Migo and Legal Reasoning – Lesson 6
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
🔗 Link to the original lecture
🔗 Link to the transcript on Sofer.AI
Table of Contents
- Legal reasoning and the three types of considerations
- One who seeks to extract money from another bears the burden of proof as a legal presumption and as preventive logic
- A scriptural decree, the disqualification of relatives as witnesses, and non-consequentialist reasoning
- Practical implications of searching for reasons versus accepting intuition
- Migo, the prior presumption, and intellectual property as examples of the third type
- The gap between general law and Jewish law: purposiveness, fictions, and “legal facts”
- Ownership, transfer, and discussion of deception and assignment of debt
- The Endels case, the Lost Property Law, and the dispute over “another person’s premises”
- The Foundations of Law Act, lacunae, and the dispute over the heritage of Israel
- Menachem Elon, the majority’s arguments, and the criticism of using Jewish law to fill a lacuna
- Barak’s approach: the purpose of the law and returning lost property above property law
- The halakhic reversal: property law above the duty to return lost property, and despair as a legal fact
- Despair versus ownerless property, and Netivot
- Maimonides on returning a lost item after despair as going beyond the letter of the law
- Universal justice versus halakhic particularity
Summary
General Overview
The text draws a distinction between three types of considerations that shape evidentiary rules and legal doctrines in Jewish law: factual considerations that try to clarify reality, legal-consequentialist considerations whose purpose is to prevent bad incentives and create a functioning procedural order, and a third consideration consisting of legal insight or intuition that derives neither from clarifying facts nor from expected utility, but from a sense that “this is what is legally correct.” The author illustrates this third type through one who seeks to extract money from another bears the burden of proof, and through examples from the laws of testimony, intellectual property, and the sharp gap between the Lost Property Law and the halakhic conception of despair and returning lost property. The central claim is that Jewish law treats certain rules as binding “legal facts” even when purposive or moral justice would have pointed in another direction, whereas in general law the tendency is to subordinate ownership and legal outcomes to purposes such as returning the lost item to its owner.
Legal reasoning and the three types of considerations
The text distinguishes between “factual or logical” legal reasonings, such as the presumption that a person does not repay a debt before its due date, or that most oxen are for plowing, which are based on familiarity with the world and try to determine what the reality was. Alongside them, the text places legal rules whose goal is to achieve systemic benefit, such as one who seeks to extract money from another bears the burden of proof, which is defined as a procedural rule meant to prevent a situation in which a plaintiff can lie and “gamble for pure profit” when there is no cost to suing. The text adds a third category of intuitive legal insights that have no clear consequentialist explanation and are not factual clarifications either, but rather a feeling that without a “reason” the court does not act, in the image of “if someone is in pain, let him go to the physician,” and in analogy to physics: “if there is no force, the body does not accelerate.”
One who seeks to extract money from another bears the burden of proof as a legal presumption and as preventive logic
The text argues that the element of “whatever is in a person’s possession is his” initially looks like factual reasoning, but on second thought is a “legal presumption” backed by preventive procedural logic. The text describes a paradox in which, before establishing the rule, one might have thought there was a higher probability that the plaintiff was lying because “there is nothing to stop him from suing,” but after the rule is established it “loses its explanatory power,” because the rule itself prevents frivolous claims. The text defines this as a loop that leaves the rule binding not because of evidentiary force, but because of a systemic necessity to prevent mutual pouncing and instability.
A scriptural decree, the disqualification of relatives as witnesses, and non-consequentialist reasoning
The text recounts a seminar of Rakover in which the disqualification of relatives as witnesses came up, and presents the position of the Talmud, Maimonides, and the Shulchan Arukh that the disqualification of relatives is not based on suspicion of lying but on a “scriptural decree,” and that “no one disputes this.” The text explains that once both suspicion of lying and consequentialist explanations such as family tensions are set aside, what remains is the need for a “reason” of another sort—namely a legal intuition that “it is not right to accept testimony from relatives.” The text suggests an intuitive direction according to which “in order to convict someone, it has to come upon him from the outside,” linking this to ideas such as “a person cannot incriminate himself” and “a person is considered close to himself,” and describes the sense of artificiality that arises when one tries to fully rationalize a rule that is intuitively understood.
Practical implications of searching for reasons versus accepting intuition
The text argues that consequentialist explanations for a rule create halakhic implications regarding the limits of its application, such as the possibility of distinguishing between benefit and liability in the disqualification of relatives or of a litigant. The text states that recognizing that “it is simply correct” changes the way the rule is applied, including questions of lo plug and the distinction between rabbinic law and Torah-level law, and mentions the Sha’agat Aryeh regarding the question of whether there is lo plug in Torah-level law. The text presents “legal reasoning” as a category that is not identical to purposive explanations of the sort “otherwise there will be problems,” but as a foundation that dictates the rule itself and its application.
Migo, the prior presumption, and intellectual property as examples of the third type
The text argues that migo as argumentative strength joins possession and presumptions such as the prior presumption as an example of the third type of logic, in which “this is how it is correct to proceed” without any claim of higher factual probability. The text moves to the example of intellectual property, citing Maimonides that “there is no ownership over an abstract thing,” and presents this as reasoning that “an abstract thing is not a thing,” and therefore there is no “something over which ownership can exist,” even if “society agrees and both parties agree.” The text compares this to the question whether situmta is effective regarding something not yet in existence, and presents a view according to which it is not effective, because the problem is not intent but rather that there is no “something” over which ownership can take effect.
The gap between general law and Jewish law: purposiveness, fictions, and “legal facts”
The text states that in the legal world, explanations are usually purposive, and once one reaches the conclusion that it is useful to define ownership over an idea, “then it exists.” The text presents the halakhic decisors who try to anchor intellectual property in rabbinic law, in the law of the kingdom, or in encroachment, out of a sense that “everyone agrees this is the correct way to act,” but “the fact that this is the correct way to act still does not mean that it is so.” The text brings an example of a fiction in Roman law involving a soldier who fell into captivity and was considered “dead” so that his family would inherit, and defines a fiction as turning “the desirable into the actual,” usually by judicial interpretation rather than legislation. By contrast, it argues that in Jewish law the gap between the desirable and the actual remains, and therefore fictions are “harder to understand,” and Torah law does not change in light of utilitarian considerations.
Ownership, transfer, and discussion of deception and assignment of debt
The text mentions a personal argument written in the past, according to which there is Torah-level intellectual property in Jewish law through deception, and emphasizes that this prohibits theft but does not necessarily define “ownership” in the sense of the laws of transfer. The text raises the possibility of distinguishing between ownership itself and the ability to transfer ownership, comparing this to examples such as a promissory note and assignment of debt, and presents a discussion of betrothal through a loan, another person’s loan, and betrothal through benefit as questions that highlight the distinction between “monetary value” and ownership in an abstract thing. The text uses all this to show how Jewish law tends to describe property limitations as binding legal reality and not merely as a purposive decision.
The Endels case, the Lost Property Law, and the dispute over “another person’s premises”
The text describes the Endels case, in which someone found a bundle of securities on the floor of the safe-deposit room in Bank Kupat Am, left them at the bank, and after four months asked to receive them under the law, while the bank argued that it was “the finder.” The text cites the relevant sections of the law, including the duty to notify the police or the owner of the premises, section 3 which states that if the owner of the premises received the lost item “he shall be regarded as the finder,” and section 4 which grants ownership to the finder after four months. The text explains that the dispute centered on the interpretation of “another person’s premises” when the place is owned by the bank but used by the public of customers, and sets this against the halakhic distinction between “his” and “in his domain,” such as “this one because it is not his, and that one because it is not in his domain.”
The Foundations of Law Act, lacunae, and the dispute over the heritage of Israel
The text describes the legal discussion surrounding the Foundations of Law Act (1980), which provides that when there is a lacuna that cannot be completed by analogy, one should turn to “the principles of freedom, justice, equity, and peace of Israel’s heritage.” The text presents the view of religious judges who identify this with Jewish law, and the secular view that speaks of “principles of justice and equity” in a universal sense, and calls the wording an empty compromise and even “one of the dumbest laws.” The text emphasizes that the main issue for the author is not the interpretive-ideological dispute, but the meta-legal question of why Jewish law reaches a different result from other legal systems in the same case.
Menachem Elon, the majority’s arguments, and the criticism of using Jewish law to fill a lacuna
The text presents Menachem Elon’s position, according to which there is a lacuna in interpretation and therefore one should turn to Hebrew law, and cites the Mishnah in These Are the Finds: “If one found something in a shop, these belong to him… between the chest and the shopkeeper, they belong to the shopkeeper… before a money-changer, these belong to him… between the chair and the money-changer, these belong to the money-changer.” The text describes the arguments of the majority who disagreed with him, including the claim that this is not a normative lacuna but a question of interpretation, and that the concept “another person’s premises” is not a relevant concept at all in the laws of returning lost property, and therefore one cannot “fill” a conceptual lacuna in interpretation by means of a halakhic rule that addresses another question. The text states that “it is clear that Elon was very mistaken,” and presents Elon’s move as a leap from completing an ambiguous concept to importing an entire norm.
Barak’s approach: the purpose of the law and returning lost property above property law
The text quotes a passage from a judgment by Barak according to which the decision as to whom ownership should be granted is not made according to “the measure of justice” alone, but ownership is “merely a means of realizing the law’s main purpose, namely returning the lost item to its owner.” The text quotes his determination that there is no need to resort to the question “whether that other person is considered by law to have been holding the lost item even before it was discovered,” and that “whatever the laws of possession may be,” they do not determine what “another person’s premises” means for purposes of the statute, but only the purposes of the statute do. The text concludes that the judges view the question of finder and ownership as tools for optimizing the chances of return and creating motivation to care for the lost item during the four-month period.
