Jewish law; it’s simply because one has to live. Now morality functions very similarly. Morality creates a healthy society, and a healthy society is an infrastructure without which you cannot serve God. But that is not part of halakhic service of God; it is the basic infrastructure, and that exists also among non-Jews. On top of that there is a second story, which is our particularistic story, and that is the halakhic one. And it is responsible for the application of the divine element; that is the religious service, let’s call it that. There is a human dimension that is universal, and above that there is religious service. Now sometimes there are contradictions. Sometimes religious service can contradict the first level, and then, where this can create destruction that is too problematic, the king intervenes. But not Jewish law. That’s what he says: “Therefore I hold, and it is fitting to believe, that just as the statutes that have no entrance at all into the correction of political order, and are a direct intrinsic cause of the application of divine overflow”—by the way, that word “intrinsic,” what is an intrinsic cause? It is exactly to distinguish it from morality. Because morality too is an infrastructure required for the application of the divine element, but it is not intrinsic; it is an infrastructure. But there is something that deals directly with the application of the divine element, namely: you wave the lulav, and that brings in the Divine Presence. The fact that you are moral is only a condition that enables the waving of the lulav to bring in the Divine Presence, but it is not an intrinsic cause. It is only a basic condition. Okay? I think that’s what he means by “intrinsic.” A direct intrinsic cause, as distinct from a non-intrinsic cause which is only indirect, only a condition. Okay? Jewish law is a direct intrinsic cause. Yes, so too the Torah’s laws have a great role and are, as it were, shared between causing the application of the divine element in our nation and correcting the affairs of our society. And it is possible that they were directed more toward the matter that is loftier in status than toward correcting our society. And the Torah’s laws sometimes miss the aspect of correcting political order, because they are directed toward the more important matter, the application of the divine element, the religious matter as I called it. Therefore they sometimes deviate from correcting the political and social matter. Because that correction—the king whom we appoint over ourselves will complete it. So the king will complete that matter. But the judges and the Sanhedrin—their purpose was to judge the people with a true judgment, just in itself, from which there would follow the attachment of the divine element to us, whether through it the ordering of our collective affairs would be fully completed or not. Meaning, I need to do these acts in order to bring the Divine Presence into Israel, whether it helps the political matter or whether it does not help. Sometimes it will interfere. But that is the way to bring the Divine Presence into Israel. Now look—now comes a key sentence. “And because of this, it is possible that among some of the laws and legal systems of the nations mentioned above there will be things closer to correcting political order than what is found in some of the Torah’s laws.” A strong statement. He says: if you examine the legal system of the non-Jews and compare it to ours, theirs will sometimes be more complete than ours. Complete in the sense of morality and social correction. Why? You know, when there’s a kosher restaurant and a non-kosher restaurant, where is the food tastier? I don’t know. Obviously in the non-kosher one. A mathematical rule. It can’t be otherwise. At least when it’s just as tasty as the kosher one and beyond. Why? Very simple, obvious—why? Because if the kosher food were tastier, then the non-kosher restaurant would make… or it would simply be cheaper. It’s really a product of kosher, tasty, and cheap. Multiply those three and it will always be more. Equal or more, right? Because the fewer constraints you have, the more successful you will be at your task—there’s no way around it. Not necessarily. That’s why I said price is again another factor.

[Speaker B] It’s not always connected.

[Rabbi Michael Abraham] That’s what I’m saying: price is one of the factors. So never mind, let’s ignore price for the moment. Still? Yes. It’s like a washing machine and a dryer. If you have one machine that is both a washer and a dryer, it will necessarily wash less well than a machine that is only a washer, or dry less well than a machine that is only a dryer. Or it will cost much more. Fine, but let’s ignore that price—there’s no choice, it can’t be otherwise. Okay? Why? Because when you have more constraints, you always—“I have never seen a craftsman who excels except one with a single trade.” Someone who is concerned only with one type of value will realize it more successfully than someone committed also to other values besides those values, right? There’s no way around it. It’s a mathematical law.

[Speaker B] In general always, in everything. Every time you focus only on one specific thing, then you’ll be the best.

[Rabbi Michael Abraham] Of course. What do you mean? That’s ABC.

