Migo and Legal Reasoning – Lesson 8

Table of Contents

• The goals of Jewish law versus general legal goals
• A critique of the conception of “Hebrew Law” as a worldview
• Dividing halakha: non-legal, legal-ordering, legal-religious
• The inability to run a society according to the rules of the study hall, with examples from the laws of evidence and punishment
• Collision between norms and preference for the specific norm
• Structural differences between halakha and modern state law
• A halakhic state, the law of the king, and the expected resemblance to a modern law code
• Religious courts today, compromise, and the lack of institutional effectiveness
• Zabla, enforcement authority, and the distinction between asking a rabbi and a legal dispute
• What can be integrated from halakha into state law, and the “either way” argument
• The Rashba, plain reason, and the claim about “writing in Rashi script”
• The laws of bailees as a religious default, oaths, and the claim that partial implementation creates friction
• The meaning of studying halakha: religious truth versus application, and the law of the king as what closes the gaps

Summary

General Overview

The text argues that halakha is not merely a moral-legal system, but a more ambitious system that also has religious goals and religious assumptions. Therefore there may be situations in which foreign legal systems appear more moral or more effective in terms of social order. The claim is that the gap between theoretical halakha and the actual management of a state and society requires supplementary mechanisms such as the law of the king and enactments, and that in practice even contemporary religious courts do not judge according to “Torah law” in its pure sense, but converge on compromises and practical mechanisms. From this follows a principled critique of the ideology of “Hebrew Law” as an aspiration to embed halakha within state law, because whatever makes legal sense will be adopted even without a halakhic label, and whatever does not make legal sense will not be adopted; and partial implementation creates friction. The conclusion is that the study of halakha in the study hall is meant to clarify “religious truth,” which is not necessarily identical to a state law code, and that practical implementation will mostly resemble modern law because society must have an effective system.

The Goals of Jewish Law Versus General Legal Goals

Halakha is presented as a system that seeks to achieve not only justice, efficiency, and social order, but also religious goals, and therefore it may be less “optimal” morally or in terms of social regulation compared to other legal systems. The Ran and the Maharal are presented as grounding the distinction that halakha is not confined to morality and law, but carries “the profane dimension of the divine matter,” and therefore there is an inherent tension between multiple goals and the full realization of each one. The conclusion is that this does not make halakha “less good,” but rather more demanding and more ambitious.

A Critique of the Conception of “Hebrew Law” as a Worldview

The text objects to the conception of “Hebrew Law” not only as a field of study but as an ideology that identifies halakha as a state legal system and aspires to implement it within state law, in accordance with a distinction attributed to Englard. The historical description, relying on a response by Amichai Radzyner from Bar-Ilan, connects the beginning of the project to secular jurists with a cultural agenda, such as Haim Cohen and others, and emphasizes that the term is loaded and that there are rabbis who do not like it. The personal claim is that there is nothing wrong with the people themselves, but there is disagreement with the agenda that tries to replace commandment-observance or religious truth with a cultural-legal enterprise.

Dividing Halakha: Non-Legal, Legal-Ordering, Legal-Religious

Halakha is divided into components that are not legal at all, such as holidays, prayers, and forbidden foods, and legal components within which there are two dimensions: a regular legal-ordering dimension and a religious dimension aimed at religious goals. The claim is that even within Choshen Mishpat and Even HaEzer there are components that do not promote justice or legal efficiency, but are directed toward religious goals, and therefore the sharp division between Choshen Mishpat and Even HaEzer on the one hand and Orach Chayim and Yoreh De’ah on the other becomes blurred. The emphasis is that the distinction is determined by goals, not by subject headings.

The Inability to Run a Society According to the Rules of the Study Hall, with Examples from the Laws of Evidence and Punishment

The Ran is presented as bringing examples of halakhic rules that make it hard to run a society, such as the absence of punishment for a robber, exemption in cases of indirect causation, requirements for witnesses and prior warning, and acceptance of warning before punishment. The passage from tractate Makkot is cited, in which Rabbi Akiva and Rabbi Tarfon say that if they had been in the Sanhedrin, no person would ever have been executed, and Rabban Gamliel replies that then they would be “increasing bloodshedders in Israel.” The interpretation is that the gap reflects the difference between a scholarly-theoretical point of view and the practical responsibility of leadership and judging. The text adds an extreme example of disqualified related witnesses who refute valid witnesses in order to show that applying rules mechanically can lead to the execution of an innocent person, and from that it argues that a judge is obligated to interpret where principles apply and where they do not, and not to hide behind “a scriptural decree” in order to produce an absurd result.

Collision Between Norms and Preference for the Specific Norm

The text uses an interpretive rule according to which a specific norm overrides a general one, in order to prevent the specific instruction from being emptied of content, and demonstrates this in relation to the prohibition of murder versus the obligation of a court to punish. Within this framework it is argued that one must distinguish between places where “a scriptural decree” allows an action that organizes an evidentiary system and places where formal application would lead to killing someone who is clearly not guilty. The claim is that there are no “scriptural decrees” that require killing someone who fulfilled the obligation to testify truthfully, and therefore the correct interpretation requires narrowing application in places where the result is unacceptable.

Structural Differences Between Halakha and Modern State Law

Halakha is described as a system that gives instructions in all areas of life and not only in the public-legal sphere, whereas state law limits intervention in the private sphere. Within the legal sphere, it is argued that halakha relies on “legal facts” and religious conceptions, and not only on considerations of justice, efficiency, and order, and beyond that it assumes the existence of the Holy One, blessed be He, the World to Come, and reward and punishment. Therefore it can exempt indirect causation on the basis of “the laws of Heaven.” The conclusion is that a state system cannot rely on such an envelope and must close all the gaps through enforcement in this world.

A Halakhic State, the Law of the King, and the Expected Resemblance to a Modern Law Code

It is argued that halakha was almost never historically practiced as a full state system. In the First Temple period there was a king, and in the Second Temple period the conditions of full sovereignty did not exist. Reference is made to a book by Shamma Friedman from Bar-Ilan claiming that capital punishment laws were not actually implemented in practice. The claim is that even in a future halakhic state with the Messiah son of David and a king, the practical law code would look very similar to modern law, because it is impossible to run a society while systematically exempting indirect causation or using evidentiary rules that prevent effective decision-making. The distinction is that certain differences would still exist in content and in the use of sanctions when rare conditions are met, but the main system that runs life would be practical and would combine the law of the king and enactments.

Religious Courts Today, Compromise, and the Lack of Institutional Effectiveness

The text describes a reality in which many religious courts have litigants sign away “Torah law” and agree instead to compromise, or to a mechanism that ensures validity even in the case of error. In the name of Nadav Shnerb, a sharp description is brought of this practice, to the point of a writ of refusal against someone who demands Torah law. It is argued that the structural problem is that private religious courts cannot summon witnesses, compel appearance, or manage evidence and authority like a governmental arm, and therefore the proceeding turns into “a joke” and into a marketplace of “compromise close to the law.” The conclusion is that a legal system cannot be private, and that in the absence of state powers it is impossible to fully uphold the prohibition against secular courts, even though it exists, because the collapse of enforcement means anarchy and damage to the obligation to maintain an effective legal system.

Zabla, Enforcement Authority, and the Distinction Between Asking a Rabbi and a Legal Dispute

It is argued that zabla is not a private-voluntary solution, but a mechanism that assumes public recognition and authority, and that without a system capable of enforcement, summoning witnesses, and deciding facts, “three cattle herders” are not a court in the legal sense. The text distinguishes between a case where the parties agree on the facts and simply do not know the halakha—in which case this is “a question for a rabbi”—and a real dispute that requires adjudication and enforcement. The conclusion is that a state, or a halakhic-state authority, is a condition for applying real law and not merely for holding a Torah discussion.

What Can Be Integrated from Halakha into State Law, and the “Either Way” Argument

It is argued that only legal components can in principle enter a law code, and even from among those only what fits the purposes of a legal system. But then an “either way” argument arises: if the principle makes legal sense, the state will adopt it even without any connection to its halakhic source; and if it does not make legal sense, there is no reason to adopt it merely because of the label “Hebrew Law.” The example is brought of Justice Elon, who does not seek to integrate the laws of returning lost property into Israeli law, because the system seeks justice according to its own purpose and not halakhic “legal facts.” It is argued that in practice quotations from “Hebrew Law” in court rulings serve as supportive decoration for a decision that is in any case determined מתוך general law, and sometimes medieval authorities (Rishonim) such as the Rashba are cited דווקא in places where they themselves reasoned from logic and not as binding halakha.

