Migo and Legal Reasoning – Lesson 7
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 facts, despair, and returning lost property
- The Maharal in Be’er HaGolah: the intellect of the Torah versus conventional civic morality
- Maimonides: going beyond the letter of the law and recognizing the moral dimension
- Attempted transgression, attempted murder, and the distinction between intention and outcome
- Intellectual property and the shift to utilitarian thinking
- Derashot HaRan, homily 11: true justice versus repairing the political order
- The laws of the Torah, divine influx, and the possible superiority of gentile legal systems in political ordering
- A historical pathology: the absence of monarchy, a court administering lashes and punishments not according to the formal law, and concentration of powers
- The Exilarch, ordination, and dual authority in Babylonia
Summary
General Overview
The lecture presents a distinction between ordinary legal reasoning based on morality, justice, and social utility, and a third kind that the Sages use as the basis for halakhic rulings: “legal facts,” understood as conceptual truths that do not depend on a desirable outcome. The central example is the laws of returning lost property and despair, where Jewish law derives the obligation to return from property law rather than from the goal of restoring the object to its owner, and even determines that despair severs the connection between a person and his property “simply because that is so,” even when that contradicts conventional civic morality. From there, the lecture brings the Maharal in Be’er HaGolah and the Ran in Derashot HaRan to ground a distinction between “true just judgment” and “repairing the political order,” and to explain the duplication of authority in Jewish law between the law of the courts and the law of the king, alongside a historical claim that the absence of monarchy caused powers of “repairing the world” to drain into the courts and created phenomena such as a court administering lashes and punishments not according to the formal law, along with a pattern in which “everything ends up at the doorstep of the court.”
Legal Facts, Despair, and Returning Lost Property
The claim is that the Sages make determinations that have no verse as their source and are not based on morality, justice, or efficiency, but on a conception of a “legal fact” that binds just like a fact in reality. The argument is that when a person despairs, the Sages determine that the connection between him and his money or property has lapsed, not because the outcome serves some utility, but because that is how they understand the legal reality. The claim is that in ordinary legal systems, including Israeli law, the laws of lost property are designed in order to return the object to the loser, whereas in Jewish law the order is reversed: one begins with property law, and from that the obligation to return is derived only when the lost object still belongs to the loser. The claim is that in the Torah, simply speaking, there is a commandment, “you shall surely return them,” with no hint of despair, and the Sages add from reason alone the distinction that only before despair is one obligated to return it.
The Maharal in Be’er HaGolah: The Intellect of the Torah Versus Conventional Civic Morality
The Maharal in Be’er HaGolah explains that the law that one need not return lost property after the owner has despaired seems far-fetched to a person, because it allows someone to take “what is not his,” and “it does not accord with conventional civic morality,” which would require returning it even after despair. The Maharal states that conventional civic morality obligates according to “repairing the world” even where “the intellect does not require it,” while the Torah is “entirely intellectual,” and the words of Torah are “measured by intellect,” and therefore when something is proper according to intellect, that is how one should act. The Maharal says that conventional civic morality can be more stringent where according to “the intellect and upright justice” there is no need, and it can also be more lenient where according to the Torah there is greater stringency. He gives the opposite example: according to conventional civic morality, after announcing a found silver or gold vessel for a year or two, the finder may use it, “because there is no repair of the world in this,” but “according to the Torah,” they “are forbidden to him forever,” and “it shall lie until Elijah comes.” The Maharal states that the Torah “is not a Torah that turns toward ordinary reasoning,” and that ordinary reasoning and thought belong to the side of civic morality, not to the side of intellect, which he attributes to the Torah.
Maimonides: Going Beyond the Letter of the Law and Recognizing the Moral Dimension
Maimonides, in the laws of theft and lost property, rules that in a place where most of those present are gentiles, “the found object is his,” even if a Jew comes and gives identifying marks, because the loser “despaired” when it fell, “for he says: a gentile found it.” Maimonides adds that “even though it is his,” “one who wishes to walk in the good and upright path and acts beyond the letter of the law” returns the lost property to a Jew “when he gives its identifying marks.” The claim is that from here it follows that the Sages themselves recognize that morally it is proper to return even after despair, and nevertheless halakhically there is no obligation, and that gap sharpens the point that Jewish law operates out of a “legal fact” that is not identical with moral or utilitarian considerations.
Attempted Transgression, Attempted Murder, and the Distinction Between Intention and Outcome
An example is brought from Parashat Matot and Rashi in the name of the Talmud in Nazir, about someone who intended to eat pork but ended up eating lamb; even though no actual transgression occurred, atonement is still needed. The claim is that legal systems distinguish between attempted murder and murder even though the intention and act are similar, and the result sometimes depends on luck, and that it is hard to justify this in terms of utility, morality, or efficiency. The claim is that this distinction functions as an intuitive “legal fact” that exists even without a consequentialist explanation, and that in modern processes it is being eroded as law tends toward utilitarian explanations and the gap between attempt and result narrows.
Intellectual Property and the Shift to Utilitarian Thinking
The claim is that in the past there were “essentialist” conceptions that tried to justify ownership in intellectual property within a kind of quasi-halakhic discussion about the possibility of ownership in something with no physical substance, and the Statute of Anne is even brought as an example of speaking “in two voices.” The claim is that in the legal world of our time, the considerations are mainly utilitarian: what society gains and what it loses, and the essentialist discussions are presented but in practice do not drive the shaping of the rules. The claim is that this is part of a broader process in which people abandon “legal facts” and move to constructing a system on the basis of practical logic, efficiency, and morality.
Derashot HaRan, Homily 11: True Just Judgment Versus Repairing the Political Order
The Ran interprets “Judges and officers shall you appoint for yourself” as a human necessity for a judge, so that “one person does not swallow another alive,” and he states that every nation needs a “political settlement,” to the point that “even a band of robbers agreed among themselves on fairness.” The Ran adds that Israel has an additional need: “to uphold the laws of the Torah in their place and to punish” even when “there is in that transgression no loss at all to political settlement,” and he defines a tension between two matters that can arise: a matter that requires punishment “according to true justice” and a matter that requires punishment “according to repairing the political order and according to the need of the hour,” even if it is not “according to truly just judgment.” The Ran states that God assigned “true just judgment” to the judges, and they are limited to it, but because the political order would not be completed by that alone, “God completed its repair through the commandment of the king,” and the king “can judge without prior warning” according to the needs of political society. The Ran clarifies that appointing a king is the same for all nations for the sake of political ordering, whereas appointing judges is “unique” to Israel in order to judge true just judgment.
The Laws of the Torah, Divine Influx, and the Possible Superiority of Gentile Legal Systems in Political Ordering
The Ran argues that just as there are in the Torah “statutes” whose purpose is not political repair but the application of “divine influx” and its cleaving to Israel, so too “the laws of the Torah” serve two goals: repairing the affairs of our collective and applying the divine matter. The Ran states that the purpose of the judges and the Sanhedrin is to judge “true judgment, just in itself,” so that “the divine matter may cleave to us,” whether “the ordering of their mass affairs is thereby completed entirely or not.” The Ran states explicitly that “it is possible that in some of the laws and ordinances of the nations there may be something closer to repairing the political order than in some of the laws of the Torah,” and he says, “and in this we lack nothing,” because whatever is lacking will be completed by the king. The Ran concludes that the superiority of Israel lies in the fact that the laws of the Torah “are just in themselves” and draw down that “the divine influx” may cleave to the people, and therefore “the head of the judges and the choicest among them” stands in the place where divine influx is seen.
A Historical Pathology: Absence of Monarchy, a Court Administering Lashes and Punishments Not According to the Formal Law, and Concentration of Powers
The claim is that since monarchy ended in the middle of the First Temple period, a situation emerged in the era of the Oral Torah in which the powers of the king drained into the Sanhedrin, and the president of the Sanhedrin, descended from King David, functioned also as a focal point of governmental authority. The claim is that the law of “a court administering lashes and punishments not according to the formal law” is really a remnant of the king’s justice that passed to the court because of the absence of a king, and therefore the words of the Ran seem foreign to someone accustomed to a tradition in which the court is the address for everything. The claim is that this concentration created “halakhic imperialism,” in which even areas of public administration and communal ordinances, including tax laws and their distribution and “the sitting of the city’s worthies,” entered the Shulchan Arukh and came to be perceived as requiring the approval of “an important person,” because governmental authority was already perceived as lying under the rabbinic establishment. The claim is that this is the result of a historical situation in which monarchy could not be restored under foreign rule, and so a structure was perpetuated in which “everything is justiciable” by the court.
The Exilarch, Ordination, and Dual Authority in Babylonia
The discussion at the beginning of tractate Sanhedrin is brought, on “the scepter shall not depart from Judah,” which is expounded concerning “the heads of the exiles in Babylonia, who rule the people with a staff,” and this is described as a place where an attempt was made to return to dual authority through the Exilarch, who had royal standing in Babylonia. The claim is that the struggle there reflects a clash between the authority of the Land of Israel, which had already become accustomed to a structure with a single head, and a model in which there is governmental authority alongside professional Torah authority, so that the Sanhedrin certifies knowledge the way a faculty certifies competence, but appointment and the power to judge derive from governmental authority. The claim is that the current difficulty in accepting spheres of authority that are not subject to halakhic control, and the emergence of concepts like Da’at Torah, rest on that same long habituation to the structure created after the “historical accident,” whereas according to the Ran’s model the original structure is two separate authorities, even if the same person can sometimes wear “two hats.”
Full Transcript
[Rabbi Michael Abraham] Hello, we got to legal reasonings, like when we started from migo and that whole story, and then over the last few times I moved to another kind of legal reasoning—or not another kind, but more examples of legal reasoning—namely property law, or something that has no physical substance, with intellectual property, and the laws of returning lost property and despair, what I spoke about last time regarding the Handels ruling. And basically the conclusion was that the Sages establish all kinds of determinations whose foundation is reason; there is no verse that is the source of these determinations on the one hand, and on the other hand these are not reasonings of the ordinary kind. Meaning, these are not moral reasonings, reasonings of justice, or even reasonings of legal efficiency, let’s call it that, or legal utility, but rather something third. I called it legal facts. Legal facts means that, say, when the Sages see that if a person despairs, then the bond between him and his property lapses, then that’s what they determine—not because it serves some result or some utility, that if we say that after despair a person stops being the owner of his property, not because of some utilitarian explanation or efficiency or things of that kind, but simply because that’s how it is. Meaning, the Sages simply understand that the moment you despair, the property is no longer yours.
[Speaker B] It functions almost literally like a fact.