[Speaker B] There’s also something like that in Jewish law—why don’t they do that thing?

[Rabbi Michael Abraham] Because other matters are also important to them. That is exactly the point.

[Speaker B] And there are people who devote themselves.

[Rabbi Michael Abraham] Here, think about a state. When the state allocates a budget. Logic would say: first of all, finish all the things that are life-and-death matters. All the patients who need transplants and terribly expensive things. After that, deal with culture, sports, luxuries. A state doesn’t work that way. The health basket doesn’t cover all the people who are in life-and-death situations. If there are a few patients who need millions, billions, I don’t know, to treat them, then no—they’re outside the health basket. Painful as that is. Why? What about all the luxury budgets? Forget all the luxury budgets—put it into the people who need to live. Isn’t that more important? It is more important, but sometimes we make more complex calculations. There’s no way around it. Otherwise the state will deal all the time with how to live and there won’t be anything to live for. Yes, it’s like that Chinese pauper who received two small coins. So he bought a slice of bread and a flower. They asked him why don’t you buy two slices of bread? You have nothing to eat. He said, I buy a slice of bread so that I can live. And I buy a flower so that there will be something to live for. Okay?

[Speaker C] So he could have eaten the flower too.

[Rabbi Michael Abraham] Yes. I’m saying the same thing for us. Meaning, you can’t constantly deal only with the basis, with the most important thing, because sometimes there are things that are the infrastructure for which we need to live. You can’t constantly deal only with how to live and how much to live. Even though that is seemingly more important, or at least more basic. Okay? Here too it’s the same thing. Meaning, true, Jewish law sometimes demands from us moral, social, and similar costs. But in order to achieve the application of the divine element, there is sometimes no choice but to pay a price in terms of morality and justice and social order. But sometimes it becomes intolerable. And then the king intervenes. He says: up to here. A price like that we do not pay; I’m closing that gap. Okay? Sometimes yes, sometimes no. But the fact that Jewish law—this is what he says—when you compare pure Jewish law without the king to the laws of the nations, the laws of the nations by definition will be more just. Less than or equal, greater than or equal—it cannot be otherwise. Okay? Except that—“and we lack nothing because of this,” that’s what he says, “and we lack nothing because of this.” Yes, you see? He’s not embarrassed by this. “And we lack nothing because of this.” Because whatever is lacking in the correction mentioned above would be completed by the king. So if there is some acute problem, the king will complete it. If the problem is not acute, then we have a great advantage over them, over the nations. Because insofar as they are just in themselves—I mean Torah law—as Scripture says, “and they shall judge the people with righteous judgment,” it follows that divine overflow will attach to them. We gain attachment to divine overflow beyond social correction, which perhaps the nations do better. That they lack. The price of this is that we are less good at arranging social order. Okay? By the way, you can see this with your own eyes. Religious societies are often less socially corrected. Often. In certain respects they are less socially corrected. Because they invest a great, great deal of energy in other values that are not connected to the values of morality and society, and that sometimes comes at the expense of social correction. Which often draws criticism, but to a certain extent it’s natural. There’s nothing to do. People often accuse: why don’t rabbis protest such-and-such social injustice? Fine, so there are those who make a huge effort to do so in order to look nice. Or not in order to look nice, but because it really matters to them. Doesn’t matter. But why does this really happen? It happens because for secular people, the only thing that matters to them is just this, so they deal with it. That’s perfectly fine, very nice. But there are people to whom other values matter too. With those additional values—the religious ones—secular people will not act on their behalf. So naturally you focus on the thing that distinguishes you and that no one else is going to do for you. But true, in a certain sense you are sometimes lacking in the more general aspects, the more universal ones. That’s how it is. There is criticism—one often hears criticism—about conversion criteria. They say: when you examine a convert, you check whether he keeps all the commandments between man and God—eats kosher, laws of menstrual purity, Sabbath, and so on. What about moral commandments? He could be a robber, a thief, a murderer—and convert. Why don’t you check that?

[Speaker C] Maybe because he doesn’t do that anyway.

