Lecture from 20 Kislev 5767

Table of Contents

• Hebrew law as an ideology and the claim that Jewish law is not a legal system
• Derashot HaRan: religious aims, the king’s law, and complementary systems
• The Foundations of Law Act and the rejection of “principles of justice and equity from the heritage of Israel”
• The details of Choshen Mishpat, contracts, and the picture of “constraints” and “workarounds”
• Two alternatives for drawing from Jewish law into state law: universal versus particular, and the example of guarantorship
• Practice, rabbinical courts, and the universalization of Jewish law when it governs life
• Meta-halakhic principles and the paradox of going beyond the letter of the law
• Arguments outwardly and inwardly regarding the integration of Hebrew law into legislation
• Maimonides, Laws of Kings 8:11: religious value depends on faith and the giving of the Torah
• Rabbi Kook, “the unconscious,” and a bill of divorce: “we coerce him until he says, ‘I want to’”
• Implications for transgression, a captive infant, and the claim of causing someone to stumble
• The difficulty of importing halakhot: an oath in the laws of bailees and the law “do not stand idly by your neighbor’s blood”
• The root of the dispute: refusal to distinguish between the two systems, and a Christian-Kantian conception of religiosity

Summary

General Overview

The text presents the position that the label “Hebrew law” is an ideological concept that tries to frame Jewish law as a legal system and assimilate it into the civil legal system, but the speaker argues that Jewish law is not “law” in the accepted sense because its aims are religious and not only social-moral. He reviews halakhic examples that sometimes create gaps vis-à-vis justice and social order, and grounds this in Derashot HaRan, which distinguishes between Torah law and complementary mechanisms such as the king’s law and a religious court that may flog and punish beyond the strict law. He rejects the idea of “principles of justice and equity from the heritage of Israel” and argues that one has to distinguish between universal principles of justice and particular components of the heritage of Israel. From that follow problems both with the cultural justification and with the religious justification for incorporating Jewish law into state law. In the end he traces the dispute to a conception that identifies religiosity with morality and religious experience, and presents this as a Christian-Kantian influence that has trouble accepting that Jewish law is a formal code defined primarily by its unique components.

Hebrew law as an ideology and the claim that Jewish law is not a legal system

The speaker says that the label “Hebrew law” is not merely a change of name but an ideological position that identifies Jewish law as a legal system and seeks to assimilate it into state law and the civil judicial system. He says he does not agree with this because Jewish law is not law in the ordinary senses. He brings examples in which Jewish law is not aimed only at achieving social order or justice: a robber is not punished, relatives are disqualified from testimony even though we believe them, and punishment by lashes or death requires prior warning by two valid witnesses and explicit verbal acceptance of the warning. He concludes that the overall picture is of a system that has additional aims beyond social order, and therefore it operates under constraints that do not always match intuitions of justice and morality.

Derashot HaRan: religious aims, the king’s law, and complementary systems

The speaker presents Derashot HaRan as a source that explicitly formulates the idea that the legal part of Jewish law, Choshen Mishpat, is part of religious law and that its aims are religious. He says that according to the Ran there may be situations in which foreign legal systems achieve better social functioning than Jewish law, because Jewish law is also committed to additional objectives, and therefore clashes sometimes arise in which justice or morality is harmed. He explains that this is why the Ran assigns the king a role as a parallel legal system that closes breaches and prevents distortions from becoming too severe when they are produced by halakhic constraints. He adds that the religious court too has the tool of “flogging and punishing not according to the strict law,” and only when Jewish law includes these complementary elements is it supposed to bring about a complete social order.

The Foundations of Law Act and the rejection of “principles of justice and equity from the heritage of Israel”

The speaker argues that there is no such thing as “principles of justice and equity from the heritage of Israel,” because principles of justice and equity are universal and not unique to the Jewish people, whereas what is unique to the heritage of Israel is particular and religious rather than a general moral-legal principle. He says that the Torah also requires the descendants of Noah to conduct themselves with justice and equity, but it does not dictate to them all the details of Choshen Mishpat according to most opinions, though he notes that according to Nachmanides the descendants of Noah are obligated in all the details of Choshen Mishpat, and he describes that as utopian. He asks why, if the aim of Choshen Mishpat is only monetary justice between one person and another, the matter was not left among Jews as well with a similar flexibility to what is required of the descendants of Noah. He concludes that the halakhic details of Choshen Mishpat reinforce the Ran’s conception that they have additional aims and not only social order and justice.