[Rabbi Michael Abraham] Yes, it’s a kind of abstract fact like that, a fact, a legal fact, and therefore we’re basically compelled by it. Meaning, it’s not a matter of discretion, whether it’s advisable to do this or not advisable to do this; it’s not that kind of consideration at all. And I tried to show, through the laws of returning lost property, that apparently all—or most—legal systems don’t relate to this in that way. Meaning, ordinary legal systems, including Israeli law but not only Israeli law, formulate the laws of lost property for the sake of the obvious goal, namely returning the lost object to the one who lost it, and even property law, as Aharon Barak writes—even property law is basically subordinate to that interest. Meaning, that’s the basic interest. Whereas in Jewish law the whole thing is the reverse. Meaning, you start—
[Speaker C] From property law.
[Rabbi Michael Abraham] Returning the lost object to the loser. Property law. Yes. Ah, property law with regard to returning lost property. Yes, yes. And by contrast in Jewish law it works the opposite way. Meaning, you start from property law, and the laws of returning lost property come afterward. Meaning, if the lost object is yours, you don’t have to return it, the finder. If the lost object isn’t yours, because this is before despair, then you do have to return it. Meaning, it begins with the property discussion, and from that the obligation to return lost property is derived. Completely the opposite of ordinary legal systems. And apparently, I don’t know—again, I’m not expert enough—but the judges there, when they bring in foreign legal systems as well, this is a clear consensus for them; in foreign systems too, that’s the conception. There probably aren’t exceptions.
[Speaker D] In the Torah it starts with returning lost property.
[Rabbi Michael Abraham] I said that’s an addition—it sharpens the point even more, because in the Torah itself there really isn’t any hint of despair. “You shall surely return them.”
[Speaker D] No, the opposite.
[Rabbi Michael Abraham] Exactly. What you’re saying. In the plain meaning of the Torah, the Torah also works that way. And then the Sages come and say no—if you despaired, then no. Only if you didn’t despair do they have to return it to you. Where did that come from? Reasoning—that’s how it comes out.
[Speaker E] Maybe there’s another example of this—if someone murders the person from whom he stands to inherit, then under the law he won’t inherit him—
[Rabbi Michael Abraham] It seems—
[Speaker E] I think that according to Jewish law he does inherit.
[Rabbi Michael Abraham] Yes, in principle there is something on that, I need to remember. At the Torah level, apparently yes. At the Torah level, apparently yes. I don’t remember, there is something about this, so that a sinner should not profit from his sin. I need to check; I don’t remember.
[Speaker D] Isn’t that the poor man’s ewe lamb? Huh?
[Rabbi Michael Abraham] So that a sinner should not profit, yes, but in principle you do inherit, apparently.
[Speaker D] And also from the fact that he asked him what to do with that poor man’s ewe lamb, and from that it sounds like they also agreed there was no way he inherits.
[Speaker C] No, there maybe he does inherit.
[Rabbi Michael Abraham] Yes,
[Speaker D] but—
[Speaker C] there—
[Rabbi Michael Abraham] that was in the sugya—first, it wasn’t inheritance, and second, it was a moral consideration, not a halakhic one. So in the parable it’s a financial consideration. Anyway, that’s as far as we got last time. Now I want to show this in two sources. Unfortunately I don’t have the pages, so I’ll read it from here. One source appears in the Maharal, in Be’er HaGolah. In chapter 2 of Bava Metzia. In chapter 2 of Bava Metzia. In chapter 2 of Bava Metzia. There: that one need not return lost property after the owner’s despair. And this thing seems far-fetched to a person. Why—why is there no need to return the lost property after despair? That a person should take what is not his, though he did not labor and did not toil for it, and covet another’s money? Why are you taking this money? What do you have to do with this thing? There’s someone who lost it; someone toiled for it; someone bought it; it belongs to him. What difference does it make whether he despaired or not despaired? Why is that relevant? And this thing is not according to conventional civic morality. Because conventional civic morality obligates one to return lost property even after the owner of the lost object has despaired of it. “Conventional civic morality” means morality, natural justice. So this doesn’t fit the rules of natural justice. And the reason for this—now he explains why there is this deviation from conventional civic morality. And the reason is that conventional civic morality obligates something that is proper to do for the sake of repairing the world, even though the intellect does not require that thing, but it is simply a repair of the world. What is he saying? Conventional civic morality uses consequentialist considerations. Considerations of repairing the world—we want to arrive at the best results. And therefore we say, fine, return the lost object; what, simple natural justice says you should return the lost object to the one who lost it. And he adds in parentheses: even though the intellect does not require that thing. Meaning, even though the intellect does not require it—we would usually, if I had to tie the concept of intellect to something, I would specifically connect it to the ordinary conception. That’s intellect, logic. And there it’s not; there it’s some kind of scriptural decree. No, no—he calls this side intellect. And “repairing the world” is some sort of technical practical considerations. Meaning, that’s not intellect. Intellect is something abstract. That’s what I called earlier legal facts or legal reasonings. That’s what he calls intellect. So he says it’s true that according to intellect one is not required to return lost property after despair. Intellect clearly says that after despair the lost object is removed from the owner’s possession. Repairing the world says yes, return it; morality says return it; but intellect does not. Meaning, he has some different definition of the concept of intellect than what we’re usually used to. And again, I think it simply means what I said earlier: legal fact, or legal reasoning, or something like that. And then he continues and says this. Therefore conventional civic morality is sometimes stricter in some matter, even though according to the intellect and upright justice there would be no need to do so. And sometimes conventional civic morality is more lenient, when that thing need not be done according to repairing the world, even though it is not proper according to intellect, but only according to conventional civic morality. Meaning, he says there’s a difference between justice, morality—what he calls conventional civic morality—and intellect. Sometimes leniently and sometimes stringently. Meaning, sometimes morality is more lenient than legal reasoning, and sometimes morality is more stringent than legal reasoning. Now he gives two examples. Therefore according to conventional civic morality one must return the lost object after the owner’s despair. And this thing is a stringency. From the standpoint of intellect, you can take it. From the standpoint of conventional civic morality, you have to return it. So here morality is stricter than legal reasoning. And likewise the reverse. Now he gives the lenient side. If one found silver vessels and gold vessels—silver vessels and gold vessels—and announced them once or twice, and no person claimed the lost object for a year or two. Suppose I found a very valuable vessel, I announced it, I did all I could, a year or two pass, and no one identifies the loser. Then he keeps it for himself and uses that vessel, because there is no repair of the world in this after he announced it several times and waited a year or two or more; no one will come anymore. So according to conventional civic morality, if that’s the situation, use it—what’s there to lose? The loser isn’t going to show up anyway. Why shouldn’t you use it? Who gains from this? It’s pointless. There’s no logic in it. So according to conventional civic morality, take it. We saw that in the law too, right? After four months, give it to the person. Not only is there no reason for nobody to use it; if anyone should use it, then you should use it. But we also saw that this even serves the interest of returning the lost property, because if you give the finder the lost object, you give him motivation to do what he needs to do to look for the loser. Because if there’s a find and he doesn’t do what he should, then he won’t get the object after four months, as the law says. So here conventional civic morality is actually more lenient. He says: and this is not according to the Torah. According to the Torah, no. Even a year, two years, ten years—it doesn’t matter. Once you picked it up and became obligated to return it, you have to leave it: let it lie until Elijah comes. For if one found silver vessels or gold vessels and announced them many times, they are forbidden to him forever; rather, let it lie until Elijah comes; he may never touch them. So they were very stringent. You see that they were very stringent—meaning, Jewish law is much stricter than conventional civic morality. So regarding lost property after despair, Jewish law is lenient; and regarding lost property before despair, Jewish law is stringent. Basically despair plays—despair becomes more convenient, so to speak—meaning, despair cuts in both directions. Before despair it’s a stringency of Jewish law; after despair it’s a leniency of Jewish law. And all this, says the Maharal, is because the words of the Sages are according to the Torah. “According to the Torah” here doesn’t mean verses of the Torah. It doesn’t come from verses, but “according to the Torah” means Torah-religion, meaning the intellect of the Torah. For all the words of Torah are measured by intellect. Again, he puts intellect precisely on this side of the equation, not on the seemingly logical side of the equation. We connect intellect with logic. When he speaks here about intellect, he means some legal conception, not everyday logic, which is what we usually tie to the concept of intellect. It’s the opposite. That side is repairing the world; that’s not really—it’s not something serious, it’s just to arrange life. Here there is something more essential. For all the words of Torah are measured by intellect, and when something is proper according to intellect, that is proper to do. And as the Torah said, “Observe and do, for this is your wisdom,” etc. By the way, Maimonides brings this verse—“for this is your wisdom and your understanding in the eyes of the nations”—to say that things have to have a reason. Because otherwise, how will all the nations see that this is our wisdom and understanding? That means they all have to understand why these things are wise and discerning. Now specifically to bring that verse here is a little problematic, because here specifically it looks—what?
[Speaker C] Is this intellect something that can also be understood by a person?
[Rabbi Michael Abraham] Yes, but the fact is, look at the judges in Anglo-Saxon law, for example. All in all, I assume they’re intelligent people. They don’t find any great intellect in this thing. They don’t admire Elon and the system he represents there as some great intellect expressed here.
[Speaker C] They don’t admire the great intellect, and I assume the same with the prohibition on eating pork. Right, same thing. Here Maimonides says there is a reason in it.
[Rabbi Michael Abraham] Right, but there—
[Speaker G] At the start of the halakhah too it says there is no intellect there. Why? It’s just that the intellect is not—no, no—wait.
[Rabbi Michael Abraham] Maimonides says it’s about the whole Torah: “for this is your wisdom.”
[Speaker G] He says it specifically about the statutes.
[Rabbi Michael Abraham] What?
[Speaker D] Specifically about the statutes he says—
[Speaker G] this—
[Speaker D] and he distinguishes between laws and statutes. Specifically about the statutes he says this, even though apparently they have no reason.
[Rabbi Michael Abraham] Yes, it’s strange, but that’s what he says.
[Speaker D] Rabbi, but you can understand this point. Meaning, from the standpoint of intellect, why return the lost object at all? In conventional civic morality, intellect says not to return the lost object. For the same reason that I—after despair?
[Rabbi Michael Abraham] Also—
[Speaker D] both before despair and after—I mean in general. Like, because intellect says, listen, you have to care only for yourself. That’s what intellect says.
[Rabbi Michael Abraham] No, do you think morality isn’t something intellectual?
