The Role of Reasoning in Halakha, Lesson 4

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[Rabbi Michael Abraham] No, in the Talmudic text, but in Jewish law we rule that there is no prohibition, but there is a guilt-offering; as a matter of Jewish law everyone agrees that there is a guilt-offering. The question is: why do they bring a guilt-offering? So here, in this context, there’s an interesting question raised by the Pnei Yehoshua. The Avnei Miluim brings it and disagrees with him, but the Pnei Yehoshua asks: the Talmud says that we have not found a woman of two dead men, the mistress of two masters, so to speak. Meaning, we haven’t found a case where a woman would be obligated in levirate marriage by virtue of two husbands. A woman can’t be the wife of two husbands; there’s no such thing. There can be two wives for the same husband, but there can’t be two husbands for the same woman. So the Pnei Yehoshua asks: why, in the case of a designated maidservant, can this happen? Because why can’t there be two husbands for one woman? Since if the woman is married, betrothal does not take effect with her; if the second husband betroths her, the betrothal does not take effect. That’s a forbidden sexual relationship, of course; betrothal does not take effect in a forbidden sexual relationship. But if there is only a simple prohibition, it is not a forbidden sexual relationship but only a prohibition—for example, a priest and a divorcée: if a priest betroths a divorcée, the betrothal takes effect. That’s only a prohibition. This is a dispute between Rabbi Akiva and the Sages, and in Jewish law we rule not like Rabbi Akiva, that betrothal does take effect in cases of people prohibited by a simple prohibition. Only in forbidden sexual relationships does betrothal not take effect—his sister, a married woman, and things like that—but where there are only prohibitions, betrothal does take effect. So the Pnei Yehoshua says: well then, with a designated maidservant, where there isn’t even a prohibition—there’s no prohibition at all, it’s not a forbidden sexual relationship—then all the more so betrothal should take effect. So this designated maidservant is the wife of the Hebrew slave. And now someone else comes and betroths her. There’s no prohibition against having relations with her, right? That’s what we concluded earlier. So since that’s the case, the betrothal takes effect. Even where there is a prohibition that is not a forbidden sexual relationship, betrothal takes effect, so if there is no prohibition, then certainly it takes effect. So there you have it: she is the wife of two masters, two husbands. Why then does the Talmud say there is no woman of two dead men? Fine, that’s a certain interpretation of “there is no woman of two dead men”; that’s not important right now—we could discuss that too—but that’s his claim, and he wants to argue the following move. This is one of the… I once said, I think I gave a lecture at some conference on the Pnei Yehoshua, and I said that in the Pnei Yehoshua you can see the beginnings of Brisker-style thinking. You can see it there in several places, even though he was much earlier. The Pnei Yehoshua is among the earliest of the later authorities (Acharonim), the beginning of the eighteenth century, I think, and you can see in him the beginnings of Brisker-style thinking, and this is one of the examples. The Pnei Yehoshua says the following. He asks: why does betrothal not take effect with a married woman? Usually we understand it as part of all the forbidden sexual relationships. Meaning, being a married woman is a forbidden sexual relationship, and in severe prohibitions like forbidden sexual relationships—prohibitions that incur karet—betrothal does not take effect. But the Pnei Yehoshua says that’s not true. Meaning, in all the ordinary forbidden sexual relationships, betrothal does not take effect because of their severity. But with a married woman, betrothal does not take effect because there is no one here to betroth; this woman is already taken. She is already someone else’s wife. You can’t betroth her; she’s not on the market. You can’t betroth her. And the point is that with a married woman, betrothal does not take effect—of course there is also the prohibition of a forbidden sexual relationship—but there are two reasons, or two laws. That’s why I say this is Brisker-style thinking. There are two laws in the non-effectiveness of betrothal with a married woman. One law is the severity of the prohibition, that it is a forbidden sexual relationship, as with his sister for example; and the second law is that she is not on the market, meaning she is someone else’s wife. What is the practical difference? The designated maidservant. With the designated maidservant there is no prohibition, so the Pnei Yehoshua asks: then why shouldn’t betrothal take effect? If there were a case of my sister where there were no prohibition, then maybe indeed betrothal would take effect. I don’t see such a case, but theoretically. But with a married woman there is such a case, says the Pnei Yehoshua—here is a designated maidservant, where there is a married-woman status but no prohibition. Right? So from the standpoint of prohibition, indeed betrothal could take effect with a designated maidservant, but in practice she is a married woman. Betrothal cannot take effect with her because she is not on the market; she is already someone’s wife. Therefore the betrothal does not take effect even though there is no prohibition. That is his claim. I said the Avnei Miluim does not agree with him, siman 44. But is it dependent?

[Speaker F] What? Is it dependent on what? In the end she is a married woman. Obviously she is a married woman. I didn’t understand.

[Rabbi Michael Abraham] No, he was asking about the second opinion.

[Speaker F] Why doesn’t betrothal take effect there?

[Rabbi Michael Abraham] It could be that he would say—I think he says that betrothal does take effect. Only because of the prohibition does betrothal not take effect, and if there is no prohibition then it does take effect. How does he deal with “the wife of two dead men”? We have not found the wife of two dead men. He interprets the Talmud differently. The Pnei Yehoshua assumes certain things there in the Talmudic text; not everyone agrees. As far as I remember, it is the Avnei Miluim who disagrees with him. You can look there.

[Speaker B] Maybe there’s another practical difference: maybe there is no prohibition against relations with a designated maidservant, but it is still forbidden by virtue of the fact that she is a married woman. Meaning, it’s something like monetary law.

