Migu and Legal Reasoning, Lecture 5
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- Migo: “Why would I lie?” versus argumentative force and credibility force
- Admission of a litigant, the Mahari ben Lev, and “it is in his power”
- “Whoever says ‘I did not borrow’ is like one who says ‘I did not repay’” and the formal foundation
- Verse and reasoning: the verse as a trigger, not a substitute
- Gezera shava, Maimonides, Nachmanides, and Ritva
- Why a verse is needed when there is reasoning: collision with a rule or reinforcement of a reasoning
- The stubborn and rebellious son and Meiri: a son and not a daughter
- Legal reasonings versus factual reasonings
- “It is in his power” and “You rendered your pure foods impure”: control as the basis of credibility
- Possession, prior presumption, and the afflicted house
- Jewish law and reality: an item that will later become permitted, legal fictions, and a fraudulent case
- Copyright, something without tangible substance, and situmta
- Deception as ownership of information: Rabbi Chaim Palagi and the ban on letters
- Despair and returning lost property: a revolution with no hint in the verses
- The Hendeles case: comparing Jewish law and general law
Summary
General Overview
Rabbi Yitzchak Brand distinguishes between migo of the “why would I lie?” type, as a reasoning that clarifies reality, and argumentative force, credibility force, it is in his power, admission of a litigant, the burden of proof is on the one who wishes to extract from another, and presumptions, as legal reasonings that determine how one ought to proceed even without increasing the probability that the claim is true. He argues that verses and exegetical derivations do not replace reasoning but activate it, and sometimes make it possible to apply a reasoning even when it conflicts with another halakhic rule or when the reasoning alone would not have been enough. He presents examples in which Jewish law relies on formal principles that cannot be reduced to a utilitarian or factual explanation, and concludes with the example of despair in lost property and the Hendeles case as a window into the difference between halakhic thinking and general legal systems. This concludes a lecture by Rabbi Yitzchak Brand from Thursday, the 12th of Menachem Av, 5777, July 6, 2017.
Migo: “Why would I lie?” versus argumentative force and credibility force
The Rabbi says that “why would I lie?” is a reasoning that explains why someone who has a migo is right on the level of clarifying reality, as though he proved that there was a loan or that there was no loan. The Rabbi says that argumentative force and credibility force do not operate on that plane, and even if one suggests a logical basis for them, they are not reasonings that increase the chance that the claimant is telling the truth. The Rabbi asks what the meaning is of reasonings that are not meant to clarify what really happened, but operate in some other way within the system.
Admission of a litigant, the Mahari ben Lev, and “it is in his power”
The Rabbi brings the explanation of the Mahari ben Lev that a person’s credibility when admitting he owes money is a kind of migo, because if he wanted to lie he would choose to gain rather than lose, and he calls this an “ultra-migo.” The Rabbi says that the Mahari ben Lev argues that such a migo does not help in the case of a litigant, and therefore defines admission of a litigant as an obligation undertaken by him, and the Rabbi points to difficulties with this understanding and suggests that what is meant is the ability to obligate oneself. The Rabbi explains that the fact that it is in my power to give a gift even if I do not owe it creates a basis for not interfering with me, but he emphasizes that this is still insufficient when it is clear that the claimant did not come in order to “give a gift” but to exempt himself.
“Whoever says ‘I did not borrow’ is like one who says ‘I did not repay’” and the formal foundation
The Rabbi presents the rule that whoever says “I did not borrow” is like one who says “I did not repay,” so that someone who denied the loan and then witnesses came and testified that he did borrow becomes liable and cannot claim that he repaid. The Rabbi emphasizes that here it is clear that the person did not intend to obligate himself but to exempt himself, and yet the system attributes to him a formal admission of a claim he never made. The Rabbi concludes that there is a formal dimension here of credibility that does not fit the explanation of “he wants to give gifts” and is not a reasoning of factual clarification.
Verse and reasoning: the verse as a trigger, not a substitute
The Rabbi argues that a verse is not a substitute for reasoning “in almost no case,” but rather a trigger that activates a reasoning that already seems sensible, and therefore even when admission of a litigant is learned from “which he says, ‘this is it,’” that does not mean there is no reasoning behind it. The Rabbi notes that in exegetical derivations there is always a human choice as to what to derive, such as in a gezerah shava comparing a slave to a woman, and what is derived is determined by what sounds reasonable. He adds that even when something seems to be a scriptural decree, especially in derivations, some kind of reasoning must be sitting behind it, otherwise there is no way to understand how they arrived at the derivation.
Gezera shava, Maimonides, Nachmanides, and Ritva
The Rabbi brings the words of Maimonides and his students that a person does not expound a gezerah shava unless he received it from his teacher, and his teacher from his teacher, all the way back to Sinai, and he brings the comment of Nachmanides, Ritva, and others that this cannot be taken literally, because we find disputes and debates regarding gezerot shavot. The Rabbi describes the possibility that the tradition established only that these words are designated for a gezerah shava and the Sages pour in the content, or the reverse, that the law is transmitted and the Sages look for an exegetical support through a gezerah shava. He emphasizes that the “final product” was not handed down as a complete package; rather, there is an action of the Sages within the framework of a hint or support.
Why a verse is needed when there is reasoning: collision with a rule or reinforcement of a reasoning
The Rabbi suggests that one role of a verse is to make it possible to apply a reasoning even when it contradicts another halakhic rule, such as admission of a litigant versus the rule that a litigant is disqualified from testimony. The Rabbi also demonstrates this with conspiring witnesses, where the reasoning that the second pair is more credible does not alter the rule of two against two, and the verse allows one to depart from the rule in order to follow the reasoning. He adds that sometimes the reasoning is not strong enough on its own, and the verse “confirms” that relying on it is sufficient to determine Jewish law.
The stubborn and rebellious son and Meiri: a son and not a daughter
The Rabbi brings the words of the medieval authorities (Rishonim), who give a reason for why it is a son and not a daughter: because a daughter is not ordinarily drawn into such degeneration and robbery of others. He presents Meiri’s question: why call this a scriptural decree if there is a reason? The Rabbi explains that Meiri means that without the verse we would not infer from this reasoning a binding halakhic conclusion, because we could also distinguish among different sons and not accept a principled distinction between sons and daughters. The Rabbi concludes that the verse gives permission to infer a halakhic conclusion from a particular reasoning, and not merely to state the rationale of the verse.
Legal reasonings versus factual reasonings
The Rabbi defines argumentative force, credibility force, it is in his power, admission of a litigant, the possessor, the burden of proof is on the one who wishes to extract from another, and the like as legal reasonings that determine how one ought to proceed “on legal grounds,” and not because they reveal factual truth the way an estimation does. The Rabbi says that legal scholars tend to explain rules through ordinary logic such as fear of pressure, reliability, systemic efficiency, or preventing anarchy, but he argues that there is a type of reasoning that cannot be reduced to such an explanation. He points to a normative feeling that “this is the right way” even without increasing the probability of truth, and asks that we see this as an independent type of reasoning.
“It is in his power” and “You rendered your pure foods impure”: control as the basis of credibility
The Rabbi brings the law of “You rendered your pure foods impure,” that since he could actually have rendered them impure, he is believed, and he cites the Rosh, who calls this a stronger migo because “I am the master of the matter.” The Rabbi argues that the point is not only “if I wanted to lie, I would have done something else,” but a view that when the matter is under my complete control, there is no point arguing with me, because in this territory I am the master of the house. He applies this to admission of a litigant through the category of “it is in his power,” so that when we are dealing with a domain in which a person can obligate himself or grant something, his words determine matters legally beyond the logic of “a person does not lie in order to lose.”
Possession, prior presumption, and the afflicted house
The Rabbi connects the sense that the possessor has an advantage to principles such as prior presumption, and brings the Talmudic source of the afflicted house, where the priest quarantines the house on the basis of what he saw a moment earlier. The Rabbi says this source is weak if we are talking only about the probability of a few seconds, and emphasizes that the prior presumption also operates in a case where a ritual bath is found lacking, even though it is clear it changed, and still we follow the prior presumption. He presents this as a reasoning that is not probabilistic but normative: when there is doubt, we follow what previously was.
Jewish law and reality: an item that will later become permitted, legal fictions, and a fraudulent case
The Rabbi argues that Jewish law is not detached from reality even though it has a status beyond reality, and he brings the rule of “an item that will later become permitted” in Beitzah 3 as proof that there is value to a “perfectly clear” permission even when we ordinarily rule leniently in a rabbinic-level doubt. The Rabbi tells a story about Rabbi Moshe Feinstein, who continued a wedding canopy ceremony despite a mother’s admission that the daughter was a mamzeret, on the grounds that she was not believed, and presents this as a legal fiction that raises the question of how to relate to factual knowledge versus rules of evidence. He compares this to a fraudulent case in religious court, where even though there are valid witnesses there is a feeling that something smells wrong, and argues that one cannot always “hide” behind formalism when the factual impression points the other way.