The details of Choshen Mishpat, contracts, and the picture of “constraints” and “workarounds”

The speaker wonders why Jewish law lays down details such as overcharging “up to one-sixth” and the laws of bailees, if the parties could simply be left to manage contracts by agreement, and he emphasizes that Jewish law itself recognizes contractual agreements such as “an unpaid bailee may stipulate to be like a paid bailee, and a paid bailee may stipulate to be like an unpaid bailee.” He argues that if the main problem is only the case where “we forgot to agree,” then state law can regulate that and there is no need for detailed halakhic prescription. He presents a picture in which the halakhic details create constraints that sometimes lead to distortions and to the need for legal fictions and stipulations, and he gives the example of conditional formulations to “work around” the law of the Sabbatical year. He concludes that this is not reasonable if the sole purpose is justice and morality, because those can be achieved efficiently even without such constraints.

Two alternatives for drawing from Jewish law into state law: universal versus particular, and the example of guarantorship

The speaker says that if one draws from Jewish law what is called “principles of justice and equity,” then there is nothing distinctive about that, so one could just as well take it from American or German law. Certainly complementary systems like the king’s law are in any case meant to achieve justice and equity even when they depart from Choshen Mishpat. He argues that if what one wants is a declarative value of “we are Jews” through state law, then one would have to draw precisely from the particular part, but that is exactly the religious part that is not suited to the role of a civil legal system in the state as it presently exists. He gives the example of guarantees in banks and says that in the West it is common for a bank to turn either to the guarantor or to the borrower at its discretion, whereas in France the bank must first exhaust proceedings against the borrower before turning to the guarantor, which resembles Jewish law. He uses this to show that a “Jewish-law-like” implementation may in practice amount to adopting a foreign solution that merely happens to fit a halakhic detail. He sharpens the point by saying that Choshen Mishpat does indeed include an aspiration to justice and equity, but not only to them, and therefore there are costs in terms of social justice.

Practice, rabbinical courts, and the universalization of Jewish law when it governs life

The speaker describes how rabbinical courts “maneuver between Jewish law and a certain degree of pragmatism,” because every court that functions in the practical world has to take practice into account, and he mentions as an example the dilemmas surrounding copyright and the search for solutions such as “benefit payments.” He argues that the broader the areas of state life that are conducted according to Jewish law, the more Jewish law will be forced to become more universal and less particular, whereas in the study hall we can allow ourselves to be “completely cold.” He gives an example from the topic of moving muktzeh in the case of a corpse on the Sabbath, especially the idea of “a loaf and a baby,” to show how study-hall patterns can produce solutions that would not develop that way in the context of practical ruling. He argues that if there were a state governed by Jewish law, its laws would look quite similar to the laws of the State of Israel, with differences in cultural nuance rather than “heaven-and-earth” differences, because the basic principles, like the prohibition of murder and theft, are similar everywhere civilized.

Meta-halakhic principles and the paradox of going beyond the letter of the law

The speaker says there are principles like “its ways are ways of pleasantness,” “you shall do what is right and good,” and “you shall be holy,” and he mentions Nachmanides, who interprets “you shall be holy” as behaving beyond the letter of the law. He presents the paradox that if there is a commandment to act beyond the letter of the law, that itself turns into law, and he concludes that these principles remain “meta-halakhic” and are not part of Jewish law in the formal sense in the simple meaning of the term. He relates to the question about Maimonides versus the Ran on the matter of “repairing the state” and the role of the king, and notes that this is not a simple issue and that there are principles different from the Ran’s.

Arguments outwardly and inwardly regarding the integration of Hebrew law into legislation

The speaker distinguishes between an outward-facing claim by religious jurists that every nation has a culture and a history, and therefore the legal system in Israel ought not be detached from its cultural sources, and an inward-facing claim directed to the religious world to cooperate in making the law more Jewish or more religious. He says that in the inward-facing claim there is also an additional religious value beyond the cultural value, because the goal is that more Jews will fulfill commandments and fewer will commit transgressions through state law that conforms to Jewish law. He says that this is where the question of the religious value of integrating halakhot into Israeli law enters.