[Speaker D] Not intellectual at all. I don’t know of any lion who’s a philanthropist and cares for—I don’t know—for the gazelle today, I’ll let him go. But a lion has no intellect.
[Rabbi Michael Abraham] I’m not saying from the standpoint of intellect.
[Speaker D] I mean from the standpoint of nature, okay? Nature, not intellect.
[Rabbi Michael Abraham] Lionesses prey, like—
[Speaker D] They prey—from the standpoint of nature, everyone—like, everyone has to care for himself.
[Rabbi Michael Abraham] That’s nature, but not intellect. Intellect is the opposite of nature. Intellect is something artificial; it is imposed on nature. Nature is not intellect; nature is simply nature.
[Speaker D] But every person—you have to care for yourself, and that’s what intellect says. Exactly like some guy suddenly gets up, Rambo, decides he’s Rambo, and goes and conquers another people. Meaning—
[Rabbi Michael Abraham] That’s not intellect; that’s instinct, that’s ego, that’s not intellect. That’s nature, or instinct, or interest.
[Speaker D] Yes, I also don’t understand in manners—
[Rabbi Michael Abraham] and morality—
[Speaker D] I don’t see much intellect in that decision.
[Rabbi Michael Abraham] What do you mean? The question is what you call intellect. If intellect means utility, then maybe you’re right, although even on that there is—we already talked about it. But intellect is not only utility. You’re translating intellect into interest, into utility, but that isn’t right. There are moral considerations that a person understands are right—that this is right, this is the proper way to behave.
[Speaker G] But even if you bring in a whole topic that’s about returning lost property, then you have to relate to that topic—returning lost property—and not go back to property law again. Because otherwise you don’t have to deal with the section on returning lost property at all; just analyze everything according to acquisitions. What difference does it make whether he found it or not? The fact is, the fact is that the Torah itself speaks about returning lost property. If it speaks about returning lost property and puts it as a heading, then you have to relate to it a bit differently than property laws, which are fixed laws.
[Rabbi Michael Abraham] No, and in returning lost property there is in any case something beyond property law, because even if it belongs to you, who says I have an obligation to take it and return it to you? I don’t work for you. So the Torah says I also have an obligation to return. That doesn’t mean there isn’t—in the obligation to return there is an innovation beyond the property law itself. The mere determination that it’s yours is not enough to say that I also have an obligation to take it, look for you, and return it to you. That’s already an additional innovation. Yes, so what he calls intellect here is what I called legal reasoning.
[Speaker H] Because that’s the reality.
[Rabbi Michael Abraham] Right, okay, but the fact is that when you ask people they won’t see it that way.
[Speaker H] They’re not striving for truth; they’re striving for justice.
[Rabbi Michael Abraham] But they’re not—ask them. Tell them: do you see the truth, you just don’t want it, or do you not see anything? They won’t tell you, look, we see that this is the truth but we prefer justice over truth. They’re not in a dilemma at all. It’s not that they see the truth, that after despair it’s no longer yours, and then say that because of considerations of justice they nevertheless push aside the truth. I don’t think they would see any truth in this matter at all.
[Speaker D] According to the Sages, if someone returns it after despair, the Sages are pleased with him.
[Rabbi Michael Abraham] Wait, we’ll see that in a moment. I’m going to talk about that in just a second. Yes, so he says—and the intellect of the Torah, when it is according to intellect, that is what is proper to do, as the Torah said: “Observe and do, for this is your wisdom and your understanding,” and so on. And it is not a conventional civic religion that leaves things according to ordinary reasoning and according to thought. Ordinary reasoning and thought are the antithesis of intellect—understand. According to ordinary reasoning and according to thought. And the Torah is entirely intellectual and is not a Torah that turns toward ordinary reasoning. A very interesting formulation. Meaning, it is entirely intellectual, it does not turn toward ordinary reasoning. What does it mean, it does not turn toward reasoning? What is intellect if not reasoning? Meaning, it’s clear he is interpreting here—no, I think this is a very powerful passage where you see how fully the Maharal is inside this whole idea. For the Maharal, it is obvious to him that this is what intellect says. He doesn’t need a verse for it; this is what intellect says. And ordinary reasoning—and what we usually connect to intellect—no, that’s the superficial thing. That’s like considerations of utility, efficiency, things of that sort, maybe justice, morality. We’re not talking about that. We’re talking about some kind of abstract truth. That’s what he calls intellect. I think this passage is very strong; it expresses it in a very—
[Speaker D] Strong way, the separate intellect.
[Rabbi Michael Abraham] A certain example, separate from what we call here reasonings. There’s the Maimonides—we talked about this Maimonides when we discussed morality and Jewish law—Maimonides at the beginning of Guide for the Perplexed, where he talks there about Adam’s sin. He says that at first Adam was bound only by intelligibles, and afterward he also became bound by accepted conventions. And somehow it seems that he relates to morality—
[Speaker D] as accepted conventions.
[Rabbi Michael Abraham] Meaning, as social conventions. It’s not really something true in itself, but what is accepted—like conceptions today that morality is just convention, that there’s no real validity to moral rules. But when you look carefully in Maimonides, that’s not what it says there. Maimonides is talking about rules of decorum, not rules of morality. Going around without clothes—there’s nothing immoral about that. He says it’s a convention. It’s uncultured to go around like that; it’s conventionally accepted that cultured people don’t go around like that. That’s all. That’s what he’s talking about when he speaks of accepted conventions. Now the Maharal, when he speaks about conventional civic morality, in a certain sense broadens that concept of conventions that appears in Maimonides. Meaning, from his perspective morality too is conventional civic morality. Meaning, these are still considerations that are—we talked earlier about the lion or about animals—even animals, all in all, help each other; they do these things, of course naturally, not out of deliberation, but all in all you find altruistic phenomena, in quotation marks, even among animals.
[Speaker H] Could it be that it’s moral too, and the Maharal said that one shouldn’t do it? Could it be the Maharal also meant that according to conventional civic morality it’s moral to return lost property?
[Rabbi Michael Abraham] Of course it’s moral. Obviously. He’s talking about morality—on the contrary, that’s exactly what he’s saying.
[Speaker H] It’s not just a convention.
[Rabbi Michael Abraham] No, obviously not. I’m saying the Maharal broadens the concept not only to things that are conventions, but also to things that are natural logic, simple logic. Meaning, not something that requires some abstract analysis, some kind of look at legal facts. Lions don’t know how to do that. Lions can help one another, hunt for one another, fill different roles, meaning function in a kind of altruistic way. But this thing—you don’t have that among—it’s not a natural thing, it’s an obviously artificial thing, something that basically only human beings can do. And in that sense the Maharal broadens this distinction a bit, something you might perhaps also see in Maimonides. Okay, so that’s the same distinction we talked about earlier. And here this returns us to discussions we had when I talked about Jewish law and morality. What naturally comes up here is to ask: okay, so what is this thing, this legal reasoning? There are people who will say: no, this is a deeper morality. Meaning, the real morality—not the mistakes people think morality requires—but there is some true morality that human beings cannot attain, and only the Torah reveals it to us. Now if the word morality serves you only in some semantic sense, then fine, do what you want. But if you mean that this is really morality in the sense we usually refer to by that concept, then it seems to me I don’t agree. I don’t agree with that statement. Here specifically you can even see it.
[Speaker B] Because if returning it is in any case a positive thing, then if it’s true that this is morality, the deep morality, then why is it a positive thing to return it? After despair.
[Rabbi Michael Abraham] After despair, yes.
[Speaker B] Despair—after all—
[Rabbi Michael Abraham] The moral thing is still to return it.
[Speaker B] To return it anyway. But if morality—if it’s true morality that after despair it’s not yours and you don’t need to return it, then why is it good to return it?
[Rabbi Michael Abraham] Here you have a statement—this is from the Talmud—but Maimonides already writes it in the laws of theft and lost property. Maimonides writes: if most of the city are gentiles—yes, if most of the city are gentiles, then the assumption is that the loser despairs because people don’t return lost property. If he found it in a place in the city where most of those present are Jews, he is obligated to announce it. But if he found it on a main road or in a large plaza, synagogues and study halls where gentiles are constantly present—
[Speaker C] And maybe they—
[Rabbi Michael Abraham] This Gemara is a well-known joke, yes? Found in synagogues and study halls, so you see that when there’s a Jewish majority too, a person despairs. No, no, these are synagogues and study halls of gentiles, the Gemara says. These are synagogues and study halls of gentiles. So Maimonides says these are synagogues and study halls where gentiles are constantly present.
[Speaker D] Exactly, they’re probably the cleaners or something like that.
[Rabbi Michael Abraham] Why? By the way, it could simply be that these really were courts or such places where gentiles would come to litigate and deal with matters there. “Synagogues,” “study halls”—maybe “synagogues” here means gathering places, where people gather, not houses of prayer. Maybe. I don’t know. Or “study halls”—maybe universities, I don’t know. In any place where the public is present, the found object is his, even if a Jew comes and gives its identifying marks. Even then the found object is his—which goes against intuition, of course—because he despaired of it when it fell, since he says: a gentile found it. Now understand: the person comes, the proven owner of the lost object, and he gives the signs. There are objects with identifying marks and objects without identifying marks. If there are no marks, people despair of them, because there are no identifying marks. In that case you’ll never know who the real owner is, because there are no marks. But here it’s a different situation. The despair is despite the fact that there are identifying marks, and the object is in a place with a gentile majority. Now here there can be a situation where you meet the owner of the object himself and you know that he is the owner—he gave you the signs—and still you can take the object home and that’s it, because he despaired and that settles it. So Maimonides says—therefore here he adds this, because here the despair is not due to the absence of identifying marks, but despair despite the fact that there are identifying marks. And then there can be a situation where you can take the object even though everyone knows who the owner is. And on this he adds as follows: even though it is his, one who wishes to walk in the good and upright path and acts beyond the letter of the law returns the lost property to a Jew when he gives its identifying marks. Meaning, if he—by the way, if he didn’t give its identifying marks, then it’s a problem to return it to him, because then it may be at the expense of the real loser. But even though basically—that is, suppose in a place where most are gentiles and he didn’t give its identifying marks—can I return it to him? Theoretically yes, because I can also take it for myself, so certainly I can also return it. But if you want to act beyond the letter of the law, then return it to the real loser. Wait until someone gives the identifying marks; don’t give it without signs.
[Speaker C] And if you estimate that you won’t find him?