[Rabbi Michael Abraham] Why don’t you check the moral aspects? Those commandments are also in the Torah and no less important; “you shall not murder” is a more severe prohibition than not eating pork. The point apparently is that this is an infrastructure required of every person, not only of a Jew. The assumption is that every person is obligated in this. Now true, not every person actually does it, but the simple assumption is that a normal person is certainly obligated in moral matters. When you want to examine how committed he is to Torah, you have to examine him on the things that distinguish commitment to Torah. You don’t check whether he wears pants, even though someone who doesn’t wear pants is immodest. Okay, but every person wears pants. So you don’t examine him on that; you examine him on keeping the Sabbath or eating kosher. That’s not because keeping the Sabbath and eating kosher are more important than modesty or murder. Murder is more severe. But murder is something a normal person is simply assumed to be obligated in. You don’t test the convert on how committed he is not to murder. Okay? So overall it’s a natural thing. But it is true that sometimes a society deeply committed to values between man and God is somewhat dismissive of values between man and his fellow man. That’s not good, but it is natural. When you focus yourself on certain values, sometimes it comes at the expense of other values. Okay, I’ll stop here about Ran, I mean.

[Speaker C] But I also had to step out for part of it, because I have a meeting—I can’t stand being late. Okay, fine.

[Rabbi Michael Abraham] So the point is, I now want just to continue a little more with Ran’s line of thought. Basically, today we know there is such a rule—section 2 in Shulchan Arukh, Choshen Mishpat—that a religious court may administer lashes and punish not in accordance with the formal law.

[Speaker C] Administer lashes and punish not in accordance with the formal law.

[Rabbi Michael Abraham] Meaning, when they see that the times require it, they can even execute an adulterous woman. They can impose a fine where Jewish law does not define a fine. They can inflict all kinds of punishments, corporal punishments, lashes, all kinds of things of that sort. Now where does that come from, this thing? So people, when they look—when you tell this Ran to learners who don’t know it, usually Haredim don’t know it, because this Ran is very foundational in Religious Zionist thought, but in Haredi thought they know it less—when they encounter this Ran, it sounds to them like a baffling midrash. Because what do you mean? Obviously Jewish law relates to all the aspects. A religious court may administer lashes and punish not in accordance with the law—that’s exactly meant to solve these problems when the law creates a gap, when the law creates problems. And there is a big mistake here, because where does this law really come from, that a religious court can punish not in accordance with the formal law? Where does it come from? There is no source for it. I know of no source brought for this matter, that a religious court can punish not in accordance with the law. The source of this is the law of the king. Here the religious courts are filling the role of the king. Originally, when there was a king and there was a religious court in parallel—today we have no king; for thousands of years we have had no king—in that period when there was a king, Ran claims the division of functions was as he described here.

[Speaker C] That in every court there was a representative of the king.

[Rabbi Michael Abraham] No, there were two different courts.

[Speaker C] Two different courts?

[Rabbi Michael Abraham] Yes, two systems—not only two courts, two different legal systems. There was the king’s law and there was the law of the religious court. Now of course in practice it could be that the king’s law would say, look, on these and these points the king has enacted that there should be punishment even though Jewish law does not punish, so it could be that the judges would already do it in his name. Doesn’t matter. But on the principled level, Ran describes it as two parallel legal systems.

[Speaker C] Like the Knesset and the High Court?

[Rabbi Michael Abraham] Yes, two laws. I don’t know if Knesset and High Court, because the High Court is at the head of the judicial system; it works according to the laws; the High Court also works according to the laws.

[Speaker C] As much as it can.

[Rabbi Michael Abraham] That’s what’s supposed to be. Never mind. But the principle is exactly this point. And what happened was that at some stage the monarchy ceased—there was no more king. What happens in such a situation? Some time ago there was a plane carrying the entire Polish governing system, the Polish government, and it crashed. And everyone died.

[Speaker B] How long ago was that? What year?

[Rabbi Michael Abraham] Twenty years, I don’t know, something like that. Not that long ago.

[Speaker B] Twenty years? Not yesterday?

[Rabbi Michael Abraham] No, not that long. Maybe even less.