Maimonides, Laws of Kings 8:11: religious value depends on faith and the giving of the Torah

The speaker cites Maimonides, Laws of Kings chapter 8, halakhah 11, about a resident alien, and quotes Maimonides’ ruling that one who observes the seven Noahide commandments because of rational conviction rather than because the Holy One, blessed be He, commanded them to Moses at Sinai “is not among the pious of the nations of the world,” and there are variant readings whether “but rather among their wise men” or “and not even among their wise men.” He concludes that there is no religious value in observance of commandments without faith in the Holy One, blessed be He, and in the giving of the Torah and in commitment to what was given at Sinai, and only then does the act receive the status of worship of God. He presents the position that this applies to a Jew as well, so that one who fulfills commandments for motives other than commitment to the Torah from Sinai is not fulfilling commandments in the religious sense, even if he does “the deeds of a good person.” He gives the example of the pioneers who showed self-sacrifice in settling the Land of Israel but some of whom did not believe in the Holy One, blessed be He, and he argues that one cannot define that as fulfillment of a commandment, even though it deserves national and human gratitude.

Rabbi Kook, “the unconscious,” and a bill of divorce: “we coerce him until he says, ‘I want to’”

The speaker presents a possible answer in the name of Rabbi Kook, according to which even the actions of those who are unaware of their faith are, at root, done from a religious source “unconsciously,” but he says that in his opinion this does not solve the problem. He compares this to the discussion of a bill of divorce where “we coerce him until he says, ‘I want to,’” and explains that this works only in a society where it is self-evident that one must do what the Holy One, blessed be He, says, and then the coercion removes the evil inclination. But in a society where people did not grow up within a world of Torah and commandments, it does not help. He stresses that in his view there is no necessary connection between the topic of the king’s law and the topic of the status of commandment observance that comes from rational conviction.

Implications for transgression, a captive infant, and the claim of causing someone to stumble

The speaker argues that if there is no religious value to fulfilling commandments without faith, then the “transgressions” of someone who does not believe are also not transgressions in the religious sense, and he says that in his opinion there is no principled problem in “causing a secular person to stumble,” because for that person it is not a transgression. He connects this to the definition of “a captive infant” and argues that those who regard him as a captive infant cannot “dance on both sides of the coin,” because if he is not guilty and is not aware, then his commandments too have no religious value and his transgressions too have no status as transgressions so long as he has not been brought to binding awareness. He distinguishes between someone who believes and “knows his Master and intends to rebel against Him” and a captive infant, and argues that obligations between one person and another do apply toward a captive infant, but “causing him to stumble in a transgression” is not causing him harm, because for him it is not a transgression. He raises examples of practical questions such as benefiting from Sabbath desecration, a light in a stairwell, and an elevator, but says he has not examined the topics and is not committing himself to a ruling.

The difficulty of importing halakhot: an oath in the laws of bailees and the law “do not stand idly by your neighbor’s blood”

The speaker says that the laws of bailees include an oath in the case of unavoidable accident, and an oath is not relevant for someone who does not believe, so one cannot simply copy Jewish law into a legal system without distorting the structure of the mutual obligations of the contract. As a central example he presents the law passed in the Knesset called “Do not stand idly by your neighbor’s blood,” associated with Hanan Porat, and calls it parallel to the “Good Samaritan law.” He argues that Jewish law imposes a prohibition against refraining from rescue but does not impose sanctions, whereas criminal legislation means imposing a sanction. Therefore, putting the law into the statute books makes it incompatible with Jewish law even though it uses the biblical verse. He describes one objection to the law as claiming that not every important value has to enter the statute books, and he says this “fits Jewish law perfectly,” while another position supported it as a universal value accepted not because of the Torah but because of general secular values. He adds that the biblical heading “do not stand idly by your neighbor’s blood” stirred up struggles despite agreement about the content, and he concludes that the attempt to draw from Jewish law leads to absurdities in which “what had fit Jewish law” stops fitting it once it becomes law with sanctions.