The halakhic reversal: property law above the duty to return lost property, and despair as a legal fact
The text argues that in Jewish law, “returning lost property is subordinate to property law” and not the reverse, and therefore the property question—whose item it is—is determined first, and only afterward the duty of return. The text stresses that the concept of despair is “the most fundamental concept” introduced by the Sages, and is perceived as an innovation with no basis in the verses, yet from the perspective of Jewish law despair removes the item from the owner’s domain, and therefore there is no point in returning it even if the loser brings “clear identifying marks.” The text sharpens the point that in statutory law despair is a fiction of “he shall be regarded as though he despaired” in order to allow ownership to pass to the finder after time and thereby encourage care, whereas in Jewish law “once you became obligated to return it,” there is no time mechanism that terminates the duty, and despair after lifting the item is ineffective.
Despair versus ownerless property, and Netivot
The text states that despair is not the same as declaring property ownerless, because despair is “an assessment of future reality” that there is no chance the object will return, whereas declaring property ownerless is “a legal act” of removing ownership. The text notes that according to most views, after despair it is “like ownerless property,” and cites Netivot, who wants to argue that it is “like ownerless property” in the sense that anyone may take it, but ownership does not necessarily lapse, because there is no legal act that uproots it. The text uses this dispute to emphasize that the proprietary change resulting from despair is understood as a substantive legal determination that does not sit comfortably on a simple consequentialist rationale.
Maimonides on returning a lost item after despair as going beyond the letter of the law
The text cites Maimonides regarding a find in a place where most of the city are gentiles or in a place frequented by the public, where “the find belongs to him, even if a Jew came and gave its identifying marks, for he has already despaired of it,” but “one who wishes to go in the good and upright path, and acts beyond the letter of the law, returns the lost item to the Jew when he gives its identifying marks.” The text uses this to argue that Jewish law itself recognizes that returning it after despair is “the good and upright” in a moral sense, yet still does not turn this into a legal obligation. The text concludes that from this it is evident that halakhic law does not serve a purpose of consequentialist justice or maximal return, but rests on a conception of “legal truth,” according to which after despair “the connection has been severed,” and therefore there is no duty of return.
Universal justice versus halakhic particularity
The text states that “justice is a universal thing,” and therefore there is no meaning to “Jewish justice” as against “non-Jewish justice,” and from this comes the claim that “the principles of justice and equity of Israel’s heritage” is an oxymoron. The text distinguishes between “the good and the upright” as morality and “legal truth” as binding halakhic fact, and presents despair as an example of the way Jewish law establishes legal reality even when the result does not derive from utility or purpose. The text closes by setting this against Barak’s approach, which distinguishes between justice and law but justifies the core rule through the purpose of returning lost property, whereas in Jewish law the basic rule itself is presented as a legal fact of the third type of reasoning.
Full Transcript
[Rabbi Michael Abraham] Last time we finished the issue of migo, and I tried—I started to place the matters in a somewhat broader context, I spoke about legal reasonings. And I said that, say, in the laws of evidence, the simple reasonings are what we might call factual or logical reasonings, reasonings that clarify what the reality was. The presumption that a person does not repay a debt before its due date, or that most oxen are for plowing, or things of that sort—that’s basically the result of familiarity with the world. But beyond that there are rules, legal rules, and among those rules too there are several subtypes. One subtype is rules that come to achieve some legal goal. Meaning, true, it doesn’t reflect factual truth, but there is some legal logic in behaving according to that rule. For example, one who seeks to extract money from another bears the burden of proof. So here there is an aspect of—there is the dimension of the presumption that whatever is in a person’s possession is his; we talked about that, I think we talked about that, right? And I said that apparently that’s a factual reasoning: whatever is in a person’s possession is generally his. But on second thought we saw that it’s not exactly that; it’s a legal presumption. What is the logic for acting that way? So if I look only at one who seeks to extract money from another bears the burden of proof, at the question of procedure, then it means that the plaintiff is the one who has to bring evidence. So yes, that’s pretty clear. I mean, it can’t be that anyone who jumps on someone else wins; if instead we do yachloku or let it remain until Elijah comes, then what comes out is that you’re making some kind of gamble. In other words, you lie and you have a gamble with profit only. You try, and at worst it will be split, so you gained half—why should you care about lying? Therefore it doesn’t make sense to give the plaintiff and the defendant equal standing, so we establish that one who seeks to extract money from another bears the burden of proof. And I think I noted this—if not, then I’ll note it now—that before I established the rule of one who seeks to extract money from another bears the burden of proof, then in fact that rule, if I had used it, would have reflected a factual consideration. Because if a person sues someone else, there is nothing to stop him from suing—he can only profit. So for that reason, there really is more logic in thinking that the plaintiff is the liar than that the possessor is the liar. And after we established the rule of one who seeks to extract money from another bears the burden of proof, now there’s no reason to jump on someone for no reason if I don’t have evidence that I’m right. So now there is no proof—the possessor is no more right than the plaintiff. In fact, after I established the rule of one who seeks to extract money from another bears the burden of proof, it lost its explanatory power.
[Speaker B] But still, practically speaking—
[Rabbi Michael Abraham] Now I have—it’s a loop—
[Speaker B] But—
[Rabbi Michael Abraham] I still have this rule now, at the moment this rule exists. It has no explanatory power, but on the other hand there is logic in applying this rule, because without it then yes, everyone will come and pounce—it’s simply not sensible. So there is legal logic in establishing that one who seeks to extract money from another bears the burden of proof. That logic is preventive logic, procedural logic, all kinds of rules that are perhaps broader than the attempt to clarify what the factual truth was—but this exists in other legal systems as well. What I wanted to claim here is that there is, at least in Jewish law—and I think in other legal systems too, though they are less willing to admit it—a third type of rule. And this is basically a kind of intuitive legal insight where I can’t point to any utility I’ll get from it. And unlike one who seeks to extract money from another bears the burden of proof, where I can explain why it is worthwhile to establish such a legal rule, there is utility, one can propose consequentialist explanations—but there are rules where I cannot offer a consequentialist explanation, and they are also not a clarification of the facts, and still there is some sense that this is right, that this is what is correct. And I think that in one who seeks to extract money from another bears the burden of proof there is also this element—there is the previous element too, but there is also this element—some sense that it is right to leave the money with the other side as long as the plaintiff has not brought proof. In this case you can even explain it a bit in a way that is somewhat closer to reason, because this is what the Talmud says: “If someone is in pain, let him go to the physician.” What does that mean? You come to court and you want them to take money out of the possessor. For the court to perform any action, you need to give it a reason to act. If you bring evidence, then we’ll act. If you don’t bring evidence, then it’s not that he is right, but we won’t act. There is no reason that causes action; to act you need a reason. To sit and not act, you don’t need a reason. What is that? Is that a legal rule? A halakhic rule? A factual rule? What is this thing? It’s not a factual clarification. And there’s no consequentialist explanation here either. Meaning, it’s not that the outcomes are bad and therefore—or the expected outcomes are bad and therefore I must establish this rule. That’s the consequentialist type. There is logic here, but it’s not factual logic. It’s not logic that says that the one holding the property is in the right, or is more likely in the right than the claimant. So what is this logic? What is its meaning? It’s legal logic. It’s legal logic that says: if you want me to sink—sorry, if you want me to act—give me reasons. So without reasons, I don’t act. What is that? A law of physics? In physics, if there is no force, the body does not accelerate. Okay, true. But in the legal world, what’s the problem? You can act—it’s not that you won’t succeed in acting, you will succeed. But there is some legal logic that says that if there is no reason, I do not act. Now, where does that belong? I claim that this is a third category. Meaning: there is the category of factual clarification—the presumption that what is in a person’s possession is his. There is the category of consequentialist legal consideration—if we don’t do this, the result will be bad. And there is the category of legal insight, a primary legal intuition, that this is simply right. Not because you are factually right, not because he is the liar and you, the one holding the object, are telling the truth, or are more likely telling the truth—no. Rather, because this is what is legally correct. Now, the legal world really doesn’t like this kind of consideration. For example, many times you’ll see all sorts of explanations—this also connects to the attitude toward scriptural decrees. The first time the penny dropped for me on this was—I once told you I was at this seminar of Rakover, and there they spoke about the disqualification of relatives as witnesses. Now, the disqualification of relatives as witnesses—Maimonides writes, and this already starts in the Talmud, Maimonides, the Shulchan Arukh—they all write that this is not because we suspect them of lying, but because it is a scriptural decree.
[Speaker C] Okay, wait, briefly. What? I’ve looked into this a bit. Why? Where does that come from? In the end, after all, there was such a view—but it’s a discussion.
[Rabbi Michael Abraham] What proof? These are explicit passages in the Talmud, Maimonides, the Shulchan Arukh. No—where?
[Speaker C] Where is there another side?