[Rabbi Michael Abraham] That’s exactly where I’m getting to, yes, that’s precisely the point. But right now I’m speaking in the language of the Pnei Yehoshua; afterward I’ll expand it, because I’m aiming exactly there. So the Pnei Yehoshua is basically saying that betrothal does not take effect with a designated maidservant because she is a married woman, not because of the prohibition involved. Even without the prohibition involved—that’s exactly the practical difference for what he said, that there is another reason why betrothal does not take effect with a married woman. What does that actually mean? There is Maimonides—when Maimonides brings the story of Shechem in the Laws of Kings, he brings Dinah, Shechem and Dinah, and he says he committed an outrage, he robbed—he robbed Dinah. People ask there: what do you mean robbed? It wasn’t robbery; he committed adultery with her exactly—I don’t remember the exact wording, maybe he robbed her from her father. I don’t think she was married to anyone, but maybe he robbed her from her father or something. In any case, the language there is the language of robbery. So there are later authorities who want to claim that in every prohibition involving a married woman there is an element of robbery. There is an element of robbery, and I think what they mean is not that the woman is the property of the husband—there are several proofs that this is not true. Rather what is involved is an idea like robbery: you are intruding into a domain that is not yours. The monetary law point you mentioned before—in a moment I’ll expand it. You are intruding into a domain that is not yours, and you cannot do that. Even where the Torah does not impose a formal prohibition on it, you cannot do that. And therefore a married woman is basically a kind of territory. This couple created its own territory, and when you intrude into that territory—what are you doing here? “What are you seeking in this land?” What are you looking for here? So you can’t do this. You have no permission to enter there, not because of the prohibition but because it is a territory, a different territory. Now, if indeed that is the basis of the designated maidservant, then we can understand why a guilt-offering is brought for it. A guilt-offering is brought not because of the prohibitive dimension involved, because there is no prohibition involved. A guilt-offering is brought because you entered a domain that is not yours, not because of the prohibition involved. The objective reality that there is some boundary here that you crossed, or that you entered some domain that is not yours—that is what obligates a guilt-offering. Maybe I should have started even before that: in the Talmud, Rashi sharpens this, but really it already appears in the Mishnah, that guilt-offerings—as opposed to other offerings—are brought for intentional acts just as for unintentional acts. There is no difference between intentional and unintentional. What is the idea? Why is there no difference between intentional and unintentional? Nachmanides on the Torah discusses this; I don’t find what he writes there all that convincing. It seems to me that the reason is that with guilt-offerings—as opposed, say, to a sin-offering—when you bring a sin-offering, you bring it for your wrongdoing. Meaning, you committed a transgression, and because you committed a transgression you are liable for a sin-offering. But with a guilt-offering, you bring it for the result, not for the criminal dimension, not because of the prohibition involved, but because of the very fact—for example, in the case I just mentioned—you intruded into a domain not yours; for that you bring a guilt-offering. Regardless of whether there is a prohibition here; it’s not because of the criminal dimension. If I were to go further and say—this actually fits with what Nachmanides says in Leviticus—that a guilt-offering is related to desolation. Meaning, what you did is, you destroyed something, you created desolation, and the guilt-offering is some kind of way—I don’t know why—but it is the way to repair that. The point is not the criminal dimension but the result of your act. So what difference does it make whether you did it unintentionally or intentionally? If the problem is your criminality—if you did it intentionally, that’s more severe; for that you deserve punishment, not a guilt-offering. Under coercion you are completely exempt; unintentionally there is some dimension of negligence, so there is some claim against you that there is a criminal dimension, and then bring a sin-offering. But with a guilt-offering, you bring it for both intentional and unintentional acts because the whole question is not at all to atone for the transgression you committed, but to repair what happened. What happened happened whether intentionally or unintentionally, and in fact if it was intentional, it happened even more. So if that is the case, then you bring a guilt-offering. Okay? So the starting point is also that one is liable for it whether intentional or unintentional, and that itself is already a hint that a guilt-offering has a different character from a sin-offering. And I want to suggest here that the difference is that the sin-offering is brought for the criminal dimension in my act, for the transgression that I committed, and the guilt-offering is brought for the consequential dimension, for the desolation I created through my act. And therefore, even in cases where there is no prohibition, but reason tells me that I have desolated something, that I created desolation, then I bring a guilt-offering. And therefore it is connected to the issue of reason, because reason tells me that something is happening here even if there is no command. So true, there is no criminal dimension here because “there is no punishment unless there is prior warning,” meaning there is no formal warning. But on the other hand, the essence is here. The essence is here—what difference does it make whether there is or is not a command? In the end, the point is not criminality, that he violated a command, but rather the problem is the thing itself, and the thing itself exists. That is what reason tells me: that there is something problematic here. I said that in reason there is essence, even though there is no command. Therefore a guilt-offering is brought for it. So the guilt-offering of the designated maidservant is an excellent example. Now why doesn’t this happen in every case of a married woman? In principle one could say that in every case of a married woman they should bring a guilt-offering. Why? Because in every case of a married woman, beyond the prohibition there is also the dimension of intrusion into a domain not yours. Just as with the designated maidservant there is only that, without the prohibition, but with every married woman there is also that. So let them bring—in addition to the issues of a married woman, whether capital liability or whatever offering, depending on whether it was intentional or unintentional—let them also bring a guilt-offering. There it seems to me simple: right, in principle that should have been the case, but they do not bring it because it is already handled by the criminal dimension. So if you already bring the sin-offering or incur death, that probably also addresses the issue of desolation. Yes, exactly. It already addresses the issue of desolation. But really, in principle, there too one should have brought a guilt-offering. Okay? Good. So that is regarding—the first guilt-offering, the guilt-offering of the designated maidservant. The second guilt-offering is the guilt-offering for misuse of consecrated property. A guilt-offering is also brought for misuse of consecrated property. Now, in the guilt-offering for misuse, it both challenges this picture and strengthens it, on one side strengthening it and on the other side challenging it. On one side it challenges the picture because the guilt-offering for misuse of consecrated property is brought only for an unintentional act. Guilt-offerings are generally brought whether intentional or unintentional; the guilt-offering for misuse of consecrated property is not. The guilt-offering for misuse is brought only—misuse is only in an unintentional case, basically. If I misuse something that belongs to the Temple treasury, then it goes out into non-sacred status. Okay? That is the law of misuse. And for that one brings the guilt-offering of misuse. Now this happens only unintentionally, not intentionally. The medieval authorities (Rishonim) say: there is also a prohibition intentionally, and when it is intentional it does not leave the domain of consecrated property and they do not bring a guilt-offering, so the halakhic laws of misuse apply only unintentionally. The prohibition exists also intentionally. Okay? But I’m saying again, in terms of the overall move this seems contradictory, since if the move is that a guilt-offering is brought both for intentional and unintentional acts, then with misuse it’s not so; misuse is only for an unintentional act. But in my opinion this strengthens the move, it does not weaken it. But let me move for a moment to two more points. In the guilt-offering for misuse there is—maybe before I move to the guilt-offering for misuse, one more comment about a married woman, at the seam before the guilt-offering for misuse. There is the Maharik who says: we know there are two kinds of inadvertence. The Mishnah at the beginning of the chapter Kelal Gadol in tractate Shabbat says there are two kinds of inadvertence. There is inadvertence in reality—I don’t know that today is the Sabbath—and there is inadvertence in the law—I don’t know that selecting is forbidden, so I selected. Either I didn’t know that today was the Sabbath, or I didn’t know that selecting is forbidden on the Sabbath. Okay. Now, if a married woman commits adultery with someone else, if it was inadvertent then she does not become forbidden to her husband. If her husband is an Israelite—if her husband is a priest, then she becomes forbidden even through inadvertence or coercion—but if her husband is an Israelite, then she does not become forbidden. The Maharik says this is only in one kind of inadvertence out of the two kinds: only if she did not know that this was not her husband, inadvertence in reality. It was night and she did not know that this was not her husband, fine. But if it is inadvertence in the law—she thought it was permitted to commit adultery—she still becomes forbidden to her husband. That’s what the Maharik says. Inadvertence in the law. If she erred and thought it was permitted to commit adultery with someone else, she still becomes forbidden to her husband. If she did not know that it was not her husband, meaning she was mistaken in reality, not in law, then she does not become forbidden.