[Speaker B] Maybe what, 2010? So in the comparison that’s like all of—

[Rabbi Michael Abraham] Yes, I don’t even remember whether it was the whole parliament or just the whole government, but everything was destroyed. What happens in such a situation? There are, after all, three branches of government—in principle there ought to be. Here we have only one, but in a normal and corrected place there are three branches of government: legislative, judicial, and executive. Okay, what happens if one of the branches is wiped out? Like in a plane disaster.

[Speaker C] Legislative, executive, and judicial. And the role of the other two is to fill in the—right,

[Rabbi Michael Abraham] There’s no choice. One of the other branches, or both, it doesn’t matter, temporarily takes over the roles of the third branch until it is rebuilt, and that is what they did there. Okay? There are even films about this, by the way; there’s some TV series about the matter. In the United States there was—what was that series called? I already don’t remember.

[Speaker C] There was some chaos in the country.

[Rabbi Michael Abraham] The Pentagon—the Pentagon was destroyed. Not the Pentagon, sorry, Congress, the Capitol, was destroyed. Not real, yes? A fictional series. Okay? And one member of the Capitol remained. That included everything, including the president, including the whole executive branch—which there is not much of there—and all the members of Congress and the Senate. Everyone, everyone was wiped out in an explosion, gone, killed; they blew up the Capitol at a festive assembly where everyone was present. One was left, one man and one woman. That one, who had been a cabinet member, became president de facto. The senator, she was basically all of Congress and the Senate until they slowly began rebuilding all of Congress and the Senate. And without that there were immensely complicated constitutional problems there, and they had to rebuild it. The president took all the powers, of course, and slowly built Congress and Senate again.

[Speaker B] Is that the story closest to reality?

[Rabbi Michael Abraham] What? I didn’t understand.

[Speaker B] Maybe there was a kind of anarchy?

[Rabbi Michael Abraham] Right, that’s the screenwriter’s question. Never mind. I’m just saying: does that describe Poland? No, Poland I don’t think so. In my opinion it got sorted out fairly quickly; there was shock. So there too it probably wasn’t really a total destruction like in that series, but yes, there was a similar problem there. Now of course the other branches then take on the role until the missing branch is rebuilt. Okay, what happened אצלנו? To this day there is no king. So what happened? The Sanhedrin took the king’s powers onto itself. The president of the Sanhedrin was from the house of David, right? Hillel the Elder, Rabbi Yehuda HaNasi, all of them descended from Hillel the Elder from the house of David. Why? Because the president of the Sanhedrin was the king de facto. That’s how it was all along.

[Speaker C] The Exilarch?