[Rabbi Michael Abraham] I don’t remember where. I’d be happy to see it, because it’s hard for me to believe. I don’t remember. A litigant’s own position—an association with that—is a completely different story. Yes, this is Talmud, Maimonides, Shulchan Arukh. No one disputes it. In any case, there, when they presented this principle that relatives are disqualified from testimony, there were all sorts of explanations. Yes, suspicion of lying is of course the obvious explanation, but beyond that, it will create tensions within the family, or whatever, all sorts of explanations of that kind, some of which have substance—I’m not dismissing that. But somehow, at least in the study hall when people learn the disqualification of relatives, nobody sees it that way. It doesn’t work that way—it’s a scriptural decree. More than a scriptural decree, after all even behind a scriptural decree—and I once spoke about this when we discussed scriptural decrees—there is obviously a reason. Obviously there is a reason. In most cases we can even understand it. But clearly there is a reason, whether we can understand it or not. What is that reason? If you tell me that the relative is not a liar, and you tell me that there are no problematic consequences if I validate relatives as witnesses, what other kind of reason could there be? Let’s say I don’t know it—but what could it possibly be? What is the kind of reason that could stand behind the disqualification of relatives as witnesses? So we return to the same thing. There has to be some reason here—some legal insight, this kind of legal intuition that says it is not right to accept testimony from relatives for some reason—I don’t know—it’s just not intuitively right. Not because of consequences, not because they are liars. It’s the third type. Okay? Here I once tried to explain something about the idea that in order to convict someone it has to come upon him from the outside. Meaning, just as a person cannot incriminate himself, and a person is considered close to himself—this too is from the law of relatives—and a person cannot incriminate himself. There is some kind of intuition that says that in order to establish a status for a person, there has to be some external factor that establishes the status upon him—the judges, the witnesses, or whoever it may be. And therefore, whoever is connected to the person himself is basically considered some kind of part of the person himself and cannot impose legal status on him. Therefore, a relative is disqualified from testimony. Now what did I say here? Someone else will say: you’re just moving your lips; you haven’t explained anything. But I don’t know—when you look inside, yes. That’s what I mean when I say legal intuitions, okay? Meaning, the attempts to ground this in some understandable principles very often create a somewhat artificial feeling. Because I understand that it is correct even without all the other explanations, and then I try to suggest one explanation or another and it always feels forced, it never really works out—but there’s no choice, because otherwise it’s not logical. What do you mean it’s not logical? I have an intuition that this is right, so it is logical. Meaning, it is logical because this is what is right.
[Speaker D] Maybe the reason is that they are biased. Meaning, even if he isn’t lying, his perception of the litigant is somehow distorted because he can’t manage to—
[Rabbi Michael Abraham] That—I once saw that in Netivot Yehoshua by Rabbi Yogel from my time in the midrasha. He writes that—I wrote that in the context of some long argument with him. I claimed that it’s not plausible that this is the foundation of the disqualification; I even had some proofs for it. He writes that—I think it appears in Netivot Yehoshua. When we—while he was writing the book, we had all kinds of arguments on these issues. Well, maybe. In any case, I’m just trying to illustrate, without getting into these specific topics, that very often—and this is true in many fields of thought—there is something that we feel is right, and when we try to offer ourselves some explanation or do some rationalization, we don’t really find one. We look for some external explanations, but those external explanations have implications. Meaning, if the explanation is this, then the rule exists here but not there. Very often, explanations of this type will have implications. Suspicion that relatives lie—then it would disqualify them only to impose liability but not to confer benefit, or only to confer benefit but not to impose liability. For example, what they always discuss regarding a litigant: is he disqualified to his detriment and to his benefit, only to his benefit, or also to his detriment? Explanations for things of this kind will very often have implications. By contrast, when I say: this is simply right, I’m not looking for explanations—it is right because I have a good intuition that it is right—then that too will have implications, meaning in that respect. In other words, the willingness to recognize this kind of reasoning also has practical significance. It’s not only a theoretical question whether I accept this principle, or how I accept this principle—whether I look for explanations or don’t look for explanations. Explanations often project onto the question of how you apply the principle.
[Speaker D] And therefore even if you do take an explanation, you can say it’s because of lo plug; after all, even with enactments of the Sages you can say it’s because of this or because of that, but in the end—
[Rabbi Michael Abraham] Yes, but lo plug is usually a rabbinic principle. When we are speaking about a Torah-level rule, then what will he say here—that this part is rabbinic? So that part would be rabbinic. By contrast, if I grasp it as a legal insight, then the whole thing will be Torah-level, not rabbinic. So maybe.
[Speaker D] Yes, but in the field of law, if you start splitting every single thing, it becomes very hard to function, because you start saying every case is—so they establish clear rules: if it’s like this, it’s like this. Why?
[Rabbi Michael Abraham] If it’s logical, it’s logical, and if not, not—what’s the problem? Behave according to the logic. Certainly sometimes one can find lo plug; I don’t think that’s always right. On the contrary, usually lo plug is rabbinic law. Lo plug in Torah law—there is; the Sha’agat Aryeh wrote about whether there is lo plug in Torah law. He speaks about a fence in Torah law, and I think also lo plug, if I remember correctly, though I don’t remember where. So what I’m trying to explain here, basically, is that there is a third type of consideration at the foundation of legal rules: there is the consideration of factual evidence, there is the legal consideration, and there is the consideration of legal intuition, or legal reasoning as I call it. Legal reasoning is not what in the legal world they call consequentialist explanations—“it makes sense to do this because otherwise there will be problems.” Okay? That’s basically the point. My claim is that migo as argumentative strength, which basically joins possession and various reasonings of that kind—we spoke about the prior presumption—that basically contains this type of logic, the third type of logic. Okay? That this is the right way to proceed, even though don’t tell me that this mikveh is more likely to be kosher if it was previously kosher than that one is invalid—no, it’s not more likely. But there is some intuition that this is the right way to proceed, for some reason that I don’t—I don’t know how to explain. Again, even when I do explain it, I’ll ground it in some other principle. And how will I explain that principle? In the end I’ll always arrive at some principle that is understood in itself. Okay? Here too it is understood in itself—there’s no need for explanations, no need to look for other principles that are self-understood in order to explain it. So at the end of last time I spoke a bit about intellectual property. I said that there are two examples in the area of property law where one can see this kind of reasoning. The first example was intellectual property, which I spoke about briefly last time, and today I want to talk about returning lost property, despair—I already began that a little at the end. Endels.
[Speaker D] Okay, so explain the difference between the logic of ordinary law and halakhic law, which has some essence or—
[Rabbi Michael Abraham] Yes, so that is the reasoning I’m talking about. In the context of intellectual property, we spoke about the fact that Maimonides writes that there is no ownership over an abstract thing. Now why is there no ownership over an abstract thing? What’s the problem? If society agrees and both parties agree between themselves that we want to transfer something abstract from one to the other, why should there be any problem with that? The conception apparently standing behind this, and this is how many halakhic decisors understand it, is that an abstract thing is not a thing. There is nothing here over which ownership can exist. It’s not connected to intent. Even if society agrees. I spoke about situmta, right, whether situmta works for something not yet in existence. Yes, in a place where it is customary to transfer things that are not yet in existence, like barrels of oil that will be pumped out in another one hundred or two hundred years. They transfer future commodities, right? So that is something not yet in existence. Now there is a position—a dispute among the halakhic decisors—but there is a position that situmta does not help for something not yet in existence. Why? Because the problem with something not yet in existence is not intent. It’s not that we haven’t fully resolved in our minds. Rather, there is no thing here over which one can be an owner at all. The thing isn’t here yet. What are you an owner of?
[Speaker B] There’s nothing for it to take effect on.
[Rabbi Michael Abraham] Right. Now what is this reasoning? What’s the problem? If we define it, then it will exist. What do you mean there isn’t? This isn’t physics. Whatever you define is what will be. What’s the problem? No—there is some sense that no, you cannot impose ownership on something that is not there. A kind of spiritual reality like that. Now try explaining that to someone who thinks in ordinary rational terms, to someone who thinks: what’s the problem? After all, it is useful to define ownership over intellectual property. True, many have already pointed out that this is very important. People are willing to pay for it, so it exists. People are willing to pay for it, and it is useful to give a person rights over his inventions, for example, because that is what motivates people to invent things. All the considerations that jurists raise in this context. And indeed, in the legal world the explanations are usually purposive explanations. So once you reach the conclusion that it is useful to define ownership over an idea or an invention or intellectual property—then it exists. No problem. Once you conclude that it makes sense, then it exists. Now in Jewish law, the halakhic decisors also agree that there is logic here. Not only that there is logic—they also insist somehow on grounding it in rabbinic law, in the law of the kingdom, in encroachment.
[Speaker B] What? Like copyright on a book?
[Rabbi Michael Abraham] Yes. An author. That’s a classic example. The content of the book, not the physical book. Yes, that is exactly intellectual property—that’s what we’re talking about. So the halakhic decisors try to define how, nevertheless, we can define it, because it is clear to everyone that this is the right way to act. Clear to everyone. But practically speaking, the fact that this is the right way to act still does not mean that this is the legal reality. That gap does not exist in the legal world. In the legal world, if it is right, then that is the reality. Therefore in the legal world it is also often easier to talk about fictions, for example. Maybe one day we’ll talk about fictions; fictions are very interesting. Legal fictions. The first legal fiction perhaps—I think I once read that it was the first—was in Roman law, where there was a rule that if a person died outside Roman territory, then his property passed to the state, not to the heirs. There was such a law there. Now it turned out that this created many problems for Roman soldiers. Because Roman soldiers were taken captive, and as is known, captivity then was not the Red Cross, so usually you didn’t return from captivity. Meaning, in the end you died there. Forced labor and so on, in the end the person died. Now he died outside the border. So it came out that soldiers were dying outside Roman territory, and their families lost their property. That of course harms the soldiers’ morale, it’s not just, it created many problems. So what do you do? So they defined that at the moment the person fell into captivity he is considered dead. A fiction. He’s not dead, he’s alive. A walking dead man. But he is dead. Legally he is considered dead. And then when he died, basically, he was still on Roman territory at the moment he fell into captivity. So his family inherits his property. Now of course, what happens if he returns from captivity? Then he comes back to life.
[Speaker D] Right.