The root of the dispute: refusal to distinguish between the two systems, and a Christian-Kantian conception of religiosity

The speaker concludes that the dispute stems from the need to distinguish between a part consisting of principles of justice and equity and “pure Jewish law” in its particular form, and he argues that the people involved in Hebrew law refuse to recognize this distinction and relate to all of Jewish law as one unified “Hebrew law.” He says their conception assumes that behind every halakhic principle stand moral-social principles, and therefore Jewish law is “the expression of Hebrew morality,” but he rejects this and argues that Jewish law is also directed toward religious aims that are not identical with morality. He links the background to a Christian conception according to which religiosity is defined primarily as morality and religious experience, and he brings Kant, who criticized Judaism as a “religion of rules,” formalistic and concerned with managing society instead of obeying the command of conscience. He argues that the early Christian criticism of the Pharisees demanded replacing detailed Jewish law with morality and religious experience, and that this pattern seeped into the Jewish world as well. He says that in Judaism the practical religious criterion is observance of the rules, that morality and religious experience are indeed obligatory values but are not the basic criterion of religiosity, and that when one defines Judaism one has to define it through its unique characteristics, not through what obligates all human beings. He ends by saying that from here he will move on to “the unique characteristics of Jewish law as against other systems in more specific contexts,” and it is noted that the lecture is from Monday night, the eve of the twenty-first of Kislev, December 11, by Rabbi Michael Abraham, and that there will be no lecture next week.

Okay, let’s begin. I’ll briefly summarize where we’re holding from last time, and then we’ll continue. Basically, what we’re dealing with is the concept of Hebrew law. The term “Hebrew law” is a loaded term, and someone who calls Jewish law “Hebrew law” is also saying something by that—it’s not just a change of name. There’s some ideology behind that label, and that ideology basically views the halakhic system as a legal system, and usually also aspires to integrate it, or parts of it, into the law of the state, into our civil legal system. And what I’m going to try to show is basically why I disagree with that approach, why I think Jewish law is not “Hebrew law” in the accepted sense. I’ll summarize briefly what we did and then continue, because all of this is still the framework, and only afterward will we get into more specific topics within it.

So I spoke about the distinction between the system of Jewish law and legal systems. Why is Jewish law not a legal system in the usual sense? I showed several examples from which it’s perfectly clear that Jewish law is not trying to achieve order or justice; it does not have social goals, or at least not only social goals. We talked about the fact that a robber is not punished, we talked about the fact that relatives are disqualified from testimony even though we actually believe them, we talked about the fact that in order to punish someone with lashes or death, two valid witnesses have to warn him, and he has to accept the warning and say, “Yes, and with that in mind I’m doing it”; otherwise he is not punished. And the picture that emerges from those examples is that this is a system that is not aiming only at social order—maybe that too, but not only social order; it has additional goals.

From there I moved to the Derashot HaRan, where he says this explicitly, puts it on the table, and his claim is that in the halakhic system, even the judicial part within it—what is called Choshen Mishpat in the terms of the Shulchan Arukh—basically has religious goals; it is part of religious law. And therefore, sometimes it may even be the case that foreign legal systems will have more suitable solutions for social order, achieving a more proper social condition than what Jewish law achieves. That can happen sometimes, and sometimes not. Meaning, overall I assume Jewish law does not oppose social order, but because it also wants other things, sometimes there is a clash. And once there is a clash, justice or morality will be harmed.

And that’s in Derashot HaRan, what the Rabbi is saying now? Yes, that’s Derashot HaRan. And therefore, it may be that from the standpoint of justice or social order, the law will actually be more proper in foreign systems than in Jewish law. And therefore, says Ran, within the framework of his eleventh sermon, basically what he says is that this is the role of the king. There is a parallel legal system, and the role of that parallel legal system is to seal up all the breaches of the pure halakhic system—the system that is Jewish law as we received it from Sinai, including its later development. And the king’s role is basically to see that excessively large distortions do not arise as a result of the constraints imposed on Jewish law. Since Jewish law is trying to achieve additional things, sometimes we can pay a price in the form of injustice, and once that becomes excessive, it is the king’s role to intervene and fix it.