[Rabbi Michael Abraham] Then maybe. But that’s why I think Maimonides here, even in the place where he speaks about going beyond the letter of the law, mentions that this is if he gave its identifying marks. Because otherwise the assumption is that I was just convinced he’s the owner, or just—no, he says he’s the owner, and there’s a presumption of honesty, so why doubt him? After all, if this comes at someone else’s expense, fine. But if it’s just to return it and you don’t know anything, then just return it to him anyway—why not? So what do we actually see here? This is from the Talmud, yes? Maimonides is just bringing it from the Talmud. What do we actually see here? That the Sages too saw that morality requires returning lost property even after despair. So Jewish morality too says you should return lost property after despair, and don’t tell me stories about some higher, deeper Jewish morality. Maybe they’re hiding it here, because that’s my next question. In just a second. But first I’m trying to reject the claim that the Torah has some sort of higher morality like that, and it’s not like what we usually think of as morality; these are rules we don’t understand but they are really the true morality. If that were so, there would be no room for such a statement of the Sages. Meaning, the Sages themselves agree that morally it is proper to return the lost object, and nevertheless halakhically one need not return the lost object. Morally yes, but halakhically it’s yours.
[Speaker C] Maybe—maybe one could say—maybe accept the first half of the statement, that it’s a somewhat deeper morality, without the second half, which says that what just seems to most people only seems that way and there’s nothing to it. That there are—I didn’t understand.
[Rabbi Michael Abraham] If it’s a deeper morality, then fulfill it.
[Speaker C] No, there are like different layers. Meaning, from the standpoint of, say, property rights, then it really belongs to you, and therefore you aren’t obligated to return it.
[Rabbi Michael Abraham] It doesn’t belong to me. It’s permitted to take it. What does “belongs to me” mean? If I acquire it, then I’ll acquire it. I’ll acquire it.
[Speaker C] Fine, and therefore you’re allowed to take it.
[Rabbi Michael Abraham] And there is a value in not acquiring it. You’re allowed to take it, but there is a moral commandment to return it. Why not return it? If you return it—
[Speaker C] you’re not obligated. What do you mean? You can return it; it’s good that you return it, obviously, it’s agreed that it’s good that you return it.
[Rabbi Michael Abraham] So if morally I should return it, then return it. What’s the problem? Then why not? What other layer is there?
[Speaker C] Because the other layer doesn’t say not to return it. The other layer says there is no obligation to return it.
[Rabbi Michael Abraham] That’s the legal layer, not the moral one. That’s exactly what I meant by a legal fact. I’m getting to that now. It’s the legal fact that comes first, and therefore the question that arises here—what Ezra asked earlier—is: if that’s morality, and the Sages also agree that morality says to return the lost object after despair, then why indeed doesn’t Jewish law require doing it?
[Speaker H] It splits into two things. You’re not obligated to do everything that is moral.
[Rabbi Michael Abraham] Why? What’s the other side? Why not?
[Speaker H] Because I can acquire it.
[Rabbi Michael Abraham] Why? Why can you acquire it?
[Speaker H] Because Jewish law says you can acquire it.
[Rabbi Michael Abraham] So let it not say that.
[Speaker H] Before that, Jewish law says that you can acquire it.
[Rabbi Michael Abraham] Why? Why? After all, justice says you should return it. That’s the legal sense. I’m trying to get at this from another angle. The point is that from the perspective of the Sages, in the way of looking at things—as I said earlier—when it comes to other legal systems, what is there besides the desire to do justice and legal effectiveness? There’s nothing beyond that. So if you agree that the consideration is justice and legal effectiveness, then you define that as what the law says. What’s the problem? What other consideration do you have? But here you see in Jewish law that even though the Sages—and that’s why I rejected earlier the possibility of pushing this aside—the Sages agree that this is the more moral option, and still they insist, and based on reason, not on a verse, based on reason, that you are not obligated to return it. Legally, it’s yours. Morally, it is proper to return it, but you are not obligated to return it. This sharpens the point again: from the perspective of the Sages, there is some kind of legal fact here. It has nothing to do with considerations of justice or morality. It is simply yours. He gave up hope, so it is no longer his.
[Speaker D] Maybe that actually is a broader kind of justice? Because when you sharpen it like that, it’s like doing, I don’t know, Talmudic logic. You’re saying, listen, apparently, on the face of it, I don’t get to… if you examine it across the board, maybe I’m missing other cases. We need to establish some rules, like the ordinance for penitents and like… yes, but here there isn’t.
[Rabbi Michael Abraham] What are you missing?
[Speaker D] I don’t know, I’m saying like…
[Rabbi Michael Abraham] Maybe there’s an explanation, but that’s not called an explanation.
[Speaker D] What are you missing? Tell me what. Maybe there is an explanation. It could be that if you check it over a
[Rabbi Michael Abraham] broad range of
[Speaker D] cases, then maybe if you check—
[Rabbi Michael Abraham] But I checked and didn’t find one. Do you have a suggestion? Let’s hear it. I’m not…
[Speaker F] The explanation is that the Torah was not given to ministering angels. The Torah was given to ordinary people, and in order to keep the 613 commandments, this is what they need to do. If a person wants to be stringent with himself and be…
[Rabbi Michael Abraham] But why? Why should it set it up that way? Let it set it up so that one must return a lost item. What’s the problem? Or let it say that after four months it goes to the loser, as the civil law here says. You could do it in a thousand other ways.
[Speaker F] But the moral demands on an average person, on a good Jew, are demands that are not at the edge of the scale.
[Rabbi Michael Abraham] But why is that the edge of the scale? What difference does it make whether he gave up hope or didn’t give up hope? Despair is a completely technical distinction.
[Speaker F] It’s not a distinction that makes it harder to return it after despair.
[Rabbi Michael Abraham] If you want to make it easier on him, then the opposite. What about the stringency the rabbi mentioned earlier—that you picked it up before despair, and now you can keep it in your house until the end of your life, and about that it says, “Let it remain until Elijah comes”?
[Speaker F] After all, many times in Jewish law we say, “One who is stringent, a blessing will come upon him.” Why? Why should a blessing come upon him?
[Rabbi Michael Abraham] Then let everyone be stringent. That I can explain. That I can explain. In every such place, it’s one of two things. Either there really is a primary legal fact that says it is not legally correct to do this, even though there is value in stringency. That is exactly what I’m saying here. There is a legal fact: he gave up hope, it’s no longer his. You may take it. And that I cannot change; it is forced upon me like a fact. Fire burns; even if I’m perfectly righteous, I don’t avoid being burned. If I’m in the fire, the fire burns me. That’s a fact. And that’s why I called it a legal fact. Beyond that, if you want to behave morally, right, morality says to return it. That’s one possibility. A second possibility is that many times there is a consideration in the opposite direction, like you tried to argue earlier—which I don’t agree with, but that was the direction you were going in—that they want to make things easier for someone, or that it is too demanding a requirement. For example, if searching for the loser is too much of a hassle, I could understand that too. Listen, morality says to return it, but we don’t require everyone to be that righteous. We say: if you want to be exceptionally righteous, return it, but in principle you can keep it. But I’m saying: if that were the case, it would make sense, because indeed in every place “one who is stringent, a blessing will come upon him.” I would have set that based on time, not based on despair.
[Speaker D] But with time too you can get dragged into the same absurdity. What, after five months someone comes and it really matches his identifying marks and it’s his, and you know it’s his, but five months and one day have passed?
[Rabbi Michael Abraham] But maybe he won’t come after four months—that’s the whole idea.
[Speaker D] It’s only an indication. Right. And now that indication turns out to be wrong. Despair is an indication that you can take it immediately. That’s the indication. In my view it’s equivalent to time.
[Rabbi Michael Abraham] No, but there are situations where you’ll see this in the case of something swept away by the sea. Okay. In that case, the person is standing there shouting, “I want the lost object, I have not given up hope.” Okay? So no, that’s not an indication that he won’t come—he’s here. You see it before your eyes, and you’re rescuing it from the sea.
[Speaker D] But here too I’m saying: after five months he comes and makes the effort and says, “It’s mine.”
[Rabbi Michael Abraham] But you didn’t know in advance that he would come. There I assumed he wouldn’t come and I turned out to be wrong. But here, in the case of something swept away by the sea, it’s in front of the person’s eyes; he’s here the whole time saying, “I have not given up hope.” He can say it till tomorrow.
[Speaker D] So maybe that’s an extreme case, but not despair itself; despair I can understand.
[Rabbi Michael Abraham] No, but that’s exactly what I’m saying: these extreme cases show you what despair does. Despair is not an indication of whether he will or won’t come. Despair means it is no longer his. Not because of an estimate that he won’t come, because if he hears about it, he’ll come—why wouldn’t he come? Despair is only an estimate—I talked about this—despair is an estimate of the future; it is not an act of relinquishment at all, but simply my assessment that I probably won’t ever see this lost item again. There is no despair here in the sense that if I do see it, I also won’t claim it. Absolutely not. That’s not what despair means. That’s why Netivot also says that despair is only permission to take; despair is not relinquishment. Because really what you’re saying is: look, apparently I won’t have the privilege of this lost item returning to me. That’s my assessment of reality. But it’s not that I’m actually relinquishing it, that if someone is holding it here I don’t want it, I’ve waived it. No, I didn’t waive anything; I estimated that it wouldn’t reach me. And if it does reach me, all the better, excellent.
[Speaker H] It seems to me that the legal system doesn’t disagree in terms of the distinction between truth and justice; it says that that isn’t truth. It doesn’t agree with the distinction between despair and afterward.
[Rabbi Michael Abraham] It has no truth. Why? The concept of legal truth doesn’t exist there. What exists there is justice and fairness and morality and legal effectiveness. That is what they call truth.
[Speaker C] I think there is also that concept, there is also the concept of a property right, even if it’s not… a property right?
[Rabbi Michael Abraham] Ask lawyers—they’ll always explain it to you in utilitarian terms. It’s not something that stands on its own. No, I’m saying, in general, the closer you get to our years, to our generations, the more explanations of that kind you’ll get. As long as you were still in a period influenced by religion, you would hear statements of the kind Maharal makes, that this is the truth. What do you mean, if it’s his, you can’t take it—that’s a fact. Today they’ll explain to you, “No, because otherwise there will be anarchy,” and “the state of nature,” and all kinds of explanations.
[Speaker D] We’ve gone down a level, like the rabbi said in the lesson—when intellect used to rule, then the trigger also had to begin with intellect. Afterward you need to persuade in terms of utility and what’s right and wrong.
[Rabbi Michael Abraham] But there isn’t always utility.
[Speaker D] I agree, I’m only saying—
[Rabbi Michael Abraham] that we’re looking for a utilitarian explanation.