Copyright, something without tangible substance, and situmta
The Rabbi presents copyright as an example of a halakhic legal reasoning that determines that there is no ownership over something without tangible substance, and he cites Maimonides on the appearance of an apple and the smell of an apple as a model for this conception. The Rabbi says that the teleological logic of justice and utility actually supports recognizing intellectual property, but Jewish law is “bound” by the legal fact that there is no ownership of the abstract, and therefore indirect solutions are sought. He compares this to situmta and to the question whether custom can be effective regarding something not yet in existence, and cites in the name of the Chatam Sofer and later authorities (Acharonim) opinions that custom will not help where the problem is the essential lack of an ownable object and not merely the absence of resolved intent.
Deception as ownership of information: Rabbi Chaim Palagi and the ban on letters
The Rabbi argues that deception is not “lying” but stealing information, and explains that the prohibition applies when information that rightfully belongs to the other party is withheld in a transaction or in relationships involving gratitude and acknowledgment. The Rabbi brings the responsa Chaim Sha’al of Rabbi Chaim Palagi on the ban of Rabbeinu Gershom against reading a letter that is not yours, and cites his claim that the Torah-level prohibition is derived from deception, because the reader takes information that belongs to the sender and the recipient. The Rabbi says that from here the realization clicked for him, leading him to claim that there is ownership over information, and he mentions possible implications such as the use of genetic information.
Despair and returning lost property: a revolution with no hint in the verses
The Rabbi presents the question why despair transfers ownership or permits taking the object, and emphasizes that despair is an assessment that the lost object will not return and not a decision to relinquish it, and therefore it is not identical to abandonment. He points out that the laws of found objects revolve around despair even though the verses simply say to return lost property, and he describes this as a revolution carried out by the Sages without an explicit hint. He sharpens the point that despair not only reduces the obligation to make efforts to return the item, but also allows the object to become the finder’s, and he attributes this to a legal reasoning whose source is not clear.
The Hendeles case: comparing Jewish law and general law
The Rabbi describes the Hendeles case, in which a bundle of securities was found on the floor of a vault room, Hendeles handed it to the bank, and after four months, according to the law, asked to receive the securities, but the bank claimed that it was the finder. The Rabbi says that Menachem Elon argued that there was a gap in the law and that it should therefore be completed from the sources of Jewish law under the Foundations of Law Act, while others objected, but the Rabbi himself is mainly interested in why under Jewish law the ruling would favor Hendeles, whereas in other legal systems the intuition is to give it to the bank. He concludes with the anecdote that a judge in Haifa claimed Hendeles was the real owner and wanted to “launder” the money by means of a finder’s claim, and the Rabbi says this is amusing and illustrates how halakhic intuition can cover a case even if the legal story surrounding it appears proper.
Full Transcript
[Speaker A] I dealt with this migo in several contexts.
[Rabbi Michael Abraham] And regarding migo itself, we saw that beyond “why would I lie?,” which is the obvious logical reasoning, there is also argumentative force and credibility force, and I tried to suggest various explanations for the logic behind those additional aspects of migo. But if you pay attention, those aspects contain something that is essentially different from “why would I lie?” What is “why would I lie?” Basically it’s a reasoning that says, let’s say when someone has a migo, then the reasoning of “why would I lie?” explains why he is right. In other words, “why would I lie?” proves, say, that there was a loan or that there wasn’t a loan, it doesn’t matter. That is, the one invoking the migo shows that he is right. Argumentative force and “why would I lie?” don’t operate on that plane. They don’t. Even if I find some reasoning underlying argumentative force and “why would I lie?”—and I tried suggesting such reasonings—it’s not a reasoning of that type. It’s not a reasoning that says that because he has a migo, there’s a higher chance that he is right. So what is it, then? What is the meaning of reasonings of this sort at all? I brought other examples of this kind of reasoning: admission of a litigant, which in the end I linked to a kind of “it is in his power” according to the Mahari ben Lev. He says that a person’s credibility when he admits he owes money is some type of migo, because basically what are you claiming—that he’s lying? If he wanted to lie, then he wouldn’t say he owes money; he would do something that makes him gain, not lose. So this is an ultra-migo. So we discussed the fact that the Mahari ben Lev says that actually such a migo, a reasoning like that, cannot help in the case of someone who is a litigant, exactly the same problem we had with ordinary migo. And therefore he argues that this is not credibility but self-obligation. And then I explained that it can’t really be self-obligation; there are a number of difficulties with that view, and it seems to me that what he means is the ability to obligate oneself. In other words, the fact that I could obligate myself—I could give you one hundred shekels even if I don’t owe you—nobody can stop me from giving you a gift of one hundred shekels. That itself generates my credibility. You have to notice: this is not a reasoning that says—well, maybe it is, actually—a reasoning that says, why are you interfering in his life? Whether he’s lying or not lying, what are you trying to stop him from doing? If he wants to give gifts, let him give gifts. In other words, you could explain it that way too. So that indeed is not a reasoning of credibility, but still there’s something here that, all in all, belongs to ordinary logic, because fine, don’t believe him—what difference does it make? He wants to give gifts, so fine. But of course it doesn’t stop there. We saw that I brought this example: whoever says, “I did not borrow,” is like one who says, “I did not repay.” In other words, if someone comes and claims from me one hundred shekels and I say, “I did not borrow,” and afterward two witnesses come and say that yes, I did borrow, then I have to pay and I can’t now say, “I repaid.” Why? Because someone who says, “I did not borrow,” is essentially an admission of a litigant that he did not repay. Now it’s clear that he did not intend to obligate himself. When he made the claim “I did not borrow,” that was a claim intended to exempt him, not to obligate him. It’s not that he came and wanted to obligate himself to the other person. So in what sense is he believed regarding the claim “I did not repay,” believed with respect to a claim he didn’t say, but anyone who says “I did not borrow” is as if he said “I did not repay”? There’s something here too that has a kind of formal dimension. In other words, I do treat this as credibility and not as, “if he wants to give gifts, let him give gifts,” because he does not want to give gifts. He has no interest here in giving gifts—on the contrary, he wanted to get out of it. So that isn’t a sufficient explanation. In other words, there is something here which on the one hand may be a reasoning, but on the other hand it is not a reasoning in the sense of clarifying reality. It is not a reasoning that says why reality is this way rather than that way, a reasoning that says I’m right or he’s right, but rather something else—a reasoning that says this is the correct way to proceed in some sense, even though this is not necessarily the factual truth. And with admission of a litigant there was some room for hesitation, because admission of a litigant comes from a verse, “which he says, ‘this is it,’” yes, in the context of partial admission, but from there they also derive admission of a litigant. But even if something comes from a verse—we’ve already said this many times—a verse is not a substitute for reasoning in almost no case, maybe even in no case at all. A verse is only some kind of trigger to activate your reasoning. Meaning, if we had not had a reasoning that admission of a litigant should grant credibility to a person, we would not have learned it from this verse. The fact that we drew from this verse the principle that admission of a litigant is like one hundred witnesses is because we have some reasoning that this makes sense. And I’ve seen this in many other contexts, for example with regard to the methods of interpretation. I said that when there is a gezerah shava, I learn a slave from a woman.
[Speaker A] So Gedalia Nadel said that reasoning is preferable to a verse? Yes. Right.
[Rabbi Michael Abraham] Preferable to a verse? No. The plain meaning of a verse is not what is called reasoning. I am only arguing that this too is something else, and I’m arguing that even when a verse is brought, that does not mean there is no reasoning here. On the contrary, usually there is reasoning there. Certainly in derivations—in derivations it’s always like that. In the actual plain meaning of a verse you can say, fine, maybe I interpret the verse, that’s what it says there, even though it doesn’t sound logical to me, but that’s what it says. In a derivation, that is never the meaning of the verse. I decide what to derive from this derivation. Even when there is a gezerah shava, then regarding what do I compare a slave to a woman? There is “slave” written here and “woman” written there. What do I learn from that gezerah shava? I learn from that gezerah shava what seems reasonable to learn. Meaning, it is a trigger to activate my reasoning. So the fact that there is a verse does not make unnecessary the need to understand what the reasoning is. Therefore when the Sages bring from the verse “which he says, ‘this is it’” that there is admission of a litigant, that does not mean there is no reasoning behind admission of a litigant.
[Speaker C] But there is such a thing as a scriptural decree that goes against the reasoning. For example, “and he writes for her and gives [it],” so what reasoning is there that a bill of divorce must not be lacking cutting?
[Rabbi Michael Abraham] One has to think about it, and there has to be a reasoning. Without that they would not have derived it. I’m saying this a priori, not because I reviewed all the derivations and in every place saw a reasoning. It cannot be otherwise. Otherwise where did they get it from? Really, why did they derive that it must not be lacking cutting?
[Speaker C] Maybe the notion of a scriptural decree—meaning, that’s what’s written—is what you are calling reasoning.
[Rabbi Michael Abraham] I said, if there is a verse—if it’s the plain meaning, not a derivation—maybe. And even there I have major doubts, and that’s the “almost” I spoke about earlier. In a derivation there is no such thing, because in a derivation you always come to include something; a similar word creates a gezerah shava, a generalization and specification and generalization comes to include. But what do you include? What do you compare? In what respect do you compare? That is always your decision. And at most you can say this is the least unreasonable thing.
[Speaker A] I talked about this once, that the gezerah shava which is a law to Moses from Sinai is only that the words are similar and that something must be learned, and the actual derivation will be a law to Moses from Sinai.