And therefore, in the end, after taking into account the supplementary systems as well—like the king, like a religious court that administers lashes and punishments not according to the formal law—then the system is indeed supposed to be complete, it is indeed supposed to produce social order. But that is only the system once it already includes both components.

After I presented those two components, I said that the Foundations of Law Act basically says that judges are supposed to draw from the principles of justice and fairness of the heritage of Israel, something like that—I don’t remember the exact quote. And my claim was that there is no such thing as “principles of justice and fairness of the heritage of Israel.” There is no such creature. Why? Because things that are principles of justice and fairness are universal. And things that are specifically part of the heritage of Israel—that is, they are particularistic—are not principles of justice and fairness; they are religious principles.

Meaning, if there are principles that are moral principles, principles of justice and fairness, I assume they are accepted in other legal systems as well. And if not, then it’s not that one is less just; it’s just that they have a slightly different solution. Not all systems are the same, but it’s not a matter of more just and less just; there can sometimes be different conceptions of justice. But justice and fairness are not necessarily the property of the Jewish people. That may sound a little heretical to say, but it seems to me quite obvious that it’s true.

And the Torah also demands of the Noahides, basically, that they conduct themselves according to principles of justice and fairness, and nevertheless it does not dictate to them all the details of Choshen Mishpat. At least according to most opinions. According to Nachmanides, it seems that Noahides are obligated in all the details of Choshen Mishpat. Happy is he who believes that any of them can actually master that. We don’t exactly manage it so well either, perhaps, but it sounds a bit utopian. In any case, that is Nachmanides’ view. Usually it is accepted that Noahides are not obligated in the entire system of Choshen Mishpat. They are obligated to organize for themselves a legal system, to run their lives in a proper, orderly, and as moral and just a way as possible—and that’s all.

So if one can really reach justice and fairness and that social order without defining all the details of Choshen Mishpat, then what is the role of all those details? Why not leave it open for us too? If the whole purpose of Choshen Mishpat is simply to achieve monetary justice in our civil law—civil law meaning law between one person and another, not as opposed to criminal law, okay? So if that is the goal of Choshen Mishpat, then why isn’t Choshen Mishpat given to the gentiles as well? They too are obligated in social order and justice. Or alternatively, if the gentiles manage to do this without entering into all the halakhic definitions and details, then what’s the problem? Then apparently with us too, the details were not meant for that, but for something a bit different.

And then apparently this just reinforces Ran’s conception that the halakhic details of Choshen Mishpat really have additional goals, not only the goals of social order and justice, because for those purposes it would have been enough to leave us a free hand. To tell us: listen, behave like normal human beings, like moral human beings, and that’s all. Organize a legal system, as is required of the Noahides; be decent people. That’s all. There was no need to tell us that overcharging is up to one-sixth and not more than one-sixth, and the laws of bailees, that an unpaid bailee is liable for negligence but exempt from theft and loss. All these details—what do you care what sort of arrangement I make with my paid watchman? I’ll deal with my paid watchman; I’ll reach conclusions with him about what we decide to agree to between ourselves, and that’s what we should do. What’s the problem? The contract was signed knowingly by both parties.

Not only that—the halakhic system recognizes such a thing. The Mishnah says in Bava Metzia: an unpaid bailee may stipulate to be like a paid bailee, and a paid bailee may stipulate to be like an unpaid bailee. If both sides agree, then we have no problem at all. I can go to a person, pay him for guarding, and still he will not be liable for theft and loss as a paid bailee ordinarily is—if it’s with both our knowledge, if both of us agree. Meaning there is no distortion here; it’s not problematic. So the whole point is only that we need to agree. So what is all this Choshen Mishpat trying to achieve? Is it just coming to tell us what happens when by mistake we forgot to agree? Fine, then state law will decide that. Why is it still necessary to determine it in Choshen Mishpat? It doesn’t sound reasonable that all this is meant to achieve is principles of justice and morality. You can achieve that better without it.