The Rashba, Plain Reason, and the Claim About “Writing in Rashi Script”

Responsa of the Rashba are brought in which he addressed communities that had received permission from the king to judge, and in which he encourages the use of women’s testimony, self-incrimination, and a single witness according to what appears reasonable. From this it is argued that the Rashba himself saw an advantage in their not being bound by the limits of formal halakha. The claim is that when a judge cites such sources in a modern ruling, he is in fact taking universal logic and presenting it as “Hebrew Law,” that is, “Roman law in Rashi script.” The conclusion is that the religious value is not realized when a judge who is not committed to the commandments applies a halakhic clause, and the cultural value is realized at most in abundant citations that do not change the outcome.

The Laws of Bailees as a Religious Default, Oaths, and the Claim That Partial Implementation Creates Friction

It is argued that the laws of bailees can be stipulated around, and therefore halakha is not merely providing a neutral default rule but a “religious default” that expresses halakhic truth about the correct relationship between the parties. It is emphasized that the laws of bailees are built as a package deal that includes an oath, and therefore partial adoption into a modern system without the oath component collapses the structure and creates friction, in accordance with the claim attributed to Barak about the problem of embedding a foreign system inside another system. The conclusion is that studying the laws of bailees in the study hall is a study of religious truth, even if in practice a state system would regulate matters differently through enactments, powers, and enforcement.

The Meaning of Studying Halakha: Religious Truth Versus Application, and the Law of the King as What Closes the Gaps

It is argued that the study hall is directed toward clarifying “what the Holy One, blessed be He, says is the truth,” and halakhic truth is not automatically identical to what should be implemented in a state, because society cannot fall apart in the name of formalism. The claim is that practical implementation always requires examination and the entry of the law of the king and enactments in order to close gaps and preserve social functioning, while pure halakha remains of religious and educational value even when it is not decided as policy. The conclusion is that in the legal sphere of halakha, the clash between religious goals and social functioning will be relatively rare, because “law needs to organize society,” but there is still a religious layer that shapes the default and the meaning of study.

I’ll finish the last topic about legal reasoning with a somewhat current application, but I think it’s really a consequence of what we’ve been discussing. We saw that I began with formalism and legal reasoning, and in the end I moved to the teachings in the sermons of Ran and Maharal, who talk about the fact that, in my terminology, Jewish law has religious goals and not only moral or legal goals and the like. And therefore, as Ran says in his sermons, there can be situations in which foreign legal systems, non-Jewish ones, will be more moral than Jewish law, because Jewish law has goals beyond moral ones, and that can clash with—or interfere with—the moral optimality of, let’s put it this way, not only morality but also orderly social functioning. Really, legal goals. If I’m trying to achieve more values or more goals, naturally I’ll succeed less fully in each one separately. That doesn’t mean it’s a system that is, overall, worse; it means it’s a more ambitious system. More ambitious, more demanding, expecting more of itself, and therefore of course it can’t achieve everything fully or completely.

And now I want to move to what I said—a somewhat current discussion—and that is the question of incorporating parts of Jewish law into Israeli law, and maybe into the state in general. You could also talk about incorporating Jewish law into the state when the Messiah son of David comes; even there, I think the conclusion is not trivial. This is based on an article I once wrote in Hakdamot, and it stirred various reactions. Is there any article you wrote that didn’t stir various reactions? Yes, there are articles that no living soul has yet read either. But yes, every so often there’s some outburst that… No, it wasn’t that—there were substantive disagreements.

There I came out against the conception called “Hebrew law,” because there are people who use “Hebrew law” merely as the name of a field of study—scholars of Hebrew law. But as Englard wrote in one of his articles, there is a department of Hebrew law in law faculties, certainly, and in the Ministry of Justice. As Englard once wrote in one of his articles, Hebrew law is a worldview, not just a field of research. It’s a worldview that basically sees Jewish law as a legal system and strives to implement as much of it as possible within state law.

You have to know—and this became clearer to me after I read some of the responses—there was a very long and detailed response by Amichai Radzyner from Bar-Ilan to that article, and there he described the history of this idea of Hebrew law. It began with secular jurists who had some kind of cultural agenda: to take the foundations of Hebrew law and integrate them into Israeli law. Haim Cohen was one of the most prominent among them, but it began even before him. Haim Cohen, Gulak, and various well-known jurists had, I think, some cultural goal or cultural agenda behind their project. And to this day, to a large extent, the term “Hebrew law” is a loaded term, even though people sometimes don’t notice it; it looks like just a neutral definition of a field of study. But it isn’t. It’s a loaded term, and Englard notes there—and rightly so—that rabbis don’t like this term. And on that point I’m on their side; I don’t like the term either, because of the agenda it represents. Again, what does “don’t like” mean? I disagree with it. I don’t think anyone there is doing something improper; I just don’t agree with that conception. So I’ll try to explain why.

Basically, you can divide the discussion into two main aspects. One aspect is the question whether. Will Jewish law gain from this? And the second aspect is whether the legal system will gain from it. So what will happen to each side of the equation? And as I mentioned earlier, this movement was founded by jurists who were mostly secular, so the question of what Jewish law would gain from it was less relevant to them. They thought this would be a cultural, legal, or other kind of gain. But I, as someone who feels committed to both systems, ask myself both questions.

Okay. Now in the background of all this sits the distinction we discussed until last time: that within Jewish law itself, you have to divide it into several parts. There is one part that doesn’t deal with law at all, although again, in the jargon of people in Hebrew law, all of Jewish law is sometimes called Hebrew law. Even though, in the debate between Englard and Elon—which is considered the foundational debate on this issue—Englard calls all of Jewish law “Hebrew law,” while Elon calls only the legal part of Jewish law “Hebrew law.” And that isn’t accidental, because he’s trying to integrate it into the legal world, whereas Englard argues that it isn’t relevant—that is, that you can’t integrate this and shouldn’t integrate it.

Now, Jewish law contains several components. There are the non-legal components entirely: holidays, prayers, forbidden foods, things of that sort, which are not legal matters at all—Orach Chayim and Yoreh De’ah. And within the legal world itself, as I discussed in previous sessions, there are really two aspects, which Ran in fact formulated most sharply: the ordinary legal-organizational aspect, and the religious aspect, “the divine matter,” as he calls it there—that is, matters intended to achieve religious goals. In that sense, this brings us back to that part of Jewish law that is not legal at all. The claim, basically, is that even within the legal part there are religious parts, religious components. That is, within the legal part there are things that also come to achieve goals that are not necessarily legal goals but religious ones, like Orach Chayim and Yoreh De’ah. In that sense, this returns us and somewhat blurs the distinction between Choshen Mishpat and Even Ha’ezer on the one hand, and Orach Chayim and Yoreh De’ah on the other, because even within Choshen Mishpat and Even Ha’ezer there are parts that are halakhic and not legal.

Okay? Again—not in the sense of the field of study, but in the sense of the goals we want to achieve. Is there an example? We discussed them—the examples we talked about in previous sessions. Yes, for example with acquisition or things like that, where… For me the religious goal wasn’t relevant, but… Yes, for me either, for me either. I’m just saying that it’s also not exactly a goal like a fact; the sense is that yes, that’s the fact, so it’s imposed on me. But for our purposes what matters is that it does not come to achieve legal goals. That is, it doesn’t advance us in terms of justice or legal efficiency or social order—the things a legal system is supposed to advance. So such parts exist also in Choshen Mishpat and Even Ha’ezer, and that somewhat blurs the basic division.

Now what does this actually mean? Ran himself already mentioned there several examples—or I don’t even remember whether he gave the examples or only referred to them—that there are parts of halakhic law by which you simply cannot run a society. The fact that we don’t punish a thief, the fact that we don’t obligate someone for indirect damage, the fact that we require witnesses and warning and acceptance of the warning before we punish an offender—all kinds of things like that raise a huge question mark over whether it is even possible to run a realistic society, yes, a functioning society, not in the study hall where we clarify ideas but no one actually implements them, according to this system.

Just as an example, at the end of the first chapter of tractate Makkot, Rabbi Akiva and Rabbi Tarfon say: “Had we been in the Sanhedrin, no person would ever have been executed.” Why? Meaning, they would have made sure that no defendant ever received the death penalty. Why? A murderer would come before us, and we would ask the witnesses: tell us, did you see whether there was a perforation where the sword entered? That is, he stabbed the victim with a sword, but how do you know—maybe exactly where the sword entered there was a hole in the lung and… in effect the person was already a mortally defective person, and really a potential dead man already beforehand, and then you don’t impose death on the murderer. And so on and so forth, all kinds of questions that could exempt the murderer.

So Rabban Gamliel says to them: “They too increase bloodshedders in Israel.” In other words, you can’t run a society like that. Now this is interesting, because Rabbi Akiva was the son of converts. Now in the Sanhedrin, although he was the greatest of the generation and had no equal in the Land of Israel, the Talmud says that when he went outside the land he intercalated the years by himself alone, Rabbi Akiva, because he had no equal in the Land of Israel. So there’s no question about his Torah greatness, but he was not in the Sanhedrin. He was the son of converts. And Rabban Gamliel was the head of the Sanhedrin.