[Rabbi Michael Abraham] Yes. Maimonides and his students also write that a person does not expound a gezerah shava unless he received it from his teacher and his teacher from his teacher all the way back to Sinai. About that, Nachmanides and Ritva and some others among his students comment that this cannot be meant literally. It cannot be that this is a law to Moses from Sinai in the full sense, because we find disputes regarding gezerot shavot, we find debates about gezerot shavot. Therefore he wants to claim that the tradition transmitted to us something: either that from these words one learns a gezerah shava and we pour in the content—in other words, what is learned by gezerah shava—or the opposite: they transmit the law to us, we do not know its source, we find a gezerah shava and say, well, maybe it comes from here. But it was not given to us in the original, meaning the final product was not given to us. Something was given, some kind of support, some kind of hint, but still there is an action of the Sages here. A reasoning requires… what? Thought requires… it seems to him that what the Gemara says is called—
[Speaker D] Reasoning, meaning reasoning alongside a verse, and they go together. If every verse needs reasoning, then why do you call it a scriptural decree?
[Rabbi Michael Abraham] Ah, that’s a good question. We once discussed this when we spoke about scriptural decree, and I said there are several possibilities. One possibility, for example in admission of a litigant—let’s take the example of admission of a litigant—there the reasoning may say that admission of a litigant is like one hundred witnesses, but there is a rule that a litigant is disqualified from testimony. What overcomes the reasoning is a halakhic rule.
[Speaker C] So the scriptural decree—
[Rabbi Michael Abraham] That’s another discussion… But the scriptural decree—no—it’s not that the disqualification of a litigant is not itself a reasoning of the simple kind; it makes a separation between his obligation and his rights. The verse comes to say that here you apply the reasoning even though it contradicts another halakhic principle, namely that a litigant, even if there is a reasoning in his favor, I do not accept his testimony. That is what the verse is needed for—not to tell me the reasoning. With conspiring witnesses too, same thing. In conspiring witnesses there is a reasoning that the second pair are more credible than the first, but even though they are more credible—more credible even than a hundred—it is still two against two. If the two have, say, a migo, okay, then maybe they could disqualify the first pair as robbers. So the second pair have two plus a migo, and the first pair have two. Now according to the rules of Jewish law, two against two is still two against two. Even if it’s true that I have a reasoning that the second pair are more correct, the rules of Jewish law say that two are like a hundred. It does not help me to add a migo to two witnesses; that does not strengthen them against two other witnesses. Therefore I need a verse to tell me: do not apply the halakhic rule here; instead, go with the reasoning. The verse does not innovate the reasoning. The verse enables me to use the reasoning even though apparently this contradicts a halakhic rule. In other words, the verse says that here this halakhic rule does not apply; you may go with your reasoning. That is one example. I gave there three possibilities, three reasons or three types of scriptural decrees—first of all, why a verse is needed even where there is a reasoning. Sometimes the reasoning is not strong enough, and the verse tells you: with this reasoning, it’s fine, it’s good enough. Without that, I maybe would not have used it on my own. I gave the example of the stubborn and rebellious son, Meiri, who says: a son and not a daughter. The Gemara says: a son and not a daughter. The Jerusalem Talmud says this is a scriptural decree; in the Babylonian Talmud it’s written there—not in those exact words, “scriptural decree,” but it says there what is basically a scriptural decree. And the medieval authorities bring a reason for it: that a daughter is not ordinarily drawn into such a path and into robbing people, as is written there regarding the stubborn and rebellious son. But the medieval authorities usually bring it the way they generally bring the rationale of the verse, a kind of reason for the commandment. But Meiri goes on and asks: if you say there is a reason, that a daughter is not ordinarily drawn there and to rob people, then why—why is this called a scriptural decree? That’s Meiri’s question. And then it is clear that Meiri understood this as a real explanation, not merely the rationale of the verse. In other words, this really is the explanation. So he says, if so, then why indeed is it called a scriptural decree? It has an explanation. Meiri’s wording is not entirely clear, but it seems to me that what he means is that without the verse, we would not have said this. Because I could say: there are also good boys whom I know clearly would never go on to rob people, even though they stole the prescribed amount of meat and wine. And I know him—he’s a good boy. So what, I won’t apply the law of the stubborn and rebellious son to him? The rule is that if the Torah said it, then it does not enter into distinctions. So likewise with this distinction between sons and daughters: it may be true in terms of my assessment of reality, but the question is whether that would have been enough for me to draw the halakhic conclusion and say that daughters are not subject to the law of the stubborn and rebellious child. True, perhaps there is a difference between daughters and sons, but perhaps not. There are also differences among sons. So who says we make such distinctions, and here not apply the law of the stubborn and rebellious son and there yes apply it? The verse, the derivation, comes to say: a son and not a daughter. In other words, this reasoning is good enough to derive a halakhic conclusion from it. That is not called deriving the rationale of the verse. Rather, from the verse we are given permission to derive this halakhic conclusion. That is another example of why a scriptural decree is needed when there is a reasoning. Therefore it seems to me that also with admission of a litigant, which is in fact learned from a verse, this does not mean that there is no reasoning behind it. On the contrary, most likely there is a reasoning there. And beyond that, even if I do not grasp the reasoning, there is a reasoning there. Because otherwise why did the Torah say it? The Torah said it for some reason, right? It may be that I have no way at all to arrive at that reason. So we call that “there is no reasoning,” but there is reasoning. Meaning, maybe I cannot reach it, but there is a reasoning. Like Maimonides speaks about the reasons for the commandments: he says that behind every commandment there is some rationale. The Holy One, blessed be He, does not say things for no reason. It could be that I could not have reached it, and therefore a verse is needed. So in terms of the necessity of the verse, that is not a problem in this case, because I could not have gotten there by myself. But this still does not mean that if there is a verse, no reasoning is needed. Behind the verse there sits a reasoning, some kind of logic; otherwise, why does it say what it says? Okay, so in essence, admission of a litigant, “it is in his power,” we spoke about the possessor, the burden of proof being on the one who wishes to extract from another, about migo as credibility force or argumentative force—all these things are reasonings, legal reasonings. What does that mean, legal reasonings? These are reasonings that tell me that this is the right way to proceed because of one legal consideration or another. But unlike a factual reasoning or an estimation, like migo of “why would I lie?,” these are not reasonings that say this is the right way to proceed because this is the factual truth; rather, this is the right way to proceed for some legal reason. And then you always ask yourself: wait, why exactly is this the right way? So if you ask legal scholars or researchers of law, they generally look for some explanations that in the end return to the ordinary plane of logic. In other words, when you disqualify relatives from testimony, or admission of self-incrimination, there is always some explanation behind it: maybe they pressured him too much, and therefore he confessed, and you can’t take the confession too seriously, or various things of that kind. So behind it there is always, in the end, some logical reasoning. My claim is that there is—at least in Jewish law, but I think not only in Jewish law, and it seems to me that in the legal world too people would find it hard to refuse to admit this, to recognize it—another kind of reasoning, which cannot be explained in terms of ordinary logical reasons. Rather, it is simply that this is the right way; this is the right way to proceed; it seems reasonable to us that this is the correct way to proceed, and therefore we do it. Not because… yes, “it is in his power”—what I brought earlier, for example, that since it is in my power to give a gift, then I am believed if I admit that I owe you. “It is in his power” as an explanation for admission of a litigant. But “it is in his power” is not only an explanation for admission of a litigant. In any matter—for example, I say, “You rendered your pure foods impure.” Since I could have rendered your pure foods impure, I am believed when I say, “You rendered your pure foods impure.” Okay, here this is not… not as an explanation for admission of a litigant. Rather it is simply a type of migo. But the Rosh writes that this is a stronger migo than ordinary migo. Why? Why is it stronger? Because it is in my power to do it. So what if it is in my power to do it? Again, one could say the “why would I lie?” dimension. But there is some sense that there is something here beyond “why would I lie?” It is not just proof that I am not lying because if I had wanted to lie, I would have rendered your pure foods impure with my own hands. There is the migo dimension here, and there is something else. The Rosh calls it: because I am the owner of the matter. And if it is under my control, no one can argue with me. In other words, that is the point: no one can argue with me. Am I right or not right? Are the pure foods impure or not impure? That is a factual question. What relevance does a consideration like “I am the owner of the matter” have? What does it mean, I am the owner of the matter? Am I the owner of claims? What exactly is the meaning of that? I think there is some feeling that says that once something is under my complete control, then the whole story of whether I am believed or not is over. And it is not only because, if I had wanted to lie, I could have rendered them impure with my own hands. That is the ordinary migo reasoning: if I had wanted to lie, I would not come and lie by saying, “You rendered your pure foods impure”; I would have rendered them impure. What does it mean, I would have rendered them impure? Even after I would have rendered them impure, maybe they still would not have believed me that they were impure, for example. So what… So even if you look at it that way, there is not even the usual migo aspect here, that if I had wanted to lie I would have achieved a different result. I could have rendered them impure. The point is not that they would have believed me differently, but that if it is in my power to render them impure, then I am the master of the house. In other words, it is mine; it is under my full control. Not ownership in the property sense, of course, but it is under my full control. Once something is in my territory, under my complete control, then I am the sole master of the house. What I say about it—that is what is correct. And that is the reasoning of admission of a litigant. What admission of a litigant means is: since it is in my power to give gifts, then when I say that I owe him one hundred shekels, nobody argues with me. Nobody argues with me not because I have a migo. It’s not that migo reasoning, that there is no logic in my lying to hurt myself—not only that there is no logic in my lying in order to hurt myself. I do not lie in order to gain, not in order to lose. That is the simple logic of admission of a litigant. But in admission of a litigant there is something beyond that. When you are talking about something that is under your complete control, then you are the master of the house, you are the judge, you are the witness, you are the litigant, you are everything. What you say—that is what will be. That is really the reasoning behind it. Now why? Why is that so? Where does this come from? By the way, there is not even a verse for this. The principle of “it is in his power” was innovated by the Sages from their own reasoning; there is no verse asking “from where do we know ‘it is in his power’?” Migo too doesn’t have one, and certainly “it is in his power,” which is a particular kind of migo, does not. Where do these reasonings of argumentative force and credibility force and “it is in his power” and admission of a litigant and all the rest come from? There isn’t even a verse for most of these things. Admission of a litigant has one, but most of the others do not. And yet this is a reasoning that does not necessarily reveal facts or reveal reality. So in what sense is it reasoning? The claim I want to make is that there is some sort of feeling that says that once something is under my complete control, that is what is right. I don’t know how to explain it. It’s some kind of… but somehow it seems to me that a lot of people feel this, not just me, that this is the right way. And therefore I’m a little stuck for words to explain it, because all I’m trying to do is draw your attention to it: look inside yourselves and see whether you also feel this way. If yes, then I’ve succeeded, and if not, then I don’t know what to do with it. I’m only saying that the fact that there are certain principles in Jewish law that I do not know how to reduce to a factual explanation—to the claim that that is how reality is, say, a normal factual proof—and yet at the same time you do not need a verse to innovate them. In other words, this is just the right way. The burden of proof is on the one who wishes to extract from another is the same kind of thing, although there too it exists in all legal systems, and so it has already received several explanations, and there are logical explanations for it, such as: anyone could jump on somebody in the street and say, “You owe me one hundred shekels.”
