Conceptual Analysis – Lecture 17

Table of Contents

• [0:03] Introduction to a conceptual analysis of three fields
• [3:11] The division into four categories in the Tur and the Shulchan Arukh
• [5:58] A division into two categories: adjudication and Jewish law
• [7:55] Differences between a content-based division and a conceptual division
• [12:56] The importance of concepts in language and in understanding quantity
• [15:45] Aristotle’s establishment of the field of logic
• [17:51] The Tur and the conceptualization of legal concepts
• [19:50] The challenge of classifying halakhic reasoning
• [27:36] Classifying the laws into legal and non-legal
• [29:16] Defining the concept of law: scope and content

Summary

General overview

The speaker moves from the series of discussions about conceptual construction versus a common denominator to three examples of conceptual analysis from the world of Jewish law and jurisprudence, arguing that a good definition of concepts solves many difficulties. He begins by defining the concept of law as a part within Jewish law, and shows how the division of the Tur and the Shulchan Arukh into four sections sets up categories that are not only thematic but also categories of character—above all, the distinction between law (adjudication) and Jewish law that is not legal in nature (rabbinic guidance). From that distinction he tries to define the essence of Choshen Mishpat, resolves puzzles about charity and interest, and explains a paradox of flexibility versus rigidity in monetary law through the idea of rights and duties (Hohfeld’s table), while distinguishing between coercion in Choshen Mishpat and coercion to fulfill commandments.

The move to conceptual analysis and the three concepts

The speaker concludes the discussion about conceptual construction versus a common denominator and announces a return to three related examples of conceptual analysis in the legal world, both within Jewish law and more generally. He lays out a working order in which he will first define the concept of law, then the concept of a loan, and then the concept of money. He argues that the broad use of these concepts without full definition creates difficulties that conceptual analysis can solve.

Divisions in Jewish law: Maimonides, the Mishnah, and the Talmud versus the Tur and the Shulchan Arukh

The speaker describes a thematic division of Jewish law in Maimonides into fourteen books, with internal subdivisions within each book, and notes that a similar division is rooted in the Mishnah and the Talmud through the ordering of tractates by topic. He argues that in Maimonides there is no significant difference between the level of the books and the level of collections of laws, because both are simply groupings of content under headings. He then presents the innovation of the Tur, continued by the Shulchan Arukh, in dividing Jewish law into four categories: Orach Chayim, Yoreh De’ah, Even HaEzer, and Choshen Mishpat, emphasizing that this is not merely a thematic division but a higher-level conceptual division.

Rabbinic guidance and adjudication: law versus Jewish law that is not legal in nature

The speaker divides the four sections of the Tur and the Shulchan Arukh into two categories: Even HaEzer and Choshen Mishpat as one branch, and Orach Chayim and Yoreh De’ah as the other. He defines this as a division between adjudication and rabbinic guidance, or in another formulation between Hebrew law / halakhic law and Jewish law that is not legal in nature. He argues that this division is not based on content but on the character of the laws, and that it establishes broader categories within Jewish law.

The Tur as the conceptualization of a Talmudic distinction

The speaker points out that the Talmud recognizes the distinction between monetary matters and prohibitions through the rule ממונא מאיסורא לא ילפינן (“we do not derive monetary law from prohibitions”), but does not turn that into formalized categories. He attributes the conceptualization to the Tur, in that it gave names, set categories, and defined which laws belong to the legal part of Jewish law. He presents the legal part as including areas such as borrower and lender, torts, judges, witnesses, deposits, bailees, agency, and also marriage and divorce in Even HaEzer.

The value of conceptualization: Pnei Yehoshua, Brisk, Whorf, the Pirahã, Eskimos, and Aristotle

The speaker argues that in the history of ideas it is hard to identify “copyright,” because almost no idea is created from nothing, and earlier versions can always be found. He describes a lecture he gave at a conference on Pnei Yehoshua at Bar-Ilan, where he showed sparks of Brisker-style thinking in Pnei Yehoshua even though he is not consistently Brisker. He mentions responses to his book Two Carts and a Hot-Air Balloon, which claimed that everything already appears in the Maharal, Rabbi Tzadok, Rabbi Kook, and Rabbi Nachman, and he distinguishes between the existence of insights and the person who conceptualizes and formulates them in a defined way.

The speaker cites Whorf on the connection between language and thought, and illustrates it with the Pirahã tribe in Brazil, who count “one, two, and many,” and therefore have difficulty comparing five batteries with seven until they learn numbers. He brings up the example of “thirty concepts for snow” among the Eskimos to show that concepts arise out of an existing distinction, but after conceptualization the understanding becomes sharper and more useful. He describes Aristotle as the father of logic not because he invented syllogisms, but because he formulated rules and turned logic into a field; and once that happens, progress becomes possible, ultimately reaching computers as well.

An encyclopedia of reasoning as a logical challenge

The speaker presents the logical challenge of creating an “encyclopedia of analysis” or a “Shulchan Arukh of reasoning” that would collect and classify all the lines of reasoning found in the analytical literature. He argues that the problem is not gathering the reasoning but classifying it, because a student needs an index that will let him find a new line of reasoning for a topic where it has not yet been used, without already knowing that line of reasoning in advance. He compares the synchronization between author and reader to an exchange of codes in encryption, and explains that classifying Jewish law by content is relatively simple, whereas classifying forms of thought is, to him, not at all clear.

He recounts that he proposed the project to someone with encyclopedic talent who had been involved in editing Otzar Mefarshei HaTalmud, and stresses that completing such a project would reduce the repeated “reinvention of the wheel” in learning and make it possible to build new levels on top of what already exists. He presents the problem as a research challenge: “to invent the difficulty,” so that others can try to find solutions.

Definitions: scope versus content, and the move from the Tur to defining law

The speaker distinguishes between definition by scope and definition by content, using the example of a “democratic state,” and argues that in practice one begins from scope, based on intuition, and only afterward formulates the content. He explains that this is how the Tur was able to classify laws into legal and non-legal laws on the basis of intuitive understanding, even without presenting an explicit definition. He sets the task of formulating a content-definition of law from the scope that the Tur sharpened.

The puzzle of charity and interest versus the common definition of Choshen Mishpat

The speaker presents a widespread intuitive definition of Choshen Mishpat as “monetary law between one person and another,” and sets against it a difficulty: the laws of interest and the laws of charity deal with monetary matters between people, yet they are located in Yoreh De’ah rather than in Choshen Mishpat. He argues that this difficulty shows that defining Choshen Mishpat as “monetary relations” is insufficient, and he proposes seeing the difference between charity and an ordinary debt as a fundamental point that requires a more precise definition.

The paradox of monetary law: flexibility versus rigidity

The speaker describes Choshen Mishpat as “gentle yet mighty”: on the one hand it is very flexible, because in monetary matters a stipulation is valid, and the local commercial custom and dina de-malkhuta (the law of the kingdom is law) can shape monetary law. He notes the dispute between Rabbi Meir and Rabbi Yehuda, and brings examples from the laws of bailees and from stipulations in matters of the marriage settlement, while emphasizing that in practice there are certain limitations even though the basic principle is accepted.

On the other hand, he presents the Talmudic passage in the chapter HaKones in Bava Kamma 60b, where according to Rashi, “a person may not save himself with another person’s money,” in a way that seems to make theft a case of “be killed rather than transgress,” while Tosafot and the Rashba explain that one may save oneself but must pay. He mentions Rabbi Lichtenstein’s view that Rashi reflects a copyist’s error, rejects that, and argues that Rashi is actually more coherent, and that there are medieval authorities who align with Rashi at the conceptual level even if not in practice. He cites the Binyan Tzion, who argues that all commandments between one person and another fall under “be killed rather than transgress,” and connects this to Tosafot in Sotah on the statement, “It is better for a person to throw himself into a fiery furnace than to publicly humiliate his fellow.”

Hohfeld’s table and defining law through rights and duties

The speaker cites, in the name of “our cousins, the jurists,” Hohfeld’s table, according to which every right corresponds to a duty and vice versa, and applies it to loans, torts, and the laws of bailees. He proposes defining Choshen Mishpat as the halakhic system in which the duties are duties opposite which stand rights belonging to another person, and therefore plaintiff and defendant are created. He explains that from this comes the flexibility of monetary law from the side of the right-holder, because a right is something one can waive and give up, and from this also comes the effectiveness of stipulations, custom, and dina de-malkhuta as forms of agreement.

He explains the rigidity of monetary law from the side of the duty-bearer, because the right belongs only to the right-holder and is not “erased” because of someone else’s mortal danger. Therefore, according to Rashi, there is no permission to violate another person’s right even under threat. He argues that “be killed rather than transgress” here is not because of the severity of לא תגזול (“do not steal”) as a prohibition, but because the problem is injury to another person’s property right, which is not nullified by setting aside a prohibition. He mentions Rabbi Shimon Shkop in Sha’arei Yosher, who argues that in monetary law rights exist prior to the Torah, and the Torah adds to them the religious prohibition of לא תגזול (“do not steal”).