[Rabbi Michael Abraham] He doesn’t come back to life—he never died. The point, I think—again, I haven’t checked this deeply, but it seems quite clear to me that this would be the definition there—if he dies in captivity, we define retroactively that the moment of death was the moment he fell into captivity. But if he is alive, then he is alive. There is a kind of alternative here. Yes, exactly. Now this is a fiction. The man is alive—what do you mean dead? He is legally dead although he is alive. Why? Because it was clear that there was some injustice here. And since there is injustice, we basically establish—the fiction is a fascinating phenomenon, I once did—because basically we turn the desirable into the actual. What is desirable? That his family should inherit his property, right? But that’s not the actual reality; the law doesn’t allow it. But since it is desirable, it is also actual. That is basically what we are saying. By the way, such a fiction is usually also an act of the judge or the interpreter, because the legislator can change the law; he doesn’t need fictions. The legislator can change the law and say: no heirs? Even one who dies outside the territory, if he is a soldier, his family inherits him—what’s the problem? Can’t such a law be formulated? The legislator has no problem. Usually the use of fictions is the use of an interpreter, a judge, not a legislator. The interpreter stands under the laws established by the legislator, but within that framework he needs to issue a just ruling. So since here there is something desirable but not actual, you turn it into the actual. That’s what’s called a fiction. Like the law of “their agency” in Jewish law, for example—a fiction. There are also all kinds of fictions in Jewish law. In Jewish law it is harder to understand fictions, because in Jewish law there really is a gap between the desirable and the actual, something that does not exist in legal systems. Meaning, in Jewish law it is clear to everyone that it is right to give a person ownership over intellectual property, and nevertheless there isn’t any. There isn’t—this is an abstract thing, and over that there is no ownership. So it is certainly very desirable to give it, but what can you do? It doesn’t exist; such a thing is not defined in Jewish law. Now Jewish law does not permit itself to say, okay, if this is desirable then that’s what the law is. It can make a rabbinic enactment—yes. But Torah law is Torah law; let the law pierce the mountain. It does not matter whether it fits what seems rational to me, what seems useful to me, considerations of purposes, all kinds of things of that type—the first two kinds of considerations. This is the reality, and that’s that. There are legal facts to which we are subject. Fire burns whether it is just that it burn me or unjust that I should be burned. If I am in the fire, I burn—that is a fact. Okay? So similarly, that is why I call it a legal fact. Meaning, Jewish law sees a certain group of claims as legal facts, and that is simply how it is. It is so not because it is useful, not because the physical fact is such—maybe it is logically coherent, yes—but not because it is useful. Rather, it is legally coherent. That same third type I spoke about earlier. So intellectual property is one example of this matter. I mentioned that I once wrote an article arguing that I think there is Torah-level intellectual property in Jewish law, and that it comes from deception. I mentioned that here once.
[Speaker D] But that doesn’t mean there is ownership—it only means it is forbidden to steal. But it doesn’t mean you have ownership.
[Rabbi Michael Abraham] What do you mean? If it is forbidden to steal, then you have ownership. What is theft? Theft is taking something that is owned by someone; otherwise what is theft?
[Speaker D] Yes, but then how do you apply all the laws of acquisition? Meaning, I want to transfer something to someone.
[Rabbi Michael Abraham] How is it acquired? Once there is ownership—meaning, the fact that there is theft means that there is ownership. Once there is ownership, then it no longer bothers me to define proprietary acts on it as well. One could distinguish, but it is no longer far-fetched. Meaning, if there is ownership, then now one can also transfer that ownership. There is in fact a book on intellectual property by some rabbinical judge from Netanya, a judge in Rabbi Nissim’s court. But he’s from Netanya—I forgot his name. He has a Choshen Mishpat series, some five volumes or something like that, one of them on intellectual property. And there he distinguishes, I think—I think he did this, I’m not sure, maybe it was me—but I think I saw it there, I don’t remember anymore—between the question whether you have ownership and the question whether you can transfer ownership. That there are arguments that over an abstract thing you can be an owner, you just cannot transfer the ownership to someone else. You cannot perform a proprietary act on the thing. But ownership over an abstract thing can exist. I don’t remember anymore. Like a promissory note. What?
[Speaker B] Like a kind of assignment of debt.
[Rabbi Michael Abraham] Not at all—that’s exactly why it’s only rabbinic.
[Speaker B] The rabbinic laws, yes, there you can do such a thing.
[Rabbi Michael Abraham] Rabbinic law, so I didn’t talk about it, because the rabbis can enact whatever they want. Not really? No, I think ownership too is rabbinic there. When you transfer ownership to a minor, that doesn’t necessarily mean that. By the way, even with a minor—say, a minor who inherits—then he is an owner on the Torah level. You can’t say that a minor has no ownership. A minor has no act of acquisition on the Torah level; after all, a minor can’t effect an acquisition, can’t receive an acquisition, right? But he does have property rights—obviously, when he inherits, it is completely his. So there’s room here to deliberate about many things: is the problem the very fact that you are an owner, or is the problem the coming-into-being of the ownership, meaning the creation of the ownership? Okay, so that connects to what you said earlier.
[Speaker B] Is betrothing with a loan rabbinic?
[Rabbi Michael Abraham] No—what are you talking about?
[Speaker B] On the Torah level. Like a woman who acquires someone else’s loan and becomes betrothed with that.
[Rabbi Michael Abraham] Yes, but that’s through benefit—the benefit of forgiving a loan. That’s betrothal through benefit; it has monetary value. Not because of the loan itself. With the loan itself you can’t effect betrothal. If one betroths with a loan, she is not betrothed.
[Speaker B] With someone else’s loan she is betrothed.
[Rabbi Michael Abraham] Someone else’s loan is simply because that’s not betrothing with a loan; that’s betrothing with merchandise. Meaning that the debt can be transferred from one person to another. The debt has claim-value. What is this dance? It’s not some abstract thing. It has monetary value. People are willing to pay for it, so I betrothed the woman—not by transferring to her the dance. I gave her something of monetary value. Even with someone else’s intangible matters, I don’t think what betroths her is the debt itself, but exactly that—the monetary value of the debt. Meaning, the fact that the debt has monetary value—that is what effects the betrothal, not the debt itself.
[Speaker B] If I have a document and I give the woman the right to do something with its contents, something like that, that has monetary value. So—
[Rabbi Michael Abraham] It could be that for betrothing a woman that would indeed be possible, even though she’s not—again, that’s assuming you have the right and can transfer it, because if not, then it doesn’t help that you acquired it for her. The right—I can.
[Speaker B] How can you?
[Rabbi Michael Abraham] If it isn’t yours, then anyone can make use of it even without your permission. Only on the assumption that it really is your exclusive right does it become something with monetary value.
[Speaker B] But if it’s also rabbinic, Torah-level or rabbinic—once it’s rabbinic, then it already has monetary value.
[Rabbi Michael Abraham] No, that’s another question. It could be that a rabbinic acquisition is effective here even for Torah-level betrothal; with anything that can—
[Speaker B] be because it has monetary value.
[Rabbi Michael Abraham] Or alternatively. So in any case, intellectual property is one example of a legal fact. A second example—and this is what I wanted to get to and started talking about at the end—is returning lost property. The story is like this. That’s where the whole story started. It’s a ruling by Endeles that jurists really like to discuss. A man named Endeles found a bundle—we talked about this and I’ll just summarize again—a bundle of securities papers on the floor of the bank, on the floor of the safe-deposit room of Kupat Am Bank. He found it there. He left it at the bank, so that if the person who lost it came to ask about it, it would be there, so he wouldn’t cause the loser to lose out. Fine. Four months passed. According to the law, four months is the period during which you have to look for the person who lost it; after that, the finder can take the lost object. After four months Endeles came and asked the bank, so, what’s happening—did the loser show up? They said no. Fine, then give me the papers; I’m the finder. No, they said to him—we are the finders, said the bank. It was found in the safe-deposit room, it was found on our premises, we are considered the finders. It doesn’t matter that you physically saw it with your own eyes, but the finders are us—it’s on our premises. Fine. They went to court, and there was an appeal, and I think it reached the Supreme Court twice, and there were major arguments there. When Menachem Elon was the religious judge, as the representative of the religious seat on the court, he argued that since there is a gap, it’s impossible to define who counts as the finder, so one must go to Jewish law, and there he brought a Mishnah from “These Are Found Objects,” and he said what he said. The majority judges disagreed with him, and they argued that this was incorrect, and in effect they also said there was no gap, so there was no need to go to Jewish law. There were all kinds of claims around this matter, and in the end they ruled against him.
[Speaker B] Usually—wait, what was his opinion, that someone finds it? Whose is it?
[Rabbi Michael Abraham] The finder’s—Endeles’s. Yes. I’ll come back to that in a second; right now there was complete consensus, all the other judges—it later went to a panel of seven, I think; from three it went to a panel of seven—everyone was against him, against Elon. And the discussions that usually interest jurists in connection with Endeles concern the issue of the Foundations of Law Act. In 1980 a law was passed saying that wherever there is a gap that cannot be completed by analogy of one sort or another, then one must turn to the principles of justice and equity of Israel’s heritage—a kind of vague wording of that sort—which of course the religious judges always say, most religious judges, means Jewish law; basically one should apply Jewish law. And the secular judges basically say no, it means the principles of justice and equity of Israel’s heritage. The prophets. Right. Which is of course empty of content—the prophets. Yes, justice and equity are universal by definition. Meaning, what is just and fair has nothing specifically to do with Israel’s heritage. “Israel’s heritage” is a kind of stupid phrase. Really, it’s one of the stupidest laws I know—it’s unbelievable. It’s like that person whose—well, one woman pulls out his white hairs, and the young one pulls out the white ones and the old one pulls out the black ones, and he ends up completely bald—that’s exactly this law. It tries, as it were—the religious pushed for it to mean Jewish law, the secular didn’t agree, but they can’t deny Israel’s heritage, so “the principles of justice and equity of Israel’s heritage” is the compromise. And equity isn’t something particularistic. So when you say to me “Israel’s heritage,” you’ve said Jewish law. There is no other Israel’s heritage; all the rest is nonsense. But “principles of justice and equity”—that’s not the same thing.