And I always understood that the give-and-take there is a function of the hat you’re wearing. That is, if you’re a scholar sitting in the study hall—Rabbi Akiva—then of course you can raise all sorts of sophisticated arguments for why no murderer can ever be executed. And Rabban Gamliel says to him: with all your scholarship, we’ll all be dead by tomorrow morning. In other words, you can’t run a society like this, because he was head of the Sanhedrin; he was responsible for the practical side, how this is carried out in practice. That is, if Rabbi Akiva was a scholar, then Rabban Gamliel was a judge—he was responsible for implementation. And therefore the difference in points of view… Was he a scholar at that time? What? At that time, yes. We talked about this, because then there was no king and authority was concentrated in the Sanhedrin. That’s really a very important point, because once there is a king, then the Sanhedrin is a bit like Rabbi Akiva. And the hat of the… Yes, right, and especially in that hat he…

In any case, the difference between the points of view reflects the difference between these two systems, where one system is, in a certain sense, theoretical. That is, you can’t really run a society that way, and therefore you can analyze it in the study hall, but it won’t actually be implemented. I spoke about this—I think I gave this example. I asked people this a number of times, and it surprised them. It’s a simple question. We disqualify relatives from testimony, as I mentioned… We disqualify relatives from testimony; two brothers are invalid as witnesses. Fine, a scriptural decree—we’ve gotten used to it already, right? Now two brothers come and say that Reuven murdered Shimon. Fine, scriptural decree—we don’t accept testimony from two brothers, and Reuven is not punished. Maybe we’ll deal with him extra-legally, but we won’t impose the regular punishment.

Fine. But what about the following case? Two valid witnesses come and say that Reuven killed Shimon, and now two brothers come and refute them as conspiring witnesses. What do we do? Two brothers come and… refute the first witnesses. We don’t accept the refuting witnesses. So what remains? Those first two witnesses remain valid, and they say that Reuven killed Shimon. Right? We should execute Reuven, okay? Because of a scriptural decree. He didn’t really murder, because the witnesses testifying against him are false conspirators. We don’t disqualify relatives because they are liars, right? It’s a scriptural decree. Okay, so on the factual level, we basically know the first witnesses are lying—or it’s very likely they’re lying—but there is a scriptural decree to accept them despite that, so we will kill the murderer because valid witnesses testify that he murdered.

But here the whole scriptural decree tells you to believe the refuting witnesses. Why are you saying that it really… We always talked about this. So if you’re right in that question, then we can ask what I’m saying now even about conspiring witnesses in general, without any connection to relatives. Two witnesses come and say: Reuven killed Shimon. Then two valid witnesses come and refute the first two. Okay? Valid ones. What do I do? I execute the first ones, right? And that is a scriptural decree. In reality there’s a fifty percent chance that they are actually right. Fifty percent yes and fifty percent no, and I kill them because it’s a scriptural decree. Does that sound reasonable to you? Of course not.

Of course the second witnesses are right; there is a logical basis. But in halakhic definitions it is “two against two,” so you need the Torah’s novelty—that’s what’s called a scriptural decree—in order to believe those who are right. But they really are right. And there are also explanations for why they are right, logical explanations for why the second pair is more likely to be right than the first. The scriptural decree cannot lead me to kill someone for the sin of lying, for it says, “A false witness testified against his brother, and you shall do to him as he conspired to do to his brother.” That means I execute him because he is a liar; I’m not executing him because the Holy One had some whim. The claim is that he’s a liar. Now I know he isn’t a liar—scriptural decree. The truth is that he isn’t a liar, and now there’s a scriptural decree to kill him. No, because the scriptural decree of refutation is a scriptural decree… It proves with certainty that he’s a liar. Yes—fifty percent not. Fine? Fifty percent that he’s not a liar, and I kill him because…

But to say “behave as if it’s day”—it can’t change reality. Even when I’m told “kill him because he’s a liar” and I know he isn’t a liar, it cannot be that I kill him. There are no scriptural decrees like that. There’s no such thing. We talked about this when I discussed scriptural decrees. The person isn’t only not a liar—he fulfilled his civic duty and came to testify, his halakhic duty, and testified. There is an obligation to testify if you know testimony. He came, testified truthfully, and we’re going to kill him because there is a scriptural decree that he’s a liar? That’s totally absurd. Therefore it’s clear that the law of refutation means that the second pair really are right. And if we have some suspicion, then indeed we won’t carry out “as he conspired.” We talked about this already; then the court withdraws. But in principle, it is more reasonable that the second witnesses are right.

Now let’s return to refuting witnesses who are relatives. If the refuting witnesses are relatives, this is a double scriptural decree. Both the law of refutation is a scriptural decree and the disqualification of relatives is a scriptural decree. So what’s the difference? The difference is that in refutation, the scriptural decree is there to clear the way because of the rules of Jewish law. So on the principled level, it is correct to believe the second witnesses. It’s not that the scriptural decree created that. Since the rules tilt things, the scriptural decree says: don’t worry, here don’t get excited by that. It’s not simply two against two; you can accept the testimony of the second pair. But with the invalidity of relatives, it really isn’t like that. Invalidity of relatives is a genuine novelty, because in truth they may well be right. They are only disqualified for all sorts of reasons.

So in such a situation, if I release a murderer—that is, exempt a murderer from punishment—we’ve already gotten used to that. We can deal with him extra-legally. That is, we can deal with the problem even if we don’t punish him with the normal halakhic punishment. But people don’t think about the opposite case. When the related witnesses are the ones doing the refuting, then what will happen is that because of the scriptural decree we will execute; whereas because of the scriptural decree we might exempt from death. To exempt from death is easy, okay? But to kill because of a scriptural decree? There is no such thing. It’s obvious that while I can imagine judges saying yes, that’s what should be done, I cannot imagine judges who would actually do it. In the study hall there are many judges who would say yes yes, certainly they must be executed because of the scriptural decree, relatives, and so on. Rabbi Akiva and Rabbi Tarfon could say such things. Rabban Gamliel could not. Because Rabban Gamliel sat there and had to issue the death sentence and also implement it—carry it out, execute it. There is no such thing. It’s obvious you do not execute someone whom you know is innocent.

Doesn’t that mean there’s a religious goal to kill? Huh? Doesn’t that mean there’s a religious goal? No—you kill him because he is a liar. He is not a liar. What do you mean, a religious goal? The Torah says why you kill him. You kill him because he is a liar. He is not a liar. It’s not the same as with acquisitions. The religious goals in acquisitions, the religious facts in acquisitions, are really that it belongs to you. In the case of conspiring witnesses, in the case where you kill him because he is a murderer but he is not really a murderer—what? In this case you kill him because he is a murderer, but he isn’t really a murderer. Ah yes, that’s what I mean about the scriptural decree of refutation, yes.

Here in our case, if the Torah told you to act based on two witnesses who testified that they’re not, they’re not, they’re not… Yes, it also told me to kill the person because he is a murderer. It also told me that, and he isn’t a murderer. So it told you to act as though he is a murderer. Therefore I claim it said two things. Now we have to understand how to implement both of them. What I’m saying is: to exempt him from the death penalty, I will exempt him, because the Torah said to act as if relatives are not trustworthy. Okay? But on the other hand, to kill someone on that basis—certainly not. Because I have to kill him because he is a conspirator or because he lied, because he murdered—again, depending whether we are killing the conspiring witnesses or killing the murderer. But that’s not true. He didn’t murder, he didn’t lie, he didn’t conspire, he’s nothing of the sort. So certainly not to kill. So you have to know where to apply each of the principles.

Whenever there’s a clash between two… I think we once talked about lex specialis. When you have two norms that conflict with one another, there is often a rule saying that the more specific one prevails. Say there is a prohibition against murder, and there is an obligation to execute a Sabbath desecrator in court after warning. What do you do? There are now two contradictory norms when a Sabbath desecrator comes before me. The point is that the norm to execute a Sabbath desecrator is more specific than the prohibition against murder. The prohibition against murder is general. So the specific norm always overrides. What’s the idea behind that? That if you prefer the general norm, then the specific norm is emptied entirely of content. Because the Torah said to execute a Sabbath desecrator, but I’ll never do it, because it’s always murder. Whereas if I execute them because the Torah said to execute a Sabbath desecrator, that doesn’t totally destroy the prohibition against murder. In every other case, murder is indeed forbidden. So both normative instructions remain meaningful when I prefer the specific one.

So here too it’s the same. That is, the Torah told me to treat relatives as if they are liars, meaning that they are not speaking the truth, on the one hand. On the other hand, the Torah… the Torah also told me to kill someone because he is a murderer, or to kill conspiring witnesses because they lied. But that’s not true—he didn’t murder, he didn’t lie. What do I do? I say: treat relatives as liars in a place where I exempt someone from punishment, or in a place where I have other ways to deal with the matter, such as confinement or things like that. But in a place where I would be killing an innocent person, obviously the Torah never said such a thing.