Yoreh De’ah: duties that have no corresponding rights, charity, and interest

The speaker argues that the statement “in Jewish law there is no discourse of rights, only a discourse of duties” is true with respect to Yoreh De’ah and Orach Chayim, but false with respect to Choshen Mishpat. He presents Choshen Mishpat as the halakhic discourse of rights, and Yoreh De’ah as the domain of duties that are not founded on another person’s rights. He applies this to charity and argues that the poor person has no right to sue for charity in religious court, even though a person is obligated to give; that is why charity belongs in Yoreh De’ah and not in Choshen Mishpat.

He applies this also to interest, and argues that the legal layer would obligate the borrower to pay according to his undertaking, but the prohibition is a religious prohibition belonging to Yoreh De’ah. He tells a story in the name of Rabbi Yechezkel Abramsky, head of the London religious court, about a man who paid interest and then sued in religious court to recover it, and the court refused—and even refused to explain why. He explains that the plaintiff has no monetary right here, and so he is not actually a litigant but only a witness. The coercion to return fixed interest is based on coercion to fulfill commandments, directed at someone holding prohibited money, not on the plaintiff’s right.

The role of the religious court and the midrashic story of the treasure

The speaker presents a midrash about Alexander of Macedon and the king of Africa, in which two parties argue over who is entitled to a treasure found in a house that was sold, and each one wants to give it to the other. The king rules that a son and daughter from the two families should marry and receive the treasure. He argues that Jewish law does not deal with this question, because a legal system deals with rescuing the oppressed from his oppressor and with situations in which a right has been violated, whereas here no one’s right has been violated. He says that this is the meaning of defining the legal realm as a list of corresponding rights and duties, and therefore secular legal systems contain only legal norms and do not include domains parallel to Yoreh De’ah and Orach Chayim.

Stipulations in monetary matters, waiver, ownerlessness, and despair

The speaker argues that when “one stipulates against what is written in the Torah” in monetary matters, there is no real cancellation of the right; rather, it is a waiver by the right-holder or a kind of gift that erases the practical consequences. He cites the Amoraic distinction between מתנה על מנת שאין לך עלי אונאה (“I stipulate on condition that you have no claim of overcharging against me”) and מתנה שאין פה אונאה (“I stipulate that there is no law of overcharging here”), and argues that a right belongs only to the right-holder, so it can be waived but not “canceled” by a third party. He also touches on declaring property ownerless and on despair, and notes an opinion that despair is not the same as declaring property ownerless, but rather permission for everyone to acquire it; he describes this as giving up rights without changing the status of ownership until someone else performs an act of acquisition.

Coercion in Choshen Mishpat versus coercion to fulfill commandments, and the question of proof regarding the poor person

At the end, a question is raised about proof that the poor person has no right to sue for charity, and the speaker says that this is obvious from the Talmud and the medieval authorities, and that such a claim is simply impossible—never. He distinguishes between coercion in Choshen Mishpat, whose purpose is the result of preserving the injured party’s right and therefore extends to seizing assets, and coercion to fulfill commandments, whose purpose is to make the person fulfill his duty, and therefore, according to most medieval authorities, does not extend to seizing assets, as in the case of acquiring a lulav. He explains that coercion in charity is coercion to fulfill commandments, not enforcement of a right of the poor person; and in response to a question about interest, he confirms that the prohibition of interest is a religious prohibition, not a legal one, whereas לא תגזול (“do not steal”) is both a religious prohibition and a legal prohibition.

Okay, we’re dealing with conceptual analysis, and now I want to move on to a series. In other words, over the last few sessions I talked about conceptual construction as opposed to a common denominator approach; we’ve finished that. Now I want to return to about three examples of conceptual analyses that are connected to one another, all of them dealing with the legal world, with Jewish law, and more generally as well. And again, it seems to me that the solution—we’ll be able to see here that the solution—to many of the difficulties that arise in all three of these areas lies in a good definition of the concepts, in analyzing the concepts. And I’m going to begin with defining the concept of law itself—what is law, what is the legal part of Jewish law, and what is law in general. After that I’ll define the concept of a loan, which as we’ll see belongs to law but is still a little exceptional there, and after that I’ll talk about the concept of money. These are three concepts that we use all the time, and I think we don’t always define them fully, and that’s why all kinds of difficulties arise, as we’ll see, which conceptual analysis can solve. So I’ll start a bit with the concept of law.

And maybe I want to begin—I spoke about this in the past, I no longer remember in what context, but I did speak about it at some point—I want maybe to begin with the framework of the discussion. In Jewish law there are all kinds of divisions into topics. You can see in Maimonides that there are different books: Hafla’ah, De’ot, Sefer Ha-Madda—sorry—Zemanim, Korbanot, and so on. That is a division of Jewish law, a topical division of Jewish law. This division is really already rooted more or less in the Mishnah and the Talmud, because there too the division into tractates is more or less by topics, though of course within a tractate there are associative links among its parts. But still, broadly speaking, the division of the tractates is by content, by subject matter.

Not many people are aware of the significance of the division introduced by the Tur and continued by the Shulchan Arukh: the division into four categories of Jewish law, or of law—Even Ha-Ezer, Orach Chayim, and Yoreh De’ah. On the face of it, that too is just a topical division, right? When you look at the laws that make up these four parts, it is a division by subject matter. Except that on top of the topical division—say, like in Maimonides, where he has all fourteen of his books—on top of the topical division there is some kind of overarching division into four categories, such that within each category there are many different contents that belong to that category.

In Maimonides too the division is into genera and species, into two levels, a two-level hierarchy. There are the books, the fourteen books, and in each book of Maimonides there is of course an internal division. Within Sefer Zemanim there are the laws of the Sabbath, the laws of the holiday, the laws of Passover, all kinds of things of that sort, lulav, sukkah and lulav. So there is a division into fourteen books, which are the big categories, and a division into particular collections of laws within the books. But it seems to me that in Maimonides there is no significant difference between the first division and the second. He is simply grouping together a collection of similar contents and putting them under a general heading.

In contrast, in the Shulchan Arukh there is a division into categories of Jewish law. That doesn’t exist in Maimonides, at least not in the simple sense. Not in the Shulchan Arukh—it was the Tur, as I said. The Tur basically divided Jewish law into these four categories. And there he speaks about Orach Chayim, Even Ha-Ezer, Yoreh De’ah, and Choshen Mishpat. Now, at first glance, this too is simply categories made up of similar contents. What belongs to Orach Chayim is all the laws that concern our day-to-day life, yes, what we do every day. Yoreh De’ah: prohibition and permission, things of that sort. Choshen Mishpat, Even Ha-Ezer—there is of course also a topical distinction here, but not only that. There is actually some kind of formalization or conceptualization here of broader categories, or meta-categories, of Jewish law.

And in order to see that more clearly, I’ll divide the four pillars, yes, of the Tur and the Shulchan Arukh into another division on a higher level, which is a division into two categories. Even Ha-Ezer and Choshen Mishpat are one wing, and Yoreh De’ah and Orach Chayim are the other wing. This division is what is usually called “rabbinate” and “judiciary.” Yes, Orach Chayim and Yoreh De’ah are rabbinate, and Even Ha-Ezer and Choshen Mishpat are judiciary. Or in another formulation: Orach Chayim and Yoreh De’ah are Jewish law, and Choshen Mishpat and Even Ha-Ezer are Hebrew law, or halakhic law. That is the legal part of Jewish law.

Now these categories—you can already feel that these are no longer categories of content. It’s not that Choshen Mishpat is a collection of similar topics; there is no resemblance among the topics. Rather, it is a collection of topics that constitute the legal part of Jewish law. The concept of law is basically some kind of category, a sub-category, within Jewish law. And that is a category that the Tur introduced. Before him, there was no such division. In Maimonides, for example, there are books of damages and plaintiff and defendant—no, sorry, plaintiff and defendant are laws—I’m a bit tired already—acquisition, damages, judges, laws, things like that. But there it is not a categorical division. It is just large headings for the contents found inside that category. Just collecting contents under one larger heading; there is no change in the mode of looking, no deeper perspective here.

In the Tur and the Shulchan Arukh, the division reflects a deeper conceptual perspective. What led you to say that? I can’t hear. What led you to say that—how do you know? I’ll explain, I’m explaining. The division between law and non-legal Jewish law—you understand that this is not a division by content, it’s a division by character. There is a kind of character of laws that are legal laws, and a kind of character of laws that are non-legal laws. I haven’t said anything about what they deal with. It’s not a matter of whether it’s Orach Chayim or Yoreh De’ah, meaning whether it concerns everyday life or not—that’s irrelevant. The question is what the nature of the law under discussion is. That’s a different categorical division.

Of course, the Tur didn’t invent this. In the Talmud we can find: ממונא מאיסורא לא ילפינן (“we do not derive monetary law from ritual prohibition”). That means the Talmud itself recognizes that within Jewish law there are two categories: monetary law and ritual prohibition. In our language we would say Yoreh De’ah and Choshen Mishpat, or Choshen Mishpat and Yoreh De’ah—the legal and the non-legal parts of Jewish law. But the Talmud of course understood this, or sensed this distinction, but did not conceptualize it. The one who conceptualized it was the Tur. The Tur and the Shulchan Arukh. And that is a step with very important and very deep significance.