[Speaker D] The Gemara says, “The owner of the object remains the owner.”
[Rabbi Michael Abraham] Yes, but what does “the owner of the object remains the owner” mean? What is the reasoning? Why do you establish the matter that way? Why? What is the reasoning? What is the logic behind it? We have some feeling that this is the right way. And there are those who explain it by taking it back to ordinary logic—that is often how legal scholars explain it. And there are several explanations in the legal world, but the most common is that you cannot allow everyone to jump on someone in the street and say, “You owe me one hundred shekels,” and then if you give no advantage to this one, and no advantage to that one either, but instead say they divide it, or let it remain until Elijah comes, or follow some other rule, then it simply leads to anarchy.
[Speaker D] Efficiency. That’s also a reason.
[Rabbi Michael Abraham] Correct. Efficiency is also a reason. A legal reason. A systemic foundation.
[Speaker D] Not a substantive one.
[Rabbi Michael Abraham] Not a legal reason—but it is still enough of a reason that it seems right. That it seems right, yes. Fine, for me that’s an adequate reason.
[Speaker D] But I’m asking about the—
[Rabbi Michael Abraham] But not that this is simply the right thing, rather that there is an explanation. Therefore I do not call that a legal reasoning. Even though the rationale is not a religious rationale but a legal one, it is a rationale that exists in the ordinary legal world too. In other words, it is clear because there is logic to proceeding this way—that it is not right to build the legal system otherwise. Not because you are right, but because that would lead to systemic problems. Procedural, or other kinds of systemic problems. So that is ordinary logic; I am not talking about that. I am talking about a situation where there is some feeling that if it is in your possession, you have an advantage. A real advantage. Not real in the sense of probability—not that there is a greater chance that you are right than that he is right, but that legally it is right to leave it with you. And this is not only because of the consequences that if you allow—
[Speaker A] It’s procedural, exactly. We’re basically working from the assumption that you can’t run a legal system like that.
[Rabbi Michael Abraham] No, that is the previous explanation. That is why I’m saying: this is the accepted legal explanation. I want to make a different claim. I want to claim that there is some legal reasoning, legal logic, to say that if it is with you, you have an advantage. Not because if we allow everyone to pounce, things become unmanageable—that is the ordinary legal explanation. But there is—I don’t know—when I look inside myself, I do find in myself this feeling that says that if someone is holding something and the other person wants to take it from him, I don’t know, bring proof. Why should we pay attention to you? Not because of worries that everyone will attack everyone else. In other words, it’s not… there is a reasoning. I am not saying that explanation is false; I am saying it is not the whole story. There is something more here.
[Speaker C] Maybe it’s similar to prior presumption?
[Rabbi Michael Abraham] Prior presumption—exactly, yes, all those principles. And again, prior presumption is learned from the afflicted house. In the Gemara in Hullin 10, if I remember correctly—I mentioned this—but it is clear that if there were not some such logic, they would not have learned it from the afflicted house. And what is this afflicted house? It’s a strange thing. What is it? The Gemara says that the priest enters the house, sees an affliction, and then he goes outside and quarantines the house for a week in order to see whether the affliction has faded or spread. And the Gemara asks: after he has gone out, a few seconds have passed since he saw the affliction, so how can he quarantine the house? Maybe the affliction already disappeared. A sign that there is prior presumption—meaning, what was established is presumed not to have changed until it has been proven that it changed. So that is the source for prior presumption. It’s an extremely weak source. It’s weak, fine, because that’s just simple reasoning. But we use prior presumption even where there is no such reasoning. If a ritual bath was valid and now I see that it is lacking, okay? There is the current presumption that the ritual bath is lacking, and there is the prior presumption that the ritual bath had been complete. And we follow the prior presumption. Why? Here it is obvious that it changed. What are you talking about—why assume that an hour ago it was still complete? There is no reasoning here. But how can you learn this from the afflicted house? The afflicted house is just simple common sense. Anyone, even without the Torah, understands that what he saw a second ago is probably still there. The Gemara… Tosafot in Gittin—there is some discussion there—the Gemara distinguishes between “perhaps he died” and “perhaps he will die.” In other words, regarding whether we are concerned that someone may die, there is a difference between the question whether we are concerned that he has already died, and whether we are concerned that he will die. For example, a woman whose husband went overseas—the question is whether she may eat terumah if he is a priest. The question is whether she may eat terumah; if he died, then she can no longer eat terumah, because she eats it only because she is a priest’s wife. So we are not concerned that perhaps he died. But there is concern that perhaps he will die. For example, someone says to a woman: “This is your bill of divorce one hour before my death.” Now the question is: perhaps he will die in the future, in which case already now she is divorced and cannot eat terumah. Fine, so that is concern about the future. That we are concerned about. What the Gemara says is that there is a difference between perhaps he died and perhaps he will die. Tosafot there bring various proofs, and the other medieval authorities also agree, that there is a difference between a short time and a long time. Over a short time we are not concerned—even with “perhaps he will die,” over a short time we are not concerned—and over a long time, according to one opinion, perhaps we are concerned even with “perhaps he died,” or according to another opinion not; there is a dispute there. So if there is a difference between time spans, then all the more so I return to the afflicted house—what is going on there? In the afflicted house we are speaking about a matter of a few seconds. Obviously over a few seconds we are not concerned. So what kind of source is that for prior presumption? Therefore it is clear that there was some reasoning sitting behind this, and that reasoning does not necessarily say that this is how reality is. For example, in the case of the ritual bath there is no probabilistic reasoning at all. If the ritual bath was complete an hour ago—it was complete two days ago, and now it is lacking, there are no longer forty se’ah in it. Someone immersed an hour ago. What is his status? I do not know. If it was already lacking then he did not become purified. If the ritual bath was still complete then he did become purified. So my assumption is that it was still complete, because there is a prior presumption. If it was complete two days ago, it was still complete an hour ago; now the evidence is that it is lacking, so now it is lacking. But until now the assumption is that it is complete. Let’s assume it diminished in the last hour and not in the hour before that or the day before that, right? And this is learned from the afflicted house. So that means there is a reasoning behind this that is not a factual reasoning saying that this is how reality is, but rather a reasoning that this is the right way to proceed, and that is what I call legal reasoning. And the reasoning is that this is the right way to proceed. If I am in doubt and there are two possibilities, I always go after what previously was. Why? I don’t know, it just sounds very sensible to me to proceed that way.
[Speaker D] And what if the reasoning and reality are not the same thing? What? What do you mean, the reasoning and reality are not the same thing? I didn’t understand—what does it mean that the reasoning and reality are not the same thing?
[Rabbi Michael Abraham] That itself, that itself is legal reasoning. Once you bring legal reasoning into the explanation, then it remains legal reasoning.
[Speaker D] And what if that reasoning is in fact supposed to line up with reality?
[Rabbi Michael Abraham] In many respects, it ought to track reality, unless there is a legal reasoning that says otherwise.
[Speaker D] So again we’ve come back to legal reasoning. Legal reasoning about reality?
[Rabbi Michael Abraham] Yes. Legal reasonings—that’s exactly what we’re talking about.
[Speaker E] Unless you want to say stringency in a case of prohibition. What? To go stringent with a prohibition—that I’d rather he immerse again than I should be…
[Rabbi Michael Abraham] No, that was a possible way out. Say, the moment I have a doubt—a Torah-level doubt goes stringently—immerse again. But no: if there is a presumption, then in a case of doubt we follow the presumption.