[Speaker D] Maybe in both of their conceptions they identify Jewish law with morality, and they’re saying it’s sort of the early development of morality, so they don’t say Jewish law.
[Rabbi Michael Abraham] No, that’s exactly what they’re saying: when they interpret “principles of justice and equity,” it’s already not Jewish law at all. They don’t—if they said this is Jewish law and we identify Jewish law with morality, fine. But that’s not the case. Because the fact that they said “principles of justice and equity” and didn’t simply say “Jewish law” comes to say that they do not see them as identical. What they really wanted was to allow judges to do justice and equity—and justice and equity are no different in Belgium, Kazakhstan, or here. What difference does it make? What is just and fair is just and fair. There are disagreements, but that’s not between peoples. What, is there Jewish justice and non-Jewish justice? There is justice and there is injustice, that’s all. Anyway, it’s amusing in itself. In any case, around this issue, most of the discussion around that Endeles ruling is about that point—namely, whether there really was a gap there. What is defined as a gap? What are the principles of justice and equity of Israel’s heritage? In a moment I’ll explain, because it’s not certain that it can really be completed from Jewish law; I’ll get to that. All that was the debate. What interested me was something else entirely. What interested me was why there really is a difference. Not the question: okay, there is a difference—now the question is whether I am bound by what Jewish law says or not bound by what Jewish law says. What interested me was the theoretical question: why is what Jewish law says in this matter different from other legal systems? Why does Jewish law say something different here from what other legal systems say? One can discuss: okay, Jewish law says something different—should we resort to it or not resort to it? My question is: why? Why does Jewish law say something different? Why is it obvious to all the judges that justice and equity say one thing, and that’s what other legal systems said, because there was a gap. No, no—other legal systems—
[Speaker B] Yes, they did bring in other legal systems. What is a gap?
[Rabbi Michael Abraham] That it is still called—
[Speaker B] a gap.
[Rabbi Michael Abraham] Elon argues it is still a gap because our legal system said nothing—why are you going to the Americans? Go to Jewish law! That’s the dispute: whether such a thing is called a gap, because it really says that if it cannot be completed by analogy. Now the question is: what is analogy? Is analogy taking American law? Anglo-British law. Maybe yes? Or maybe not? Simply speaking, analogy isn’t that. Analogy means within our own system—learning from one place in the system to another. So around that there are all kinds of disputes about what counts as a gap and whether this is one; that was the main argument. But all of that is always in connection with the Foundations of Law Act. I’m not talking about it in that context. I’m talking about the theoretical question on the meta-legal level: why is the halakhic result different from all the other results, from all the other approaches? And all of them, from every legal system they brought, all reached the same conclusion except for Jewish law. And there is a lone voice among all these systems saying something else—and that demands interpretation, it’s interesting. Why is it different in Jewish law? So let’s do this a little more systematically. There’s a handout here; it’s supposed to be double-sided, right? So: basically, the Lost Property Law—at the top under the heading—it says like this. Only the sections relevant to us. “A person who finds lost property and takes it”—hereinafter, “the finder”—“must return it to its owner or notify the police of it as soon as possible, unless in the circumstances it may be assumed that the owner of the property abandoned hope of it because of its low value.” Fine—if it’s, I don’t know, a pencil or ten agorot, you don’t go to the police with it. “If the finder notified the police, he may deliver the property to them, and he must do so if required by them.” Fine. He can deliver the lost property to them; he can search for the loser himself—that’s perfectly okay. But if the police require it, he must deliver it. Okay? “A person who finds lost property on another person’s premises”—this is what concerns us, basically—“must notify the owner of the premises and deliver it to him upon request. If the owner of the premises takes possession of the property, he shall be regarded as the finder.” Even though someone else physically found the property, if you are the owner of the premises, then you are regarded as the finder. In section 4: “If the finder has complied with the provisions of section 2”—that is, notified the police or searched for the loser—“and the owner of the lost property has not been discovered within four months, he shall be regarded as having abandoned hope of it, and the finder shall become the owner of the property. The said period shall begin on the day he notified the police of the property, and if he was not required to notify as aforesaid, from the day it was found.”
[Speaker B] I don’t understand—wait, in section 3 why is there a gap? Section 3 says it explicitly.
[Rabbi Michael Abraham] Yes, look, you’ll see in a moment, in a moment.
[Speaker B] He has to hand it over to the owner—
[Rabbi Michael Abraham] In a moment you’ll see, in a moment you’ll see. Now then—so that’s the Lost Property Law, the sections relevant to our matter. Now what happened? The dispute there was over what counts as “another person’s premises.” Because the floor of the bank safe-deposit room is in fact public premises—no, sorry, not in the proprietary sense; proprietarily it belongs to the bank. Right? But as premises, it is a place given over to the use of the public. Everyone has permission to enter there; it’s a public room. Every client, anyone who comes in, can enter there. In that sense, it is not the bank’s premises. It belongs to the bank in the proprietary sense, of course; the bank owns the safe-deposit room. But what? Like any public place, any place that serves the public. So the question is: what counts as “another person’s premises”? That’s the dispute. Elon argued that this is not another person’s premises. And the bank argued that these are our premises; after all, we are the owners. Two sides—you can say it this way, you can say it that way.
[Speaker B] Wait, wait—what is the logic behind the question? Wait, we’ll get to that in a second.
[Rabbi Michael Abraham] We’ll get to that in a second; there is logic to it.
[Speaker B] Fine, but what’s defined here in the law is the owner of the premises, meaning the owner of the premises is the bank. No—the owner of the premises isn’t the public, it’s the bank. Okay.
[Rabbi Michael Abraham] And who said these are another person’s premises?
[Speaker B] He has to notify them, the owner of the premises, or deliver the property to the bank.
[Rabbi Michael Abraham] Yes, so?
[Speaker B] Meaning ownership of the premises is the criterion.
[Rabbi Michael Abraham] And after you decide that these are another person’s premises, then if that’s so, you have to hand it over to the owner of the premises.
[Speaker B] But who said these are not the bank’s premises? It owns the premises.
[Rabbi Michael Abraham] Yes, that’s the dispute. The dispute is whether “premises” and “ownership” are synonymous. Obviously the bank is the owner. Look, even in Jewish law—after all, a robber cannot consecrate it, and the owner also cannot consecrate it: this one because it is not his, and that one because it is not in his possession. “His” and “in his possession” are not the same thing. Like guarded premises, for example, through which you can acquire something—it isn’t enough that the courtyard be yours. You also have to be in control of what happens there. It has to be in your possession too, not only yours. Even in Jewish law, there can be a difference between something that is in your possession and something that is yours. Meaning it could be that you are the owner but—
[Speaker B] the owner—but that’s only in Jewish law. I’m sure that’s only in Jewish law.
[Rabbi Michael Abraham] Okay. There the dispute was about that issue. And it isn’t so important for me to clarify what the legal truth is; I’m using it only to sharpen my point. So that was the dispute. Now Elon argued that since there is a dispute about the interpretation of this term, “another person’s premises,” that means it is a gap. Since it is a gap, one must go to the principles of justice and equity and so on—in short, to Jewish law. Okay? Elon of course always said that this means Jewish law, and there are arguments about that too—whether one should go to Jewish law and so on. That was his claim. What does Jewish law say? It’s the Mishnah in Bava Metzia: “If one found [an object] in a store, these belong to him. Between the counter and the storekeeper, they belong to the storekeeper. In front of a money-changer’s table, these belong to him. Between the chair and the money-changer’s table, they belong to the money-changer.” That’s enough for our purposes. What does that mean? A person comes into a store—a money-changer or a grocery or something like that. There is the counter; behind it sits the shop owner; and there is the area of the merchandise where people walk around and collect goods and then come to pay at the counter. Now if you find the lost object behind the counter, between the counter and the seller, then it belongs to the owner of the counter, the owner of the store. But if you find the lost object in the store, even though the store belongs to the seller in the proprietary sense, that is not called his premises. Since the public walks around there freely, everyone has permission to enter, it belongs to the finder. We are of course speaking about a lost object without identifying marks, or a place through which the public passes—in the simple reading, without identifying marks. So Elon says: that is exactly our case. The floor of the Kupat Am bank is exactly parallel to what is outside the counter, where the customers walk around. So if that’s so, it isn’t called the premises of the store owner—or in our case, the bank. Since it is a room designated for the use of the public. And therefore, he says, one must draw from Jewish law as law and apply it to fill the gap. Right? Because in Jewish law this was in general—
[Speaker B] Fine,
[Rabbi Michael Abraham] but there’s no gap on that point. Jewish law is not binding as a matter of statute. Where there is a gap, you fill it from Jewish law. Now true, according to Jewish law you wouldn’t have had to return it, but the law here doesn’t care what Jewish law says; the law here has already determined that yes, you must return it. But the law says: right, but where there is a gap—you don’t know whether this counts as another person’s premises or not—we’ll go to Jewish law and there it will determine whether this is another person’s premises. And here there were a lot of arguments by the majority against Elon. First, the question whether this is called a gap at all. Because there is American law, German law, I don’t know what they brought, from all kinds of other sources. Second, there was another claim there: that this is not really called a gap at all. There is an unclear concept here. A gap means a deficiency in the normative sphere—that there is a situation about which the law gives no instruction. The law does not tell us what to do in this situation. Here there is no such case. In every case the law tells us what to do. If it’s your premises, then one way; if it’s another person’s premises, then another way. There is no gap at all. You just don’t know how to define the concept “another person’s premises.” That is not a normative gap. It is an interpretive question: what counts as another person’s premises? That is not called a gap. That is what Haim Cohn argued, for example. Haim Cohn, who was actually one of the promoters of Jewish law, said: here this is not called a gap. All right? Another argument was—and this continues the previous one, and I think it’s a strong argument—Meir Shamgar, Barak wrote it, and also Haim Cohn. They were completely right. It’s clear that Elon made a big mistake here. People often hang it on an ideological dispute. It isn’t an ideological dispute. Elon was simply wrong here, in my opinion. They made another argument: what is the gap? Let’s say it is a gap. The problem is interpretation—after all, earlier I said Haim Cohn argued that because my problem is only in the interpretation of a concept, that is not called a gap. A gap is when there is a situation about which the law does not tell me what to do. But here there is no such situation. You just don’t know where to classify it—whether to classify it here or classify it there. But both situations are covered by the law. There is no empty area. There is no normative vacuum. Okay? Let’s say that such a thing is also called a gap. Let’s go with Elon that such a thing is a gap. Then go complete it. Where in the laws of returning lost property does the term “another person’s premises” appear? Nowhere. It isn’t defined. In the laws of lost property, nowhere is the type of premises on which the lost property was found defined. That concept is simply not relevant in Jewish law at all.