[Speaker D] We’re looking for…
[Rabbi Michael Abraham] Yes, but why didn’t people look for that once? They didn’t, because everyone accepted that way of thinking. Today they call it primitive. I don’t think it’s primitive. It’s a certain process humanity has gone through. In my view, by the way, it’s not an ascent but a decline. Yes, it’s a kind of thing where there are things we’re no longer willing to grasp. So now you hear all kinds of terribly forced explanations, because you don’t really find an explanation for why it is so. But from here and there… I’ll give you an example. This week’s Torah portion, the beginning of Matot. At the beginning of the portion, Rashi brings two cases, two cases in which you are exempt from punishment. If someone intended to eat pork and ended up eating lamb—meaning, say the husband annulled the woman’s vow but didn’t tell her, so she thinks it is still forbidden to her and she decided to violate the vow and eat. Now in truth the husband had annulled it, and she thought she was eating pork and what came to her hand was lamb—both her intention and the reality, meaning the two realities collide… and in such a case atonement is needed, says the Talmud, in tractate Nazir, and Rashi brings it here in the portion. The opposite case is where the husband tells her that he annulled it, but in truth he did not annul it. Then she is unwitting, because she thinks she is doing something permitted when in fact she committed a transgression. There she is unwitting or under compulsion; it’s not clear there’s a difference between those two things. So it’s a kind of unwittingness or compulsion or something in that family. In any case, it’s some other exemption. Now this really raises the question: what’s the difference? After all, basically this says that in order for a transgression to be a bad transgression, two things are needed. There has to be criminal intent, and the result has to occur.
[Speaker G] Meaning that the facts have to be such that something actually happened.
[Rabbi Michael Abraham] Yes, meaning in the end you actually ate the pork. Yes? It’s not only that wanting to eat pork isn’t a criminal transgression, but rather that you ate the pork intentionally. You need both of those aspects. Now my question is: why? In almost every legal system there is a difference, say, between attempted murder and murder. In attempted murder, the criminal intent is complete. The person fired, but the firing pin was broken. He fired. He wanted to kill.
[Speaker B] It just didn’t hit him in the head.
[Rabbi Michael Abraham] It didn’t work. Right. So what? That’s attempted murder, not murder. What’s the difference? From the standpoint of simple logic, he should have been punished to exactly the same degree. There is no logic in distinguishing between the two things. And by the way, over the years it really has gotten closer and closer. In legal systems, attempted murder and murder today carry the same punishment. There’s just one difference—I checked this a few days ago. There’s only one difference: in attempted murder you can range up to the maximum punishment. In murder there’s no discretion for the judge—he must give the maximum punishment.
[Speaker C] That’s a huge difference.
[Rabbi Michael Abraham] Never mind, that’s a remnant. Once there was something else. Attempted murder did not carry the punishment of actual murder. And it keeps getting closer—and why? Because the difference between attempt and murder is a legal fact. There is no logic in that difference. No logic at all. The person did everything he could in order to murder. It just happened, luckily, that he didn’t succeed. So because of that he deserves exemption from punishment? Next time he’ll do it and he will succeed. It’s arbitrary; it doesn’t even depend on him. The firing pin was broken—it’s not that in the end he decided not to kill. He didn’t kill because he failed. So why is that a reason for a lighter punishment? Why is that a consideration for leniency in punishment? Why do people keep talking about terrorists “with blood on their hands” and “without blood on their hands”? They’re always saying that—they have blood on their hands. What kind of idiotic argument is that? What difference does it make whether they have blood on their hands or not? If he tried to murder and failed, then what—he’s less dangerous than someone who did murder? No, but I’m talking about those without blood on their hands who tried to murder and failed. Those who carried out an attack and in the end no one died. The person didn’t die. Fine, but not about—
[Speaker B] That’s exactly who I’m talking about.
[Rabbi Michael Abraham] I’m talking about those who didn’t succeed in murdering. So what? You carried out the bombing and in the end people were only injured, not killed. He is equally wicked. Obviously. So what? And everyone talks this way. Now when you begin to think about it reflectively, you stop and ask yourself: wait, why? And when jurists think about it, little by little the gap disappears between attempt and completed murder—and rightly so—because ordinary reasoning, social-order reasoning, ordinary legal reasoning, really gives no reason to defend the distinction. But we’re very used to it. If you think about it, everyone assumes attempted murder isn’t like murder. Why not? There’s no difference at all. Because it is a legal fact—that is, a kind of outlook that says: if it didn’t happen, then you don’t deserve the full punishment. Meaning, you were wrong, but full exemption—no. You won’t get that. But the full punishment—you don’t deserve that. There’s some intuitive perception like that, and I don’t know how to explain it in terms of consequences and efficiency and logic and morality and whatnot. Not legal consequences—not consequences, obviously. But consequences in terms of what the legal system gains by doing such a thing.
[Speaker G] Because there are simply two rules for a criminal act—these are called basic principles. Mens rea is the intention, and actus reus is the act, and there has to be correlation between the intention and the act. The question is why.
[Rabbi Michael Abraham] He was injured, he just wasn’t killed.
[Speaker G] No—
[Speaker B] But the act was there, the act was there.
[Speaker G] So what they try to explain is that when you have the intention to commit a certain act, that is the act that must take place in order for you to be the act—
[Speaker B] No, the act happened, the result didn’t. The act happened.
[Rabbi Michael Abraham] No, the question is why, why is the act needed? Why is the act needed?
[Speaker B] It’s two people, two people stood there—first of all I’ll give you an example. Two murderers decided to kill two people. They ambushed them and said, fine, you shoot that one, I’ll shoot that one. One shot and succeeded in killing him, hit him in the head. The other shot and missed, hit him in the arm. Same intent, same act, different result. Why should there be any difference between them?
[Rabbi Michael Abraham] Maybe because the second one was wearing body armor?
[Speaker G] It could be. It could also be that at the last second one of them decided—but that wasn’t what happened.
[Rabbi Michael Abraham] But that—
[Speaker G] didn’t happen.
[Rabbi Michael Abraham] Then there wasn’t an act. By the way, it could also be that the other one decided to move the barrel and therefore he hit, because he’s a bad shot. That could also be. It could be that he decided to move the barrel and therefore he hit. So, what did you say?
[Speaker G] Natural intuition says something here can’t fit together.
[Rabbi Michael Abraham] Exactly. But I’m telling you: that natural intuition is a religious intuition. In the ancient period it was self-evident. And the more we think about things and try to rationalize them—what, they shouldn’t be the same? Of course not. There should be a difference? Certainly. And today it is disappearing. It is disappearing as part of that same abandonment of what they call primitive thinking and moving toward things that are logical, and at the logical level there is no difference. That’s obvious. Think about it—look, for example, at intellectual property. All the discussions today about intellectual property—you know that when people write, it depends a bit on who writes the article. If the article is written by a law professor, you’ll see that he starts with really religious-seeming theories. There is no ownership of this because there is no ownership over something intangible, and so on. Nobody today thinks that way. Even though every survey of course starts with that, because they present all the possibilities. But it’s nonsense; nobody today thinks that way. Meaning, even the Statute of Queen Anne, which is one of the early sources for intellectual property—even there you can hear a kind of double voice. That’s the source for the essentialist conception of property law, which says there is no ownership of intellectual property?
[Speaker C] That there is ownership, meaning—
[Rabbi Michael Abraham] meaning that it introduces essential ownership of intellectual property, and they discuss whether there can be ownership of that kind of thing—which is a halakhic discussion. In our world today nobody cares about that. The considerations are utilitarian considerations. And that’s obvious: considerations such as what society will gain, what society will lose, and on that basis they shape these rules. Nobody thinks that way anymore. The process there is unequivocally toward the practical, the utilitarian, and the moral. So I’m saying, this isn’t criticism in the sense of saying it’s immoral; rather, it points to a process in which we abandon what I called earlier legal facts or legal intuitions, and move toward what makes sense to build as a legal system. And it’s a very clear process that is happening in a very clear way.
[Speaker D] And still, at least first of all, Maimonides actually thinks that someone who sins in thought—this is what he writes explicitly—he says that is a greater iniquity.
[Rabbi Michael Abraham] Certainly. The Talmud says that sinful thoughts are worse than the transgression itself, but—
[Speaker D] he says because that person sins against the King and not against the maidservants.
[Rabbi Michael Abraham] But halakhically you do not receive lashes. I’m saying no—why?
[Speaker D] But there the corruption in the world and the intention matter greatly in Jewish law.
[Speaker B] Yes, but if you intended to eat pork and it didn’t happen, and what came out was lamb, you don’t get lashes.
[Speaker D] No, but why? For the rebellion you don’t get lashes. Why? You transgressed… you need repentance for that, right?
[Rabbi Michael Abraham] You need atonement. You don’t get lashes. The Rabbi of Brisk writes in the stencil edition that it is literally a transgression, only one is exempt from punishment, but that is a very big novelty. The plain straightforward reading is that you behaved improperly, but you did not commit a transgression.
[Speaker D] For that you need repentance, no? That’s what Maharal writes.
[Rabbi Michael Abraham] Fine, but it’s not a transgression. But it’s still lighter. No, there’s a difference; you can’t erase that difference. Okay, that’s regarding returning lost property. Now I want to move to another consequence. In Derashot HaRan, sermon 11, he speaks there about the king’s law. And now I’m moving to the next stage of the discussion. After we’ve seen that there are legal rationales, and religious logic and ordinary legal logic and so on, Ran connects this to the duality of governmental or judicial systems in Jewish law. And he argues that the king’s law, alongside the law of the courts, is really supposed to carry out these two things. The king’s law performs the functions that ordinary legal systems basically perform—that is, the considerations that Maharal called reasoning and thought, or something like that, conventional law exactly. And the courts deal with the legal facts, with legal truth. That’s the duality. Meaning, this now takes us to the next step.
[Speaker G] Which also strengthens what you said—that this is why there cannot be a State of Halakha.