[Speaker B] What’s the reasoning?

[Rabbi Michael Abraham] Okay, so what’s the reasoning? The Maharik says: because in the end she has betrayed her man. It says, “and she betrayed her man”—this woman who commits adultery, it says “and she betrayed her man.” In the end she betrayed her man because she had relations with someone who is not her husband. Meaning, result. Result—it’s not because of the prohibition, it’s not because of the prohibition. As far as the prohibition is concerned, she acted inadvertently; that’s not important. The point is that in the end she wanted to break apart the marital unit; she in fact had relations with someone who is not her husband. It’s not because of the prohibition involved. And here this projects back onto what I spoke about earlier: with adultery, the problem is not only the severe prohibition in it. There is something in adultery that is simply the dismantling of the marital unit, or someone intruding into a domain that is not his. Therefore she becomes forbidden in any case even if she acted inadvertently. If she acted inadvertently and did not know at all that it was not her husband, then she did not intend to have relations with someone else. That is not a dismantling of the marital unit, and therefore they do not become forbidden. Now this connects me directly to the guilt-offering for misuse, because I spoke about the guilt-offering of the designated maidservant, and this basically shows what there is in every case of a married woman, not only in the designated maidservant: there is some dimension of intrusion into a domain not yours. Now with the guilt-offering for misuse it is also basically the same idea, but interestingly there it is only in the case of inadvertence. The guilt-offering for misuse exists only for an unintentional act. This of course seems at first glance to challenge what I said, but in fact it strengthens what I said. Why? Because with the guilt-offering for misuse, in misuse, there is a prohibition both intentionally and unintentionally. Right? As I said, the medieval authorities already write this. Obviously if I misuse an item of consecrated property intentionally, then maybe it does not leave into non-sacred status and there are no laws of misuse, but the prohibition certainly exists—it is a holy object, and I used a holy object. So what does that mean? Once again you see that the guilt-offering does not come for the sin, because there is a sin both intentionally and unintentionally. If the guilt-offering came for the sin, then what difference would there be between intentional and unintentional? If anything, maybe like a sin-offering, fine. But a guilt-offering is not like a sin-offering. On the contrary, then it should have come both for intentional and unintentional acts. Rather, we are forced to say that this is not right. So what happens? In misuse, the object, as I said earlier, goes out into non-sacred status. If I did it unintentionally, it goes out into non-sacred status. If I did it intentionally, then it does not. Meaning, the idea behind this is that you cannot deliberately turn a holy object into non-sacred property. In other words, everyone could come and abuse consecrated property, deciding on his own what to take out into non-sacred status. There’s no such thing. If you did it unintentionally, it goes out into non-sacred status; but if someone does it deliberately, that won’t help him—it does not go out into non-sacred status. This is in general a halakhic move that I think exists in many places. The Torah does not let us use halakhic tools to bring about things that it does not want us to bring about. You see this in a number of contexts. In any case, what is happening here? Now everything is clear. After all, the guilt-offering is brought for intruding into a domain not mine, right? So basically this is like robbery. If I commit adultery with a married woman, then I robbed a married woman, right? Basically I took something from a domain not mine. Okay, when does that happen in misuse? Only in an unintentional act. Only in an unintentional act does it go out into non-sacred status—I robbed the thing from consecrated property. Therefore only there do you bring a guilt-offering. After all, a guilt-offering is brought both for intentional and unintentional acts—that’s not the point—but there has to be… that there is a guilt-offering for misuse only in an unintentional case is not because a guilt-offering comes only for an unintentional case, but because the concept of misuse exists only in an unintentional case. And the object’s going out into non-sacred status—that is a novelty of the Torah—that going out into non-sacred status exists only in an unintentional case, and only where there is such a going out into non-sacred status does one bring a guilt-offering. So on the contrary, this strengthens what I said earlier, because it does not matter whether intentional or unintentional; the point is simply.