On the contrary, it places all sorts of constraints on us that we constantly have to maneuver around somehow in order to manage, and many times they actually lead to distortions, and we have to use legal fictions and stipulations, and stipulating against what is written in the Torah and things like that. And not to say, “on condition that the Sabbatical year not cancel my debt,” but rather “on condition that the Sabbatical year not cancel me,” and then everything will be fine—so somehow we succeeded in getting around Torah law, when the whole point is that in order for things to function properly, we have to get around Torah law. So this whole picture looks unnecessary. So why does that Torah law exist if all it does is make us try to get around it, complicate things, make life harder for us, and force us to bypass it? Just let us live like the gentiles: seven commandments, appoint judges, organize a legal system, and that’s all—and let it be just, of course, and decent, and everything is fine. Why all the prescriptions?

It’s obvious that those prescriptions—at least to me it’s obvious, and this is what Ran writes—have some kind of religious goals. They are not only legal goals like the goals upon which ordinary legal systems are based.

What does that actually mean? It means—and I’m coming back again to what I said last time—what this means is that now we have to decide from which of the two parts of Jewish law we want to draw into the law. If we want to draw from the part of principles of justice and fairness, that’s something universal; there’s no reason to take it specifically from Jewish law. You can take it from American law or German law, or whoever. Meaning, if these are principles of justice and fairness, then take them from wherever they are. Whatever solves your problem best, take that. Why does it matter whether it’s written in Choshen Mishpat or not? After all, the king’s law, the court administering lashes and punishments not according to the formal law, all of that consists of principles that do not operate as written in Choshen Mishpat, and their entire goal is precisely to achieve justice and fairness. That is the only goal of all these supplementary systems—the king, the court administering lashes and punishments not according to the formal law, and so on.

So when we look at principles of justice and fairness, by definition they are not drawn from the heritage of Israel. If we take principles that are from the heritage of Israel, meaning principles particular to Judaism—which I think, all in all, if someone wants to achieve the declarative value that says, “we are Jews and therefore our law book will contain things taken from Jewish law, from the things that characterize the culture of the Jewish people”—then he must take things דווקא from the part that is unique to the Jewish people, not from the part shared by the whole world. But if so, then that is exactly the part that is not relevant, because it is the religious part, the part that has religious aims. How exactly can we place such a thing into the law book of the State of Israel? If there were a state where all the citizens were religious and so on, that would be a different story. I’m talking about the aspiration in terms of the situation as it is today.

For example, the issue of guarantees. Throughout the Western world, as I’ve heard—with the exception of France—it is accepted that a bank turns to the guarantor or to the borrower according to the bank’s own discretion. In France, so I’ve heard—I don’t know French law at all—the bank has to exhaust a certain set of procedures against the borrower, and only then can it turn to the guarantor. And that is more similar to Jewish law. So what is the Jewish law? There are two kinds of guarantors. What? There is a kablan guarantor and an ordinary guarantor. In Jewish law there are two kinds of guarantors. So maybe, if they wanted to create a state in which our laws were more similar to halakhic law, they should follow French law. France also has a developed economy, no? No, obviously—but then the question is, what are you actually telling me? In order for it to resemble Jewish law, let’s take French law. Yes, in this context. So in what sense are you drawing from Jewish law? After all, if you want the declarative value, the value that says “we are Jews, therefore…” No, but we could have taken Jewish law, and you can’t say it’s only a religious issue; one can maintain a proper economic system also with somewhat strange things like these, with quite a few supplements. But yes, there is something strange going on there.

I said that in Choshen Mishpat there is clearly also a goal of justice and fairness. It’s just that because there are other goals as well, those constraints sometimes lead to our paying a price in terms of social justice, because we have to achieve other goals too. It’s not only considerations of justice and fairness that dictate what will be written in Choshen Mishpat. And therefore there are costs in terms of justice. I didn’t say that Choshen Mishpat does not strive for justice and fairness, only that it does not strive only for justice and fairness, but for additional things.

Now, obviously we can find adaptations and things can work and so on, but again, the declarative value, the value that says “we are Jews and therefore what will govern here is Choshen Mishpat,” will not be realized here either, because what will govern will be French law. Except what? It happens to fit Choshen Mishpat in this case, whether by chance or not by chance, with the necessary supplements. And why was it accepted here in the Knesset? If they accepted it because it works in France and not because it is written in Choshen Mishpat. So the whole issue is basically—and here I get to the second side of the equation, which I haven’t fully dealt with yet. In another moment I’ll get to it.