One more sentence about conceptualization, since we’re talking about conceptual analysis; maybe I mentioned this, I no longer remember. Once I spoke at a conference held at Bar-Ilan about the Pnei Yehoshua, and the topic of my lecture was “Foundations of Brisker analysis in the Pnei Yehoshua.” Now, Brisk—I’m talking about the twentieth century of course, at the earliest say the end of the nineteenth century, but really the beginning of the twentieth century and later. And the Pnei Yehoshua—we’re talking about the eighteenth century, the beginning of the eighteenth century, one of the early later authorities. But still, I was able to show that there are sparks there of Brisker thinking in the Pnei Yehoshua.

That’s not characteristic of him, by the way. In his regular mode, the Pnei Yehoshua is very far from being Brisker. Traditional analytical calculations, not Brisker at all. But there are places where you really see pure Brisker thinking. Those passages could be a little piece of Rabbi Chaim. Now, before I entered that lecture I gave some kind of introduction and said that in the history of thought or the history of ideas, the hard problem is to try to put your finger on who owns the copyright to an idea. Because there is no idea that you won’t find in one form or another earlier. There is no idea that is a complete creation out of nothing. No—almost none; I think none at all. Always, after an idea is born, you can find it in earlier generations, in earlier writings, in one form or another, in one wording or another, but you can already see certain expressions of the idea or of that way of thinking.

And that reminds me that when I wrote, when Two Wagons and a Hot-Air Balloon came out, I got a lot of reactions of the form: well, all of this already appears in the Maharal, or all of it already appears in Rabbi Tzadok, or all of it already appears in Rabbi Kook, and all of it appears in Rabbi Nachman. Those were more or less, it seems to me, the four categories. And by the way, there was really something to that. That is, you can show in various passages in each of those four Jews, in certain senses, the distinction between the analytic and the synthetic—which was the axis of my book.

And still I think that the one who conceptualized these notions of analytic and synthetic and put them on the table in a defined way, as far as I know, was me. Meaning, even though I didn’t invent it, it wasn’t creation from nothing, it was already floating around in the atmosphere of the world beforehand. It’s not that no one thought about it before. But there is something powerful about taking things everyone understands and giving them a concept, defining a concept for them, distinguishing them from other things.

I mentioned here not long ago that there is an amateur linguist named Whorf. He studies languages. He didn’t formally learn it; he was self-taught, but he is a well-known researcher and people deal a lot with his writings in the field of language study. And among other things, one of the main things he talks about is the relationship between language and thought. And he shows that conceptualizing some notion improves our ability to use it, even though we understood it beforehand as well. But if we didn’t have an expression for it, if we didn’t have a concept for it, then it still wasn’t sharp for us. We couldn’t make good use of it.

The example of this is an article in Nature or in Science, I no longer remember, that I once saw about the Pirahã tribe in Brazil—and there are other tribes like this around the world—who have a number system, a counting system, made up of three numbers: one, two, and many. That’s what they count with. They don’t have three, they don’t have four, they don’t have five. They have one, two, and many. That’s it. Now a researcher came to that tribe in Brazil and put before them five batteries and seven batteries, and he asked them which pile had more. They didn’t know how to answer.

Now, it’s not that they’re stupid. They’re no more stupid than we are. On average I assume there too there are people who are more and less stupid, like in any population, okay? That’s not the point. The point is that because they didn’t have the terms three, four, five, six, seven, it’s hard for them to think and use quantitative thinking, even though it’s obvious that they have the capacity for quantitative thought. They’re human beings just like me and you. In fact, once he taught them the numbers, they got it and answered those questions easily. It’s not that they’re stupid and incapable of answering, but their language didn’t contain the concepts that helped them make use of those ideas.

Yes, so the example people always give is that in the language of the Eskimos there are thirty different concepts for snow. I see snow as snow; I don’t know what snow of type A, B, C, D, E and so on is. I’ve barely seen snow in my life. So it doesn’t tell me much; I don’t have very high resolution. Snow is snow, yes? That white frozen stuff, that’s all. But among the Eskimos it’s a totally different story. This is snow, and this is yampampum, and this is komforkan, and these are entirely different things for them. It’s not—for me it’s all snow, what difference does it make, I don’t see the differences at all. But they do see the differences.

Now this is a very interesting game. Because on the one hand it’s obvious that they invented the concepts after they understood that there are different types of snow. It’s not that the understanding was created by the concepts; that can’t be. Only once they invented the concepts, it’s clear that the understanding came first. But on the other hand, after they fixed the concepts, after they conceptualized, now they grasped much better what they had understood before. That seems clear to me. And that is exactly the important value of conceptualization and formulation. You can take an idea that was already clear before, but you didn’t conceptualize it, you didn’t define the concepts properly, and it’s very hard to make use of those insights. Even though everyone understands.

The example I’ve given, I also remember, several times, is Aristotle and logic. Aristotle is considered the father of logic. Now I have no doubt that even before Aristotle, everyone understood that when I say “all tables are white,” and “this thing is a table,” then it follows that “this thing is white.” Every person before Aristotle knew that too. So what was Aristotle’s innovation? He noticed that there is a rule here. He formulated it. He conceptualized it. He didn’t invent it; people knew it before him too. But he conceptualized it. And what Aristotle did there led in a very direct and clear way—one that can be traced—to the computers we use today. Without Aristotle there would be no computer today. Or without someone in Aristotle’s place who would have done what he did. I’m not claiming no one else could have done it, but without Aristotle’s contribution and those who continued after him, there would be no computer today. Even though everything Aristotle said in logic was known before him as well.

But he understood that there are some laws here, general laws. He formulated the laws, and with that we can begin to make use of the laws of logic. Before that, logic was not an issue. No one thought there was such a field called logic. Everyone used the laws of logic, but no one noticed that he was using some law. Logic was not a field. Logic was the way I deal with different fields. Aristotle turned logic into a field. He turned it itself into a field. Now one can study logic, use logic. In other words, conceptualization, formulation, distinctions—these are things that make insights available for use, insights that are amorphous, raw, not fully defined. We understood them before too, but only once it is formulated, defined, conceptualized, can we use it efficiently, sharply, in a way that allows us to advance with it and reach additional achievements. That is the importance of conceptualization.

Okay, I said all that as a parenthesis. I return to the Tur and the Shulchan Arukh. So the Tur basically took ideas that were understood before him as well. The Talmud too, as I said, said ממונא מאיסורא לא ילפינן. Meaning, it understood that there are two categories here. The Tur gave them names: Choshen Mishpat. There is legal language. He defined the laws that belong here and the laws that don’t belong here. That is the meaning of conceptualization.

Now I want to try—one of the advantages is that after the Tur put this on the table, we can begin to think: okay, let’s try to define the concept of law. The Tur really helped us understand that there is such a concept. He sharpened for us which laws we mean when we say “the legal part of Jewish law”: lender and borrower, damages, judges, courts, witnesses, loans, deposits, the laws of bailees, the laws of deposits, and so on and so on. Agency, all these things. These are all the legal parts of Jewish law. Of course also Even Ha-Ezer, marriage, divorce, and so on. Now let’s try to define what unites all these. What is called the legal part of Jewish law. That’s basically what I want to do today. In other words, to try to define this concept, which the Tur was the one who paved the way for us to understand.

And again, he was only one step along the way. People knew this before him too. One can debate whether the copyright to this idea belongs to the Tur, because the Talmud also says ממונא מאיסורא לא ילפינן. So the Talmud understood it; it’s not that it didn’t understand it. But the one who fixed this as a concept, who defined it, who put it on the table as distinct categories, was the Tur. Before the Tur there were no categories in Jewish law at all. There were topics, there were contents. The classification was by contents.

By the way, I think I talked about this once too. There is a fascinating logical challenge facing Talmudic conceptual analysis. The challenge is to try to produce an encyclopedia of analysis. An encyclopedia of conceptual possibilities. We raise countless conceptual distinctions in all kinds of passages over the generations. How can I collect all the distinctions, classify them, and write a Shulchan Arukh of conceptual arguments? This is very important, because when I come to a passage and ask a question, if I have a toolbox containing a collection of conceptual distinctions, I can choose from those in the toolbox and use them to resolve the difficulties. Right? Rabbi Chaim, for example, put a number of distinctions into our toolbox that we make enormous use of: object and subject, sign and cause, all kinds of things like that, fulfillment of the commandment and act of the commandment, all kinds of things like that. He put those in our toolbox. People understood them before him too, but he gave them names. Once he gave them names, we can use them much more simply. They become much more useful for us.

Now the question is whether one can take all the conceptual distinctions ever stated in all fields—someone sits and goes through all the halakhic and analytical literature, collects the distinctions, and let’s say you manage to collect them all, all the kinds of distinctions, all the forms of thought, okay? How do you produce from that a Shulchan Arukh? That’s a logical problem which in my view is unsolvable, or at least I can’t think how to solve it. Why? Why is it a logical problem? Because the question is by what key you would do the classification. After all, you want to produce a book, an encyclopedia of analysis or a Shulchan Arukh of analysis. What are you trying to do? You want to give the learner a book such that when he is looking for distinctions of a certain type, he’ll know where to turn to find them, right? But he doesn’t know those distinctions, because if he knew them then he wouldn’t need the book. But he has some key by which he can search, know where to search in order to find the distinctions he needs. How does one build such a key? How do you classify conceptual distinctions? By what parameters do I classify them? It sounds like—how can you produce such a key?