[Rabbi Michael Abraham] Yes, I’ll get to that later. What I really want to do now is take one more step and say that this distinction between two types of legal considerations is actually tied to two halakhic subsystems. Each legal system handles a different aspect of these two, and afterward I’ll also get to the question of a State of Halakha, or integrating Jewish law into the state, and things like that. So Ran writes as follows: “Judges and officers shall you appoint in all your gates, and they shall judge the people with righteous judgment.” Rabbenu Shlomo Yitzchaki wrote in his commentary: appoint righteous and expert men to judge justly. And he needed to explain it that way because otherwise… after all, if it only came to command the judges to judge justly, then immediately afterward it already says: “Do not pervert judgment,” meaning the command to the judges themselves is already written there. Therefore he explained that it comes only to say that the judges whom we appoint should be fit to judge justly, that is, they should be righteous and expert. And so it is taught in the Sifrei: “righteous judgment,” to say “do not pervert judgment,” and so on. But in my view the plain meaning of the verse is as follows. It is known—this is all homiletics—but the plain meaning of the verse is this: it is well known that the human species needs a judge who will adjudicate among its members, between man and man, for otherwise each man would swallow his fellow alive, and the world would be destroyed. And every nation needs this for civic order, meaning the ordering of the state. Every people needs this. So much so that the sage said: even a band of robbers agreed among themselves on fairness. Even robbers have ethical rules, let alone… every group has ethical rules. So no group can function without ethical rules. And Israel needs this no less than the other nations. Every nation, every group, needs this, and the Jewish people need it too. And besides this they need judges for another reason as well—the Jewish people need judges for an additional reason, and this applies only to Israel. And that in Israel—
[Speaker C] Meaning this need is not human? One second.
[Rabbi Michael Abraham] And that is to uphold the laws of the Torah and to punish those liable for lashes and those liable for execution by the court when they violate the laws of the Torah, even if that transgression entails no damage whatsoever to civic order. Meaning, it doesn’t disrupt the social fabric; there are no legal reasons to do this, but there are religious reasons, let’s call them that, to do it.
[Speaker B] Like, for example, eating pork?
[Rabbi Michael Abraham] Yes, for example. “And there is no doubt that in each of these two aspects two matters will arise: one, that a certain person should be punished according to true justice, and the other, that it is not fitting to punish him according to truly just judgment, but it is nevertheless necessary to punish him for the sake of repairing civic order and according to the needs of the hour.” You see? Exactly like Maharal. Meaning, it is not what does he call it? Not truly just judgment, but rather according to the repair of civic order and the needs of the hour. Meaning, there is the intellect, what Maharal calls there, and conventional law. “And the blessed God assigned each of these matters to a distinct group. And He commanded that judges be appointed to judge true and just judgment,” and that is what is meant by “and they shall judge the people with righteous judgment.” Meaning, it comes to explain for what purpose these judges are appointed and wherein their authority is great, and it says that the purpose of their appointment is to judge the people with truly righteous judgment in itself. “And they shall judge the people with righteous judgment”—the intention is legal truth, not civic order. Okay? That is “and they shall judge the people with righteous judgment,” and he claims this is the plain meaning of the verse, beyond all the homiletics. “And their authority does not extend beyond this.” And because civic order cannot be perfected by this alone—and we’ve spoken more than once about this—you really cannot run a society with these legal facts; you won’t get very far. With this system in which robbers aren’t punished and without prior warning and two witnesses and so on you can’t punish, you can’t run a society that way.
[Speaker B] Right, no murderer would ever go to jail. Right.
[Rabbi Michael Abraham] “God completed its correction through the commandment of the king.” Because of the difficulty of running society through the courts, there is also the king’s law, and it solves the problems of civic order. Again, the same division Maharal makes, but he also ties it to two judicial instances: the king, beyond his political role, also has a judicial role. There is the king’s law, and there is the law of the courts. These are two parallel legal systems. We’ll explain further.
[Speaker B] They’re not parallel? The king’s law supplements it. Not two parallels, because if they’re parallel and there’s a contradiction, what do you do? No, no, two together.
[Rabbi Michael Abraham] What do you mean two
[Speaker B] together?
[Rabbi Michael Abraham] It complements it. Yes. “We shall explain further by taking one side of the matter. For we learned in the chapter ‘Those who were taken out’ [Sanhedrin]: the rabbis taught, ‘Do you recognize him?’ and so on; ‘Did you warn him?’ ‘Did he accept the warning?’ ‘Did he release himself to death?’ ‘Did he commit the act within the span of immediate speech?’”—all kinds of requirements for punishing someone: it has to be before two witnesses, and he has to be warned, and they have to warn him and he has to accept the warning and commit the transgression within that immediate span of speech—basically impossible. “And there is no doubt that all this is fitting from the standpoint of righteous judgment”—what he calls righteous judgment means legal truth. “For why should a person be put to death unless he knew that he had entered into something carrying the death penalty and nevertheless transgressed it?” And for this he would need to accept the warning and all the other things taught in that baraita. “And this is truly righteous judgment in itself, entrusted to the judges. But if the transgressor were punished only in this way,” if we only punish a person when he satisfies all those conditions, “civic order would be completely destroyed”—meaning you can’t run a society that way—“for murderers would multiply and would not fear punishment,” because they would never accept the warning, and they’d just shoot the other guy, and that’s it. “You are warning me? No, I do not accept the warning.” Bang, done. He kills him and that’s that, everything is fine. “Therefore the blessed God commanded, for the sake of settling the world, the appointment of the king,” as it is written in this passage, “When you come into the land… you shall surely set a king over yourselves”—that we were commanded to appoint a king over us, as we have from the tradition of our Sages—and the king may judge without warning, according to what he decides is necessary for civic society. Okay, the king can do whatever he sees fit for the repair of the world. “It follows that the appointment of the king is the same in Israel and among the other nations, who all require civic order.” In that sense, Israel is exactly like the other nations, and that is not the difference between them; in this respect that is the common denominator. “But the appointment of judges is more distinctive and more necessary in Israel.” That is the thing uniquely characteristic of Israel. And as he further mentioned and said, “and they shall judge the people with righteous judgment,” meaning that the appointment of the judges and their authority is that they should judge the people with just and true judgments by virtue of those judgments themselves, not because of their utility.
[Speaker C] But why is that unique to Israel, according to what the rabbi is saying?
[Rabbi Michael Abraham] Yes, because that has religious value. His claim is that this has religious value. In the legal sense, the Torah doesn’t care as long as civic order is achieved; the Torah doesn’t care if you don’t operate according to truth if you’re a gentile. Meaning, the gentile has to behave according to morality, according to justice, so that there be a proper society. Truth is a religious value. Even though that truth is presumably truth also with respect to a gentile, because truth is truth. But there is no obligation for a gentile in this, just as many medieval authorities and later authorities claim that a Noahide is not commanded regarding associationism—the association of the Holy One, blessed be He, with other gods. Meaning, if the truth is that He is one God, then—
[Speaker C] What does it mean that a Noahide is not commanded regarding associationism? After all, the truth is that there is one God; if you don’t believe that—
[Rabbi Michael Abraham] Yes, but I don’t care that he be that way.
[Speaker D] Exactly. Meaning there are situations in which the truth—
[Rabbi Michael Abraham] obviously it is—
[Speaker D] is also truth with respect to a gentile, but they are not required to live by it; it’s not an obligation. Fine, that’s something else. I wouldn’t say there is no need for gentiles to know it; I’d say it’s not obligatory. Here he says Israel needs it and the gentiles do not need it, implying that there it isn’t needed—they may do it, blessings upon them, but they don’t need to; the Torah imposes no obligation on them. Rabbi, what does the king’s law leave over from Jewish law? What? What does the king’s law retain? According to what rules?
[Rabbi Michael Abraham] Wait, let’s leave that for a moment, because that’s a topic that will take us far afield. I hope we’ll get to it, because that question is not simple. There are no good answers to it.
[Speaker D] And also according to which—according to which rules at all?
[Rabbi Michael Abraham] Nothing. Whatever he chooses; there are no rules.
[Speaker D] So if it seems that way to him, then even the Knesset in the hand of—
[Speaker H] the king’s insertion…
[Rabbi Michael Abraham] No—the king.
[Speaker H] In the hand—but the Sanhedrin, one of the judges. The Knesset legislates… he—
[Speaker F] Is he talking here about the judges who judged in Moses our teacher’s time in the portion of Yitro? There, by what did they judge? By the king’s law or by…
[Rabbi Michael Abraham] No, obviously—Moses our teacher’s king’s law.
[Speaker F] Fine, so I have a question: who judged according to the king’s law in Moses our teacher’s time? No, in the wilderness.
[Rabbi Michael Abraham] Moses our teacher apparently had the status of a king; the Talmud says so, contrary to all the halakhic rulings.
[Speaker F] Yitro says to him, listen, everyone comes to you, “you will surely wear yourself out,” and so on. So make for yourself chiefs of thousands, chiefs of hundreds, chiefs of fifties, and chiefs of tens. So what, so that they won’t come ask you… wait, who—
[Rabbi Michael Abraham] Before they were appointed, Moses our teacher did everything. He was the king, and he was the Sanhedrin, and he was the head of the Sanhedrin, and he was everything.
[Speaker F] Wait, so in this description, the relation between the king’s work and righteous judgment is apparently—at least from what he says—it’s much more work in the king’s law.
[Rabbi Michael Abraham] So what are you saying, he took from him—
[Speaker F] only the easy part?
[Rabbi Michael Abraham] No, why is it much more work? Moses our teacher did both together until Yitro says, leave it, split it up: give the regular law to the judges, and you remain and carry out the king’s law. That’s all. Until then he did both things.
[Speaker F] According to what he has said until now, the king’s law is—
[Speaker C] most—
[Speaker F] in most cases, you judge every ordinary case…
[Rabbi Michael Abraham] This relates to what Itzik said earlier. Who says that? Absolutely not. Wrong. Only when the king sees that halakhic law has failed and a social problem is created does he intervene.
[Speaker C] Fine, but according to the rulings, halakhic law fails systematically. Meaning, once you decide that it is nearly impossible to execute—
[Rabbi Michael Abraham] Fifty years in Jewish law…
[Speaker C] if you have a society—
[Rabbi Michael Abraham] that is well ordered and you have no murderers at all, then once in a while there was one murderer and they didn’t execute him—nothing happened. Nobody was influenced and people didn’t start murdering because of that. There’s no problem; you don’t need the king’s law.
[Speaker C] You’re talking about a society in which there is no—
[Rabbi Michael Abraham] Who said there isn’t? That’s Torah law. If a problem arises, the king intervenes, and that’s the king’s law.
[Speaker C] Fine, but in a realistic society, not an ideal one.
[Rabbi Michael Abraham] A realistic society never had a king. When did our kings end, do you know? In the middle of the First Temple period.
[Speaker C] Fine, but also—
[Rabbi Michael Abraham] So in a society—
[Speaker C] people were free—
[Rabbi Michael Abraham] I don’t know how much of Torah law there was then; I can’t tell you.
[Speaker H] Sabbath desecration, I don’t know, didn’t the king need to intervene? Huh? For Sabbath desecration the king wasn’t needed?