[Speaker D] And what if in this case, since reality couldn’t be that way, reality wasn’t that way, so there’s no point in immersing?
[Rabbi Michael Abraham] That’s a big question. I don’t know. By the way, I tend to think yes, but it’s common among many to say no. That’s the Jewish law, and there’s no reason not to be concerned. That’s a view that says Jewish law is detached from reality. I argue that it is not detached from reality, even though it has a status beyond reality. You’re allowed to go with the Jewish law. I’ll give you an example—maybe we talked about this, I don’t remember anymore. The Talmud in Beitzah 3 talks about something that will later become permitted. Say there’s something that is forbidden now, but a time will come—another day, another two days, I don’t know—when it will be permitted. So if I have a doubt about it now, then even if it’s, say, a rabbinic-level doubt, I’m still forbidden to eat it or use it. Wait until it becomes permitted, and then do it with no doubt at all. Instead of eating it in a forbidden state, eat it in a permitted state. Therefore they don’t allow leniency in a rabbinic doubt when it’s something that will later become permitted. Now, if a rabbinic doubt were totally permitted, there’d be no issue at all in being stringent—so what kind of reasoning is this, ‘instead of eating it in a forbidden state, eat it in a permitted state’? You’re not eating it in a forbidden state; a rabbinic doubt may be treated leniently. So what do you see? That if you have a doubt, there is a side here calling for stringency. Halakhically you may be lenient—rabbinic doubt may be treated leniently—but obviously, if you can go with it completely clean, that’s better. And if you can eat it permissibly, then certainly that’s better. So the Sages say: if you can eat it permissibly, you have no right to rely on leniency in a rabbinic doubt. Or the same thing with nullification by majority: something that will later become permitted is not nullified by majority. Why? Because why exploit nullification by majority? Wait until the time comes when it is permitted, and then eat it without needing nullification by majority. Now if nullification by majority were a complete permit, then what kind of reasoning is that? What’s the problem? Right now I’m relying on nullification by majority and it’s completely permitted. Why is it preferable to wait until tomorrow when it’ll be permitted? It’s permitted even now. If tomorrow is preferable to today, that means today it’s not completely permitted. Okay? So there are various indications of this. I don’t think it’s right to ignore reality, even though it seems to me—I haven’t done a survey—but it seems to me that even the prevalent approach is that there’s no need to be stringent at all in such places, that it’s completely permitted and everything is fine. Various legal fictions—there are such fictions. There’s the story about Rabbi Moshe Feinstein—I don’t remember the details—that a mother, under the wedding canopy, suddenly couldn’t hold herself back and confessed that her daughter was a mamzer. Right under the canopy. So you can’t perform the marriage. Rabbi Moshe Feinstein was conducting the ceremony; he said, ‘She is not believed,’ and then continued on to the blessings. Now obviously she’s right—why would she just say that her daughter is a mamzer? Is she crazy? Clearly there’s some kind of fiction here. Now the question is what one does in such a situation. On the one hand, halakhically fine, she is not believed. It doesn’t matter why she’s not believed—that’s also not a simple question—‘he shall acknowledge’ and so on, anti-‘he shall acknowledge’; ‘he shall acknowledge’ is to say this is not my son or yes my son. But fine, let’s say she isn’t believed. But in reality you know that she is a mamzer. And regarding a mamzer there is still room for doubt, because a doubtful mamzer is not a mamzer. Especially with mamzer status. Maybe there, but what happens with other legal fictions, in places where it’s clear to me what the reality is going to be, but halakhically there is some kind of appearance like this? Some such appearance—can you, with a halakhic argument that really holds water, act on it? I think it is not right to do that. And if factually it’s clear to you that there is a problem here, even if Jewish law—this is like a fraudulent case in religious court. The laws of evidence tell you: you have two witnesses in your favor, take the money, give him the money. But something here smells bad to me. I didn’t find the problem in court—they’re not relatives, they’re not wicked, at least I didn’t see it. Something here is not… something here stinks. So that’s a fraudulent case.
[Speaker D] Right. Maybe reality doesn’t create the Jewish law; the Jewish law creates reality. When Jewish law doesn’t take hold, it doesn’t create…
[Rabbi Michael Abraham] Yes, that’s the accepted view. I argue: true, Jewish law creates reality, but Jewish law creates reality within the limits of the system’s power.
[Speaker D] When you know—as it were, you know the truth—and you can’t hide behind various laws, and still we’ll follow the doubt leniently?
[Rabbi Michael Abraham] Leniently in the monetary sense, because to be lenient for this one is to be stringent for that one.
[Speaker D] Fine, so let’s discuss reality. Yes, a person is violating Jewish law, not just some abstract rule.
[Rabbi Michael Abraham] Also in monetary law, the Jewish law is the Jewish law—it doesn’t matter. When you forbid pork, first of all there is the reality that this is pork. And after it is pork, the Torah forbade eating it. Now you investigate whether it is pork or not. So in the laws of determination—whether it is pork or not—you can discuss things on the halakhic plane. If you have one witness then he is believed; or I don’t know, a disqualified witness is not believed, a lying witness—not a disqualified witness; a disqualified witness is believed regarding prohibitions, but a lying witness. But if I know it is pork, I am convinced that the truth is that it is pork, then to eat or not to eat—that’s a simple question. Both in monetary law and in prohibitions there is some prior factual layer. On top of that the Torah imposes a prohibition or an obligation or something like that. And the question always is: when you talk about laws of evidence, about halakhic formalism of one kind or another, can you ignore the fact that in reality the reality really is otherwise, as best you can tell? I don’t think it is right to do that, but I don’t know. It also depends, again of course, on whether there is a great need. If there is a real need here, then you can start combining various factors—but I don’t know. Okay, I want to illustrate this idea of legal reasoning, and the difference between the halakhic treatment of legal reasoning and the treatment in ordinary legal systems, through the example of returning lost property. Regarding returning lost property—once, long ago, I wrote an article about this and brought two examples of the matter. One was copyright and the second was returning lost property. With copyright, there is a lot of logic in granting intellectual property to a person who invented something, or where the product is a fruit of his mind. And still Jewish law says: fine, but something that has no tangible substance cannot be owned. Now what kind of reasoning is that? It doesn’t come out of nowhere—there is no source for it. Maimonides does say that there cannot be ownership over the appearance of an apple, the smell of an apple, the appearance of honey, the appearance of tekhelet, and all sorts of such abstract things—you can’t own such things. Now what is the source for that? There is no source. No rabbinic source, no Torah source, no verses. So this thing has no source at all; the Sages decided it by reasoning. Now what kind of reasoning would decide something like that? Especially when we are talking about intellectual property. When you talk about smell, there is a logic to saying there is no ownership over smell, because it is hard to enforce, hard to explain. But intellectual property—certainly today—the need for it, the logic of it, the justice of it, the usefulness of it, are completely clear, and many have written at length about this. And Jewish law still gets tangled up with the fact that it is something without tangible substance. So what if it has no tangible substance? If it has no tangible substance, then it cannot be owned. Why? Because—because it cannot be owned. But that’s a reasoning, not a verse. The reasoning here says that it is in fact right to define ownership over something without tangible substance, at least over something of this sort.
[Speaker E] But regarding the creation, you could also explain that there is something tangible here, because there is a book you wrote.
[Rabbi Michael Abraham] No, that’s not ownership of the book. No—of the idea. Of course. The book changes nothing.
[Speaker E] I’m talking about what’s written inside the book. But I’m saying the writing inside the book also has tangibility.
[Rabbi Michael Abraham] What, the writing, the letters inside the book? The content. If they erased the book, did he
[Speaker E] violate my copyright?
[Rabbi Michael Abraham] No.
[Speaker E] He bought the
[Rabbi Michael Abraham] book and erased it.
[Speaker E] You
[Rabbi Michael Abraham] take the letters and see the content.
[Speaker E] It’s the content. It’s not exactly the letters—not the letters and not the book, it’s
[Rabbi Michael Abraham] the content expressed by the letters.
[Speaker E] A patent is an example of intellectual property.
[Rabbi Michael Abraham] A patent is an example of intellectual property. What—isn’t there in a patent something beyond that? It’s not tangible. How did they regulate it so that you can have ownership over a patent? You registered a patent, you have rights in it. But that is already the regulation. I’m asking: according to Jewish law, why doesn’t it automatically follow that there is ownership? The logic says there is. Why not? Because there is a legal fact that there isn’t. Where does that fact come from? There is no verse. The Sages decided that it is not correct: there is no ownership over an abstract thing. What is that decision? It’s legal reasoning. And now, that reasoning is not because it is useful—on the contrary, it is not useful, it is harmful. Everyone tries to find workarounds to get around this and still give a person copyright in his intellectual property, because it is clear to everyone that this is problematic. And still many halakhic decisors say: fine, but what can you do? It is an abstract thing; there is no ownership over it. Meaning, unlike a legislator who says: if there is logic to it, then I define that there is ownership—what’s the problem? If it is right and logical and useful and moral, then I define that there is ownership over it. In Jewish law it doesn’t work that way. There are certain facts that tie our hands. Meaning: if this thing is abstract, then there is no ownership over it, even if it is tremendously logical to define ownership and even if it is useful and harmful not to. It doesn’t matter. Quite simply, factually, there is no ownership over an abstract thing.