[Speaker G] Sorry for interrupting—do you have a key to get out? Yes. Thanks. I have a key,

[Rabbi Michael Abraham] It’s fine, you can lock it. So the claim is that basically we see that a guilt-offering really comes both for intentional and unintentional acts, and here we see that it comes דווקא for an unintentional act, unlike other cases where it comes also for an intentional act, sorry. But on the other hand, this also shows that it does not come for the sin, because the sin exists both intentionally and unintentionally. So you ask yourself: then for what does it come? Let’s see what the difference is between intentional and unintentional in misuse. The Torah tells us that in misuse, if it is unintentional it goes out into non-sacred status, and if it is intentional it does not go out into non-sacred status. Well, now I also understand why the guilt-offering comes only for the unintentional case. Because the guilt-offering comes for taking the thing out into non-sacred status, not for the transgression involved. So taking it out into non-sacred status exists only in the unintentional case for other reasons, but the distinction between intentional and unintentional is not from the laws of guilt-offerings; it is from the laws of misuse. Well, that’s the point. Let me show you this. In misuse there are two very interesting riddles. In the guilt-offering for misuse there are two interesting riddles. One riddle I already brought: the students of Rabbeinu Yonah. The students of Rabbeinu Yonah say that a person brings a guilt-offering if he eats without a blessing. Yes, he brings a guilt-offering for misuse. Why? By the way, this is very interesting—it is the guilt-offering for misuse, not the guilt-offering for robbery, yes. He brings a guilt-offering for misuse. Why does he bring a guilt-offering for misuse? There is no prohibition, as I asked earlier; after all, the obligation to bless over food is rabbinic. So why, if I ate without making a blessing, do I bring a guilt-offering for misuse? Is this non-sacred slaughter in the Temple courtyard? The answer is: of course not. I intruded into a domain not mine. There is a rationale that anyone who benefits from this world without a blessing is as if he committed misuse, he took something that is not his, took without permission, like robbery, like misuse. So therefore he brings a guilt-offering. Hey—there’s no prohibition. Peace be upon you.

[Speaker H] Who has a key? They locked me in here, they locked everything. Wait. Down here or upstairs?

[Rabbi Michael Abraham] Upstairs. Maybe it also opens downstairs, I don’t know. I know that upstairs it opens.

[Speaker H] Help us so that we can

[Speaker C] get out.

[Rabbi Michael Abraham] Lock it and bring it back to us. Come on, Mincha is leaving. So after all there is no—

[Speaker H] It’s also downstairs, so if you could please.

[Rabbi Michael Abraham] So here—you opened downstairs?

[Speaker H] Yes. I’m closing it. It’s locked from the outside, but still when you go out it isn’t locked.

[Rabbi Michael Abraham] It isn’t locked.

[Speaker H] Right now it isn’t locked. Yes,

[Rabbi Michael Abraham] I’ll be back. All the best. Goodbye. So yes, how did you eat without a blessing—there is no prohibition? The answer is: there is reason. Reason says that one who benefits from this world

[Speaker B] without a blessing is as if he committed misuse. What do the students of Rabbeinu Yonah say?