Now where is this written? I haven’t found it written anywhere; I don’t know of any source that addresses this law at all. It’s so strange, something so fundamental, and so much should have been said about it—so much, I mean, people ought to have talked about it—and I found no source addressing this question. On the other hand, there’s no doubt that this is correct. No doubt. Meaning, anyone who would do otherwise—I’d throw him out of the court in a split second. The man has no idea what a judge is. And I have no doubt there are many Rabbi Akivas and Rabbi Tarfons who would say that this is what should be done. Well—not Rabbi Akiva and Rabbi Tarfon, I mean people who sit in the study hall. Because they weren’t sitting there needing to say: so-and-so is liable to death, you there, officer, executioner, take him and kill him. They’re fine, they’re theorizing there about relatives and the law of relatives and invalid witnesses and all sorts of things like that. “They too increase bloodshedders in Israel”—that is exactly what Rabban Gamliel said to them. It’s a theoretical discussion.

Even if there were a state made entirely of Haredim, it would still need an army. Yes, right. It would just be someone else doing it, that’s all. I’ll get to that in a moment, yes. I’ll get to that in a moment. In any case, the claim is that really you can’t… here specifically my claim is—earlier I said you can’t run a society according to these study-hall rules. I said that. But here, in this example of conspiring witnesses, I’m claiming that this isn’t even what the rules say. Even in the study hall I should not say this. I’m not claiming here that okay, the king will intervene. No. My claim is that here a judge himself must make that judgment and arrive at the conclusion I described earlier. So this example is only meant to show the issue in an extreme form—how far study-hall detachment can go. It is not an example of the need for a king. Here I think the judge on his own must make this judgment and reach that conclusion.

So the point now is that when I want to compare Jewish law with other legal systems, there are several points that distinguish the systems. One point, as I said, is that Jewish law allows itself to give instructions in all areas, not only in legal areas. For example, the legal world limits itself and doesn’t enter a person’s private sphere unless it causes harm or unless there is some very strong justification. And Jewish law tells us at every step what to do even at home—what to eat, what not to eat, what to pray, not to pray—everything a legal system does not allow itself to do. That’s one difference.

A second difference is that even in the legal parts there are legal rationales, not only the considerations accepted in legal systems generally—namely social order, efficiency, justice, and the like. A third consideration is that at the base of halakhic principles stand legal facts—well, this is really connected to the second point—legal facts and not only considerations of social regulation. Beyond that, Jewish law has not only legal facts but also religious goals. Yes, which is an extension of the previous point. Beyond that, Jewish law assumes various religious assumptions that serve as a kind of envelope around the legal system. For example, the existence of the Holy One, the World to Come, reward and punishment, and things of that sort. You can exempt someone who causes indirect damage from paying because he knows he’ll get punished by Heaven. A legal system does not assume such things. A legal system has to handle the whole variant itself; it doesn’t rely on someone else to do the job in its place. And so on. In short, there are many, many differences between the systems.

Now what does this actually mean? If I now look at the implementation of Jewish law in a real state—not as was the case in almost all the years in which Jewish law took shape, or really all of them, I’d say not almost all. In my view Jewish law never functioned in a realistic way. In the First Temple there was a king and everything was fine, only I don’t know what from Jewish law existed in that period. In the Second Temple there was Jewish law, but full Jewish autonomy in the Land of Israel, with all systems of government—there almost wasn’t such a thing. There were Greeks, Romans; there was no king at all except the Herodians and the like. Meaning, basically, this never really operated.

I mentioned the book by Shimshon Bar-Ilan saying that, for example, the capital laws were never implemented—that is his claim regarding the four court-imposed death penalties: they were never implemented; they are inventions of the sages of the Talmud. That’s what he claims. Fine, you can think what you like. In the New Testament they had already crucified fifteen people. Yes, they didn’t hesitate. Yes. So incidentally I’m not sure he’s right, because there is Talmud and there are testimonies and places where there are indications that they did do it. I don’t know. In any case, clearly that was the extreme; his overall direction is right, meaning, this system did not really operate in practice.

What does this actually mean? Doesn’t the king’s law draw its authority from Jewish law? What? Doesn’t the king’s law draw authority from Jewish law? Yes, yes, that… No, you can call it Jewish law. What I call pure Jewish law—yes, obviously. There was a creature called Jewish law, and Jewish law doesn’t tell him what to do; he just does what he wants, obviously. No, in that sense it’s like rabbinic law: they have authority, and therefore one must obey the sages, and the sages can establish what is appropriate and correct, whatever they see fit they need to do. Is that what this means?

This basically means that in a halakhic state—apocalypse now. Apocalypse—some would say in the negative sense; apocalypse isn’t necessarily understood by us as something negative. For Christians, apocalypse is redemption. In any case, in a halakhic state which the Messiah son of David establishes and is anointed king in—that state, will it operate according to Jewish law? Pretty clearly not. Meaning, suppose we write a legal code that includes everything in it: the king’s law, Jewish law, everything, meaning what actually has to be done in practice, okay? Overall it would look very much like our legal code today. In my assessment there would be almost no differences, contrary to what people think—that a halakhic state would be exactly the same. Contrary to what some fear on the one hand, and contrary to what others long for on the other. Meaning, both are mistaken. It would be more or less the same. Why? Because you need to run life; you can’t run things while exempting indirect damage. Except that some clauses would be colored green, some clauses blue—this is Jewish law and this is the king’s law, so what? Bottom line, judges would punish—or fine, obligate payment from—someone who caused indirect damage, and they would certainly accept testimony from relatives, testimony from women, everything.

And what about stoning people who desecrate the Sabbath? No, right, there would be substantive differences too, and they are many. A Sanhedrin that once in seventy years executes a Sabbath desecrator is called murderous. If today’s Chief Rabbinate were a Sanhedrin it would be less than seventy years, it would be seven months. But you need conditions—no, that’s what I’m saying—you need conditions in Jewish law that are almost never met. They will be met, they’ll be met. Maybe it would fit very nicely with Ran, who set up courts and they were throwing people off roofs freely. There is Ran at the end of the Talmud, the sermons at the end of the Talmud on that passage.

I read a number of monetary-law rulings. Yes, but what is “Jewish law”? Jewish law includes all the enactments and additions we bring in. That’s called Jewish law. Why the Shulchan Arukh all of a sudden? Quite a few things in the Shulchan Arukh are drawn from all kinds of places that have no real source. And that got in because that’s how life was run. Obviously. But that’s okay, I’m not criticizing it; that’s how it works. Everywhere real life is run, it will never go with the pure theoretical law. Rabban Gamliel versus Rabbi Akiva and Rabbi Tarfon is an example of this in the Talmud itself. You can’t run life like that. So what he calls Jewish law is something much broader than that pure, theoretical, study-hall Torah.

So what was Rashi objecting to? But you’ll agree that there’s a difference between Rashi at least and your approach. Between Rashi’s approach. That’s midrashic. No, no, no. That Rashi is a midrash, it’s Talmud, and Maran agrees with it. It doesn’t matter. It only says: don’t take the laws of gentiles. Fine, I won’t take the laws of gentiles; I’ll take these laws because they make sense, and I as one of the sages of Israel will enact them. They’ll be the same as the laws of the gentiles, but they’ll be Jewish law. Take into account what the laws of the gentiles looked like then as against what they look like today. Take into account that they too have changed. So overall today we have civilized legal systems; there’s no reason it shouldn’t be more or less the same with us. That is, it’s not… You’re not doing it because it’s American law; you’re doing it because that’s what makes sense, so it will look similar to American law. If you’re doing it because of that, then that’s also recognizing their idols; and there are those who say that if it isn’t idolatry then you don’t have that great severity in taking foreign law. But fine. I’m saying that in principle it’s obvious it would be so. There’s no doubt.

You know, even today’s rabbinical courts, with all the criticism and all the ossification there and all the problems, they don’t really… none of them really judges according to Torah law. Yes, I mentioned the article by Nadav Shenarav, who actually… who mocks this whole thing. They constantly explain to us: what do you mean, these are gentile courts, there’s an obligation to judge according to Torah law and everything. You go to a rabbinical court and you sign that you waive your right to have them judge you according to Torah law. There was someone there, once, who insisted—he wanted… I once… I myself tried this. Maybe I told the story? No? When I was in a rabbinical court in Jerusalem, I accompanied some kollel fellow who got tangled up there, doesn’t matter, and he asked me to help him. So I… I asked that they judge according to Torah law, because I thought that with Torah law I could get him out of it better than… No way. Under no circumstances. So if I demand that they judge according to Torah law, they say: if so, go somewhere else, we won’t hear the case. And of course no rabbinical court would hear it—I wouldn’t find a rabbinical court that would judge…

By what do they judge these cases? Yes, no—that’s what they told me. You want Torah law? Not with us. Absurd. Why not? That’s how it is in every rabbinical court, not just there. I’m not talking about that specific court. I’m saying overall… No, in every rabbinical court it’s like that. Why? Because they are not willing to judge Torah law, lest they err, and perhaps this and perhaps that. They want something between law and compromise, so that… so that what they do will have force, whatever they do. They don’t want to take responsibility. They want you to agree that whatever they decide will stand even if they got Torah law wrong. Because of what? So I’m saying… No, in my opinion they are also afraid you’ll sue them. Also absurd, because… Yes.