And of course to synchronize it, like codes, yes, like modern encryption. How do you synchronize the reader and the writer? The person who wrote the encyclopedia sorted it according to some order. I as the user of the encyclopedia need to know that order in order to know where to look for what I need. It’s really like exchanging codes in encryption.

In any case, to understand the problem, think about how the Shulchan Arukh or Maimonides are organized. Very simple, all in all. You take the topics, divide them by contents—large contents and sub-contents, right? But it is all classification by contents. So if you want to know what to do on a holiday, you open the laws of the holiday. If you want to know what to do on the Sabbath, you open the laws of the Sabbath. If you want to know what is permitted and forbidden to eat, you open the laws of forbidden foods. It is all a simple classification by contents. And within that you can subdivide—laws of meat and milk, laws of orlah, commandments dependent on the Land of Israel, it doesn’t matter, there are sub-divisions and further sub-divisions and so on. The classification is simple.

The big problem in producing an encyclopedia of conceptual distinctions is not collecting the distinctions. Collecting them is fine; that can be done. The question is how to classify them. I can’t understand how that could be classified. The question is fascinating. Is that question only technical? What? It’s a technical question, but without it there will be no such encyclopedia. And to solve it you need to be a logician. It’s a very hard question in my opinion, if it’s even possible, I don’t know. But true, it’s “only” a technical question. So what? Very often, you know, a computer is also only technical, but without the technology of the computer, we don’t have a computer. You understand that our lives would look entirely different without this “technical” issue.

Maybe one could classify them by the passages? Not by passages, because I want to know how I can use a given distinction in a passage where no one has yet used it. After all, I’m searching for a solution to a question that hasn’t yet been solved. And I say: we need to see, maybe there is some new distinction I can apply here in this passage. So I go to the encyclopedia of distinctions; I need to see—but an encyclopedia contains thousands of distinctions. Where should I look in order to find? It’s a somewhat circular question. It seems unsolvable to me. I don’t know if it is unsolvable or just very hard.

Once I suggested this project to someone who is himself an encyclopedia, a person with the kind of talent of Rabbi Ovadia—but not just in Torah, rather in everything ever written on earth, really a mutant. But we’re somewhat friendly, and once he asked me because he was looking for some project. He was one of the people involved in Otzar Mefarshei HaTalmud, that green series, if you know it, he was among its editors. He was looking for some new project. I suggested this project to him, asked him if he had any idea. So far I haven’t heard back from him. In any case—crazy. I mean, you wouldn’t need to reinvent the wheel every single time. Everything invented until now would already be in your hand; all you could do now is move on, invent things that still aren’t known. Once everything that has been invented until now is available to you, and you know exactly what you have, you can use it and generate the next level.

Today what happens is that we reinvent the wheel every single time. Everyone invents distinctions that every generation before him has already said. Everyone already said it before him. So there are people who produce something new out of it, but that’s rare. Most of the time we are simply solving questions that are already solved in the literature. We are not really innovating things that haven’t been said. And therefore this world of study progresses less. It doesn’t really progress, it doesn’t really build. It doesn’t build because there is no way to collect what is known up until now. There are textbooks in various fields. And there, in various fields—even in science—the fields are fields of content. So they gather: the textbook describes everything known in that field of content with which it deals. That’s easy. Easy—conceptually easy. Meaning, it’s clear what needs to be done there and how to divide it by content.

Logic was a real invention, because logic created a field that no one even understood was a field at all. Until Aristotle basically put it on the table and caused us to understand that there is a field here, no one had imagined such a field existed. Something like that is what I’m looking for here too. Okay, all this is only to explain what I’m looking for; I have no idea how to find it. If any of you has an idea, I’d be happy to hear it, because really this is a problem that has accompanied me for many years. It’s truly a fascinating matter, fascinating also on the logical level, but its contribution to conceptual analysis would be just like logic’s contribution to the world—to science, to the world.

Okay, in any case, I’ve already invented the difficulty, the question. Now you can find answers. It helps when someone says, okay, here is what to look for. In other words, someone is searching what to innovate—here, I’m telling you, here is an interesting challenge, try to solve it. There’s a certain contribution in that too, even if I’m not the one who will find the solution; probably I won’t be. Okay, anyway, back to our topic.

So the Tur conceptualized this, and now—I mean, he put before us a classification of the laws into legal laws and non-legal laws. That is of course a big step in the direction of conceptual analysis. Now I want to understand the concept of law—what does it mean? Now notice: how did the Tur do the classification if he himself didn’t understand the concept? So of course he did understand the concept. But I assume he didn’t define it. He understood it; he understood that there was such a concept and he also understood what it means, but it was an intuitive understanding, he didn’t define it. And what I want to do is try to define the concept.

That is often the way, because our definitions are often definitions that try to describe insights we already knew beforehand. You remember, I think I spoke about convex shapes, the intersection of convex shapes, that mathematical theorem. I tried to show how a definition allows us to prove something we had no idea how to prove, simply by means of a definition. I think I brought it up in one of the first meetings. So the point is that when we classify laws into legal laws and non-legal laws, we are using an insight that helps us decide what is a legal law and what is not. But that still doesn’t mean you can also give me a definition. If I asked the Tur, “Tell me, what is the definition of the concept of law?” I don’t know if he could give it to me. By what criterion did you decide what to put into Choshen Mishpat and what not?

In logic they distinguish between two ways of defining a concept. One possibility is to define a concept by extension, and a second possibility is by intension, by content. For example, the concept “a democratic state.” One way to define it is simply to give a list of all the democratic states. Another way is to define what democracy is: separation of powers, civil rights, elections, things like that. What democracy ought to be, not what democracy is—in many democracies that doesn’t exactly exist, including one I know closely. But that definition is a definition of the content of the concept itself. Definition by extension and definition by content.

Now, what does that mean? How can I define by extension if I have no definition of the content? I want to make one list of democratic states and another list of non-democratic states. So because I want to define the concept “democratic state” by extension and not by content—an extensional definition and not an intensional one—I ask myself: okay, is Britain a democratic state? Yes. So I put it in the list of democratic states. Then someone stops me for a second: how do you know? How do you know Britain is a democratic state? If you don’t have a definition of the concept “democratic state,” how do you decide among the states which are democratic and which are not? Seemingly you need to begin with a content-definition, and then you can make the extensional definition.

Except that usually it works the other way around. Usually we begin by definition through extension and then move to definition by content. Why? Because definition by extension basically defines the groups, the extension-sets of the concept, on the basis of intuitive understanding. After all, I intuitively understand what a democratic state is, and therefore on the intuitive level it is clear to me that Britain is a democratic state, France is a democratic state, Israel is democratic, Switzerland is democratic, the United States is democratic, yes, I know. In contrast, I know Syria is not a democratic state, or I don’t know, Egypt one can debate a little, though not exactly either. Russia, I don’t know. But fine, there are things for which it is clear that they are not democratic states. How is it clear? I have no definition. I have no definition, but I do have intuition.

And very often the definition comes to reflect intuitions, to conceptualize intuitions, and therefore definitions by extension are actually the right place to begin, not definition by content. Even though if you ask a logician, of course he’ll tell you, what do you mean, first of all one must define the concept, and then one can determine which state belongs to each group. Otherwise how would you determine which states belong? But that’s nonsense; it never works that way. It always works, almost always, in reverse. First you intuitively understand what a democratic state is, then you build the list of states, and then you begin to go in and ask yourself: okay, what is distinctive about the collection of states that appear in the group of democratic states? And from that you derive the content-definition of a democratic state. Usually that’s how it’s done, contrary to the ordinary picture of definitions—I think in everyday thinking—where definitions are supposedly constitutive. Definitions are out of the blue. Definitions do not come out of the blue. Definitions come through conceptualizing intuitions that already exist within us, and a definition puts them into some explicit, sharp, clear pattern, which can also be passed on.

Okay? Therefore I say: the Tur classified the laws into legal laws and non-legal laws. How did he do it if he had no definition of what is legal? He did it intuitively. Once he did it intuitively, the next step is now: let’s try to find the definition in terms of content. He already did the definition by extension. Now the next step—you see how each such step can help the one who builds the next level. If the Tur had not done this, no one would ever have thought to try to define legal laws, because no one would have thought there were such things. Once he understood that there are such things—even if he wasn’t fully aware of it, it wasn’t present to him—once the Tur did it, suddenly you understand: wait, there is some category here. So let’s try to think what it means, what its definition is. What is the common denominator of all the laws that appear in Choshen Mishpat or in Even Ha-Ezer together, in both of them? And in Choshen Mishpat by itself—within that there are two subgroups, Choshen Mishpat and Even Ha-Ezer. One could discuss that too. But what distinguishes both of them from Orach Chayim and Yoreh De’ah?