[Rabbi Michael Abraham] What does “as if he committed misuse” mean? It’s not “as if he committed misuse”; he committed misuse. He committed misuse; there just isn’t a formal prohibition of misuse here. The Torah does not define this as a prohibition of misuse; it comes out of reason, so they say “as if he committed misuse.” But in essence there is real misuse here. Why? The prohibition of misuse is not here, but taking the thing out of a domain that is not yours, taking something without permission—that is fully here. That is what reason says. Consequently you bring a guilt-offering. So why for ordinary robbery do you not bring a guilt-offering? Wait, we’ll come to the guilt-offering for robbery in a moment; I’ll talk about that shortly. But I’m still with the guilt-offering for misuse. So that is one example. A second example, even more interesting, is already in the Talmud itself. In the Talmud itself there is a very strange topic called misuse with konamot. What is misuse with konamot? Someone, say, vows “this book is konam to me,” or some particular object from which he is forbidden to benefit—a vow. Okay? I violated the vow, I violated “he shall not profane his word,” fine? It emerges in the Talmud that I bring a guilt-offering for misuse. What is a guilt-offering for misuse? What does this have to do with misuse? Is the thing holy? I vowed a prohibition, a konam. What does that have to do with holiness? So the later authorities and the medieval authorities struggle with this. The Mishneh LaMelekh discusses this at length. He says: where does this invention come from? What do you mean? How does this work? But it is an explicit Talmud—here it’s no longer the students of Rabbeinu Yonah. The Talmud says it, that there is a guilt-offering for misuse with konamot. Where does it come from? What is the source for the guilt-offering? Nowhere is it mentioned that for “he shall not profane his word” one brings a guilt-offering. “He shall not profane his word.” Why? Because a guilt-offering is not brought for a sin. You do not need a formal warning; it does not have to be written. A guilt-offering is brought wherever you enter a domain not yours. Now what defines a vow? The Talmud at the beginning of tractate Nedarim says that there is a difference between vows and oaths: vows are a prohibition on the object and oaths are a prohibition on the person. What does that mean? In the standard understanding, it means that when you make a vow, you are basically imposing a prohibition status on the object. It is not holy. There are some medieval authorities who speak as if it becomes holy. I have no idea where that whole idea came from. It is not holy, nothing of the sort. Rather, it is outside your domain. The Torah introduced a novelty that a person can wrap a fence around something that has no objective fence around it. It is not holy in any way. I merely forbid it to myself. So a person has the power to build such a fence around something and leave it outside his domain, for himself. A private fence, yes, his own private fence. So if that is the case, the moment you intruded there, you entered a domain not yours—bring a guilt-offering. That guilt-offering is not brought for the sin of “he shall not profane his word.” On the contrary, “he shall not profane his word” also exists with an oath. “He shall not profane his word” is the personal dimension in the prohibition; it is that you violated your own word. I’m talking about the question of what you did when you violated your word, the desolation you created. What did you do? You destroyed the fence, or you took something from outside your domain. That result is what obligates the guilt-offering, not the prohibition of “he shall not profane his word.” Therefore here too, even though here—notice—there is a prohibition, “he shall not profane his word,” but the guilt-offering does not come for that. It is not that whenever there is a guilt-offering there is no prohibition; rather, even when there is a prohibition, the guilt-offering does not come for the prohibition—it comes for something else. If by chance there is also a prohibition, then there is also a prohibition, so what? But the guilt-offering comes for something else. And very systematically, what we have seen so far is the guilt-offering of the designated maidservant, where there is no prohibition at all, but I intrude into a domain not mine. We saw that every married woman has here some dimension of misuse, “and she betrayed her man,” and misuse also has a guilt-offering, and therefore a guilt-offering is brought also for misuse, because in misuse too you bring a guilt-offering for the fact that you intruded and took something from a domain not yours, and not for the prohibition in the matter, because the prohibition exists also intentionally. You bring it for the very desolation you caused, for the fact that you knocked down the fence, basically that you somehow changed the correct order of things in the world, in a certain sense. And the two implications of this are that it happens only in an unintentional case and not in an intentional one, because only in an unintentional case do you really knock down that fence—you take the thing out into non-sacred status. And the two implications in which we see this are: one who eats without a blessing, even though there is no prohibition at all, brings a guilt-offering for misuse according to the students of Rabbeinu Yonah. Why? There is no prohibition here. Correct, but there is misuse here; there is taking the thing out of its proper domain, and therefore you bring a guilt-offering for misuse even though there is no formal warning for this. And with regard to misuse in konamot—what the Mishneh LaMelekh asked—how can they obligate me in a guilt-offering when in general it does not appear, “he shall not profane his word” is not one of the prohibitions that appears in the list of prohibitions for which one is liable to bring a sin-offering? The answer is: right, it is not for “he shall not profane his word”; it is for intrusion into a domain not mine, because a vow basically establishes a domain. This is a domain of ordinary property; there is nothing holy here. Okay? You bring a guilt-offering. It is called the guilt-offering for misuse; maybe that expression is misleading. It is a guilt-offering in general, like the guilt-offering for misuse, but it is not because you misused something holy. Even with a married woman you are not misusing something holy, or with a designated maidservant—is she holy? It’s not because of holiness. It is misuse because this is a domain not yours. Okay? Therefore “guilt-offering for misuse” means that you entered a domain not yours, and therefore you are liable to bring the guilt-offering. So here are two examples of guilt-offerings—of the type of guilt-offering for misuse—that are not brought for a prohibition at all. The guilt-offering for misuse in an unintentional case is brought where there is a prohibition; there there is a prohibition, but the guilt-offering is not brought for the prohibition but for the dimension of going out into non-sacred status, for the desolation that accompanies the prohibition, not for the prohibition. So in every case we see that the guilt-offering is brought for the result. So far we have seen two kinds of guilt-offerings: the guilt-offering of the designated maidservant and the guilt-offering for misuse—within the guilt-offering for misuse I brought several examples, but all of that is really the second category of the guilt-offering for misuse. The third kind of guilt-offering is the guilt-offering for robbery. Now the guilt-offering for robbery is a very interesting case because in robbery—I’m setting aside for the moment, meaning let’s assume that for every robbery one needs to bring a guilt-offering; that’s not true, and I’ll get to what you asked earlier in a moment—but the guilt-offering for robbery in simple terms: why is a guilt-offering brought for robbery? According to what I said earlier, it is very clear, right? Because you enter a domain that is not yours. Not because of the prohibition “you shall not steal,” but because there is here some territory that is not yours. Which of course connects to everything Rabbi Shimon Shkop says about the theory of law, which we have discussed before more than once. Rabbi Shimon Shkop basically wants to claim, on the basis of various proofs he brings in Sha’ar 5, that the laws of ownership preceded the command of “you shall not steal.” Because

[Speaker F] after all, there has to be ownership

[Rabbi Michael Abraham] before they prohibit us from stealing, so there must be in the background some definition of whose property is whose. You need to know that this is called theft, meaning that you took property that is not yours and thereby stole. Now where were the laws of ownership established? I said that tractate Bava Batra is a tractate without verses. There are almost no verses there. Here and there there are ownership laws derived from the Torah, but very few. So most ownership laws are laws that emerge from the reasoning of the Sages, from determinations of the Sages, but they are Torah-level laws, not rabbinic laws; they simply do not need verses. Why not? Rabbi Shimon Shkop says: because there is a theory of law. Society determines the laws of ownership, and when the Torah says “you shall not steal,” it gives those laws halakhic endorsement. Meaning that if you violate the ownership laws that the Torah recognized, then you have also violated a religious prohibition, not only a social-legal one. One of the implications—yes, there are those who want to argue, and I haven’t yet read this in him, I need to see what he writes about it, because I had an argument about this with several people regarding how to understand Rabbi Shimon Shkop—there are those who understood him to mean that basically the laws of ownership belong to the world of law, but there is no prohibition against taking someone else’s property until the verse “you shall not steal” comes. The verse “you shall not steal” comes to pour normative content into the ownership laws. Until then it was just facts. It wasn’t something that said forbidden or permitted. It simply determined: this belongs to you, this belongs to me, but without normative implications.

[Speaker C] If it’s permitted, then what does “belongs” mean?