But you say… We keep talking all the time… That article is so absurd, it’s a must-read. I said… I always knew this, and he presents it so… He says that the person who demanded this, incidentally, had a writ of refusal issued against him, I mentioned this. Someone who demanded Torah law—he refused to sign to the rabbinical court that he was waiving Torah law; he wanted Torah law. They issued a writ of refusal against him, by the state rabbinical court, because he wasn’t obeying the law. Do you understand? It’s unbelievable. And on top of that they tell me these are gentile courts, you are obligated to go judge according to Torah law, not to go to people who judge according to other laws, Heaven forbid; that’s like planting an idolatrous tree beside the altar.

But in family law they judge according to Torah law, no? Depends what, depends what. Not in evidentiary law, in what they actually deal with there. But not exactly… Rav Nadav exaggerates a bit. They say: we will judge according to Torah law only… No no no no no. According to what do they judge? No, at best they judge “compromise close to the law.” What they think justice and fairness require, close to the law. They will bring in all sorts of halakhic sources and such, but not really. Not really. Again, I haven’t done a comprehensive survey, I don’t know the system in depth. From what I know and from what I’ve seen, that’s more or less the situation. Of course it depends which rabbinical court and… But in the end, listen, anyone involved in practice always becomes flexible.

The testimonies… What? Also on his website and in Hakdamot. But the Torah itself sensed this too—after all, why did the Torah introduce “You shall not deviate” and “According to all that they instruct you”? Because… How? No, not only because of dynamics… Because the Torah knew that life is dynamic in such a way that if you don’t update the lawbook every so often, you’ll remain at crossing the river while today it’s airplanes. The problem is, though, that… Yes, but the problem is that… if the Sanhedrin enacts enactments and brings things into Jewish law, that’s perfectly fine—that’s exactly what “You shall not deviate” is for, that’s why they need… That’s what it will now bring in. That’s exactly what it will bring in. Right. But I’m saying that today there is no Sanhedrin. So today there’s no one to make those enactments in a binding way. So what happens? The judges themselves, since they have no authority, have no choice: they must have you sign that you are authorizing them to be legislators themselves for your particular case. That is really the problem. Because if there were a Sanhedrin, then quite simply the lawbook of the State of Israel would be the Shulchan Arukh. It would be today’s Shulchan Arukh, Choshen Mishpat.

But does the prohibition of gentile courts apply even then? What? Could the prohibition of gentile courts apply even today? The prohibition of gentile courts could apply even today, but the question is what the content of the law is. The content of the law when you come to a rabbinical court would be very similar to what would happen in secular court. There is a prohibition of gentile courts because you need to go to valid judges. There is a prohibition of gentile courts—and that’s a whole discussion unto itself; I wrote an unpublished article about it, on my website—that clearly there is such a prohibition, but clearly it also cannot be implemented. Can you go to a different rabbinical court? Yes, but that’s not a solution. Fine, I explain there why it’s not a solution; it doesn’t help.

The rabbinical court cannot summon witnesses. There I saw this very clearly when I was in that court in Jerusalem. No, not the expanded rabbinical court with all those things. You try to bring witnesses for your side, but they don’t come. Now, the rabbinical court has no authority to summon them; it’s a private court. It isn’t a court that the state can… A private court can’t. It can’t summon witnesses, it can’t do anything. I told him: call him on the phone, we’ll try to trick him into speaking with us on the phone, put him on speaker so the judges can hear. That’s how they testify him. Now, there is a rule that testimony must be from their mouths and not from writing, and there is nothing—you understand? It’s simply making a mockery of the whole thing. You can’t run a system like that. You can’t run a system like that socially either. Once rabbinical courts are private and there is no orderly supervision over them, this leads to serious problems. These systems don’t work properly, don’t function as they should.

You cannot go today to a rabbinical court. In my view, going to a rabbinical court today is absurd. I would never go to a rabbinical court. Unless it’s two people who… even though there is a prohibition of gentile courts. I agree with those who… I do not agree with those who argue that today there is no prohibition of gentile courts—the religious judges. I once talked about this, that it’s a dispute between the judges and the rabbis. The rabbis say there is a prohibition of gentile courts, and the judges say there isn’t. The judges are Elon and so on. On this issue I actually agree with the rabbis: obviously there is a prohibition of gentile courts to go to an ordinary civil court; obviously that is a gentile court. On the other hand, obviously there is no choice, and that too is obvious. You can’t run life any other way. Unless we are dealing with people who really are committed to this system of Jewish law—both sides…

In court, in a rabbinical court according to Jewish law? No—if you’re a religious person and I’m a religious person and we have a dispute. That won’t help. The rabbinical court can’t summon witnesses, the rabbinical court can’t do…, the rabbinical court can’t obligate you for indirect damage. So what are you going to do? You’ll sign there, and injustice will come out of it—only injustice. And the rabbinical court forces you to sign for compromise? Yes. Why? No, if you sign willingly and you sign, afterwards you can go to court—a binding arbitration ruling? Yes. But no, it’s problematic even if both sides sign. It’s problematic from every angle. I think one should not do this today even if both sides sign. Go to civil court.

In any case, that’s in the end what everyone does when there is something genuinely significant. Around here everyone does that. If there are serious matters, not some minor squabble or something, only civil court. Even the disputes in Ponevezh eventually ended up in civil court, I think, with all the… a permit from one hundred rabbis? Yes, yes. Without a permit it doesn’t happen, without a permit. You need a system that is effective. You can’t run life like this; it’s not serious, it’s just child’s play. Truly. There’s nothing to do.

I’m saying: anyone who comes with practical needs and doesn’t remain in the study hall discussing the prohibition of gentile courts understands that there’s no such thing as a prohibition of gentile courts in practice. It is prohibited, but fine, what can you do? The Torah was not given to ministering angels; today it cannot be observed. On the one hand you say that if it’s forbidden to violate it, then you should forfeit all your money—so it means forfeiting all society. It’s social life-and-death, like we once discussed regarding “do not stand idly by your neighbor’s blood.” That’s not called forfeiting money; that’s called creating anarchy. Anyone can now rob you, and you have dismantled society. So you’re saying there is a value, on the other side, to going to ordinary civil court because it preserves society? That there should be an effective legal system. This is the commandment of establishing laws, which even the children of Noah are obligated in—there must be an effective legal system. That’s a commandment, and Jews certainly are obligated in it too. Would you say, then, that what is forbidden to a Noahide is permitted to a Jew? So then go all the way and say that because of those reasons there is no prohibition of going to secular courts? Because I don’t think that within the parameters of the prohibition, today’s civil court is not a gentile court; it is a gentile court. It’s just that I’m in a situation of compulsion. I have no other alternative that isn’t a gentile court.

Yes, but in order to solve, say, the problem that they can’t summon witnesses or something like that, after all once… there’s what is called a race of jurisdictions. Once the state gives authority—no, once the state gives authority to a rabbinical court, say, to judge monetary law as well. Wait, so now they’ll also be able to summon witnesses and compel them. Right, when that happens, we’ll talk, and then I’ll tell you. Wait, so first of all, fine. Meaning I want—clearly, there is an aspiration that there be. Yes, obviously. Okay, no, I’m speaking about today’s situation; I’m not saying today’s situation is ideal. Meaning, in the ideal situation the rabbinical courts would be given full authority. Exactly. And then they would judge the way the civil courts judge today, just with a frock coat. That’s all. Right, that’s what will happen. Yes—it goes together, you see? It goes together. The moment they have authority, they will also have to run life here. And to run life here, you need to do it like the lawbook of the State of Israel, not like the Shulchan Arukh. It simply comes together. And I’m saying: even today, anyone who’s in extreme practice, however radical and zealous he may be, doesn’t really do it. He doesn’t really judge according to Jewish law. You can’t run life that way.

Two women come before you and testify, or one woman testifies—will you ignore it because she is a woman? Of course not. Fine, but we hear the woman and bring it into the overall assessment, and then there’s “compromise close to the law,” and in the end he pays 50 shekels instead of 70. That’s it. That’s what they do there. It’s this kind of marketplace bargaining. And I’m saying—I have no criticism, because there really aren’t many alternatives. It’s a marketplace because of the pathological situation we are in: it’s a private system. A legal system cannot be private. You cannot privatize the legal system. A legal system has to be an arm of government; otherwise it can’t work.