[Speaker D] It’s simply irrelevant. Maybe he meant that it’s some kind of intermediate premises—not exactly another person’s premises, more like—
[Rabbi Michael Abraham] half—
[Speaker D] half-public, half-private premises.
[Rabbi Michael Abraham] No. It’s obvious that that’s what he meant. But if you want to fill a gap that is about the interpretation of a concept, then you can’t take a norm from Jewish law and say, ah, here there’s a gap, so let’s take the norm.
[Speaker B] Because the gap isn’t there.
[Rabbi Michael Abraham] The gap is somewhere else. Exactly. So this continues the previous argument. The previous argument says: this is not a gap at all, because it’s just a question of a vague concept that I don’t know how to interpret. Fine. Let’s go with Elon that it is a gap. Then go to Jewish law and look for “another person’s premises” and see how Jewish law interprets that concept. But there is no such thing. He didn’t bring it from anywhere. What he brought was what the law should be.
[Speaker B] Maybe in a place where you don’t know what to do, you go to the law. Yes.
[Rabbi Michael Abraham] But that is already very far-reaching. You are bringing me the law itself, but there is no gap here in the law. So even if you say that a gap in the interpretation of a concept is a gap—fine. But fill from Jewish law the interpretation of the concept. Yet he goes one step much further. He says: since there is a gap in the interpretation of a concept, then de facto I now don’t know what to do. True, that’s only because I don’t know how to interpret the concept, but practically I don’t know what to do. Ah, if I don’t know what to do, then I do what Jewish law says. That is already very far-reaching. All right? And I think it’s a very interesting discussion in legal questions. But as I said, none of this interested me. What interests me is why there really is a difference. Why is it that for all the judges, when you look at the reasons they give, it is completely obvious to them that the correct ruling is to give it to the bank—except in Jewish law. Jewish law stands against all the legal systems in the world in this context, at least those that discussed this issue. All of them. And against the intuition of the judges, and against everything. And in my view, it lies in exactly the same place I’m talking about here. And this is the third kind of reasoning that exists in Jewish law but does not exist in regular legal systems: legal intuitions, legal insights. What do I mean? Look, let’s read for a moment this excerpt from Barak. I brought here a passage from Barak’s opinion. Between the Mishnah and Maimonides. What is that? Between—
[Speaker B] the Mishnah and Maimonides. Yes. But that’s not Maimonides on this Mishnah. It’s a different Maimonides.
[Rabbi Michael Abraham] “An examination of the policy of the Lost Property Law leads to the conclusion that the decision as to to whom ownership of the lost property should be granted—the original finder or the owner of the place where the property was found—should not be made solely according to the degree of justice involved in granting ownership to this one or that one. By these standards, it may be that in every case ownership should be granted to the finder, who in his great fairness took the trouble to pick up the lost property, notify the owner of the place, and deliver it to him. But this was not the legislator’s approach. Moreover, justice may require dividing the ownership between the two.” Fine, so divide the ownership maybe between the finder and the bank. “There will certainly be cases in which justice requires granting ownership to no one, but leaving it until Elijah comes.” Indeed, the legislator himself anticipated this possibility by providing that “the Minister of Police, in consultation with the Minister of Justice, may prescribe by regulations that, with respect to valuable lost property, or property that may be assumed to have special sentimental value to its owners, and other special categories of lost property, the provisions of this section shall not apply, or shall apply with extension of the periods mentioned in it or with other changes prescribed by regulation.” Yes—maybe more than four months, or whatever, because they do not want the original owner to lose the lost object. “It follows,” says Barak—and the emphases are mine—“it follows that the determination of ownership is indeed only a means for achieving the main purpose of the law, namely, returning the lost property to its owner.” What is Barak saying? He says—and this is basically the main claim of all the majority judges—he is essentially saying that the consideration of who the finder is is subordinate to the basic interest of the Lost Property Law. The purpose of the Lost Property Law is to return the lost property to the person who lost it. That is the basic orientation. Everything is subordinate to that. When I now want to discuss to whom—who will be considered the finder—I do so from the perspective of what will best improve the chances of returning it to the owner. Now when I ask myself who the finder is in this case—the bank or Endeles—I need to ask not whether this is another person’s premises, whether it’s ownership, possession, who the owner is; this has nothing to do with property law, says Barak. It concerns optimization of the chances of return. So what will give a better chance of returning the lost property to the owner—to regard Endeles as the owner or as the finder? To regard the bank as the finder?
[Speaker B] The owner will come to the bank, right?
[Rabbi Michael Abraham] Obviously the bank, right? Because where will the owner go if he suddenly notices his papers are missing? His papers are missing.
[Speaker D] You could also argue the opposite. You could say that if you define the bank as the finder, then people who find a lost object in a bank will say, fine, I won’t tell anyone, because afterward I see a thousand dollars.
[Rabbi Michael Abraham] No, but here you are assuming that a person will violate the law. Let’s neutralize that consideration for a moment. Yes, but even so, you are essentially taking into account the presence of criminals. But the consideration is—let’s say everyone obeys the law, and I now want to improve the chances of returning it to the loser.
[Speaker D] Yes, but that’s not a bad assumption—if you want, let’s talk about reality. If you want to optimize, then optimize all the way.
[Rabbi Michael Abraham] It may be that there is a presumption of legal compliance and a person will obey the law. If the law requires him to give it to the bank, then he will give it to the bank. But we live—
[Speaker D] in reality. We know that people—
[Rabbi Michael Abraham] Why wouldn’t a person just take it? If the person is stealing, then he’ll just steal it straight into his pocket and not give it to the bank. Why did Endeles hand it to the bank at all?
[Speaker D] Because at least that way there’s less temptation; he knows he’s obeying the law.
[Rabbi Michael Abraham] But you understand that he does obey the law at a basic level. So if someone generally obeys the law, let’s not suspect him that he’ll violate it anyway. Then he’s fine, he’s a decent person. Because if he isn’t decent, then none of your tricks will help—he’ll just put it in his pocket and go home.
[Speaker D] But he can be half-not-decent. Fine, so that’s why I say—the concern that there might be someone here who’s half-not-decent—
[Rabbi Michael Abraham] probably isn’t the concern. I’m saying, you can argue about it, but I’m trying to show the form of reasoning. Apparently it didn’t bother them. If someone is basically decent, then he’s probably decent; that’s no longer the issue. So let’s make considerations of improving—yes—optimizing the chances of return. Then obviously the logic says to regard the bank as the finder.
[Speaker B] Why? Because the owner will come to the bank, and the lost property will be there.
[Rabbi Michael Abraham] Wait—that’s at the stage when I first found it. I’m not yet getting to after four months; we’ll get there in a moment. What?
[Speaker B] After I find it, go to the police.
[Rabbi Michael Abraham] No, who said go to the police? No—you may hand it to the police upon their demand, and you may search for the loser yourself. No problem. You can do it this way or that way.
[Speaker B] The test is: who is the loser, how can the loser find it in the best possible way?
[Rabbi Michael Abraham] Yes, that is what determines who the finder is. Now four months pass. After four months, the question that arises is to whom to give the lost property. Barak says: what do you mean? If the bank is the finder, then it is also the one that should get the lost property. Once we decided that it is the finder, then it also receives the lost property. Meaning everything ultimately starts with the question of how I optimize the chances of return. Okay? In the end, the majority judges say in various places that this is also correct, because once the bank is the finder, then give it the lost property after four months, because that will give it motivation during those four months to do what it is required by law to do. Because if it won’t get it in the end, then it will just leave it there and let it get lost; it won’t take care of it at all. The eventual giving of the lost property to the finder also serves the chances of return. After all, when I say to the finder: look, if you do what you’re supposed to do, and after four months we still haven’t found the loser, you’ll get the lost property. If you don’t do what you’re supposed to do, we’ll take it from you—you’ll never get it. You’re taking a risk. So that means that even giving the lost property to the finder in the end serves the chance of returning the lost property to the loser, the owner. Ultimately all the decisions here, says Barak, are not really decisions in property law at all. The property question—who the lost item belongs to—is derived from the purposes of the law, from the law’s aims. The aim of the law is to improve the chances of return, and the property decision is subordinate to that. Look, that’s what he says here: “It follows that the determination of ownership is indeed only a means for achieving the main purpose of the law, namely, returning the lost property to its owner.”