[Rabbi Michael Abraham] Yes, it belongs metaphysically in some way, but yes, that was the claim. And the Torah, by saying “you shall not steal,” was what established that it is also forbidden to take. I want to argue that this is not true. Rabbi Shimon Shkop means to say that there is a legal prohibition to take the thing. And when the verse comes and says “you shall not steal,” there is also a religious prohibition in addition to the legal prohibition. But even without “you shall not steal” there is a prohibition to take; meaning, it is not only that the thing is yours, there is also a prohibition to take it. I have several proofs for this from his words, besides the fact that it is a matter of reasoning, which seems to me very straightforward. But there are also proofs that this is what he means. First, right at the beginning of the section he asks: if you ask, or if you say, why should I even be obligated to obey something that the Torah did not command? If it does not appear in the Torah, then why should one obey it? Where does it say one must obey it? Why should one obey it? What kind of question is that? You don’t need to obey anything. You only obey “you shall not steal.” Only “you shall not steal” says what is forbidden and permitted. The laws of ownership are only markings of what belongs to whom. So there is no dimension here of obedience or disobedience. So what does it mean to ask why obey something from the theory of law? You obey “you shall not steal,” not the theory of law. Okay? Therefore, if he asks such a question, then clearly he means that there is also a prohibitive dimension that precedes “you shall not steal.” Now he says this later on. Later in the section he talks about stealing from a gentile. There is a dispute among the medieval authorities whether stealing from a gentile is prohibited by Torah law or permitted by Torah law—whether it is included in “you shall not steal.” Rabbi Shimon Shkop says: according to everyone, it is prohibited by Torah law as a legal prohibition. And even one who says that stealing from a gentile is permitted by Torah law, meaning “you shall not steal” does not apply to it on the Torah level—rabbinically yes, but on the Torah level no—even so there is a Torah prohibition against stealing because it is the gentile’s property. After all, monetary law applies among gentiles too; gentiles too have ownership of property. Once it is in his ownership, you are forbidden to take it. Why? Because of the theory of law, not because of “you shall not steal.” Meaning, the claim is that the theory of law established the definition of what is yours and what is mine, and the prohibition against taking. The Torah adds another layer, a layer of religious prohibition, on top of the legal prohibition.

[Speaker C] But why is that needed? This I don’t understand. If this legal prohibition is a very, very strong matter of reason, then why doesn’t reason itself already turn it into a religious prohibition too?

[Rabbi Michael Abraham] Reason is—what do you mean by a religious prohibition? A religious prohibition in the sense that the Holy One, blessed be He, will hold you accountable? That is true. He will hold you accountable even for things that come from reason. But a religious prohibition is still a different category.

[Speaker C] Then we’re going back to: why do I need a verse? Because from reason it won’t turn into that.

[Rabbi Michael Abraham] I said: why do I need a verse? “Why do I need a verse? It is a matter of reasoning.” You can say that, especially as the Tzelach says. You can say it regarding a detail within a commandment. If I have a rationale, then why do I need the verse to say it? But to introduce a new commandment, you need a verse to tell you that it is really forbidden on the Torah level, and that in some cases there are punishments for it. Yes, yes—but I’m saying that the Tzelach is, in my view, the straightforward reasoning. So the claim is that in robbery, exactly like in what the Pnei Yehoshua said about a married woman—do you remember?—it is exactly the same thing. Here too, when you rob, you do two things. First, you intrude into a domain not yours, and that exists even without “you shall not steal”; that is the legal dimension of the matter. In addition, there is a religious dimension: you violate the prohibition “you shall not steal,” which is a prohibition like any other. Only that it is not, of course, completely independent; rather, what the Ketzot also adds there is that the prohibition of “you shall not steal” follows the legal definition. Let’s put it this way: the dependence is only one-way. There can be legal situations where there will be no prohibition of “you shall not steal.” But there cannot be a prohibition of “you shall not steal” when there is no legal determination in the background—that cannot happen. That is why he starts there with the question of the Mahari Basan: why in cases of monetary doubt do we rule leniently in favor of the defendant, yes? If you claim money from me and I do not agree that I owe it, then if there is no evidence the money stays with me. So the Mahari Basan asks: why? After all there is a doubt here of robbery; I am violating a doubtful robbery, and in a doubt regarding a Torah prohibition one should be strict. So why do they tell me to be lenient? Rabbi Shimon Shkop says: the determination that “the burden of proof is on the one who seeks to extract” is a legal determination. About that it is said, “why do I need a verse? It is a matter of reasoning”; that is one of the examples given. What does that mean? That on the legal level it is clear that one must proceed in such a way that the burden of proof is not on the possessor; the burden of proof is on the claimant. That is the legal determination. So once the law determined that the thing should remain with me, then from the standpoint of the theory of law it belongs to me, even though the truth may be with him. In terms of the actual truth, we are in doubt; we do not know who is right. But the theory of law determined that it is with me. Once the theory of law determined that it is with me, there will also be no prohibition of “you shall not steal,” because the prohibition of “you shall not steal” follows the definition of the theory of law. Once the legal determination says that I took something not mine, the prohibition of “you shall not steal” is triggered. But if on the legal level I have the right to hold the thing, because “the burden of proof is on the one who seeks to extract,” and he did not bring proof, then my legal right is to hold the thing, and consequently I also need not fear the prohibition of “you shall not steal.” Because “you shall not steal” comes to color the legal prohibition with an additional religious color. But if there is no legal prohibition, then there will also be no “you shall not steal” here.

[Speaker C] There simply is no doubt of “you shall not steal.”