[Rabbi Michael Abraham] No, yes, he was needed to intervene. Maimonides writes this explicitly: to uphold religion is one of the king’s functions. Meaning, if you see a breach of Sabbath desecration, the king—everything. “And I explain further and say that just as our Torah is distinguished from the norms of the nations of the world by commandments and statutes whose concern is not civic order at all”—we have things in the Torah that have no effect on the structure of society—“but what follows from them is the application of divine influx upon our nation and its attachment to us,” and that has religious value, not social-legal value, yes? “Whether the matter appears to us clearly, as with the sacrifices and everything done in the Temple, or whether it does not appear, as with the rest of the statutes whose reason was not revealed.” Interesting—that sacrifices and all that is apparently something that yes, perhaps you would see—
[Speaker C] In Temple times you would see it—you’d come to the Temple and you’d really see there or feel there in some way—
[Rabbi Michael Abraham] “In any case, there is no doubt that the divine influx adhered to us and took effect through those acts, though they are remote from intellectual inference.” Meaning, there are religious commandments, okay? “And there is no wonder in this, for just as many causes in natural phenomena escape us and yet their existence is confirmed”—even in natural things we don’t understand everything, and in fact you can observe and see things you don’t understand—“all the more so it is fitting that the causes of the divine influx taking effect and attaching to us should escape us. And this is what distinguishes our holy Torah from the norms of the nations mentioned above, who have no grasp of this at all, but only of the regulation of their collective life.” So there are religious matters in the Torah that are not connected to law at all. And then he says: “Therefore I think, and it is fitting to believe, that just as the statutes that play no role at all in repairing civic order are themselves a direct and proximate cause for the descent of divine influx, so too the laws of the Torah have a major role, and it is as though they are shared between causing the descent of the divine matter upon our nation and repairing our collective life.” What is he saying? Even in the legal part of the Torah—in the laws of murder and all those things—there is a religious aspect and a civic aspect. Meaning, the fact that there are laws that are only about the descent of the divine matter, that have only religious value, opens the possibility of seeing that even in the legal part of the Torah there is a dimension that is a religious dimension, and therefore don’t compare it to other legal systems. “And it is possible that they are directed more toward the matter that is loftier in rank than toward repairing our society.” Say, “do not murder,” “do not steal”—there is in it a religious dimension, there is in it a dimension of social repair, and I don’t know which is more central or which is… both are there. “For that repair, the king whom we appoint over us will complete.” But the judges and the Sanhedrin—their purpose was to judge the people with judgment that is true and just in itself, so that through it the divine matter would attach to us, whether or not their mass social order would thereby be fully perfected. I don’t care whether it fixes society or doesn’t fix society. It has religious value—the application of the divine matter, as he calls it. And because of this, now look at this strong statement: “And because of this, it is possible that in some of the laws and judgments of those nations there may be that which is closer to repairing civic order than is found in some of the laws of the Torah.” In short: foreign legal systems can be morally more refined than Torah law. That’s what he says. Why? Because they aim only at morality and justice. So obviously they will achieve that more optimally than a system that wants to achieve additional things as well, also the application of the divine matter. So you know, like a machine—something that is both a washing machine and a dryer will usually wash less well than a washing machine and dry less well than a dryer, or it will be more expensive. There are no free lunches. Either you get both and each one is weaker, or neither. But there are no free lunches. Once you want to achieve additional goals, naturally you will be less good at achieving some of the goals. Therefore he says, don’t be surprised that foreign legal systems are more moral than the halakhic religious legal system. A strong statement. “And we lose nothing by this.” On the other hand he says, this doesn’t bother me—meaning, it’s not a difficulty. “And we lose nothing by this, because whatever is lacking in the repair mentioned above would be completed by the king.” Meaning, if the civic order needs correction and some problem arises, that’s what the king is there for. That’s not the point. “But we have a great advantage over them”—we have an advantage over foreign law—why? “Because our judgments are just in themselves.” Meaning Torah law, as Scripture says, “and they shall judge the people with righteous judgment,” “and from this the divine influx will adhere to us.” Okay? Therefore, we have that advantage, and we do not give it up even at the price of the legal system being less moral or less just or less efficient and effective. “And because of this, the chief judge and the most distinguished of them stood in the place where the divine influx was manifest”—that is why the Sanhedrin sits in the Chamber of Hewn Stone. Because really what is needed is the application of the divine influx; they too participate in the religious dimension that exists in Jewish law. Even the legal part of Jewish law has a religious dimension. Good. So in broad terms, that is the essence of the matter. This system of Ran—I think this division is pretty compelling, even though it’s considered Ran’s innovation. Many say that Maimonides, for instance, disagrees with him; I’m not sure that’s true. But when you look at this Ran, several later authorities who discussed his words here—they sound very puzzling to ears that are used to the study hall. Meaning: everything we’re learning here is basically not moral at all, and not this or that—it’s irrelevant; it’s all theoretical anyway. The king, in a practical society, as you said earlier, has to straighten things out. We don’t have such righteous people that they’ll manage without punishment and won’t steal. So in practice, this whole business is unnecessary; it’s not applicable. And besides, we know that a court may flog and punish not according to the strict law, so courts can in the end also do things when necessary. It seems to me that what happened here is some historical malfunction that it’s worth being aware of. If you look a bit at history—after all, as I said earlier, the monarchy ended in the First Temple. Suppose for the sake of argument that Ran is right. Then there was a dual system in that period. There was the king’s law and there was the law of the courts. Now the monarchy was lost to us. And then began the era of the Oral Torah, the Sanhedrin, the Men of the Great Assembly, the Sanhedrin, the pairs, and the whole Second Temple era. What happened there? The head of the Sanhedrin was from the descendants of King David, right? Until Rabbi Judah the Prince, until the end, until after the Second Temple already. Hillel the Elder—it started from Hillel and all his descendants, Rabban Gamliel, Rabban Shimon ben Gamliel, Gamliel the Second, Rabban Shimon ben Gamliel the Second, Rabbi Judah the Prince—all that dynasty, they were all descendants of King David. And why? Because when there is no king, the head of the Sanhedrin also receives into his hands the role of the king.
[Speaker B] It was like a division of roles—the head of the Sanhedrin and the chief judge.
[Rabbi Michael Abraham] I don’t know exactly what the division of roles there was, but everything flowed into the Sanhedrin. The head of the religious court and the Nasi, both were in the Sanhedrin. And everything flowed into the Sanhedrin. What the internal division there was, I don’t know, but everything flowed into the Sanhedrin. So the king’s powers too. Think of it this way: suppose the government—a plane crashes and the whole government is inside it, okay? Like a lot of people pray will happen. So what happens in such a case? I assume the Supreme Court would take the reins into its own hands. And vice versa. One branch of government would have to take the powers into its own hands until things were reorganized. You can’t remain without a government or without a legal system. Okay, so the powers get funneled somewhere. Meaning, if we don’t have a king, then the Nasi of the Sanhedrin, or the Supreme Court in our language, takes the king’s authority into his own hands. Now what happened is that from the Second Temple period onward—which is the documented period of the Oral Torah—we are basically already in a situation where there is no king. And then in that situation, all of a sudden, a strange rule appears whose source is unclear: a religious court may flog and punish not according to the formal law. There’s a clause in the Shulchan Arukh, a section in the Shulchan Arukh: a religious court may flog and punish not according to the formal law. Where does that come from? What is its source? I claim that this is the king’s law in the Ran. Except that the period of the Oral Torah was already written down and consolidated at a stage when there was no king. So this authority of the king to judge not according to the formal law in order to achieve political and social order passed to the Sanhedrin. And we’ve been used to it ever since, down to this day, that the authority to punish not according to the formal law lies with the judges, with the religious court. But that’s a historical pathology; that’s not the original state. Originally it was the king’s authority, and that’s the Ran. That’s why the Ran seems so strange, because there really isn’t a clear source for this in the Talmud, there isn’t a clear source for it in the medieval authorities (Rishonim), nobody thinks this way. Why? Because the Ran is talking about a period that predates the era in which the Oral Torah was consolidated and written down. In that era, that was apparently the case. We already live in a situation after the historical accident, when there is no king anymore. So now we’re used to it. By the way, as a result of this there also developed this halakhic imperialism that says the rabbi or the judge or the religious court has to decide everything. The Talmud / Talmudic text, the Mishnah in Moed Katan, says that the religious court would repair the roads during the festival. The Ministry of Transportation was the religious court. Why did they have to repair the roads during the festival? Were there no people, no officials to do it? The point is that they were the government.
[Speaker E] But why didn’t they create a government?
[Rabbi Michael Abraham] Maybe they did, but the responsibility was theirs. As for monarchy, they couldn’t.
[Speaker E] I mean, you’re presenting this as though some malfunction was created. If they were aware of the malfunction, they could have solved it.
[Rabbi Michael Abraham] They couldn’t establish a monarchy. They were under Roman rule; they wouldn’t agree to let them set up a monarchy. Some kind of Exilarch arose—
[Speaker E] Some Exilarch really did arise—
[Rabbi Michael Abraham] In Babylonia. In a moment I’ll get to that too. But in the Land of Israel it wasn’t possible. It was impossible to create it. And then what happened was that the situation was perpetuated in which basically everything came to the doorstep of the religious court. And that continues down to our own day. The halakhic tradition is that every question is basically discussed by halakhic decisors. That’s where the concept of Da’at Torah and all these strange things that developed in recent generations come from—it comes from there. How did the laws of community taxation get into the Shulchan Arukh? How does a community make a decision? In a council of the seven leading townsmen—is that by majority, unanimously, or how are decisions made? How should taxes be apportioned? What is all that doing in the Shulchan Arukh at all? There is no doubt that every community can determine whatever it wants. That section of the Shulchan Arukh is not binding. And they did in fact do that. But what happened? It was clear that since there was no secular government in the defined sense—there were seven leading townsmen, but there wasn’t really one—there was a long-standing tradition that somehow got fixed in place, and that was it. They never changed it anymore. They already forgot that this had once even been the case. That’s also why the Ran seems so strange: he talks about simple things that really were probably the way things once were. But it’s so far from us. We’re already so deep inside this historical accident that today it’s obvious to us that it all belongs to the halakhic decisors, it all belongs to the religious court—they have to decide everything. Even community regulations need the agreement of an important person; basically the rabbi has to approve them. Since when? Where did we get such a thing from? It’s just that once the authority is in the hands of the rabbinic establishment, or the judges, or the religious court, then that’s it—they now control everything. Even if they delegate their authority to someone else, it is still all ultimately justiciable, all under their reach. Whereas originally, as the Ran describes here, there was a duplication of powers. A king of Israel does not judge and is not judged—right?