Okay, so if throughout the generations people surely thought and saw what you’re saying now, then basically throughout the generations it was like this. What? So should we then go back and say that the Torah was really given as some kind of intellectual amusement for the yeshiva world? No—that’s what I’m saying. That’s what the king’s law and the enactments of the sages are for: to come and plug the breaches where there are breaches. And in the end everything will enter into the lawbook. In the end the judges will judge according to… the king’s law and the rabbinical court, incidentally, can be written into the same lawbook. In the end the same judges can judge according to both systems. And the judge himself will receive authority from the king’s law to obligate payment for indirect damage. And that same judge, that same rabbinical judge, will obligate him. It doesn’t matter. You need to run life here. But I don’t think that turns the Torah into the king’s law, right? What remains, basically, of the Torah? Is the Torah something theoretical and abstract?

Okay, so… I’m on the way there. Meaning, more than that: the legal system doesn’t have to be state-based, meaning there is a legal method of “this one chooses one and that one chooses one, and the two judges choose the third.” That can exist in any system, unrelated to the state. What? “This one chooses one and that one chooses one” is a state procedure. The law gives authority to that procedure such that it becomes like a state court. It doesn’t arise from your agreement. If it arises from your agreement, again, they can’t summon witnesses. They can’t do anything. What is it? Three cattle-herders sit and judge between you and me—so what? They summon witnesses, and what did the witnesses do for them? Nothing. “Do I owe you anything?” Obviously the law must recognize such a panel constructed by that method. But it has to be a mechanism defined by the law—or by Jewish law, if Jewish law is law. Otherwise it’s just meaningless.

I understood that procedure as really that—two God-fearing people decide they want to go to a rabbinical court… You understood it incorrectly. You understand it as compromise. But in the simple sense, that procedure is not compromise. That is Torah law. It’s not compromise, right. No, that’s how judgment is done. But what judgment? In that procedure, this one chooses one and that one chooses one—and then what? Suppose the two sides agree on the facts. If you agree on the facts, then also agree on payment. If you agree, then what is the dispute? You’re asking a halakhic question—ask a rabbi. Go to a rabbi, not to a judge. Suppose there is negligence—whether it is called negligence or not negligence… Then go to a rabbi. That’s not a judge. We once talked about this issue. If it’s only a halakhic question, you have no dispute. You simply don’t know what Jewish law says in such a case. Go to a rabbi; he’ll tell you what Jewish law says. You don’t need enforcement authority here, you don’t need someone to determine judgment. You’re only asking a question. Fine—what does the Shulchan Arukh say.

Okay, what does this duality actually mean? This duality basically means—and let’s return for a moment to implementing Jewish law in Israeli law—that I talked about the religious value of the matter from the perspective of Jewish law, and the legal value… what is meant by value? Let’s put it this way: what from Jewish law can be preserved within the lawbook of the State of Israel? Obviously only those components that are, first, legal—belonging to Choshen Mishpat and maybe Even Ha’ezer, but not Orach Chayim or Yoreh De’ah. And second, even within those, only those parts that fit the goals of a legal system.

For example, in the Handles ruling, for example, the laws of returning lost property—which seemingly are indeed part of halakhic law—no one thought it appropriate, well not no one but Justice Elon, to integrate that into Israeli law. Why not? Because they aren’t interested in legal facts; they want to achieve justice, and from their perspective they’re right. Okay? So even that can’t be incorporated. So what do you want to incorporate? Only those things that basically fit legal goals. But they’re already there. So what are you adding? That’s what I said there: whichever way you look at it. If you draw some principle that has legal logic to it, then you draw it not because it is written in the Shulchan Arukh or in Rashba or Rosh, but because it has legal logic. If that really is the solution that provides the best legal arrangement, the state will adopt it irrespective of the Foundations of Law Act, simply because it is the best arrangement. Just propose it—even if it comes from the moon and not from Choshen Mishpat. If you persuade people that it is the best arrangement, they’ll adopt it. Why not? So that has nothing to do with Hebrew law.

So where does it matter that you are taking it because it is Hebrew law? Only in those things that have no legal logic. And why would anyone adopt such a thing? What, are they crazy? It has no legal logic, so they’ll adopt it anyway? Why? So whichever way you look at it, I simply can’t understand this mode of thinking that tries to take from Hebrew law and integrate it into the law. By the way, in every ruling where judges supposedly adopt Hebrew law, they bring Hebrew law as support for the rule they are going to issue in general law. Obviously. Read all the endless lamentations of Drori and all those people—he writes two hundred pages, it’s exhausting to read his rulings. So all these… I don’t know whether it’s a pathology of Hebrew law or whatever, but the ruling itself is clear and has legal logic, maybe sometimes one can argue with it, but fine, it has legal logic—and then they bring the Shulchan Arukh and Rashba and this one and that one, all of which, first of all, even the Rashba they bring is not really the law at all, but the Rashba who says that this is the sensible way to act. Fine, Rashba was also a smart Jew and he knew that this was the sensible way to act. So what does that have to do with drawing from Hebrew law? He drew it from the gentiles. Not from the gentiles—from universal reason, not from the gentiles.

Now just making it into an article turns it into that—but what an absurdity. What, is Rashba the Holy One? Rashba is just like those who study Guide for the Perplexed because it’s forbidden to study Greek wisdom. Fine? Maimonides took Greek wisdom, converted it, and now we study it because we’re not studying Greek wisdom, we’re studying Maimonides. Meaning, we draw only Hebrew law, not gentile law. Now Rashba takes it from common sense or from other legal systems—or not necessarily from other legal systems, I’m not sure he did—but common sense, like every other legal system does. He writes this in his responsa. I think I mentioned once that some community approached Rashba—in two or three responsa of his—a community came and asked him: tell us, what about women’s testimony? What about self-incrimination, since “a person cannot render himself wicked”? He said: what’s the problem? You aren’t obligated by halakhic law; you have permission from the king to judge, so do whatever makes sense. What makes sense? Self-incrimination, women’s testimony, everything, one witness—do whatever you want. He positively encourages them to do this. He seems happy that they are not under the limitations of Jewish law, because they can really do what is sensible.

Now what does that mean? That if Rashba had been sitting at the head of the Sanhedrin, he would have established this in halakhic law. His problem is that he is operating in a place where there is no Sanhedrin. In a place where there is no Sanhedrin, we really are in a serious problem, because there is no one to bring into Jewish law the things that need to be brought in; and on the other hand, we are supposed to act according to Jewish law, and we are in a bind. So Rashba is happy that we are being forced not to act according to Jewish law. Do you understand? And this is called drawing from Hebrew law. Meaning, if you take that Rashba and write him in Rashi script in your court ruling, then now you’ve drawn from Hebrew law. Why? Because you took Roman law and wrote it in Rashi script.

For example, the Handles ruling has no significance for Hebrew law, because from the outset Hebrew law would have said something else—like two securities, for example, without identifying marks; Hebrew law would say to take them for oneself. Right. So what good does it do afterwards that it turned out to belong to the bank? In such a case we didn’t follow Hebrew law anyway. So what’s the question? No, wait, what’s the question? You say there is no significance to inserting Hebrew law in the middle of the process. No, of course not, I agree—that’s what I’m saying. Meaning, more than that: if you want to bring some sources from Hebrew law in favor of the majority opinion, which is the sensible legal opinion, then that isn’t Hebrew law, it’s simply…

There is the commandment of Torah study. And second, not everything is common sense; there is also… But when something is not common sense, then you don’t need it, and in any case you can’t run with it. Right, there are also things in Jewish law that are sensible. Those I can know on my own. No, irrelevant—you won’t know them on your own. You can learn even those from the sources, but there is logic there. The question is what to draw from Jewish law into an external legal system, not what there is inside Jewish law. Inside Jewish law there are also parts that are sensible, that offer good regulation of certain legal aspects, and with those we would manage on our own—we would think some more and maybe we’d get there, maybe yes, maybe no. But for me that isn’t important, because for me it is Torah study anyway. The question is what to draw from there. Why did the Holy One give us all this? So that we should study it, that’s all. That is the question. Is it just so we can sharpen our minds? Why should I care if his ox gored the other one? I’ll deal with something more interesting. I’ll get to that in a moment. To me, by the way, that’s the most interesting thing. It is interesting to get to the normative. I always thought that in yeshivot, when you study and don’t need to implement, that’s the greatest pleasure. Fine. That’s also true in academia. In academia it’s even more true. You can sharpen your mind in physics as much as you want. In physics too, everywhere. I once thought—I used to disparage practical ruling and say: that’s technology. Yes, that’s also the accepted attitude in the Haredi world. Even being a judge is a bit embarrassing; it’s as if it’s learning not for its own sake, it’s practical. We’re talking about theory, conceptual analysis. But when I matured a bit, I realized there is something very interesting in practical implementation. Even in academia this has shifted. Twenty or thirty years ago, a professor who connected with some industry and developed a patent was not among the elite of the faculty. But the truth is that there there are really pros and cons, because you tilt academic research toward channels that are exactly… pure research there can have a hard time advancing.