[Speaker B] I’ll continue: “A further conclusion follows, which perhaps can be added. According to section 3, if the owner of the premises took the lost property into his possession, as happened here—”
[Rabbi Michael Abraham] “he shall be regarded as the finder”—
[Speaker B] that’s what happened
[Rabbi Michael Abraham] here, right, that’s what Barak says. Assuming the bank really is the finder—
[Speaker B] he doesn’t have to give it, but if he gave it—no, he does have to give it.
[Rabbi Michael Abraham] He has to notify, and upon request he must deliver it; he has to give it. So he was required to give it. Now once the owner of the premises took the lost property into his possession, at that point it no longer belongs to the judges; there the law has already spoken. The whole question is: decide at the outset whether he had to hand it over to the bank, whether he is the finder or the bank is the finder—that’s the question. Meaning: what is “another person’s premises”? I’ll keep reading. “A further conclusion follows. It seems to me that in deciding whether lost property was found on another person’s premises or not, there is no need to resort to the question whether that other person is regarded by law as being in possession of the lost property even before it was discovered by the finder.” What is he trying to say? That basically Elon’s claim was: this lost property that was lying on the floor of the safe-deposit room was not in the bank’s possession before it was discovered. Why? Because it’s public space, like in Jewish law as well—a place through which the public passes; you cannot—even such a courtyard does not acquire for you if it is not guarded according to your knowledge. Okay? That’s what Barak is saying here—that the fact that you own the place where the lost property was lying even before it was discovered at all carries no weight; it isn’t relevant. “This approach—who is the first possessor—does not seem to us,” yes, the royal plural, “to be relevant to the main purposes of the Lost Property Law.” Again, because the consideration is purposive—what are the purposes of the law? “Indeed, it seems to me that the legislator did not adopt the possession test as the criterion for deciding whether lost property is found on another person’s premises. Premises and possession are not one and the same.” Okay? “Whatever the laws of possession may be”—which is basically the property laws—“a person’s premises for purposes of the Lost Property Law will not be determined according to them, but according to the main purposes of the law: returning the lost property to its owner.” In short, what Barak is saying is that property law is irrelevant. When does Elon drag property law in here? He essentially says that the bank’s acquisition—like if there were a counter in a store—is really public space; the store owner does not acquire lost property in a place that is not guarded for him, in a place where the public walks around. So because he is not the proprietary owner in that legal sense, he is not the finder. Barak says that’s irrelevant. Property law is not relevant to define “another person’s premises” for purposes of returning lost property. To define “another person’s premises” for the law of lost property is a definition based on the purposes of the law. To formulate it briefly, I would say this: according to the majority opinion, and apparently all the legal systems they cited, and the intuition of all the judges there, property law is subordinate to the interest of returning lost property. And Elon argues—and on this he is right—that according to Jewish law it works the other way around. Returning lost property is subordinate to property law.
[Speaker B] In Jewish law it isn’t even a fine at all.
[Rabbi Michael Abraham] It’s all a derivative of that, all of it. This difference is the one difference between them; everything else follows from it. Everything follows from it. So from the standpoint of Jewish law there is no independent issue of returning the lost property to its owner—only if he is its owner. So it begins with the property question. Therefore, for example, many scholars say that the concept of despair of recovery that the sages introduced into the laws of lost property—the most basic concept in those laws—is an invention with no root or branch in Scripture. You look at the verses, there is no mention of it. I think—I think—it may not even appear in the Mishnah, only in the Talmud. I don’t remember; I think there is some statement that this is even a Talmudic invention. Meaning, it may not even be in the Mishnah. I think; I’m not sure, we’d have to check. They made a revolution in the laws of lost property by introducing the concept of despair of recovery. Because if you do not introduce that concept, then the conception of the laws of lost property is the conception of the civil law. Because what does it really say? The owner is of course the original owner. He is the owner. It has nothing to do with despair or no despair or anything. The owner is whoever was the owner. It follows automatically that you have to return the lost property to him because he is the owner. So everything is subordinate to the interest of returning the lost property. Then why do you get the lost property in the end? After all, he is the owner. And despair of recovery doesn’t play a role in the civil law. So why do you get the lost property in the end? That too is to facilitate the return—to increase the chances of returning the lost property. A requirement of despair?
[Speaker B] The government’s law returns—no—
[Rabbi Michael Abraham] But that isn’t really despair. “He shall be regarded as if he despaired of it.” It’s as if. Why? So they say here—as we wrote, and Barak also said here—to improve the chances of return.
[Speaker B] Because if there are one or two—these are good things—that he despaired of it, that’s only from the perspective that if he wasn’t—
[Rabbi Michael Abraham] Yes, that’s despair in the statute. Yes. It isn’t despair because I despaired of finding it. That’s not it. Only in the case of low value. Something small, then no one cares. So Barak is basically saying that even the fact that I acquire the lost property in the end—that too is to improve the chances of return. Meaning, both the basic ownership—who the lost property belongs to—is not a relevant discussion of whether there was despair or not, and also the later transfer of the lost property to the finder is not relevant in itself. Both are subordinate to the interest of improving the chances of returning the lost property. Everything is determined by that interest. That is the conception of the statute. The conception of Jewish law, at least after the sages, is the opposite. Everything is determined by property law. If the lost property is yours, then of course there is an obligation to return it to you. But if you despaired of recovering it, then it is no longer yours. If it is no longer yours, there is no point at all in returning the lost property to you. Meaning, suppose you despaired, and now you’re standing here and you have definitive identifying marks. I am now holding the lost property, and you bring definitive identifying marks—certainly it’s yours. The person who fulfills the commandment of returning lost property would obviously have to return it to him—after all, he proved it is his. The halakhic man says: what do you mean? There was despair, it’s no longer yours. I’m going home, goodbye. So what if it was yours? That doesn’t interest me. You are not the owner; it used to be yours. You are not the owner—you despaired. In the statute, despair is a fiction: “he shall be regarded as if he despaired.” There the purpose of the fiction is to enable us to give the lost property to the finder. Because if we don’t give it to him, how do we ensure that he will do what is incumbent upon him? It is to encourage him to do what is incumbent on him—meaning, even giving it to the finder in the end serves the return. In Jewish law there is no such thing. Once you became obligated to return it, it will never be yours. When does a lost object become yours? If at the moment of lifting it, it was already yours and not the loser’s. If you picked up the lost property after despair of recovery, then you can take it directly; you do not need to return it. Once you became obligated to return it—if you picked it up before despair, or where there was no despair—it doesn’t help; despair after the lost property is already in your hands is ineffective. Even if ten years pass and it is clear to you that the owner has by now despaired, if he had not despaired until after you picked up the lost property, you must return it to him forever.
[Speaker E] Can he lift it not with the intention to acquire? What?
[Rabbi Michael Abraham] It doesn’t matter; it doesn’t matter.
[Speaker E] Then he didn’t acquire it, so he didn’t acquire it even if he lifted it with the intention to acquire. No—even if he lifted it with the intention to acquire, he didn’t acquire it. Yes, only if the other person had already despaired—that would acquire it for him.
[Rabbi Michael Abraham] Ah, if he despaired beforehand? Yes, no problem.
[Speaker E] So I’m saying, if a person
[Rabbi Michael Abraham] doesn’t know whether the other person despaired
[Speaker E] or not, then let him lift it without the intention to acquire. What, a trick? No, some kind of trick like that, so that it turns out—
[Rabbi Michael Abraham] that once it becomes clear that the other person despaired, then he’ll lift it with intention to acquire.
[Speaker E] after he’s sure that the other person—
[Rabbi Michael Abraham] No. Once you became obligated to return it, it doesn’t matter. You won’t be able to acquire it later. You became obligated to return it. Once you became obligated to return it, you cannot free yourself from that obligation. It doesn’t matter if you didn’t acquire it.
[Speaker B] Once you lifted it and it’s not—that’s the difference between “you may not ignore it” and “you shall surely return them,” and there are all kinds of differences there between the prohibition and the positive commandment, when this applies and when that applies. Meaning, the whole outlook between Jewish law and the legal world is completely reversed. From the standpoint of Jewish law, the fact that the lost property is not yours is a legal fact. There is no logic here. The logic is obviously the logic that says: let’s return the lost property to the loser, because in truth it was his. He would not have despaired if he understood that there was a chance it would really get back to him. He despaired by mistake; he thought it would not return to him, and here I found it and by chance I can return it to him. Justice says to return it to him. There is no other logic. True, even from the standpoint of Jewish law there is no other logic—but the fact is that he despaired, so it is not his. A legal fact. Notice: this legal fact has no verse. The concept of despair is innovated by the sages without a verse. On the basis of reasoning. Against all logic. Why, after a person despairs, is it no longer his? Despair is not ownerless declaration, yes? That’s pretty clear. Although de facto in the end, according to most opinions—except for the Netivot, I think, who wants to argue otherwise—according to most opinions, after despair it is like ownerless property. But not that despair really means to render something ownerless. Not that when a person despairs he thereby declares it ownerless. A person often despairs without even thinking in those terms; he is not declaring it ownerless, he is not saying “I am willing for anyone to acquire this.” He is only saying, “There is no chance it will probably come back to me.” Despair is an assessment of future reality. Despair basically says: there is no chance this will get back to me. Declaring something ownerless is a legal act. Declaring it ownerless means I remove my ownership from this thing. A property act, exactly. Now despair is not a property act. Despair is simply a state in which I assess that it probably won’t come back to me. It is an assessment of the future, not a legal act. Therefore the Netivot really wants to argue that even after despair the object is not ownerless. Rather, anyone is merely permitted to take it.