So look, let’s begin with Choshen Mishpat. A definition that naturally suggests itself for Choshen Mishpat—say if I were to ask, I have asked people once when the penny dropped for me, I asked them: how do you define Choshen Mishpat? What is included in Choshen Mishpat? They tell me: look, these are monetary laws between one person and another, monetary relations between people. Leave aside for a moment the laws of witnesses and judges, because witnesses and judges are just the institutional frameworks through which halakhic law can be adjudicated. So that is the infrastructure. But the contents that belong to halakhic law are monetary relations between one person and another.

I’m speaking right now about monetary law, what would be called civil law, Choshen Mishpat. Even Ha-Ezer is personal status, which is also part of halakhic law but it’s personal status, so for now I’m setting that aside. Maybe later I’ll comment on that too. Now if we adopt that definition—that Choshen Mishpat is monetary law or monetary relations between one person and another—then there we have a definition. A content-definition. But now let’s check whether it fits the extension. And I’m showing you why it’s important first to work with extension and only afterward define the content.

So let’s look, for example, at two kinds of laws that appear in Yoreh De’ah. One is the laws of interest, and the second is the laws of charity. Both appear in Yoreh De’ah, not in Choshen Mishpat. But both of these, both interest and charity, are monetary matters between one person and another. So why are they in Yoreh De’ah and not in Choshen Mishpat? If the definition of Choshen Mishpat is monetary law or monetary relations between one person and another, then I would expect charity and interest to appear in Choshen Mishpat and not in Yoreh De’ah.

Now it seems to me that many of you feel that that’s not right, that it doesn’t belong in Choshen Mishpat. You see how the attempt to define the extension helps us sharpen our intuitions about the content. Because in charity there is no plaintiff and defendant. I can’t hear? In charity there is no one claiming repayment of a debt, and no one making a legal claim against another. Why not? A poor person could sue me to give him charity. No, he has no right to sue me. Why doesn’t he have the right? Because what connection is there between him and me? I just want to give him. I need to give him—not want, I am obligated to give him charity. There is a commandment. There is an existential commandment? Not an existential commandment, a positive obligation. Can he sue me to give it to him? I don’t know, we’ll see in a moment. But first I’m saying: seemingly yes, I am obligated to give him money. What is the difference between that and the fact that I owe you repayment of the loan I took from you, or compensation for damage I caused you? I am obligated to give him the money; there is such a commandment in Jewish law. Up to one-third of a shekel a year that is obligatory. Beyond that, it depends, one can discuss, depending on the circumstances; beyond that maybe not. So let’s talk about the first third-shekel.

Ordinary monetary law—its basis is consensual relations between the two litigants or between the two parties. What are you talking about? Damages aren’t based on agreements. What? Damages are not an agreement. No, you’re talking about contract law. Contract law is only one part of Choshen Mishpat. There are parts that have nothing to do with agreements and contracts. In any case there is some halakhic intervention there, meaning intervention from above that brings monetary relations into the religious sphere or the sphere of faith. Meaning, if you take charity, then true, you are dealing with monetary relations, but suddenly the source of the obligation is not the relation between human beings, but a divine source. The source of the obligation in everything is divine—what do you mean? The prohibition on theft that appears in Choshen Mishpat is also written in the Torah: “you shall not steal.” And that is Choshen Mishpat, not Yoreh De’ah.

Okay. So here I want—this is a riddle that will help us, first, understand the difficulty, and second, understand the solution afterward: this riddle of interest and charity. I want to present it from another angle. It doesn’t depend on waiver in the case of interest. If there is waiver in interest, that is the result. Maybe the result. We’ll see.

I want to present it differently. Look, there is a very large paradox regarding monetary law. I call it “Adino Ha-Etzni.” Yes, the midrash says about King David that he was Adino Ha-Etzni. What does that mean? When he studied he made himself delicate like a worm, and when he fought he was hard as wood. There was some—I don’t know what—kind of bipolarity there, yes? Some sort of split personality. Actually not bipolarity, split personality. Paranoid schizophrenia. Meaning, he could be tremendously tough and tremendously yielding. Choshen Mishpat is exactly like that. It can be tremendously tough and tremendously yielding. What do I mean?

On the one hand, in Choshen Mishpat—you know the rule that one cannot stipulate against what is written in the Torah. Right? I can’t make a condition with someone “on condition that there will be no law of overcharging here.” When I make a deal with you, the laws of overcharging shouldn’t apply. There is no such thing; that is a stipulation against what is written in the Torah, and the stipulation is void. But one may stipulate against what is written in the Torah in monetary matters. Legal rights, monetary matters. Meaning, for example, the laws of bailees: the Mishnah in Bava Metzia 94 says that an unpaid bailee may stipulate to be like a paid bailee, and a paid bailee to be like an unpaid bailee. You can have a paid bailee exempt from theft and loss. If you stipulate that with the depositor and write your contract that way, there is no problem whatsoever; you may stipulate that. Can I stipulate to eat pork? What do you mean? That is forbidden. The Torah determines that a paid bailee is liable for theft and loss. How can it be that one may stipulate against what is written in the Torah? So what if it is a monetary matter? Then because of that it is no longer Jewish law?

True, there is a dispute between Rabbi Meir and Rabbi Yehuda. Rabbi Meir indeed says one may not stipulate against what is written in the Torah even in a monetary matter. But Rabbi Yehuda—and that is how we rule in Jewish law—says yes, in a monetary matter the stipulation stands. Rabbi, is one allowed to stipulate regarding the money of the ketubah? The fixed part, one hundred or two hundred zuz? I didn’t understand. There is a fixed part of the ketubah, one hundred or two hundred zuz; is one allowed to stipulate regarding that? I don’t know. Suppose a man marries a woman and instead of giving two hundred gives her one hundred zuz. Make that a condition in the marriage? Yes. I marry you on condition that your ketubah will be different. Yes, or else it’s promiscuous intercourse because you altered the ketubah? For example, for example, one who marries a woman on condition that he has no obligations toward her for food, clothing, and marital relations. Yes, exactly. Fine, that is a Talmudic passage in Ketubot, and there Rabbi Meir and Rabbi Yehuda disagree, and according to Rabbi Yehuda the stipulation stands. That is how we rule in principle; in practice we do not allow it, but in principle yes, that is the ruling.

Let me return to our point. So on the one hand one may stipulate against what is written in the Torah in a monetary matter; in prohibitions one may not stipulate against what is written in the Torah. Likewise, for example, local custom. Custom in a monetary matter is perfectly fine. If the custom is that a paid bailee is exempt from theft and loss, he will be exempt. The law of the kingdom, if a paid bailee is exempt from theft and loss, then he will be exempt. But if the law of the kingdom requires eating pork, or there is a custom to eat pork, that won’t help. There is no such thing. “Everything follows local custom” applies in monetary law.

So monetary law is, on the face of it, the most flexible area in Jewish law. The most flexible domain in Jewish law. It is subject to human shaping. The Torah does not tell you what to do. Maybe it gives you some default, but it doesn’t tell you what to do. Do what you want. In prohibitions—not so. So monetary law is, ostensibly, the “Adino” side, yes, the soft, delicate side of monetary law, where you can do whatever you want with it, like plasticine. Shape it however you want.

On the other hand, there is a Talmudic passage in chapter Ha-Kones—Eliav, you’re learning Ha-Kones, soon you’ll get there—there is a Talmudic passage in Ha-Kones on page 60b, where the Talmud says that a person cannot save himself with another person’s money. Yes, with King David there is some aggadic story there about David and the mighty men. He sent the mighty men to ask a question of the Sanhedrin. He wanted to burn the barley that was on the battlefield because the Philistines were hiding behind it. And the question was whether he could burn someone’s barley in order to save himself, so that the Philistines would not kill him. Is one allowed to save oneself with another person’s property? And the surprising answer he got from the Sanhedrin was: forbidden. For you it is permitted because you are king, and a king can break through fences, but for an ordinary person, a commoner, it is forbidden. Or in other words: one must be killed rather than violate theft. Theft is treated as a transgression for which one must be killed rather than transgress.

Now this is indeed Rashi’s position there in the passage. A person may not save himself with another person’s money. Tosafot and Rashba and most of the medieval authorities disagree with him. Why? In the simplest sense, we know there are three severe transgressions: idolatry, forbidden sexual relations, and bloodshed. We never found that theft is one of the four severe transgressions for which one must be killed rather than transgress. So where would such a thing come from? Why say such a thing? So how do they interpret the Talmudic passage, since the passage says one may not save himself with another person’s money? Tosafot and Rashba and others say: one who saves himself with another person’s money must pay. That’s what it means. Not that it is forbidden to do so. You may do it, and after you burn that barley, pay the owner of the barley. You used his barley to save your life. You were allowed to do that because theft is overridden by saving life, but you must pay. That is the view of most of the medieval authorities, aside from Rashi.