[Speaker E] Why here doesn’t the reasoning get power? What? Why here doesn’t the reasoning get power? After all the reasoning says it’s worthwhile to take…
[Rabbi Michael Abraham] Because there is a prior legal reasoning that says an abstract thing cannot be owned. This is an example of legal reasoning—exactly what I want to illustrate here. The fact is that the Sages decided this, and all the halakhic decisors continue with it and don’t say: wait, fine, they were talking about the appearance of honey, they were talking about things where it makes no sense to define ownership. But today this is intellectual property, they weren’t talking about such a thing. No—the assumption of most decisors, all of them maybe, I would even say, is that no: if it is an abstract thing, there is no ownership over it. So now you have to find solutions for how to manage with that.
[Speaker E] What? Some lecture I heard was published—he attacked the decision of the Supreme Court to put into the category of theft a person who stole by means of a computer system and the internet.
[Rabbi Michael Abraham] He says you can send him to prison for the same number of years for fraud, for false corporate records, and so on and so on—not to innovate. That should be left to the legislator; the legislator should innovate that theft also applies here.
[Speaker D] False entries in corporate documents and so on and so on—not to innovate. That should be left to the legislator, for him to innovate that theft applies here too.
[Rabbi Michael Abraham] That is already a question of who should innovate. But there is no argument that it is proper for the legislator to innovate this and that it should have legal force if he does. In Jewish law maybe it is proper to innovate this, but it has no force. That’s the reasoning.
[Speaker E] There isn’t—it doesn’t matter—there isn’t.
[Rabbi Michael Abraham] Therefore
[Speaker E] I’m bringing this example.
[Rabbi Michael Abraham] There isn’t—it’s not anchored in anything. Not anchored in anything. No, it is Talmud. But, but, but I’m saying: there’s no verse. And the Sages decided—the Talmudic Sages, not Maimonides, it doesn’t matter—but still, the Sages decided from their own reasoning, while utilitarian reasoning, ordinary common-sense reasoning, what parallels factual reasoning in the sense I called it earlier, says that one should indeed define ownership over intellectual property. But what can you do? There isn’t. Because it is an abstract thing. I once wrote an article saying that I think there is ownership of intellectual property by Torah law, not merely rabbinically. But that common-sense reasoning that says yes is not enough; rather, one can simply derive it from the verse about stealing another’s mind—deception. I argue that from deception one can learn ownership over information. There are several moves to that effect. In deception, the Talmud in Chullin brings two examples of deception—two kinds of examples. There are several examples. One example is when I sell you something but do not reveal to you a material detail within the merchandise I sold you. Now obviously, if I did that and cheated you on the price, that is fraud, the sale is void. That’s not what we’re talking about. We’re talking about where I sold it to you at the correct price. I sold you a car without an engine; I didn’t tell you it had no engine; there was an engine like the clunkers we have—but the price, the price was the price of a car without an engine. Meaning, there was no fraud in terms of price. But in practice, you didn’t know what you were buying. The Talmud says: deception. That’s one type of example. Another type of example is gratitude. If I invite someone to my place and say: come to dinner Tuesday night. I know that on Tuesday he’s abroad. I know this for certain. I invite him—no problem. I don’t even need to spend a penny hosting him. It’s clear to me he’ll refuse because he can’t. I knew that in advance. And I offer just to look like his friend and generous-hearted and so on—that’s deception. Or someone comes to me and I say: I’m opening a new barrel of wine in your honor, when in fact I planned to open it anyway because tomorrow someone is coming to buy some bottles of wine from me. So that’s deception. It’s a Torah prohibition. It’s a Torah prohibition to do this both to a Jew and to a non-Jew, by the way—the Talmud says this explicitly. That’s very interesting, even though many prohibitions of this type are permitted when dealing with a non-Jew. So what—there’s no Torah prohibition? What’s the reason? I don’t know. Maybe it’s because this is a character issue, a problem in my character traits and not a harm to the other person—I don’t know. There’s room to deliberate about that, but that’s what it says.
[Speaker C] Why is ‘a beautiful and gracious bride’ not deception? What? Sometimes ‘a beautiful and gracious bride,’ even though she…
[Rabbi Michael Abraham] That’s lying, not deception. And why is lying permitted? Because there is another value that overrides the prohibition of lying. But what is the difference between lying and deception? In those two cases, Rashi explains there in Chullin, in the passage on deception, that in these cases of gratitude—why is that deception? Because I receive gratitude that I do not deserve. I sort of stole the gratitude. That’s how people usually understand him. The Bach writes that way, and quite a few commentators understand it that way. I don’t think that’s his meaning. It seems to me that the meaning is that I stole the information. Deception is the literal meaning. I steal awareness; I steal information. What does that mean? If I sell you a car, then the information about what the car has and what it does not have is information that is due to you.
[Speaker A] It’s your right
[Rabbi Michael Abraham] to know what you are buying, right? You’re making a deal with me. The moment I conceal from you information that is due to you, I stole information from you. By contrast, if you ask me how old I am and I say twelve, then I lied, but I didn’t deceive you. Why? Because that information isn’t due to you. Do I owe you something? Is information about my age something due to you?
[Speaker E] No. If he’s a guard and he’s only allowed to let in people aged fourteen and up,
[Rabbi Michael Abraham] then that’s something else. Then there is room to discuss it; then maybe it really would be deception. Meaning, theft is where I take something that really ought to be yours, that is due to you. Therefore, when I steal information too, it is only when we are dealing with information that in principle is due to you, that is yours. Lying, by contrast, as in ‘a beautiful and gracious bride’—she is not entitled to know what I think about her, whether the bride or her husband, it doesn’t matter. It’s not that he has a right to know what I think about his wife, his bride. Fine. But on the other hand, I said something untrue, so it’s a lie, but not deception. That’s something else.
[Speaker C] But what did you say about someone who invites his friend on Tuesday? There too, now he thinks he loves him even though he doesn’t love him. Isn’t he entitled to know whether I love him? Isn’t he entitled?
[Rabbi Michael Abraham] Since he gives me, in return, gratitude—that’s what Rashi brings in with gratitude. Since he gives me gratitude in return, and gratitude is treated as something tangible—and in many places you see this—then he is entitled that it be based on true information. That information is due to him. That is exactly why Rashi brought in gratitude. People think Rashi is talking about theft of gratitude, that I stole the gratitude. I don’t think so.
[Speaker A] Rashi brings in gratitude to show that what’s at issue here is information due to you, and if I took that information from you, then I stole information. That’s the point. Because you gave me gratitude. There’s something else—what? Just as it was already established that a commercial custom is a valid mode of acquisition. Meaning, a mode of acquisition of mine—not one of the modes of acquisition listed in the Torah or even rabbinically. Today if it’s done through PayPal or all that, a purchase is made and it’s a valid acquisition, and no one disputes that. Why not take that and go backward and say: likewise, what gets acquired—if something gets acquired and today that’s the way, today there is commerce in it.
[Rabbi Michael Abraham] So first of all, commercial custom itself is a reasoning—there is no verse here. Okay.
[Speaker A] Second, and not
[Rabbi Michael Abraham] not everyone agrees, by the way, that this is by Torah law. Most views say it is by Torah law; some views say it is rabbinic. Second, the Chatam Sofer writes—and other later authorities—and it starts already with the Rosh, I think. Take, for instance, something not yet in existence. If today there were a custom to transfer ownership of something not yet in existence, it would not help. It would not help even under commercial custom. Why? Because of the inability… It depends; there is a dispute. Some opinions say it would not help even if today this were common and traded commercially. And the reason is that, essentially, Jewish law is not willing to accept that there be ownership over something not yet in existence.
[Speaker A] But people do this all day.
[Rabbi Michael Abraham] They do it—they buy today, trade in corn, trade in gold. All this trading that goes on—Jewish law does not recognize your ownership over it. So what if people do it? People also speak slander all day—does that make it permitted? People do it. Is this from the law of the kingdom?
[Speaker C] It doesn’t recognize…
[Rabbi Michael Abraham] No, there is power in the law of the kingdom to establish things, and some say that if it helps there, then it also works as commercial custom. There are views that say no. I want to present this as an example. There are problems where, say, the problem is formation of intent—then commercial custom will simply help, because if everyone does it and you did it according to accepted practice, then apparently you fully intended it, and therefore it works. That is the idea of commercial custom according to the accepted views. But with something not yet in existence, some explain that the problem is not formation of intent. There is no ownership—there is no thing there yet. So over what are you the owner? It’s like something without tangible substance, what I said before. Such a thing, you cannot own—not because formation of intent is lacking, but because the object over which you are owner does not exist. So it makes no difference that today everyone defines it that way, and all the commerce in the world today—all the commerce in the world today—is invalid according to Jewish law. What?
[Speaker E] But since this is monetary law, and both sides agree to make this transaction…
[Rabbi Michael Abraham] We can agree that this wall is a wildflower. We can agree—but this wall is a wall, not a wildflower. How does that help me? So what if they agree? That doesn’t turn it into that.