In any case, to draw from Jewish law into the Israeli legal system—when I’m talking about that dimension, not what to study and so on, about that I’ll speak in a moment—but to draw from there to there, then I say this is a problematic sort of internal logic. If you take something that is sensible, then take it because it is sensible, not because it is written in the Shulchan Arukh. After all, that’s the only reason people will agree. Wait—you are in an environment not committed to the Shulchan Arukh. If it’s not sensible, why would they agree? And more than that, when you speak about the cultural value of the matter or the religious value of the matter—its religious value, in my view, has no value at all, because when you perform a commandment it has value when you do it because it is a commandment, not because it is Hebrew law and you are connecting to the roots of our ancestors. Nobody cares about that. Meaning, when you do Hebrew law—when you perform a commandment, you do it as one who is commanded and performs. So if you routed it through the lawbook and now some judge who doesn’t believe and isn’t committed to anything rules that a half-blind person has to swear—what good is that? Where is the commandment in that? The religious value of this does not exist.

So people come to the cultural value. The cultural value returns us to the previous internal dimension, because when will it have cultural value? What kind of cultural value? In a place where it is unique to Hebrew law. Otherwise you didn’t really draw from Hebrew law. But when it is unique to Hebrew law, you won’t draw it because it isn’t sensible. So how exactly will you gain even the cultural value? At most you get the rulings I mentioned earlier. You take what is sensible and write a lot in Rashi script, and “here too so-and-so wrote” and “so-and-so also wrote this,” and then there is some cultural value because you are connected to halakhic sources or I don’t know exactly what. But really you didn’t get anything out of them.

It’s like Rubinstein—he retired from there now. I always remember fondly—with quotation marks—his ruling on the gas deal. He wrote all sorts of things there. He brought Joseph with the oil; there was some smell of petroleum when they brought him up on the camels there, the Ishmaelite caravan. When Joseph was taken down to Egypt there was the smell of petroleum. He said: we found petroleum in our sources. He’s speaking about gas and oil, the gas deal, and he started there with Joseph. What does he want? There was a smell of petroleum and they took care that that righteous man should not smell petroleum, so there were spices there. Yes, because he was looking for petroleum in the project and found it in Joseph. First of all he found oil—that’s a great achievement. He has a tremendous sense of humor. Fine, maybe. But what does it have to do with the matter?

The whole series of books published by the Institute for Research in Hebrew Law—Dr. Nahum Rakover—whole books on Hebrew law, the laws of a borrower, labor law… You mean both for the yeshiva world and for practice? No, no, this is for practice and not for the yeshiva world. Why? Because the person who did it was a jurist, not a yeshiva-style conceptual scholar. I once spoke with him about this, and I was young and impertinent, so I said to him: tell me, why are your books at such a low level? Why don’t you write books at a high level? He looked at me a bit as if I were an idiot. But no—there is impressive organization there, and organization is also an art; you have to know how to divide things up. The problem is that they don’t begin the topic from its foundations, so it isn’t built correctly or fully on the theoretical level. That’s exactly part of the problem that made the penny drop for me, because he also once invited me and we talked about it. There I encountered this mindset of the people in Hebrew law: from their perspective there is no difference—everything written in Rashi script is Hebrew law. Now half these books have nothing to do with Hebrew law at all; it’s Rashba’s common sense.

When you bring the parameters of animal suffering into the High Court case about force-feeding geese—there’s an article by Vigoda, who is one of the leading figures in the field of Hebrew law in the Ministry of Justice—he writes about the High Court case on force-feeding geese. So what did he bring? He brought the Hatam Sofer and this and that, what is permitted and what is forbidden. But where did the Hatam Sofer get it from? From common sense. He says: is it reasonable to cause such suffering? Is it proportionate to cause such suffering? Is it not proportionate? Things like that. It didn’t come out from skipping letters in verses. No—but all this arises from the assumption that once the Hatam Sofer said it, that turns it into Hebrew law. But that too is absurd.

It’s not entirely absurd, because after all the Hatam Sofer was influenced by some world. He had the Torah’s way of thinking. Exactly. No, but he had the Torah’s way of thinking not in the sense of… No, in the real sense. When a person thinks—if you tell me this in conversation in a Vizhnitz yeshiva, I understand. But if you tell me this as a doctor of Hebrew law, that’s not… It’s not entirely wrong. I can read an article by the Rabbi with no title and tell you that you wrote it. You know, people are influenced by what the Holy One intended. No, wait—even lighting Hanukkah candles, it’s not certain that the Holy One intended that. No, yes, He intended it, no? He wrote “You shall not deviate.” He wrote “You shall not deviate,” but the Hatam Sofer doesn’t have “You shall not deviate.” Why not? He doesn’t have it. I’m only saying: when someone studies in yeshiva and learns from books that have a certain method, his way of thinking is influenced by that. He draws from a certain source, and therefore the way he writes… so the Hatam Sofer is the closest thing to… to “the divine matter.”

I’ll ask you: according to your view, you have your white books, you published five books—for example Logica Da’oraita here, a series of seven. And there you argue, including in Higher Measures, that Jewish law has a logic that can be drawn from and implemented in the world. Isn’t that, in some place, drawing from Jewish law? Of course. But what does “drawing from Jewish law” mean? If you find in Jewish law a sensible solution—and that can happen—that another legal system did not think of on its own, then bring it. Fine. But not because it says there that you are implementing Hebrew law; rather because it provides a sensible legal solution to your legal problem. I’m saying that there too, when I draw some logical insight from the Talmud and try to convince people it can help them in other fields, it’s not because I want to teach them Torah; it’s because I’m saying: here, I have a good source and you have an interesting logical solution to your problem, please. That’s what I want. But in practice what happens is: you draw from Jewish law, you find something there and implement it in life. Obviously. I never said otherwise. I said: if you find a sensible solution, no problem, find it. I don’t care. It can come from the Upanishads for all I care, as long as it’s a sensible solution. If you find the sensible solution in the Talmud or the Upanishads or wherever, bring it. In Israeli law too, that’s perfectly fine. In Israeli law too there are behavioral duties, sometimes there isn’t…

It’s like in a legal lacuna, they bring from English law. Right, so they say they bring from English law, but one could say it’s not because it’s English, but because it’s sensible. No, but English law really is a collection of those things. But Jewish law—that’s what I’m saying—in Jewish law there are two aspects. There is the pure aspect, Jewish law itself, and there is everything added to it by what people thought. And I have no problem with that, it’s fine. It appears in the Shulchan Arukh or in Rashba or in the Hatam Sofer, and that’s perfectly fine. But in the end it’s just a mode of thinking, that’s all. So if you persuade me that it’s reasonable, then no problem, I’ll adopt it. But not because it’s written in Rashba; I’ll adopt it because it is the right solution to the problem I’m facing. Exactly. That’s all. It just happens to fit the rules of Jewish law.

Incidentally, in English law too, usually when they cite, they cite it after they want a certain goal. If you want to prove that the securities should go to the bank and not to Handles, and now you bring from English law and American law and German law—that’s exactly what Drori does with Jewish law. It’s exactly the same. Why? Because in a place where you draw as you wish, obviously you will draw only what you think is really right and sensible for the case. But then what is the significance of it? At most there is perhaps some influence from the fact that you cited there, giving some context—fine, I’m willing to accept that on the margins. But to wage cultural wars over this, and Hebrew law, and the Knesset, and “do not stand idly by your neighbor’s blood”—which I won’t even get to now, I see—that sounds strange to me.

What about the concept of “the Torah’s way of thinking”? What about the concept of “the Torah’s way of thinking”? I don’t know what “the Torah’s way of thinking” means. Obviously when a person learns Torah, it somewhat shapes his mode of thought. That’s obvious. Just as there is a German-law way of thinking and a… right? Obviously it somehow… What would the legislator say in such a case? I can’t know what the legislator would say in such a case? I don’t know what he would say, I can relate to it. No, but I have no problem. But now I’m asking: is this a good arrangement for Israeli law? If yes, no problem, adopt it. But Israeli law is not the issue, Rabbi. Rather exactly what you said about what you said regarding force-feeding and flies: presumably he drew it from someone, but the person he drew it from… But do you understand that when they take it from the Hatam Sofer, they aren’t taking it because the Hatam Sofer said it? First they decide what they want, and then they bring the Hatam Sofer who also said this. That’s true even in a completely religious matter. You think what you think and then arrange the… No, no, I disagree. I disagree. Maybe politically, but if it weren’t like that—if you really took the Hatam Sofer because that’s what he said and not because I already thought it was right—then…

Then I’m saying here: if—depends—if the Hatam Sofer has authority… You’re now talking about, say, a halakhic state, no? Okay, so not drawing from Hebrew law… Fine. What would happen here? It would come to a vote in the Sanhedrin, and the Sanhedrin would have to decide whether the Hatam Sofer is right or wrong. If their reasoning agrees with the Hatam Sofer, then they’ll adopt it; and if not, then not. But the fact that the Hatam Sofer said it, in itself, doesn’t determine that it is Torah-true. But when the Hatam Sofer writes what he writes, isn’t he also relying on Talmud and Mishnah? What does “relying” mean? What Talmudic passages are there? What verses? You bring some basic Talmudic passage about animal suffering. There really aren’t definitions there. He can rely on medieval authorities (Rishonim) who themselves invented it.