Once I heard Rabbi Lichtenstein say that this Rashi is a scribal error. This Rashi cannot be right. No. So no, it is not a scribal error, and in my opinion not only can it be right, it is much more sensible than the other view. And there are also other medieval authorities who join Rashi on the conceptual level, even if not on the practical plane. I won’t go into all the details here because for me this is only a side remark; I’m not entering into that whole passage here.

The claim is basically the following. When Rashi speaks about the prohibition of theft as “be killed rather than transgress,” he is not talking about the prohibition of theft. He is talking—like the Arukh La-Ner, who has responsa called Binyan Tzion, and there are four or five long responsa dealing with this question, and he argues that all commandments between one person and another are matters for which one must be killed rather than transgress. For example, the famous Tosafot in Sotah: the Talmud there says, “It is preferable for a person to throw himself into a fiery furnace rather than publicly shame his fellow.” On the face of it, that’s aggadah. I would not derive any Jewish law from that. The intention is that publicly shaming another is extremely severe. But Tosafot, for some reason, understands that there is a legal instruction here. There is “be killed rather than transgress” regarding humiliating a person. You must be killed rather than shame another person. Why on earth? Where did we hear that there is “be killed rather than transgress” for humiliation? Again, there are three severe transgressions.

So Tosafot goes into the point there that perhaps there is a bit of killing in it, because when a person is ashamed, the blood drains from his face. The Talmud says that there. But with all due respect to Tosafot, that is a nice idea for a wedding speech. It can’t really be serious. What do you mean? Is that called murder because blood drains from his face? Because of a bit of physiology, that blood drains from his face? In a moment it comes back. So for that, one must be killed rather than transgress?

Binyan Tzion argues that that is not the explanation. The explanation is like Rashi says here: because humiliation is a commandment between one person and another, and commandments between one person and another are matters for which one must be killed rather than transgress. I’ll explain this a bit more in a moment. First of all, notice the paradox created here—this is the paradox of Choshen Mishpat. On the one hand, the laws of Choshen Mishpat are the most flexible laws in the Torah. One can stipulate regarding them, local custom, the law of the kingdom—no problem. One can change them according to what we decide. The softest and most flexible thing in the world. On the other hand, if you are about to violate a legal prohibition, a monetary prohibition toward your fellow, then one must be killed rather than transgress. There is no permission to violate that prohibition. The toughest thing imaginable. All Torah prohibitions are overridden in the face of danger to life; not the prohibitions of Choshen Mishpat. Be killed rather than transgress, according to Rashi.

And on the conceptual level, I said, there are other medieval authorities who agree; practically they have explanations why it doesn’t work that way, but conceptually they accept Rashi. For example, Rashba argues there that what allows you to save yourself with another person’s money is that the other person himself would in any case have been obligated to contribute his money to save you. If the owner of the barley had been here, he would have been obligated to allow you to use the barley in order to save yourself, because it’s your life. Since he is obligated to allow that, you may take it and there is no theft here. Fine, that itself is not such a clear idea, because so what if he is obligated? Still, I have no right to take it. If he doesn’t want to give it, then no—it isn’t mine. He is obligated to give it. Fine, we’ll get to that in a second.

So what is the meaning of this paradox? How can it be that on the one hand Choshen Mishpat is the most rigid thing in the world, and on the other hand it is the most flexible thing in the world? Now I’ll try to explain it. Our cousins, the jurists, say that in the legal world there is something called the Hohfeld table. The Hohfeld table says the following: corresponding to every right a person has, there stands a duty of another person, and conversely, corresponding to every duty there stands a right. For example, if I lent you money, then you have a duty to repay the debt, to return the money to me. I have a right to receive the money from you. You have a duty to give it to me, and I have a right to demand the money from you; it is owed to me. And in certain senses one might perhaps say that the money is mine—it belongs to me, okay? The Hohfeld table is a bit more complicated, but that is its basic point.

So if someone damaged me, he is obligated to pay. But I have a right to receive. He is obligated to pay and I have a right to receive. What happens in Choshen Mishpat? My claim is the following: the obligations of Choshen Mishpat are obligations such that corresponding to them there are rights belonging to someone else. That is the character of the laws in Choshen Mishpat. That is the definition of Choshen Mishpat. In a moment I’ll elaborate a little. And therefore what? For example, in the laws of bailees, okay? In the laws of bailees, if I am a paid bailee and you deposited with me, if it was stolen or lost I must pay you. This is located in Choshen Mishpat. What does that mean? That I have a duty to pay you and you have a right to receive the money from me. So as I said, there is a plaintiff and a defendant. Wait, in a second. That’s the result; it’s not the definition. It’s the consequence of the definition. Soon.

The definition is that there is a right and there is a duty. Right. What does that mean? It basically means that if, for example, you want to waive your right—you are entitled to receive money from me for theft and loss. But what is the meaning of the statement “you have a right to receive money”? The meaning is that it is only a right. If you don’t want it, no problem; you can waive it. Right? Right. The Torah says you have a right to receive money. No one in the world can argue with that except you yourself. If you waive it, if you don’t want it, you forgo your rights—fine, no problem, then there is no need. There are some who even say that waiver is like “I have already received it”—there is a dispute among the medieval authorities—that if you waive the money owed to you, it is as if I gave it to you and afterward you gave it back to me as a gift, so in effect I paid you. We just save the effort, and instead of my giving it to you and you returning it as a gift, you say: don’t give it to me in the first place. But it doesn’t matter; it’s the same thing.

And therefore, it is clear that one can stipulate against what is written in the Torah in a monetary matter. What, am I forbidden to give you gifts? Let’s say you owe me money because you damaged me—you owe me one hundred shekels. Now I want to give you a gift of one hundred shekels, just because I feel like it. That’s allowed, right? There is no prohibition in Jewish law against giving gifts. So if you give me one hundred shekels and I return it to you as a gift, everything is fine, right? So the stipulation basically says: I want to give you a gift of one hundred shekels. Or in other words: don’t pay me; it cancels out.

That is why one may stipulate against what is written in the Torah. That is also why local custom and the law of the kingdom are effective in monetary law. Why? Because the law of the kingdom and local custom are stipulations too, implied stipulations. Not stipulations between two individuals, but society as a whole determines that we all stipulate among ourselves that a paid bailee will be exempt from theft and loss. That is what is written in the statute book, so it means there is social agreement that all citizens agree to exempt paid bailees from theft and loss in contracts. That too is a stipulation. Social agreement and the law of the kingdom are simply types of stipulation. So just as one may stipulate in a monetary matter, custom and the law of the kingdom are also effective in a monetary matter. In a prohibition, of course not. In a prohibition we cannot agree that it will be permitted to eat pork. Why? Because the prohibition on eating pork does not correspond to anyone’s right over against my duty not to eat pork. Right? There is no second side here, no person whose right it is that I not eat his pork. That is not where it comes from. I am forbidden to eat even my own pork; the Torah forbids it to me. That is a duty with no corresponding right. Therefore there is no one who can waive it for me and say okay, eat pork, he gives me a gift—it doesn’t help, because it doesn’t begin from his right; it is my duty.

Where my duty is grounded in your right, you can of course waive the right, and then I too no longer have a duty. I waive my right to receive money from you, so then you no longer have a duty to give me money. That is one side.

On the other hand, if you do not waive your right, if I owe you money and you do not waive your right, I cannot take that money from you even if my life is being threatened, since the only one who can waive that money is the holder of the right. I cannot take it—up to and according to Rashi, even to the level of “be killed rather than transgress,” even at the cost of my life.

Now the advanced point of Choshen Mishpat basically says this: from the side of the right-holder, it is the most flexible thing in the world, because if you have a right, you can waive it with no problem. From the side of the duty-bearer, it is the most rigid thing in the world. You cannot fail to fulfill your duty even if someone is threatening you with a gun to your head, because that’s you, not the holder of the right. Therefore there is no contradiction. It is the most flexible thing in the world from the side of the right-holder; it is the most rigid thing in the world from the side of the duty-bearer.

Now I want to explain a little more, because it still seems strange: why is it really the most rigid thing in the world, to the point of self-sacrifice? The point is this. The prohibitions in the Torah that are permitted where life is at stake—what are they really saying to me? The Torah forbade eating pork, but if you will die unless you eat the pork, then the Torah permits it to you, right? The same mouth that forbade is the mouth that permitted. The Torah wants you to live, so it says no problem, eat the pork; if it’s a matter of saving life, it’s permitted to you.

The prohibition on taking someone else’s money or violating someone else’s rights does not begin in a Torah prohibition at all. It is not a prohibition that the Torah imposes on me. It is a right that the Torah gives him. Consequently there is a prohibition upon me. Now, if I want to violate the prohibition because I am in danger of death—to steal your money because I am in danger of death—I am basically saying this: the prohibition of לא תגזול is not one of the three severe transgressions. So therefore there is no “be killed rather than transgress” regarding לא תגזול, right? That is Tosafot’s question on Rashi. So how can it be that there is “be killed rather than transgress” regarding לא תגזול? Rashi says like this: the prohibition of לא תגזול is overridden by danger to life. No problem. You will not commit a prohibition. But you still cannot take it, because the other person has the right to hold the money. Not because of the prohibition. The prohibition exists because he has a right, not that he has a right because of the prohibition. So even if my prohibition is overridden, then I have no prohibition on me. But the one who decides regarding this money is only the owner of the money. And if he decides not to give it to me, then he is the sole decision-maker. He is a complete villain, the Holy One will punish him, because after all I died because of it. But still, he is the one who decides about the money. Only he can decide. And therefore there is “be killed rather than transgress” here.