[Rabbi Michael Abraham] No, no, the Exilarch was outside the Land of Israel. The president of the Sanhedrin is the parallel to the Exilarch in the Land of Israel. Yes, so he was basically both president of the Sanhedrin and king together. And then what happened—this is my claim—what happened is that the king’s powers, what Ran described here, the power to judge not according to the formal law, passed to the Sanhedrin. And after thousands of years without a king, we got used to the idea that the Sanhedrin or the religious courts hold both powers: the power to judge according to the Torah and the power to punish not according to the law or to enact regulations and so on, which originally was the king’s role. Only there has been no king for thousands of years, so they took it for themselves, and rightly so—that’s how it should be. But what happened is that we simply forgot that this was the original situation. For thousands of years already we’ve functioned in such a way that we have one authority that manages everything—the legislative, judicial, and executive branches. Everything. The president of the Sanhedrin, and the Sanhedrin under him, are basically the three branches. Okay? And then, in effect, a section was created in Shulchan Arukh saying that the religious court may administer lashes and punish not in accordance with the law. That whole section is superfluous; it was created only when we have no king. The moment there is a king, you can delete that section; the role returns to the king. But there isn’t one; we don’t have a king. So for the moment it passes to the Sanhedrin. Therefore, for example, all the rules of how communities are run, municipalities, “the seven good men of the city” as it’s called in Jewish law—the city council, yes, “the seven good men of the city” are the representatives who manage the city’s affairs. Okay? How do they function? It appears in Shulchan Arukh. What does that have to do with Shulchan Arukh? These are secular laws. They have no source in the Torah; they are not enactments, nothing. This did not even exist in the time of the Sanhedrin. Why is it in Shulchan Arukh? Because it was clear that the ones who would determine how communities should be run were the halakhic decisors throughout the generations. And indeed there were very, very great disputes among the decisors about how to manage this. For example, Rabbenu Tam’s view was that with the seven good men of the city, and in municipal and communal voting, decisions must be unanimous; you do not follow the majority. Yes, unanimous. Because “follow the majority” was said about a religious court—what does that have to do with… No, it has nothing to do with intrinsic authorization. You’re saying here—you’re saying you can’t function. Therefore most of the medieval authorities disagree with Rabbenu Tam, and in the end the Shulchan Arukh also ruled not like Rabbenu Tam because of the practical problem. Not because of “follow the majority,” but because of the practical problem, because you can’t function otherwise. But beyond this whole discussion, this is not a halakhic dispute at all; it is a political dispute. How to manage our mundane life. There wasn’t a state then, there were communities, doesn’t matter, but ordinary life was managed at the communal or city level, not the state level. Today we have a state, but it’s the same idea. And we got used to everything belonging to the government of the Shulchan Arukh and the halakhic decisors, and they have to make decisions, and they disagree about it, and the decision enters the Shulchan Arukh and now it is Jewish law. But it’s not Jewish law at all. And it doesn’t bind in any way. It doesn’t bind. It doesn’t bind because all these things belong to the category of the court administering lashes and punishments not according to the law. These are powers taken from the king. When there is secular government in Israel—not secular in the sense that the people there don’t wear kippot, but in the sense that it is not religious rule but the rule of the king—those powers return to it, and that section in Shulchan Arukh is deleted. It doesn’t exist; that section does not exist. And that’s what people don’t understand today. Everyone discusses according to the Shulchan Arukh, even decisors—they are making a bitter mistake, in my opinion. It has nothing to do with it at all. Now, a hint to this can be found in the Talmud. There is a very interesting discussion in tractate Sanhedrin on page 5. The Talmud discusses there how judges are appointed, how judges receive ordination, how they are given authority to judge. Okay? Now, there there is a real arm-wrestling match, as described in the Talmud, Sanhedrin 5a, between the Land of Israel and Babylonia. The sages of the Land of Israel claimed: we decide. Ordination is in the Land of Israel; the president of the Sanhedrin determines who is permitted to judge, even in Babylonia, throughout the world. He was the supreme Jewish ruler. The people of Babylonia say: what do you mean? The Exilarch decides. Now there is no dispute about the fact that ordination is performed only in the Land of Israel; that is a clear rule, a clear Torah-level law, no one disputes it. Rather, in ordination, in the ordination process, two different mechanisms come together. One, halakhic expertise: to determine that the man is an expert, knows the material. Two, granting permission and authority to judge. Think of when we appoint a judge today. The judge is not necessarily a greater expert than a law professor. He has to be an expert in law—that is determined by the professional bodies, okay? But he has to receive authority from the state government to be a judge. From that point on, what he says binds me not because he is an expert, but because he is a governmental authority, the judicial branch. Now, in order for him to be a governmental authority, it is not enough that he be an expert. Not every expert—I have to do whatever he says. What difference does it make what he says?

[Speaker D] You just said formal authority.