[Rabbi Michael Abraham] Yes, none at all. Once you resolved it legally, then “you shall not steal” also is not present. In the opposite direction that is not true, because in stealing from a gentile, for example, he says that even though there is a legal prohibition, there may not be a religious prohibition according to some medieval authorities. Those who say that stealing from a gentile is not forbidden by Torah law are basically saying that “you shall not steal” here does not track the legal definition. Right? But fine, that is why I said the dependence is one-way. There cannot be a prohibition of “you shall not steal” without a legal prohibition in the background, but there can be a legal prohibition without the additional second story, the religious layer of “you shall not steal.” That can happen. Okay, so now if that is the case, yes?

[Speaker B] Just on what you said about the legal prohibition in marital relations: if a woman commits adultery with her husband’s consent, then it turns out that there is basically no betrayal here?

[Rabbi Michael Abraham] That’s an interesting question. Someone asked me that once; I no longer remember. I don’t know what to say. Meaning, the question is whether the Torah obligates us to remain within the boundary, and if we waive it—if it’s with…

[Speaker C] It’s not really ownership.

[Rabbi Michael Abraham] The issue is whether that boundary depends on my will.

[Speaker C] Yes—no, it’s not his.

[Rabbi Michael Abraham] Whether that boundary depends on my will. Boundaries in ownership depend on my will.

[Speaker C] It’s not ownership of property.

[Rabbi Michael Abraham] Boundaries in ownership—I can give a gift, so certainly I can also lower the fence if I decide to. But boundaries in marriage, I don’t know. But I’m saying: boundaries in marriage probably do depend on social determination. We talked about this once—now I remember that we talked about it once. That’s why anyone who betroths, betroths subject to the Rabbis. If there is no social agreement or social recognition that you are a married couple, then you are not married. Meaning, marriage requires social recognition; it is a social institution. Therefore every legal system in the world regulates personal status, meaning who is married and who is not married; you have to register with the judge or the municipality. Every legal system understands that marriage is a social institution; society has to recognize it for it to take effect. In the halakhic world too it is like that. So when we discussed this issue, I compared “anyone who betroths, betroths subject to the Rabbis” with “property declared ownerless by the religious court is ownerless.” Right? Both in monetary law and in personal status there is a constitutive role for society. Meaning, either the religious court or the Sages as representatives of society can basically declare property ownerless. Why? Because this whole institution of ownership of property is a social-legal institution. So if the legislator, or the representatives of society, decide that you are not the owner of the property, then you are not. Because ownership of property is a social institution in which society recognizes that this property is yours and that no one else may touch it. And if society is not prepared to recognize this, then it will not be so. And the same thing in the matter of marriage, of personal status. To be a married couple means that society recognizes you as a separate unit, as a marital unit. But it is a social institution. Adam and Eve, for example, could not have been married—in principle—because there was no society there to recognize it. And by the way, the Talmud itself discusses what happens if I betroth a woman on condition that she not be forbidden to the whole world. Then it is not betrothal. In order to create betrothal, you have to forbid her to someone. Behind these statements, it seems to me, this idea is sitting. Meaning that you have to define that boundary vis-à-vis society, and of course as a result it also needs the recognition of society, that society recognizes that you are a married couple and that’s it, and she is no longer on the market, as we said before. Now this is exactly the double aspect we saw here. Because the Pnei Yehoshua said that with a married woman there is a double aspect. First, there is the prohibition, and second, there is the fact that she is outside the domain, she is no longer on the market, right? That is exactly the point. “You’re not on the market” is the legal determination, and the prohibition is the religious determination. So when I penetrate into that domain of the couple, I am really crossing two fences here: a halakhic fence—and “halakhic” here is not really a fence but a prohibition—and the legal fence. The same thing happens in monetary law. Therefore “property declared ownerless by the religious court is ownerless” and “anyone who betroths, betroths subject to the Rabbis.” In monetary law too there is basically a double fence. There is the legal fence: I am forbidden to take money that belongs to someone else. And there is “you shall not steal,” which is the religious fence or the religious prohibition. Okay?

[Speaker B] If so, then why can’t betrothal be annulled in cases of women chained to dead marriages?

[Rabbi Michael Abraham] In principle, yes, it’s possible. The medieval authorities (Rishonim) already ask what the problem is. So let him cover for his niece. Tosafot already asks: if I want to cover for my niece, I’ll send an agent to divorce her, and I’ll cancel his agency in his presence. In that situation, the Rabbis retroactively uprooted the marriage. Then she is no longer the married woman she had been, and if she committed adultery yesterday, the Rabbis now retroactively uproot the marriage, so I can save her. So he says that this is not done improperly, only in certain cases that the Sages established. In principle, there is such authority. If there is a religious court today and they uproot a marriage, then there is no marriage. You can, in principle, uproot any marriage it decides to, if it’s for a proper purpose and all those kinds of considerations. Fine, this is of course like “what a religious court declares ownerless is ownerless”; there too there are all kinds of limitations. Okay, so this parallel now shows us that it’s really not surprising to hear that even in theft there is a guilt-offering for theft. Just as there is a guilt-offering for a designated maidservant and a guilt-offering for misuse of sacred property, there is also a guilt-offering for theft. Because in theft too, the point is not the prohibition of “do not steal,” but the intrusion into the domain, crossing the boundary of something that belongs to someone else. So it’s no wonder that we discover there is a guilt-offering for theft. The big question is why the guilt-offering for theft does not appear, is not brought, for every theft. The guilt-offering for theft appears only in the case of one who falsely denies a deposit. That is, yes, someone who demands from me the deposit that he deposited with me, and I swear that I do not have his deposit, and it turns out that I lied. Then I bring a guilt-offering for theft. And the medieval authorities (Rishonim) discuss whether this is—after all, an oath is needed in order to incur liability for a guilt-offering for theft. Mere denial does not incur a guilt-offering. Okay? You need an oath in order to be liable. But the offering is called a guilt-offering for theft, not a guilt-offering for a false oath. A guilt-offering for theft. Why? Why is it called a guilt-offering for theft? So there are medieval authorities who discuss this, later authorities too, no matter—later authorities discuss what exactly creates the liability for this offering: is it the oath involved, or the theft involved? In my opinion, it’s the theft involved. It’s called a guilt-offering for theft. Why do you need the oath? The oath is the way in which I stole. Because if you deposited it with me, then I didn’t perform “and he stole the spear”; I didn’t do an act of theft in the sense of taking something from someone. You put it with me, you deposited it with me. The denial under oath is considered a kind of act of theft. That’s the way in which I stole, and therefore only there do I bring a guilt-offering for theft. Now the question comes up: fine, so why not with every theft? When I actually take something, I do “and he stole the spear,” I take an object from someone else, then there too I should have to bring a guilt-offering for theft, because I intruded into a domain that is not mine. So that’s a question with no clear answer, but there you have “and he shall restore the stolen item.” “And he shall restore the stolen item” repairs the prohibition; it’s a prohibition linked to a positive commandment, right? So it repairs the prohibition. Once there is a mechanism that repairs the prohibition in the normal way, as with an ordinary married woman, why don’t you bring a guilt-offering? Once there is already a mechanism that repairs the prohibition in the regular way, as with a married woman, then I bring either a sin-offering or I’m liable to death, depending on whether it was intentional or unintentional; you no longer also bring the guilt-offering. Because then the criminal dimension already also takes care of the dimension of the guilt-offering. So too with theft: true, here it’s not a punishment, it’s only the return of the stolen object, so I’m saying it’s not completely smooth. But still, the criminal dimension is dealt with through “and he shall restore the stolen item,” and therefore there will no longer be a guilt-offering.