[Speaker A] And also if right now he transfers money to the other in exchange for something that doesn’t…
[Rabbi Michael Abraham] No problem. If both agree, they can give gifts to each other. But if afterward he sues him and says, look, I signed a contract with you and you didn’t honor it, a religious court will ignore it. If they both want to give gifts, let them give whatever they want—that’s not a problem. We’re talking about obligation. The question is whether this is grounds for a claim—if someone doesn’t fulfill the contract, can I sue him? He’ll say, no—what did I give you? It wasn’t even in the world when I gave it to you. I sold you oil barrels of the next millennium. What ownership is there here? There’s nothing here.
[Speaker A] Like anyone who buys an apartment off the plans.
[Rabbi Michael Abraham] Yes, fine, that’s not a simple question. So some define it as a lien on the contractor and not as purchase of the apartment—as a right, as the contractor’s contractual obligation to build an apartment for me. Not that the apartment is already mine today, because it does not yet exist. It’s not a simple question how to define such contracts. In any event, what I only want to say is that this type of thing is—let me just complete the parenthesis—what I really wanted to argue is that there is ownership over… from deception you see there is ownership over information. Because if information is due to you and I took it from you, then I am stealing awareness. So that means there is ownership over information. Where did this idea click for me? Once Rakover invited me to lead one of those weekend workshops for jurists, judges, and people like that. So once he invited me to lead such a workshop, and they hand out sources, they prepare a booklet of sources, and one of the sources was the responsa Chaim Sha’al of Rabbi Chaim Palaggi. He discusses the ban of Rabbeinu Gershom against looking at a letter that isn’t yours, opening a letter that isn’t yours, reading a letter that isn’t yours, and he argues—bringing other bans of Rabbeinu Gershom and others—that there is a Torah prohibition in them. Rabbeinu Gershom did not create that prohibition; he imposed a ban on someone who violated the prohibition, but he did not create it. The prohibition already exists at the Torah level. Where does the prohibition come from? And Rabbi Chaim Palaggi discusses it there. Where does the prohibition come from? What is forbidden about this? Regarding reading a letter that isn’t yours, he derives it from deception. That’s the prohibition. And then Rakover said to me: listen, this is an utterly baffling midrash; the words make no sense at all. What connection is there between deception and lying? What does this have to do with deception? So I sat with this while preparing the seminar, and that’s where the penny dropped for me. Then later I wrote the article about copyright too. My claim there is that what Rabbi Chaim Palaggi writes is exactly this point. When you read the letter, you are basically taking information that is not yours. That information belongs to the reader and the writer—that is, to the sender and the recipient of the letter. When you read it, you are stealing information that is not yours. That is called deception in the literal sense, verbally, literally—it is exactly stealing awareness. On the contrary, translating it as lying is an incorrect translation of deception. Deception is not lying; deception is stealing information. Sometimes when I lie, I withhold from you information due to you, and then I am stealing awareness. And it does not have to be done specifically through lying; it can also be done in this way. Once there was a conference at Bar-Ilan with Neal Hendel, and I argued there that using a person’s genetic information could also be a Torah prohibition of deception. To steal someone’s sperm and clone him, or produce… legal questions: what happens with that soldier who died some time ago, a fallen soldier whose wife objected to using the sperm and his parents wanted to? Right—so the question is whether one can talk about this in terms of ownership, ownership categories: is there inheritance in it, or all sorts of things of that type? If I understand that information is property in the full sense, this opens very many possibilities, very many implications. What I only want to say is that even when I say there is ownership over intellectual property, that is because there is a source for it in deception. Not because plain reasoning says there should be ownership, because otherwise things don’t function sensibly, as lawyers explain it. Rather here too, in the halakhic context, you need to bring a source for it. Meaning, it’s not enough—otherwise even if it is tremendously logical, it won’t help.
[Speaker C] If I stipulate interest with someone on something not yet in existence—say an option on oil—maybe I can frame it as…?
[Rabbi Michael Abraham] Interest through a sale transaction?
[Speaker C] No, I’ll say: he gave me one hundred shekels, and I tell him I’ll return to you in a year one hundred shekels and an option on the oil, or a barrel of oil.
[Rabbi Michael Abraham] I don’t know. I’m not sure that’s interest, because you can always assess the future value in such a way that it comes out exactly like the present value, and then it’s not interest at all. Because even oil barrels that will be worth one and a half million when they exist, buying them today may be worth only one million, so there is no prohibition of fraud in that, and I don’t know if one can define here the prohibition of interest. Even though there is appraisal of future value, because it has market value. I don’t know. Maybe not. Maybe yes. I don’t know.
[Speaker C] The point is that here you have something that cannot be owned, and I’m giving it as my interest.
[Rabbi Michael Abraham] I am not giving value when right now, to say it, there is nothing. When I give it in the future and it will be worth one and a half million, and I give it to you, then I will violate the prohibition of interest.
[Speaker C] But why do you violate it? It always remains something without tangible substance. It passes through many hands, and in the end it reaches someone.
[Rabbi Michael Abraham] In the very end, those barrels will come out of the well. After he sells it to another and he sells it to another, and in another two hundred years someone will also take those barrels—unless by then oil won’t be significant anymore.
[Speaker C] Let’s take intellectual property. Say I sell someone—according to the view that intellectual property has no fraud laws—I tell him I’ll give you a computer program as interest. The question is, if it always remains something without substance, is there interest in that?
[Rabbi Michael Abraham] If it has market value, then maybe there is interest in it even without ownership. Even to say I gave you value—
[Speaker E] I
[Speaker C] I didn’t give anything, because I didn’t give a thing here, because you say there is no thing here.
[Rabbi Michael Abraham] But in terms of market value, of course it has market value, because apart from Jewish law, in the world’s eyes, the world does see it as something of value. And the world will now let me use it and not let you. So that means I received from you something with market value, even though Jewish law does not recognize that I own it. But you paid me a larger sum than what you received.
[Speaker C] So it counts that I paid, even though it wasn’t mine. Even though it has value, it’s not mine. Meaning, it did not leave my ownership and enter your ownership. It remained hanging in the air.
[Rabbi Michael Abraham] Something that doesn’t pass from borrower to lender. But I received it—just not from you.
[Speaker A] What is the difference between biting interest and ordinary interest? In the end I gave him interest, I gave him interest in the end—something forbidden to the lender, yes?
[Rabbi Michael Abraham] That’s secondary interest, and that too is rabbinic. Rather, what he receives from it is the interest—the benefit he gets from the peace, and benefit is considered something equivalent; it has value. Also the benefit of receiving something in the future can itself be translated into some kind of benefit.
[Speaker A] Okay, maybe according to your approach—now regarding ‘it is better to dwell as two than to dwell alone’—that’s a Talmudic reasoning that no longer exists today because the world has changed.
[Rabbi Michael Abraham] ‘Better to dwell as two than to dwell alone’ is something entirely different. That is an estimate of the woman’s intent. If the woman did not intend to be betrothed, then she is not betrothed. That’s Torah law; I didn’t invent it. Now the whole question is only
[Speaker A] a factual question: did she intend to be betrothed or did she not?
[Rabbi Michael Abraham] Go out and see—did the woman intend it or not? But whether there is ownership or no ownership over something—that’s an objective definition. It doesn’t depend on what this or that person thinks. The smell of the apple or the smell of—what do I care about estimates of intent? There is no ownership over it. Jewish law does not define ownership over it. Not because I don’t know whether you meant it seriously. If the question were whether there is full intent, whether you meant it seriously or not, then you would be right. If we see that today it is accepted and there is full intent in this, then certainly Jewish law would also recognize it. But if the conception—and this is the argument I mentioned earlier about whether commercial custom helps for something not yet in existence—if the problem is that ownership over it cannot exist, not because of intent, then even if there is full intent, ownership over it still cannot exist. So what difference does it make if people today are accustomed to it? It’s not important. But
[Speaker E] This thesis about deception—did they ever actually turn it into practice and make it so that intellectual property is recognized after all? Maybe they did.
[Rabbi Michael Abraham] I wrote an article about it in Techumin. Whoever agrees, agrees; whoever doesn’t, doesn’t.
[Speaker E] You didn’t see any actual ruling too,
[Rabbi Michael Abraham] there isn’t really a mechanism where you can see it, unless some religious court sat maybe
[Speaker E] and would validate it.
[Rabbi Michael Abraham] Patents—exactly on that.
[Speaker A] Intellectual property? Yes.
[Rabbi Michael Abraham] Were you in a doctorate, did you do a doctorate?
[Speaker A] No, if he’s a doctoral student.
[Rabbi Michael Abraham] I’m bringing the notion of intellectual property as an example of legal reasoning. Because again, intellectual property is ownership in something without tangible substance. Because there is no source that ownership applies to something without tangible substance. So where did the Sages invent this from? And logic, as I said before—logic of justice, ordinary legal logic—says yes, to recognize ownership over intellectual property, and also over something without tangible substance, at least in certain contexts. So why not? Because not. Because the legal reasoning of the Sages said that such a thing cannot be owned. It’s not metaphysics, it doesn’t latch onto anything, there is nothing here over which you can be an owner, and therefore there is no ownership over such a thing. Now that is legal reasoning. Again, it cannot be translated into legal efficiency or the things that jurists usually translate these reasonings into. And still, that is the Talmud’s assumption.
[Speaker D] Maybe this is something that will change today as things advance? Maybe it’s something that will change?