[Speaker C] That too, that was probably also some kind of malfunction. That doesn’t mean—it doesn’t—
[Rabbi Michael Abraham] No, kings of the nations of the world—right, kings of the nations of the world are not judged. Why? Kings of Israel, if I remember correctly, are judged because they accept the law.
[Speaker C] Why? I remember that kings of the House of David are judged; kings of Israel are not judged.
[Rabbi Michael Abraham] No, kings of the House of David are judged; kings of Israel are not judged because—
[Speaker C] Because once there was the story of Yannai, who came and killed—or threatened the judges and so on.
[Rabbi Michael Abraham] But in the end, de facto, there are two parallel systems.
[Speaker C] No, that’s not a description of a proper state of affairs. It’s a way of saying, fine, the king in practice isn’t subject to us, so we won’t judge him because it won’t work.
[Rabbi Michael Abraham] But it depends in what matter. If the king desecrates the Sabbath, then they would judge him, because he is liable for desecrating the Sabbath. But he has autonomous authority to judge in the areas entrusted to him. The king is also the legislator, and he is also the president of the supreme court; if he steals, then they are supposed to judge him.
[Speaker C] But I don’t see how—maybe it could be correct to say that independently—but it doesn’t seem to me connected to the statement that a king of Israel does not—
[Rabbi Michael Abraham] No, I used it as a metaphor. The point is that if he desecrated the Sabbath, then they judge him in a religious court. And that means it’s one system—it’s a parallel system. Meaning, originally there were two systems. We’ve gotten used to the fact that we’re already living inside one system. And now everything enters Jewish law, the Shulchan Arukh, everything gets brought to the halakhic decisors, everything. The whole tradition—you have to understand how deeply rooted this has been in us ever since the Talmud / Talmudic text. This is not an invention of the nineteenth or twentieth century. It starts in the Talmud / Talmudic text, and even in the Talmud / Talmudic text it is an artifact. Meaning, it is an artificial result of a historical accident. And by the way, an expression of this appears at the beginning of tractate Sanhedrin, on page 5 I think, something like that, where it says, ‘The scepter shall not depart from Judah.’ The Talmud / Talmudic text there brings a power struggle like this between Babylonia and the Land of Israel. And in Babylonia there was the Exilarch, about whom it is written, ‘The scepter shall not depart from Judah’—these are the Exilarchs in Babylonia, who rule the people with a staff, because they have a scepter. Basically, the Exilarch had the status of a king. And there was a question there of how ordination was done—ordination for judgeship—and the question was whether it was the Exilarch or the Land of Israel, who was actually in charge. In the end, the conclusion of the Babylonian Talmud was that the authority rested with the Exilarch, because he is the king. In the Land of Israel they have authority only over the Land of Israel; the Exilarch has authority over the whole world. Okay? And I think that passage there is a reflection of a very interesting point in this process. There was one point in this process when there was an attempt to return to a duality of authorities. And that was in Babylonia. Because in Babylonia we received autonomous governmental and judicial power for a certain period. And then the Exilarch really did have a status like that of a king of Israel, and the duplication arose there again, as the Ran describes. There was a king and there was a religious court. In the Land of Israel that was not the case. There there was the Nasi of the Sanhedrin, and the Sanhedrin was everything. And then suddenly there begins to be an awakening once again—a moment of returning to the Ran’s model, in which there is a duality of powers—and in the Land of Israel they object, because they had already gotten used to it, just as we got used to it. No, now it all belongs to the religious court. What do you mean? What is this gentile now looking for here at all? Gentile, of course, in quotation marks—what. What does he understand about this system? Meaning, we are the Torah scholars, we are the Sanhedrin. What does he want there? And in the end they ruled that the Exilarch determines it. Because the secular authority—actually the religious authority, really—determined, and that answers all sorts of contradictions in the Talmud / Talmudic text there. We won’t get into that now, but the religious authority gave the authorization to judge. It confirmed that you have the necessary knowledge. Like a law faculty. Okay? But who appoints you to be a judge? The Knesset or the government—that is, the governing authorities. The secular government. Not whoever examines whether you are a legal expert. Those are professional authorities. That is the Sanhedrin. But the king had to give you permission, to authorize you to judge. Not because you know; he didn’t examine whether you know. Rather, he gives you governmental authorization. Because judging is not only knowledge; judging is also governmental authority. Okay? And therefore there is a kind of duality of authorities there that arose for a relatively short period in history, and it stirred up—no wonder it stirred up—very interesting power struggles, which are reflected in the Talmud / Talmudic text. These power struggles happened because our system had already become so accustomed to one head at the top of the pyramid, that when suddenly we returned to what had originally been the case—this was also from descendants of the House of David, the Exilarch—and when we returned to this situation of two authorities, antagonism arose, as if to say: what do you mean, what kind of thing is this? It was no longer familiar at all. It had not existed for hundreds of years. And down to this very day, people are unable to get used to the idea that the government has powers that are not subject to halakhic decisions. Those powers are not subject to halakhic review. And all this Da’at Torah talk is not relevant in those areas.
[Speaker D] But this did arise—but in my opinion, when is this true? It’s true when there is a secular government alongside the religious government. Meaning, once upon a time, I don’t know, take Morocco, okay? Everyone went to the rabbi, and the religious court existed because the Jews—most of them, okay, I can’t say all of them—the overwhelming majority were religious. And he himself only went to these religious courts. And when was there interaction with the king’s rule or things like that? When there was interaction with the rule of the gentiles. Right?
[Rabbi Michael Abraham] Therefore—
[Speaker D] In Babylonia too, I think it was the same thing.
[Rabbi Michael Abraham] No, the Exilarch was government among Jews.
[Speaker D] Yes, but there all the authority he drew came from the king. Meaning, in practice it’s like the Rabbinate here in Israel.
[Rabbi Michael Abraham] Of course, and there is—
[Speaker D] A difference between the Rabbinate and religious circles that are closed in on themselves and think they are the last word.
[Rabbi Michael Abraham] And that’s what I’m claiming: they are mistaken. Those religious circles are mistaken.
[Speaker D] When they—
[Rabbi Michael Abraham] Think that this model we’ve become used to over the last two thousand years is the real model—but they’re mistaken. The original model is דווקא the model of secular government parallel to religious government. But King David? No—government. That’s exactly the mistake. Secular government does not mean a secular person. It can be a God-fearing person, commandment-observant, a completely righteous person—but his government belongs to the secular sphere.
[Speaker D] He manages—
[Rabbi Michael Abraham] The affairs of ordinary life.
[Speaker D] I understand, but David—let’s take King David, okay? As someone who was committed to Jewish law, okay? So the Sanhedrin trusted him that all his considerations and all the arrangements he made would not—
[Speaker G] Considerations that the Sanhedrin made didn’t even reach him at all, and vice versa.
[Speaker D] No, the considerations that the Sanhedrin—
[Rabbi Michael Abraham] Made, the Sanhedrin made them.
[Speaker D] Of course, because it was obvious when—like Rabban Shimon ben Gamliel said—
[Rabbi Michael Abraham] To them—Rabbi Akiva—King David said, fine, what?
[Speaker D] Rabban Shimon ben Gamliel said to them—so that—
[Speaker F] Does that mean the mixing of authorities already existed in the days of King David?
[Rabbi Michael Abraham] No, but that’s the case. The fact that the king can sit at the head of the Sanhedrin—he can sit there. I didn’t say there is some sanctity to separation of powers. But he still functions in two roles. When he wears the hat of king, he does not judge according to the laws of the Sanhedrin. And today too we understand that there is value in separating them—meaning, don’t mix them up. I’m saying that’s not the point, the value of separation; I’m only saying there are two authorities. The fact that the same person wears both hats—that can perhaps happen—but they are still two hats.
[Speaker D] Yes, but they are two hats, and still it’s different, it’s still different. Rabbi Akiva and Rabbi Tarfon from the famous Talmud / Talmudic text who said, if we had been sitting in the Sanhedrin, no person would ever have been executed—
[Rabbi Michael Abraham] No person would ever have been killed.
[Speaker D] What did he say to them? Great, you’re right, but I still have to run things. Why? Because he had to be exactly—because—
[Rabbi Michael Abraham] He said that to them as king, not as Nasi of the Sanhedrin.
[Speaker D] As king. But why did he say it to them as king? And they too agreed with him for one very simple reason: because as someone committed to Jewish law, they understood that the line was Jewish law, okay? The main line is Jewish law. And listen, we understand the problems that arise because it’s only Jewish law. If we could pray and everyone would observe Jewish law, then there would be true justice.
[Rabbi Michael Abraham] And that was functioning as king, not as Nasi of the Sanhedrin.
[Speaker D] Definitely. I accept that, I agree.
[Rabbi Michael Abraham] He wears two hats.
[Speaker D] That I understand. I’m only saying that these two hats are different from two hats in the state today.
[Rabbi Michael Abraham] No, the state today—the king, what is called the king today—is not committed to Jewish law at all. That’s something entirely different.
[Speaker D] That creates harsher conflicts.
[Rabbi Michael Abraham] I’m saying, yes, but it creates conflicts—not that this is some blessed thing?
[Speaker D] Yes, because—
[Rabbi Michael Abraham] The view is that everything has to be under the authority of the halakhic and religious authority. That’s the conception. We’ve been used to it for more than two thousand years, two thousand five hundred years.
[Speaker D] I can bring you responsa and cases, and I’ll find you someone who left it to matters for the rabbis themselves, who sent people to litigate in gentile courts in order to solve these kinds of technical problems.
[Rabbi Michael Abraham] Because they couldn’t solve them. The basic conceptions are that everything has to be solved in the religious court. Everything belongs to the rabbi. That’s the basic approach that has accompanied us for two thousand five hundred years. It is very hard to get rid of it. When the Ran wrote this, everybody tears their hair out. It sounds so strange, so foreign to our tradition—but only because we’ve simply been stuck in a historical mistake for two thousand five hundred years. He’s right. That is the source. That was the original source. How is it that the Sages for two thousand five hundred—
[Speaker D] Didn’t know the Talmud / Talmudic text with Rabbi Akiva and Rabbi Tarfon, where it was pretty clear?
[Rabbi Michael Abraham] Of course they knew it. The religious court punished people not according to the formal law. They weren’t speaking with the king; they were speaking with the Nasi of the Sanhedrin—Rabbi Akiva and Rabbi Tarfon. The Nasi of the Sanhedrin punished not according to the formal law. Why? Because he had the authority of a king.