The “be killed rather than transgress” is not because of the severity of the prohibition of theft. The prohibition of theft is not especially severe, not like the three severe transgressions. The prohibition of theft is overridden by danger to life. But where did the other person’s right go? My duty is overridden by danger to life, because that is an accounting internal to me. If there is a gun to my head, then my duties are erased. I have no duties in such a situation. But what forbids me to take your money is not my duty. It is your right. Your right was not erased because of my mortal danger. And as long as your right remains, corresponding to it stands a duty on my part. Because as long as the right has not been erased, there is no such thing—every right always has a corresponding duty. And therefore Rashi says that there is “be killed rather than transgress” regarding theft. And therefore Tosafot’s difficulty on him is no difficulty at all—after all, this is not one of the three severe transgressions. The answer is obvious. It is not not-overridden because of the severity of the transgression. It’s not that לא תגזול is a severe transgression. לא תגזול is, so to speak, a factual determination.

If I say: I fell into fire, so I get burned, right? Even if I’m a completely righteous person and don’t deserve to be burned. What can I do? Fire does not know that I am completely righteous; it burns. That is reality. You cannot put your hand into my pocket to take money. Why? Not because of the prohibition of לא תגזול, but because that pocket is mine. I am the holder of the rights. And the one who determines what will happen with those rights is only the holder of the rights. That’s it.

But—but it is the Torah that gave him the right. No. What do you mean no? No, the Torah did not give him the right. This is Rabbi Shimon Shkop in Sha’arei Yosher. I’m not going into it now, but that is basically his whole claim throughout the introduction to Sha’arei Yosher. He says: not true. In monetary law the rights exist prior to the Torah, and the Torah then places a religious prohibition on top of that. Once the other person has a right over his property, the Torah says: then if you take it and violate his right, you also violate the religious prohibition of לא תגזול. A religious prohibition. In addition to the legal prohibition that exists even prior to the Torah, there is also a religious prohibition of לא תגזול. This is Rabbi Shimon Shkop, famously. He has proofs for it; I won’t get into that now.

So that is the puzzle. What I basically want to claim is the following. Usually it is accepted—among scholars of Hebrew law and more generally, many rabbis say it as well, and scholars of Hebrew law say—that in Jewish law there is no discourse of rights. In Jewish law there is only a discourse of duties. As opposed to our world, yes, the modern world all of us know. In contrast to, say, demonstrations—I once wrote about this on the website in one of the columns—about demonstrations of disabled people, where they protest for their rights. They have no rights at all. No one owes them anything. They cannot demand their rights. They can ask that we help them, and it is proper to help them and one ought to help them, but these are not rights. These are duties. Our duties to help; our commandment to help them. What rights? Just because he is disabled I owe him money? Why? Did I borrow from him? Did I make him disabled? Why do I owe him money? No one owes him anything. These are not rights, there are no rights. I have a duty between one person and another to help a person in need. Exactly like a poor person. Can a poor person sue me in court to receive charity? I have a duty to give him, but he has no right to receive. The Torah imposes on me a duty to give him, but that duty is not founded on a right possessed by the poor person. That is why charity is in Yoreh De’ah and not in Choshen Mishpat.

The great mistake of those who say that in Jewish law there is no discourse of rights, only a discourse of duties, is that they do not understand what Choshen Mishpat is. They are right about Yoreh De’ah, not about Choshen Mishpat. Choshen Mishpat is the halakhic discourse of rights. That is simply what it is. That is the definition of Choshen Mishpat: the halakhic discourse of rights. And what does that mean? The laws that appear in Choshen Mishpat are duties to which rights correspond. That is the definition of laws in Choshen Mishpat. The laws in Yoreh De’ah are duties that are not grounded in rights of the other. That is the definition of Choshen Mishpat as against Yoreh De’ah—and, by extension, Even Ha-Ezer as against Yoreh De’ah.

Now look: why do people in the legal world think there is always a Hohfeld table? Every duty corresponds to a right. Do you know why? Because the legal world deals only with legal norms. In the legal world there is no duty to give charity. In state law there is no duty to give charity. Someone who gives charity is a good person, but there is no duty to give charity. The law does not require giving charity. In the legal world there are only legal laws. And in legal laws there is always a Hohfeld table. Corresponding to this person’s duty there is that person’s right, and vice versa.

What is unique about Jewish law? That in Jewish law there are additional components that are not legal. For example Yoreh De’ah. Jewish law tells me what I may and may not eat. The law would never dream of telling citizens what they may and may not eat. Meaning that in Jewish law there are parts in which there are duties with no corresponding rights. Those parts are called Yoreh De’ah and Orach Chayim. Those are the non-legal parts of Jewish law.

Now, there is no real difference between the legal part of Jewish law and an ordinary legal system. In the legal part of Jewish law, it is a legal system just like other legal systems. And like every legal system, it is built on the Hohfeld table. This person’s right creates that person’s duty, and vice versa. What is unique about Jewish law is that it contains parts that are not legal, because in Jewish law there are duties imposed on me that have nothing to do with someone else’s rights. The Holy One imposes them on me. Not because someone else is entitled to something from me. For example, with the disabled or charity to the poor, Jewish law says I need to give them, I need to help them. But that is Yoreh De’ah, not Choshen Mishpat. They cannot come and sue me and say, “I have rights, why aren’t you paying?” You have no rights at all. I have a duty to give to you; you have no right to receive. Therefore it is located in the Tur in Yoreh De’ah and not in Choshen Mishpat.

The same thing with interest. What happens with interest? The same thing. Interest, in principle, on the legal plane: if I lent you money with interest, you must pay me the principal and the interest. We have a contract. We both agreed. You obligated yourself. You are required to uphold what you undertook. Except that there is a prohibition against taking interest and against paying interest. There is a prohibition. And fixed interest—that is, Torah-level interest—can be recovered in court. One can sue in court that the interest be returned. On the face of it, that should have been in Choshen Mishpat. You can sue for it in court; you have a right to receive. Not true. Mistake.

I’ll bring you a nice story told by Rabbi Yechezkel Abramsky, author of Chazon Yechezkel on the Tosefta. He was chief judge of London. In London there were many rabbinical courts, and he was the chief rabbi, the head of the high court of London. He told this story to define the point. He said that once a Jew came to him and said: listen, I borrowed at interest. And I paid the interest to someone, and then I sued him in court to return the interest to me. Fixed interest can be recovered in court. It’s a wonderful trick, by the way. You borrow from someone at interest, agree to it so that he will give you the loan, and then when you pay him the interest you sue him in court to get the interest back. I don’t know who is more wicked here, the one who took the interest or the one who sues the other after the other gave him a loan on the understanding that he would pay interest. You effectively undertook to him that you would pay the interest, all the while knowing you were going to sue him afterward and get it back. But never mind, that was the story.

The court did not award him the interest. They said to him: this is not fixed interest, he is not obligated to repay you; rather, it should be returned but cannot be extracted by the court. We will not collect it from him. He says to them: give me reasons—מאיכן דנתוני—when judges issue you a ruling, you can ask them for reasons. Give me reasons. What are your reasons? I think this is fixed interest, and therefore you can compel him to return the interest to me. They said to him: no, this is not fixed interest. He says: then give me reasons. They said: we don’t want to give you reasons. What do you mean you don’t want to? I want reasons; it’s my right! He went to Rabbi Abramsky to appeal. He was the higher court; this had been a lower court. He went to the higher court to appeal that they should explain why they decided this was not fixed interest.

Rabbi Abramsky said to him: they are right, and they also do not need to explain to you. Why not? And then he explains what he brought the whole story for. You are not the plaintiff here. This is not Choshen Mishpat; it is Yoreh De’ah. What do you mean? You are not entitled to the interest. From the legal point of view you obligated yourself to pay interest, so pay it. You owe it. True, fixed interest can be extracted in court, but why can it be extracted in court? Not because the money is owed to you. Rather, because he is forbidden to hold onto fixed interest. So we compel him to return the interest to you under the rule of compelling the fulfillment of commandments. This is coercion of Yoreh De’ah, not coercion of Choshen Mishpat. Coercion in Choshen Mishpat is when I compel you not to violate the other person’s rights. Here you have no right to receive that interest. He is entitled to the interest on the legal level; you undertook to pay, you have to pay. You have no right at all to that interest. So why do I force him to return it? Because he is violating a prohibition by holding onto the fixed interest, and there is coercion regarding commandments; one compels a person not to commit a prohibition. But it’s not because of you. You are not the plaintiff here.