[Rabbi Michael Abraham] Exactly. Meaning, he must be given governmental authority. That authority he receives from the secular government. The substantive authority he receives from the religious authority, from the religious court. Now authorizing a person to judge includes both these things, because he becomes a judge. So you need the ordination from one ordained person to another in order to ensure that he is an expert and knows the material. Second, you need authorization from a secular authority. You become a judge; from now on you have authority; people must listen to you. What you determine binds the litigants who come before you. If a law professor says I owe you one hundred shekels, I can ignore him. Why should I care what he says? Even if legally he may be right. Until an authorized judge says it, I am not obligated to comply. When an authorized judge says it, even if he is not right, I am obligated to comply. Because he has formal authority. Unless I appeal and so on—there are rules in the law about how to do that. But all of that is determined by the law. Okay? Now what happened there? The dispute was not over where ordination happens. It happens in the Land of Israel. Everyone agreed on that. The question was: who is the secular authority that gives you the formal authority to judge? And here what happened? There was a pathological case there. In Babylonia there suddenly arose—something that had not existed for hundreds of years—a central secular authority over the entire people called the Exilarch. By the way, the Exilarch was descended from the house of David. The Talmud says, “The scepter shall not depart from Judah”—these are the Exilarchs in Babylonia, who rule the people with a scepter. What does “rule the people with a scepter” mean? That they have the authority of a king. There was governmental autonomy that the Babylonian regime granted the Exilarch, and the Exilarch was considered the king of the Jews. He literally had a royal court; the great Torah scholars sat with him. It was really like a king in Babylonia. Within certain limits, of course; there was a non-Jewish government around him. But they gave judicial autonomy, governmental autonomy; there were taxes, courts, everything. There was authority with religious courts and a hierarchy of courts in Babylonia. The whole thing really functioned like a state within a state. The Jews functioned as a state. This had not existed for hundreds of years. Now what happens? The people of the Land of Israel were still captive to the conception that, as a result of our historical accident, we lost the monarchy and everything was now in the hands of the president of the Sanhedrin—he is the king. They no longer even know that he is the king; he is the president of the Sanhedrin, the only authority there is, and he determines everything. He is the secular authority, the religious authority, he is everything. Therefore, when he ordains someone, that is what determines things for the whole world. The people of Babylonia say to them: what do you mean? He is the president of the Sanhedrin, he is the Torah authority. When he ordains someone, then he is an expert. But the question of who makes him an authorized judge, who gives him the governmental authority, the power to enforce—that is given by the king. Who is the king today? The Exilarch. The Exilarch really was the king also in the broader sense, for the Land of Israel too, for everywhere. The Exilarch really was the central secular ruler of the Jewish people. That is clear, religiously, historically.

[Speaker B] If the Exilarch is the king because he held governmental authority de facto—what do you mean de facto? I mean, was the Exilarch the king, or can one look at the king of Babylonia or Persia, who is the one who gives…

[Rabbi Michael Abraham] It doesn’t matter. From the standpoint of the Jews, the king of Babylonia gives the Exilarch the authority. So now the Exilarch is basically the king of the Jews; he is the secular ruler of the Jews.

[Speaker B] So he has the power to judge in practice. The question is whether it’s the Exilarch or the one who granted…

[Rabbi Michael Abraham] No, that’s hairsplitting that you can spin in any direction. It’s not relevant. But in any case, that’s not the president of the Sanhedrin in the Land of Israel. That’s the Exilarch. It could be that his authority came from the king of Babylonia—I don’t care—but that’s a different channel. He’s not a king, and he’s not the president of the Sanhedrin. Now, what happened was that the Jews of the Land of Israel lived with the same mistake that, in my opinion, sages in all generations down to today have lived with. They didn’t understand that their situation was a post facto one. Basically it was simply a mistake, because the powers of the king had flowed into the president of the Sanhedrin, since we had no king. So they were used to the fact that this was the role of the president of the Sanhedrin for hundreds of years. So what are you Babylonians suddenly jumping in for? The people of Babylonia say to them: read the Derashot HaRan—which of course was written later—but read the Derashot HaRan. Originally there was a king and there was a president of the Sanhedrin. Those roles had collapsed into one place. Now, ironically, the secular monarchy actually arose in the Diaspora. Fine—a Torah center in the Diaspora, that one can understand. But we’re used to sovereignty and secular kingship existing only in the Land of Israel. It turns out that a pathological case happened there. A secular monarchy was created in the Diaspora, while the Torah center still remained in the Land of Israel.

[Speaker C] But even so, in Babylonia too wasn’t he like the head of the Babylonian Sanhedrin?

[Rabbi Michael Abraham] No, he wasn’t, because he wasn’t a Torah scholar. No, he was a ruler. No, he had Torah scholars in his court. Rav Nachman was basically…

[Speaker C] But he wasn’t like a Sanhedrin in terms of his knowledge… No, no, he was a king, literally a king.