[Speaker E] And Rashi doesn’t—there you—
[Rabbi Michael Abraham] says that it is ownerless, and you say that it is like ownerless property. Usually people understand this to mean that it is actually ownerless. The Netivot… the Netivot wants to say that it is like ownerless property. Meaning, the intention is that anyone is allowed to take it as though it were ownerless, but it is not actually ownerless. Because the ownership is still yours. How did your ownership lapse? After all, you didn’t declare it ownerless. How did it lapse? The fact that you gave up hope only means that even though you are the owner, others are not prohibited from taking it. That is the claim of the Netivot. In any case, this is an example of this idea, that there is some kind of legal fact here saying that despair removes the lost item from my possession. Now it is not mine. Once it is not mine and the finder picked it up, it belongs to him even if that happened after a day; you don’t need four months. This does not fit at all with some kind of legal technocracy that comes only to make sure that you return it. It really goes according to the facts. Meaning, if you are the owner then you are the owner; if he is the owner then he is the owner. The duty to return exists only if he is the owner and you picked it up; then you have to return it to him. Ownership acquisition starts the whole story, not the duty of return. First of all, you have to determine the proprietary status: whose lost item is it? Is it the loser’s or the finder’s? In other words, was there despair or not? Only after you determine the ownership, the proprietary determination, do you begin to discuss the question of the duty to return. Exactly the opposite of the perspective of the legal system, of all legal systems, of all the intuitions of the judges who were there. Everyone agrees. And why? Because they are right. Clearly they are right. From the standpoint of legal reasoning, what is there? Either factual clarification, or legal logic, meaning according to purposes. Now, by all those standards, there is no doubt that what you need to do is return the lost item to the one who lost it. What difference does it make whether he despaired or did not despair? A person worked for it, paid for it—what business is it of yours? If you really can find whose it is and you know whose it is—if you don’t know, that is something else—but if you know whose it is, give it back to him. Why not? There is no logic to the contrary in either of those first two senses. Only if we understand that there is a third kind of logic, namely that once a person despairs, I understand that it is no longer his—that is a legal fact. Meaning, the metaphysical bond between him and the lost item has been severed, and that is it, now it is not his. Not because I decided that this is how it should be ruled, or whatever, and not because there is a verse, but simply because I understand that this is how it is.
[Speaker B] Maimonides says that one should act beyond the letter of the law,
[Rabbi Michael Abraham] That sharpens the point.
[Speaker B] Let’s look at Maimonides; the source is the Talmud.
[Rabbi Michael Abraham] Someone could have come and said no—the higher Jewish morality, yes, says of course not, that actually it is also immoral; even morally there is no obligation to return a lost item after despair. The morality of the gentiles doesn’t count; that is just laymen’s opinion. The higher Jewish morality is different. But the problem is that this higher Jewish morality does not stand the test of the Sages. The Sages in the Talmud, and afterward Maimonides too—so let’s read it from Maimonides; the source is the Talmud. If most of the city are gentiles, if one found it in a place in the city where most of those commonly found there are Israelites, he is obligated to announce it. If there is an enclave inside a city whose majority is Israelite. But if he found it on a main road or large public square, in synagogues and study halls where gentiles are always present—yes, these are synagogues and study halls of gentiles; that is one of the Talmud’s jokes in These Found Articles—so Maimonides explains: synagogues and study halls where gentiles are always present,
[Speaker E] cleaning there or guarding,
[Rabbi Michael Abraham] yes, where there are many gentiles there, not study halls of gentiles. And in any place where the public is commonly found, the found item belongs to the finder, even if an Israelite came and gave its identifying marks, for he already despaired of it when it fell, because he says, “A gentile found it.” Yes, basically the person knows that it is in a place where the majority are gentiles, and then he despairs; there is no chance that anyone… Now I, a God-fearing Jew, found the lost item, it has identifying marks—meaning he despairs anyway because there is a gentile majority there, so they do not return things even with identifying marks. Fine. But I found it, it has identifying marks, and I know who he is. I can take it with no problem, go home in peace. Why? Because it is not his; he despaired. Okay? Now Maimonides says: even though it belongs to him, to the finder, one who wishes to walk in the good and upright path, and acts beyond the letter of the law, returns the lost item to an Israelite when he gives its identifying marks. If you understand that it really is his, even though in terms of Jewish law it belongs to you,
[Speaker B] it is the good and upright way to return it to him.
[Rabbi Michael Abraham] Now I ask: if that is the good and upright way, then why does the law not obligate you to do it?
[Speaker D] But even in ordinary law, sometimes you have something that is beyond the letter of the law. In ordinary legal systems too you hear rulings where they say, strictly speaking this is the law,
[Rabbi Michael Abraham] right, but beyond the letter of the law, give him a little compensation. But again, the question is why, strictly speaking, is it like that? Because there is some logic to its being like that as the law. If you want to be Robin Hood, then fine, that is outside the law. But here I am asking why the basic law is not like that in the first place. What is the problem? Why not determine the basic law that everything follows the identifying marks? If you know he was the owner, give it back to him. Why did you bring despair into this?
[Speaker D] Fine, but even from ordinary legal logic, regarding the fact that Jewish law was determined in this way and not that way—why?
[Rabbi Michael Abraham] So what is it? That is what I am asking—what is it?
[Speaker D] You could say that there is something here that otherwise… So let’s say that if you did not establish despair, then the objects would go to waste. Society would lose many objects.
[Rabbi Michael Abraham] Why would society lose many objects? What happens to the objects?
[Speaker D] Whom do they belong to?
[Rabbi Michael Abraham] So what—after four months it belongs to the loser? Why is that connected to despair? Time is up—twelve months.
[Speaker D] Let’s say a loaf of bread. An item that after four months is no longer usable. So with bread, at least let it belong to somebody.
[Rabbi Michael Abraham] Then say that if you cannot find the owner—bread, if there are no identifying marks and you cannot find him—then take it. That is perfectly fine, no problem. Jewish law says so.
[Speaker D] No, you said you have to wait four months and then it is yours. Right. So I am saying that after four months the bread will be ruined.
[Rabbi Michael Abraham] Then even without despair, take it. Why does despair make a difference? Why does it matter whether it is yours or not yours? What matters is whether there is a chance to return it to you, whether there are identifying marks. But why does it matter whether you are the theoretical owner or not the theoretical owner? That is the point. Why define someone who despaired as no longer an owner? I do not see any legal logic in that. And if there is a moral consideration or a consideration of justice that can be applied—and after all, the Sages say to apply it—then let them establish it as Jewish law already. Why establish a law that after despair the lost item is mine, but one who wishes to walk in the good and upright path should nevertheless return it to the owner if there are identifying marks and you know who the owner is? Then establish halakhically that he is obligated to return it, since that is the just, good, and upright thing. Meaning, you cannot tell me that the just, good, and upright thing—what I think of as just, good, and upright—is mistaken, is ignoramity. The Torah tells me the true just, good, and upright thing. Not true, because the Sages themselves say that this is indeed the true just, good, and upright thing, and nevertheless they say that Jewish law says otherwise. So why? What is this law coming to achieve? Meaning, what is this law? It is not coming to achieve anything. That is exactly the point. It is simply true. “Coming to achieve” always looks for some purposive consideration, some utility consideration, and that is the accepted form of legal thinking. Here I am saying: it does not come to achieve anything. It is simply so. If you despaired, then the lost item is no longer yours. That is how the Sages understand it as a matter of reasoning, not because of a verse. Once it is not yours, why should I return it to you? It is not yours; that is the legal truth. It is not yours, so why should I return it to you? Justice certainly says to return it to you. You worked for it, it is valuable to you, it serves you—why do I need this thing? From the standpoint of justice, certainly. Justice is a universal thing. If gentiles think it is just, then Jews also think it is just. Justice is universal. And therefore I said that “the principles of justice and fairness of the heritage of Israel” is an oxymoron. Principles of justice and fairness are not part of the heritage of Israel; they are universal by definition. What belongs to the heritage of Israel is only Jewish law. And it really is particularistic.
[Speaker B] Justice is not the same as the good and upright.
[Rabbi Michael Abraham] No, here by justice I mean like the good and upright. The legal truth is not the good and upright. The good and upright is morality. But Jewish law is determined first of all according to the legal facts. The legal facts are that if you despaired, it is not yours. Period. And it does not matter whether that is useful or not useful, whether there is utility, whether there are such or other legal considerations. It is simply a fact, a legal intuition. This is another example of the third approach, and I am showing you here that it is this extreme, because all legal systems and all judges and everyone—it is obvious to them that this is not correct.
[Speaker D] But look, Barak too distinguishes between justice and law. He says that by the measure of justice it should have been divided, or
[Rabbi Michael Abraham] given all of it.
[Speaker D] So there is moral justice in Barak’s approach too, and there is also legal justice.
[Rabbi Michael Abraham] No, of course, of course—and that is what I answered you before as well. Because for him too there is logic in the basic determination, in the core law. The logic is to improve the chances of returning it. After that, on top of that, of course there are also considerations of justice. Clearly there is also a layer of justice. I am only claiming that there are sometimes situations where on the first layer there is nothing to talk about at all. When there is nothing to talk about at all on the first layer, then take justice and make it the first layer. Why set it only as justice, as a second layer? In a place where there are two such levels, then there are two such levels. Obviously that is true everywhere. So yes, we talked about “do not stand idly by your neighbor’s blood.” Obviously justice says—everyone understands that justice says—you should help another person if he is in distress. The question whether to establish that as a legal obligation, or to punish someone who does not do it, is another question. Fine.