In my words I would put it this way: you are a witness. You are not a litigant. You are a witness who testifies that there was a loan with interest and that he took interest from you. Good, thank you very much, we heard your testimony, go home. From this point on it is none of your business. Now we will decide whether he must return the interest to you, whether we will compel him or not. If yes, you’ll see him at your house returning the interest. And if not, stay home; it’s not your business. Because you are not the plaintiff here, you are not a litigant. In Choshen Mishpat, if this had been an ordinary loan, you could ask מאיכן דנתוני, because you are the litigant; they judged your case, so they should give you reasons for what they decided regarding you. In the return of interest, you are not a litigant. They are not judging you at all; they are judging him. You have no right to receive that interest. If you are not a litigant, why should they give you reasons? It isn’t a ruling addressed to you.

Do you understand what he is saying? This is exactly the expression of what I said earlier. Just as a poor person cannot sue me and say, “Give me charity,” even though I have a duty to give him. Why? Because when does one sue in court? When you have a right to receive something and that right has been violated, you sue in court: save me, protect my rights. Someone is violating my rights. “Save the oppressed from the hand of his oppressor”—that is the role of the court. But where you have no rights, and the other merely has duties, none of your rights were violated. So what do you want? You are not a party to the matter. Get out of here. You are not the plaintiff. You are a witness. You testify that there was a loan at interest, that he lent at interest. And that’s all.

This reminds me of a midrash that I’m very fond of. Alexander the Great went to Africa, I think—to Africa, I don’t remember exactly, I think it’s Africa—and he heard that the king there was a very wise king, and so on. A midrash in Parashat Chukat, I think in Parashat Chukat, Midrash Rabbah. And there he heard that the king was wise, so he went to see how he judged his citizens.

Two men came before the king. One of them says this: I bought a field or a house from so-and-so. He sold me the house; I paid him the money; now the house is mine. Suddenly I found a treasure in the ground of that house. Now that treasure is not mine. I bought a house, not the treasure. The treasure apparently belongs to him. I want to return the treasure to him. So he is the plaintiff; he wants to return the treasure to the other, the seller. The seller is the defendant. He says: what do you mean? I sold him the house; if he found the treasure in the ground of the house, then the treasure is his. I don’t want to receive the treasure. It’s backwards! No, not backwards. The one who found the treasure wants to return it, and the one to whom they want to return it doesn’t want to receive it. Two righteous men. Okay? They came for judgment before the king of Africa.

So what did the king of Africa rule? Do you have a son? Yes. Do you have a daughter? Yes. Let them marry and receive the treasure. Fine, I’m a Lithuanian. You know the story about Yonatan ben Uzziel and the Lithuanian? The Hasid hears the midrash that any bird flying over Yonatan ben Uzziel would be burned up. So the Hasid is deeply impressed by Yonatan ben Uzziel’s greatness. The Lithuanian asks who has to pay for the damage. So I say the same thing here: wonderful midrash, a very wise king. But what is really the law? Forget sons and daughters and tricks. What is the law? You won’t find anywhere what the law is. Jewish law doesn’t deal with this. Why? Great question: what should a judge rule when two such men come before him?

The answer: the judge is not supposed to judge such a question. What does a judge adjudicate? To save the oppressed from the hand of his oppressor. When someone’s rights have been violated, he comes to sue the offender in court. Protect me; he is violating my rights. He is taking my money, damaging my property, trespassing on my courtyard, losing a deposit I entrusted to him in a case of theft or loss for which he is liable, all sorts of things like that. Save me; my rights have been violated! The court must clarify and see: if his rights were violated, the role of the court is to save him. But here no one’s rights have been violated. I say the money does not belong to me, and he says the money does not belong to him. Then throw it in the sea as far as I’m concerned, do whatever you want. Is there anyone here whose right has been violated? No. Then it is not a matter for the court.

A legal system is not supposed to deal with such a thing. A legal system is supposed to deal only with a situation where someone’s right has been violated. Why? Because that is the definition of a legal law. That is the definition of the legal realm. The legal realm means the list of rights and the duties corresponding to them. Therefore, ordinary legal systems do not include things like Yoreh De’ah and Orach Chayim. Because those are not legal laws. Secular states have a legal system; they do not have Jewish law. In Jewish law there are parts that are not legal. Legal systems have only the legal parts—that’s why they’re called legal systems. Therefore they are accustomed to there always being a Hohfeld table.

In Jewish law there are those who say there is no Hohfeld table. That is not true. In Jewish law, in the legal part, there is a Hohfeld table. In the non-legal part of Jewish law, there is no Hohfeld table. There you have duties with no corresponding rights. And that is the definition of Choshen Mishpat as against Yoreh De’ah. That is the definition of the concept.

Now all the riddles are solved by themselves. Why is it the most rigid thing and the most flexible thing, how can there be “be killed rather than transgress” for theft even though it is not one of the four severe transgressions, and so on—there are all kinds of riddles like these. And it all becomes very simple.

Now I’ll say more than that. When you stipulate against what is written in the Torah, in the conception I’m presenting here, you are not really stipulating against what is written in the Torah. Suppose a paid bailee stipulates to be like an unpaid bailee, to be exempt from theft and loss. Okay? He is not really stipulating. The right of the depositor to receive money when there has been theft or loss exists forever. No one in the world can annul that right. Put a gun to his head if you want—the right is still mine to receive the money. But I am allowed to give gifts. That’s all. To annul the right itself is impossible. To give gifts—give gifts, do what you want, no problem. After you receive the money you can give him a gift of one hundred shekels. And if you want to save time, he won’t give it to you and you won’t need to return it—fine. But on the conceptual level, the right is always yours. And therefore, strictly speaking, even regarding monetary laws one cannot truly stipulate. What you can do is only give gifts. That’s all.

A good question is what Rabbi Meir would say, and to discuss that one would have to enter the passages more deeply. Rabbi Yehuda too, according to some amoraim, distinguishes between stipulating “on condition that you have no claim of overcharging against me” and stipulating “that there be no overcharging here.” Stipulating that there be no overcharging here—that is stipulating against what is written in the Torah, even according to Rabbi Yehuda. Because he wants the law of overcharging itself to be annulled, and you cannot annul the law of overcharging. But stipulating that you have no claim of overcharging against me is simply saying that you will not make use of the right the Torah gives you. I am stipulating with you, not with the Torah. The right is entirely yours; no one can violate it. But if you want to waive it, then waive it.

And what is ownerless property? I didn’t understand. What is ownerless property? Is that the cancellation of a right? Yes, right. So one can waive the right one has. Obviously. To cancel my own right—of course I can. Not to cancel the right, but to waive it. Not to make use of it. To permit everyone. By the way, there are those who argue that ownerless property is indeed not lowering the—sorry, no, that’s regarding despair. There is a dispute among later authorities. Regarding despair, there are those who argue that despair is not making a lost object ownerless, but only permission for anyone to acquire it. That is a pure waiver of rights. I did not change the status of ownership, because there is no one here who acquired it; nothing happened. You cannot change the status of ownership, but you can say, okay, I permit anyone who wants to take it, even though it is mine. That is a pure waiver of right. Okay?

All right, let’s stop here. I’ll continue a little next time and then move on to the next concepts. Does anyone want to comment or ask? Yes. Rabbi, what is the proof that a poor person has no right? Is there a conclusive proof of that? What do you mean by proof? That’s what is clear from the Talmud and the medieval authorities; it’s simply clear. Are you asking how it follows from the Torah? No, no—from the medieval authorities, he has no right? Why? If there are two Jews, one poor and one rich, can’t the poor person sue him for charity? Compel him to give charity? Never. There is no such thing. But there is compulsion, isn’t there—there is compulsion in charity, no? One compels charity under the rubric of compelling the fulfillment of commandments.

One of the differences between monetary law and commandments is that in both cases there is compulsion. One of the differences, according to most medieval authorities, is that in coercion regarding commandments one does not seize property. Suppose I compel you to build a sukkah or buy a lulav. You didn’t buy a lulav, I won’t take your money and buy the lulav in your place. But if—if I compel you to repay a loan that you didn’t repay, I will take your money and give it to the lender. Why? Because coercion regarding commandments is meant to ensure that you yourself perform the commandment. Its purpose is not to ensure that the commandment gets done, but that you perform your duties. Coercion in Choshen Mishpat is meant to ensure that the other person’s right is not violated. Even if you don’t pay him the money, I will take it from you and give it to him. Because my goal is not to ensure that you perform your duty, but to ensure that his right is not violated, that he receive his money. The goal is a result, not an action. In coercion regarding commandments, the goal is action. In coercion in Choshen Mishpat, the goal is the result—that the other person’s right not be harmed, that he get his money.

But also in charity, suppose the poor person waives it—for example, if the poor person waives it, then the obligation is cancelled. The poor person doesn’t need to waive anything; the poor person simply has to refrain from asking. The poor person needs to ask for money in order for us to give him. He is owed nothing; he cannot sue. Asking is like suing, no? Asking is a demand. No. Asking is simply informing us that I am poor. That’s all. Then the court can compel people to give you money because you are poor. If you don’t ask, then you are not a poor person in this practical sense. Rabbi? Yes. According to all this, the prohibition of interest is only a religious prohibition and not a legal one, right? Right. And unlike לא תגזול, which is both a religious prohibition and a legal prohibition. Correct. Okay. That’s it? Okay. Goodbye, Sabbath peace.