[Rabbi Michael Abraham] That’s why the Torah—the Talmud says, “The scepter shall not depart from Judah”—these are the Exilarchs of Babylonia. He was a king; it has nothing to do with the president of the Sanhedrin at all. In his court sat the outstanding Torah scholars of Babylonia, and they were, so to speak, the chief rabbis of Babylonia. But in terms of Torah authority, it was really the president of the Sanhedrin, as long as there was still a Sanhedrin in the Land of Israel. And that president of the Sanhedrin was the one who held the Torah authorities. And in my opinion, the people of the Land of Israel didn’t understand that now a situation had been created that actually fit the original model better than what they had known. Suddenly there was now a separate secular authority. And now, if you want to know who grants the secular authorization, obviously it’s the Exilarch in Babylonia. That’s the basic law; it’s not post facto. That’s how it’s supposed to be: a secular ruler grants secular authority. He does not determine who is a Torah scholar, and he does not determine the laws according to which a Torah scholar will rule. But the king’s law—that he does determine. Not the law of the Torah. The law of the Torah is determined by the president of the Sanhedrin. And in fact, the supposedly ideal situation returned, even though the monarchy was outside the land. But in principle, the ideal situation returned: a split between Torah authority and secular authority. Even then there was a balance. The balance was done by the same body. All right? What they’re trying to do today. The balance was done by the same body. If the government balanced itself, we wouldn’t need the courts to balance it. Okay? In this case, of course, it’s the opposite—meaning the courts would balance themselves and there’d be no need for a government, because there the secular authority and the president of the Sanhedrin were present. But never mind; on the conceptual level, that’s what existed. What really ought to exist is a dual authority structure, as the Derashot HaRan says. That is exactly separation of powers, and that separation of powers is the ideal state, not a post facto one. It was only post facto that it was outside the land; there should have been a king in Israel from the line of the House of David, as it should be, everything fine. But as a result, suddenly we see that there is some kind of duplication here: systems of government, normative systems, legal systems—a duplication. One is responsible for morality and justice and social governance, and one is responsible for the Torah. And these are two things happening in parallel. And then we got so used to this over so many years that even the period that existed in Babylonia—a fairly long period, when the Talmud was formed and everything, really a central era—even that we forgot. The laws of secularity entered the Shulchan Arukh, and now the halakhic decisors are supposed to determine everything. They’re supposed to determine how to govern, what to do, how to vote, everything. That’s the accepted religious way of thinking today, and it’s a huge mistake, because all of that is post facto. And therefore everything that the Knesset, say, and the secular government here determine today has validity. It has validity. It does not come by force of Jewish law. It is extra-halakhic validity. And it is Torah-validity, but extra-halakhic. That doesn’t mean that everything they do is just, or that everything they do is correct and proper. Its validity comes from the king’s law. The Torah also recognizes the king’s law. We have a king today, right? We have a king—this time even in the Land of Israel. He doesn’t keep the commandments, unfortunately—the prime minister, say, if he is the parallel to the king. And he also does not operate according to Torah considerations. But in principle, in terms of the system of government, he has authority in every area. And therefore we actually arrive at a situation in which we have a normative duplication, as Ran describes. And today suddenly the situation has returned to what it once was. There is a secular king, there is legislation—or not legislation but religious codices, the Shulchan Arukh and the halakhic decisors and so on—and these two things are supposed to operate in parallel. And each of them has validity on its own terms; neither draws from the other. They are two independent things.

[Speaker C] Rabbi, “Renew our days as of old”? What?

[Rabbi Michael Abraham] “Renew our days as of old”? Yes, in a certain sense. We have in fact returned to the ideal state, to the state that existed originally. All right, this has implications. Maybe we’ll stop here already.

[Speaker C] Yes, I just have to run, sorry. Everything’s fine, thank you very much.

[Rabbi Michael Abraham] Next time we’ll continue a bit more with this point, and then we’ll move on.

[Speaker B] Sabbath peace.

[Rabbi Michael Abraham] Okay, to sum up—five—

[Speaker B] extra minutes on something we talked about regarding the counting of the Omer, because I heard there’s always a problem of—do you remember?

[Rabbi Michael Abraham] We talked about it, but remind me—I don’t remember exactly what it was anymore.

[Speaker B] So it’s the course on counting the Omer that we discussed.