Lecture from 16 Tammuz 5767, Part 2
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- Fiction and the power of the legislator in a regular legal system
- Fiction in the world of Jewish law and the limits of authority
- Formalism versus substance and the scope of the discussion
Summary
General overview
The text argues that in a regular legal system the legislator is all-powerful and can decide whatever he wants, including creating a legal fiction or delegating his authority to the judge so that the judge can interpret matters as though such a fiction exists. In the world of Jewish law, by contrast, not everything is in our hands, because what the Holy One, blessed be He, established is established, and what He did not establish is not established. Therefore, if no mechanism of appointing agency was established, it becomes difficult to understand how we can suddenly decide that an agency appointment took place. This is presented as a greater problem than in ordinary legal systems, and also as a different kind of fiction connected to formalism versus substance.
Fiction and the power of the legislator in a regular legal system
The text says that in a regular legal system everything is in our hands, and the legislator is all-powerful and can decide whatever he wants. The legislator can decide on a fiction, or at least delegate his authority to the judge so that the judge, as an interpreter, can decide that there is a fiction here.
Fiction in the world of Jewish law and the limits of authority
The text says that in the world of Jewish law not everything is in our hands, and what the Holy One, blessed be He, established is established, and what He did not establish is not established. The text asks: if He did not establish such a mechanism of appointing agency, how can we suddenly decide that an agency appointment took place? It concludes that this is more problematic than in ordinary legal systems.
Formalism versus substance and the scope of the discussion
The text states that this is a different kind of fiction, and that it is somewhat connected to formalism versus substance. The text adds that this is certainly also something we will not be able to get to in these lectures.
Full Transcript
To put it this way: everything is in our hands, and the legislator is all-powerful, able to decide whatever he wants, so he can also decide on a fiction, or at least delegate his authority to the judge to decide, as an interpreter, that there is a fiction here. But in the world of Jewish law, not everything is in our hands. What the Holy One, blessed be He, established is established; what He did not establish is not established. And if He did not establish such a mechanism of appointing agency, then how can we suddenly decide that an agency appointment took place? And that is something more problematic than in ordinary legal systems. So this is a different kind of fiction; it is also connected a bit to formalism versus substance, but that is certainly something we also cannot get to in these lectures. Fine.