I once mentioned the Hatam Sofer himself—I said I heard this in his name, I didn’t see it written, I don’t know if it’s written. The story goes like this: someone came to him about precedence in saying Kaddish in the synagogue—who comes first, the one in the seven-day mourning period or the one in the thirty-day period or the one for a parent, and only one person says Kaddish as among the German Jews. So who comes first—the one in the seven-day period for his father, or the one in the thirty-day period for his father, or the one in the seven-day period for some other, less severe relative? Okay, so who comes first? He says: he comes first. I don’t remember exactly who. Wait—but Magen Avraham says the opposite! Where do you think Magen Avraham got it from? He decided that one comes first, so I decide this one comes first. That’s it. That’s exactly the… We have some tendency to think that if it’s written in Magen Avraham, then it came down from Sinai. Magen Avraham writes what I too could have written. Now again, maybe he has more of the Torah’s way of thinking than I do, all good, but the mechanism is the same mechanism. So I also have a Torah way of thinking, I also studied Torah, and I’ll write it now, and that too will be Torah words. Everything is fine. So Drori can now issue the ruling himself without bringing all sorts of citations and so on. He himself is a Jew who studies Torah; it influences him, and that’s all. That itself will be Hebrew law. He doesn’t need to bring Rashba for that. See, there is Drori. They always tell me “it is written.” Fine, then I’ll write it too, and then it’ll be written. Why should I care what is written? It’s written? We have some kind of sacred attitude toward the written word that is a bit…

It’s not toward the written word, it’s toward the one who wrote it—the decline of the generations. That also appears in rulings they brought about the essence of the decline of the generations. Rabbi, it’s not because it’s written; it’s because of who said it. Okay, you know, you give credit to someone who… They cite without regard to credit. I assume you don’t know them; I do know them. But all these things—responsum Pe’at HaSadeh and the questioner in responsum Tzintzenet HaMan or I don’t even know who—You write it because it suits what you want, that’s all.

Okay, so why were the Torah and the rules given to us? Ah, that’s the point I still want, after all, to get to. And if it’s within a point then it’s not… First of all, it’s clear that in a full Torah system—not the pathological system we are in today—legal facts do play a role. And returning lost property would not look like Israeli law. According to strict law, in principle, one doesn’t have to return a lost object after despair. Morally, we would have to return it. And if there is a poor person and the owner is very rich, then we would indeed allow the finder to keep it, because he is not obligated beyond the letter of the law to return a lost object after despair. And clearly we also need, first, to uphold the religious elements, not only the legal elements. When these things were written, they were written for a system committed to the religious world, and of course there would also be elements that would not be found. I said it would look like the lawbook—not completely; it would look very similar in many respects, but also not entirely. There would be things that are not.

Second, even for example in the laws of bailees. In the laws of bailees, after all, one can make stipulations overriding the default laws of bailees. “A gratuitous bailee may stipulate to be liable like a paid bailee”—that is a Mishnah in Bava Metzia. So what? Then why were the laws of bailees written? I once talked about this when we discussed Choshen Mishpat. So why were the laws of bailees written? Basically, we can always… this is just… It’s the default. The default is the default. They only wrote a default rule. So why didn’t they write default rules for the gentiles? I don’t know—let them work it out however they want. What do you mean? We too work it out however we want. No, in the sense that you have a default: if we didn’t stipulate, then that’s how it will be. But why? And what will happen among gentiles? Let them do… as if, I don’t know, whatever system they give themselves. Social order, social order… It’s not social order, it’s religious order. Ah—now you’ve said something else. The religious default. Okay, a religious default, that’s already something else, because a legal default is needed by gentiles too. After all, among gentiles too you need to settle the issue: what happens when I deposited something with him, he is an unpaid bailee, and we stipulated nothing? You need to know what to do, and the Torah doesn’t care about that. Why not? Because the default written among us too is a religious default. Not that it is morally more just. And therefore once again…

Ah—morally just, I mean. Therefore it is again incorrect to draw it into the Israeli legal system, if I jump back again to that question. Because this is a religious determination, not a legal determination. On the legal level, decide among yourselves; there is freedom of contract, make whatever contract you want between yourselves. You didn’t? Then this is the rule. The fact that this is the rule has significance when those who study are studying Torah, because this is the religious truth. When an unpaid bailee is liable for negligence and exempt for theft and loss, and he must take the bailee’s oath—all of that is true. That is the halakhic legal truth. But it is not necessarily the optimal legal arrangement. That’s why one of the examples I gave in the article was: what would happen with the laws of bailees—the most innocent thing in the world—let’s adopt them into Israeli law, not charged with religious matters, no issue there, everything is fine, just laws of bailees. No one even thinks to do that. Why not? It’s wonderful, no? No, it’s not wonderful. Why not? Because in the laws of bailees there is an oath, for example. Right? And the oath is part of the package. You cannot exempt the person from theft and loss without making him swear that he did not misuse it, because otherwise how do you know it was really stolen from him? Maybe he misused it. So it’s a package deal. You can’t…

So what will you do? Draw from Hebrew law but without the oath. Without the oath, the whole structure collapses. This is Barak’s claim—I may have mentioned it—that when you take a foreign system and assimilate it into another system, you create friction. You create things that don’t fit together, and sometimes you don’t even notice where the friction is created; suddenly it comes out here, comes out there, and you see it. Therefore he opposed integrating these things, precisely because there is some logic behind Hebrew law, but it is a different logic. Not this one. So these integrations are very problematic integrations.

So in the end, when you study the laws of bailees in the study hall, you are not studying what will happen. You are not studying what will happen in practice in court—not in the rabbinical court and not even in a court that judges according to Torah law. In most cases, that is not what will happen. But still you are learning the word of God, because that religious default says something. I am not claiming that it’s just arbitrary and that’s it. Rather, the Torah really says that this is the religious truth. When you deposited the item with someone for unpaid safekeeping, he is liable for negligence and exempt for theft and loss—that is the truest truth. But at the same time, if the two parties stipulate between themselves, there is absolutely no problem that they stipulate whatever they want. That’s perfectly fine. But that default is not some random default, just so there should be some arrangement if nothing was stipulated—as some wanted to say, like Abramsky. He wanted to argue that. Or a psychological default—“this is what people intend.” In the name of Rabbi Abramsky it was said that this is a psychological default, that this is what we mean if we didn’t stipulate otherwise; that the Torah descended to the depth of people’s minds and this is what they really intend. I see no reason to assume that, and I’m not sure it’s the best legal arrangement. But it is the best religious arrangement. And therefore studying it is not valueless.

In the study hall… when they asked earlier—you asked, Itzik—in the study hall you analyze all kinds of things that are not practical at all. Right. In the study hall we discuss what the halakhic truth is, what the Holy One says is the truth. The question of what to implement is another question. And from the outset the halakhic truth was given to us as something partly impractical. I say partly impractical. Partly. One has to understand that it is not automatically practical. That is, each time you have to check. That’s what the king’s law is for, together with ordinary law. Ordinary law does not disappear, but everywhere there is a need for legal intervention, the king intervenes. And rightly so. There will be someone to cover these gaps, or close these breaches. That doesn’t mean it is completely impractical, but it does mean that the criterion of practicality is not all that important. I study in the study hall and that’s all—I want to know what God’s truth is. And in that sense it is something real.

But I’m saying one has to understand that this is not automatically what actually has to be implemented. That does not mean it is valueless to study it. On the contrary, I think there is great value in studying it. But that does not mean it is necessarily the thing that should be implemented. No, maybe that’s why it’s called the entirety of Torah as kindness? Because it doesn’t need to be implemented, it’s all just…? Yes, no—I’m saying, don’t take that too far. In principle it should be implemented. But I’m saying one has to know that it is not automatically implemented. There are places where it is not sensible, and for that we will enact enactments and do this, and the king’s law—we will leave a functioning society. We cannot leave a non-functioning society.

To the extent the society functions, obviously there is also an interest in achieving the religious goals, not only the legal goals. But not to reach absurdities, not to reach things that are… Now, on the legal plane this will usually happen only a little. On the halakhic plane, more. On the legal plane of Jewish law, I think this will be relatively rare, the practical implementation of religious values, because in the end there we need to put the legal plane in order. Okay, good.