[Speaker B] Even when he swore, he can still return the stolen item? What? Even when he swore, he can return the stolen item—make up your mind already. You—

[Rabbi Michael Abraham] You’re asking why—yes, right, why not. There it’s not—there it’s not good. Here too you could really say that. There he does not repair the act he did, because he swore falsely; even if he returns the stolen item. But then we go back to the view that the liability is for the oath, whereas I understand the oath as the act of taking, so that’s kind of dancing at two weddings. I’m saying that here this really is something—for this I don’t have a better answer right now; I need to remember. At one point I had some answer, but again, not fully smooth. This is a point about which I’m somewhat uncertain. So that’s regarding the guilt-offering for theft. Now the last thing that remains—yes, it depends; that’s what I started with. Along the way I also mentioned the Pnei Yehoshua there, about the provisional guilt-offering according to Rabbenu Yonah, that one who eats without a blessing brings a guilt-offering, so I also explained that, but it’s the same explanation for the provisional guilt-offering too. After all, they asked about Maimonides: why is one liable for a provisional guilt-offering? The obligation to be stringent in a Torah-level doubt is only a rabbinic obligation. So how can you bring a guilt-offering? How can you incur a guilt-offering when there is no prohibition of unconsecrated food in the Temple courtyard? Therefore I said that they amended Maimonides: when the prohibition is established, then yes, the obligation to be stringent is Torah-level; in places where one is liable for a provisional guilt-offering, yes, the obligation to be stringent is Torah-level. Now I’m saying there’s no need to get to that. What happens with cases of doubt? Rav Shimon Shkop discusses the question of the nature of the prohibition of doubt. One can understand that the prohibition of doubt means the concern that perhaps you are eating pork; it is the prohibition of pork, only in a state of doubt it could still be that you are eating pork, so be careful. But what happens, say, if it later becomes clear that I did not eat pork? If the truth before Heaven is that I did not eat pork—even if it never becomes clear, after all it could be that I did not eat pork, right? According to that approach, this basically means that there is no prohibition. I may not know, so I have to be stringent, but in principle I did not violate a prohibition because, bottom line, I did not eat pork. The accepted approach in cases of doubt is that there is a prohibition in any case. Why? So Rav Shimon Shkop says—he perhaps ties this to the dispute between Maimonides and Rashba there—but it seems that the simple approach is that the prohibition of doubt means that there is what, in his language, he calls entry into the house of doubt. There is a prohibition on entering the house of doubt. Meaning, the Torah defines this area, with regard to which there is a doubt about a prohibition, as a domain unto itself. You are forbidden to enter that domain even if in practice, before Heaven, it is known that there is no pork here. You do not know whether there is or is not pork, so the Torah places a fence around this whole matter. Or, according to Maimonides, it is rabbinic—the Rabbis place a fence around this whole matter, and there is a prohibition against entering the house of doubt. If so, then that is why there is a provisional guilt-offering. The provisional guilt-offering means that you entered a domain you were not supposed to enter, without the prohibitory dimension. According to Maimonides, there is no prohibition here, because it is a rabbinic prohibition. Right—but there is a house of doubt here; this is a domain into which you are forbidden to enter, and therefore one brings a provisional guilt-offering. So this provisional guilt-offering is brought—yes, for example, why is it only when the prohibition is established? You can also understand why a provisional guilt-offering is specifically when the prohibition is established: because when there is definite pork here, only you don’t know which of the two pieces it is, and both pieces are here, I place a fence around both pieces. There is pork here; don’t come in here. Okay? If there is one piece, maybe it is pork, maybe it is not pork, then they tell me to be careful—but you can’t put up a fence. If there is no pork here, then you put a fence around nothing; there is nothing inside the fence, so what fence are you putting up? I only need to be careful. So indeed, in that case you do not bring a provisional guilt-offering, because there is no fence. Okay? So even in the case of the provisional guilt-offering, the guilt-offering is brought for crossing into the fenced-off area, and not for the prohibition within the thing. So in any case there is no difficulty at all with Maimonides—why do we bring a provisional guilt-offering even though there is no Torah prohibition in a Torah-level doubt? And there is no need to emend all the versions. It’s simply not true. It’s clear that it’s not true. You bring a guilt-offering even without the prohibition, and that is basically the—