[Rabbi Michael Abraham] Yes—meaning, if people recognize that the virtual has become tangible today.
[Speaker D] In our perception, the whole computer is perceived as virtual.
[Rabbi Michael Abraham] Right. So today, say, decisors could say: okay, for us today the virtual has become tangible. Not that they would recognize ownership over an abstract thing, but they would argue that the virtual is no longer abstract. There it is on the computer screen. Meaning, for me the computer screen is a reality like any other reality. Because really, someone living two hundred years ago—if you said this to him, he wouldn’t know what you were talking about, he wouldn’t understand what you were talking about at all. But someone living this today really can understand that we are dealing with something else. And if we are dealing with something else, then there is definitely room to change the Jewish law. But to change the Jewish law not because there would be ownership over an abstract thing, but because we would decide that this thing is not abstract. It is more tangible. And then still there is no ownership over an abstract thing. But this wouldn’t be called an abstract thing; rather, something that…
[Speaker E] But that can also be what secular law says.
[Rabbi Michael Abraham] No, but I’m saying secular law doesn’t need that at all.
[Speaker E] Right, because it simply says there is a need.
[Rabbi Michael Abraham] Exactly. The teleological explanation—the purposive one—says that if this serves the purposes of society, of commerce, of justice, something like that, then that’s it, we will determine whatever we decide. So for them that is a sufficient consideration. But when you read, say, legal literature on copyright, then in the legal literature, at least among academics, they always bring all the options. One of the options really is to see this as some kind of metaphysical something. But it never remains there. Meaning, they present that too, but in the end they always arrive at purposive considerations. Even the more essentialist sides of copyright somehow get translated in the end into purposive considerations. They just define it in some perhaps quasi-metaphysical way. Okay, the main example I wanted to deal with is despair and returning lost property. Why does a person lose ownership when he despairs? The common view—the Netivot wants to say that he really doesn’t lose ownership, rather it only becomes permitted for anyone else to take it. Meaning, your ownership lapses. There are plain meanings and plain meanings. The simple view is that despair is like abandonment. So why is despair like abandonment? I didn’t actually abandon the thing. I despaired; I said, I’ll never find it again. So if I won’t find it again, so what? Why should ownership depend on that? I give up? I give up on it? Who said you give up on the thing? If they find it, I will want it. I just—if you ask me what my assessment is, whether in my estimation it will ever come back to me—no, not anymore. But that does not mean I gave up on it. Because if someone finds it and now says, wait, you gave up on it—no, I simply assessed that it would not return to my possession. But certainly if someone finds it, I have not given it up; I want it back. It’s mine. Abandonment and despair—despair is an assessment. Despair is not a decision. Despair is an assessment of the expected future. The expected future is that apparently I have lost this, and it will not come back to me. Waiver is something deeper. Waiver means that even if it comes back, I am no longer interested in it—I waived it. And that is not the case. There is a difference between saying: in my estimation of the future, it probably won’t come back, unfortunately, though I very much want it—I have not given it up. And it is clear to me that this will no longer materialize. That’s something entirely different. It’s only an assessment of reality. And that is what you said did happen to Achashverosh, right? I assessed that it wouldn’t come back to me and I was mistaken—now I see that it does come back to me. So in this context of despair, again, this too has no textual expression. When you study the verses about returning lost property, and when scholars talk about it, they say that the Sages simply made a revolution, turned all the verses upside down. The concept of despair became the most basic concept in the laws of returning lost property, and there isn’t even a hint of it in the verse. The verse says that if you found lost property, return it—that’s what it says. Where did you invent despair from? And the whole tractate ‘These Are Found Items’—yes, the whole discussion of found items—is all around despair. Only despair. Meaning: was there despair, wasn’t there despair, when do we know there was despair, when… This concept turned the whole picture upside down. Now the whole concept of returning lost property is just the laws of despair. There isn’t even a hint of this in the verses. The verses say that if someone lost something, return what he lost. So here there is some sort of revolution—they completely reversed the verses. Based on what? Based on what assumption, whose source is unclear, that if a person despairs then it’s no longer his. Where does that assumption come from?
[Speaker A] No, because the question is—we need to clarify how far. Yes. How far. So obviously there is a limit.
[Rabbi Michael Abraham] Always—what’s the problem? No, there’s no problem. You can just not return it, but don’t use it. It doesn’t become yours. Leave it there. I can understand limiting the amount of effort you must make to return it. That’s clear. But that’s not what we are talking about. Despair doesn’t only exempt you from making efforts to return it; despair transfers the object so that it becomes yours. It doesn’t only say, okay, you don’t have to make efforts to find me, the loser. It’s something entirely different. How does it do that? Where does it come from? From reasoning. And it seemed right to the Sages, and that’s it—that’s what they established. And that too is legal reasoning. Now in this context, this question arose in a very… I see I won’t get to it all; I wanted to talk about it today. This question arose in the context of what’s called the Hendels ruling. There the story was as follows. Someone lost—meaning, someone found—Hendels found on the floor of the safe-deposit room of Bank Kupat Am a bundle of securities. They were lying on the floor. So he picked up those papers. It was not clear who owned them. And he gave them to the bank. He said to them, ‘Listen, if someone comes to look for this, here it is,’ and he left it with the bank. Fine. A few months passed. According to the law, four months. After four months, if the loser doesn’t come, it belongs to the finder. If the loser doesn’t come, it belongs to the finder. Four months passed, Hendels returns to the bank and says, ‘So what’s happening? Did the loser come?’ They told him, ‘No.’ ‘Fine, then give me my papers.’ ‘Give you your papers? They’re ours. We are the finders.’ The bank says, hear what’s being said: we are the finders, not you. Fine, so litigation went on through three instances, I think. Meaning, it was in a lower court once, and it reached the Supreme Court, and after that a broader panel of judges in the Supreme Court.
[Speaker E] Not the High Court of Justice—the appeal was in the Supreme Court.
[Rabbi Michael Abraham] And this is a story, a fascinating story. The question is: who is considered the finder? The discussion is, of course, about the legal entitlement to engage in the commandment of returning a lost object. The discussion is about the question of who gets the securities after we were unable to find the person who lost them. Now, usually the discussion around this Handels ruling is conducted in a completely different context. What happened there was that Menachem Elon, who was then a Supreme Court justice, a religious judge, argued that since there is a lacuna in the law—since it is impossible to determine who is considered the finder—then one must return to the sources of Jewish law. Because the Foundations of Law Act says that if there is a lacuna in the law that cannot be filled in various ways, then one must return to the principles of justice and fairness of the heritage of Israel, which the religious, of course, interpret as Jewish law, and the secular interpreted as just words that mean nothing. And that was the dispute; the secular side was Aharon Barak and his camp. In my opinion they were more or less right, but that is a different discussion. It really does not mean anything. In any case, the argument revolved around this issue: is this in fact a lacuna? Should it be filled in according to Jewish law, or not according to Jewish law? That is basically also how they teach this ruling. The question is: what does the Foundations of Law Act say? Yes—does it obligate supplementation? Or does it not obligate supplementation from Jewish law, or not obligate supplementation from Jewish law? That is one discussion. But what interested me there was something completely different. Let us say we do not supplement it from Jewish law. Okay—so what do you say? Then what is the ruling? What do you judges say? Fine, so obviously you would give it to the bank. According to Jewish law it comes out that it belongs to Handels, and according to the legal system everyone agreed that it goes to the bank. Everyone except Elon, who said that it should be supplemented from Jewish law. Why? Someone told me this as an anecdote. Handels? What? Handels versus Bank Leumi? No, no, I will get to that; I will probably unpack it next time, but for now let us accept it as a given and I will explain it next time. And the question that interested me was why. Why is it really that in Jewish law, Jewish law chooses to give it to Handels, while all the legal systems they brought in—the British and the American and I do not know what else, drawn from the entire universe except from Jewish law—they all agree, and the intuition of the judges themselves was clearly that it should be given to the bank. So what interested me was not why they did or did not use Jewish law; what interested me was why there really is such a difference between halakhic thinking and the other systems. And my claim is that the difference lies at this point: Jewish law sees this as a legal fact. I will explain more next time, but that is why I brought it as an example of what I said today. Meaning, Jewish law sees this as a legal fact, and legal systems do not look at things that way. The question is what logic says should be done, not what a legal fact says. Just an anecdote to finish: I once met some judge from Haifa, some district court judge from Haifa, I forgot his name, who once heard a lecture of mine somewhere, and afterward he came up to me, and I mentioned Handels, so he told me that he had once investigated this matter deeply, and it turns out—something that was never publicized—it turns out that Handels was actually the real owner. He wanted to launder it, he wanted to launder it. And what did he do? He petitioned the court claiming that they should give it to him because he was the real owner, and he wanted to launder it. He himself argued this; he said it in court. And he wanted to make all that money as something he had found, not as income, and then nobody would ask him, how did this money come to you? So that is something I had not heard, and I think others do not know this claim either, and it is highly amusing.
[Speaker E] But that only shows that Jewish law, even intuitively, covered this case. Only this case, not the law.
[Rabbi Michael Abraham] That was perfectly fine, and everybody is right.
[Speaker E] That concludes a lesson by Rabbi Yitzhak Brand, from Thursday, the 12th of Menachem Av 5777, July 6, 2017.