So the claim is that in practice, if we divide Jewish law into these two parts, then there are principles of justice and fairness, and there is the heritage of Israel. But there are no “principles of justice and fairness of the heritage of Israel.” Meaning, there are two parts: principles of justice and fairness are something universal, and the principles of the heritage of Israel are something particularistic that obligates only us and not the gentiles.

Now, to draw on something so that we appear Jewish, so that it has cultural-national value and so on, one can draw only from the particularistic part. But that is exactly the part from which it makes no sense to draw, because it is unsuitable; it is not a legal system, it is not suitable for a legal system whose role is to organize society here. What suits that are precisely principles of justice and fairness—but principles of justice and fairness are by definition universal.

Why is it not suitable? It is suitable too. Huh? Why isn’t it suitable? After all, it also fits. It fits if it fits principles of justice and fairness, but if that’s the case, then it’s no longer particularistic. There can be a part of Choshen Mishpat that fits, like French law. So no problem. Then you have two alternatives: take from it or take from the world. Why not take from it? No—now we have to distinguish, and here I’m arriving at it. I still haven’t gotten to the second side of the equation that I mentioned before.

If I remember correctly, the Rabbi said last week there’s another problem, that the judges don’t know it. Obviously—everyone knows that. So there’s a problem there, that they won’t be able to use a system they don’t know. No, that’s obvious, and that’s a technical problem, let’s say. The question is whether one can also transfer this to the legislator—meaning when laws are enacted, then they are no less than… What? Do the rabbinical courts go by universal justice and fairness or not?

The rabbinical courts maneuver between Jewish law and… and a certain degree of pragmatism, because every court that operates in the practical world and not in the study hall has to take account of what is happening in the world. At the judge’s discretion. Every halakhic ruling is always, to some extent, at the judge’s discretion, but clearly he has a hard job coordinating things. One of the examples we saw regarding copyright is simply a good example of that kind of dilemma: on the one hand Jewish law seemingly speaks very definitively, and on the other hand it is clear to me that this is not just. So people come up with various tricks—benefit payments, this, that—they try somehow. But it is clear that this is what Derashot HaRan says: because there are so many constraints, we almost always pay some kind of price; it will not be an optimal solution. And that is how the rabbinical courts operate, as far as I know. I’m not sufficiently expert in their practice, but it’s pretty clear from what little I know that this is how it works.

And it is also clear that the more responsibility for managing broader areas of the life of the state is given to Jewish law, the more Jewish law will have to become universal and less and less particularistic. We can allow ourselves to be completely particularistic when we are in the study hall. Then we rely on the gentiles—they’ll do everything for us anyway. No problem. They’ll solve the problem for us: the law of the land is the law. So there’s no problem of copyright; we can go on analyzing the laws of property from now until forever, because we know it doesn’t matter at all—anyway the system will manage without us.

The aspiration is to reach the rabbinical courts. No, that’s exactly what I’m saying: the broader the areas of life that are actually conducted according to rabbinical courts or according to Jewish law, the more Jewish law itself will have to absorb into itself principles that come from practice. In the study hall you can be completely detached. Just today we learned in the kollel, we learned the topic of moving muktzeh. And a few days ago I was thinking about it exactly: there is a Talmudic passage where the Talmud discusses what happens if there is a corpse on the Sabbath and there is a fire, or it is lying in the sun and it could be harmed, its body, the dignity of the dead, and so on. So the question is how one may move it, shift it, take it out of the fire or out of the sun. So they say: with a loaf and a baby—that is, put something on it that may be moved, and through that you can also move it. Fine, practical matter. But if you stop and think about the meaning—what do you mean, a baby? To take a baby, let’s say two months old, put him on a corpse so that I can manage to move it? This is the kind of thing that can exist only in the study hall. I don’t think such a concept called “a loaf and a baby” would ever have developed if this were being done in a court, if someone had to give a practical ruling. A person comes to me and says, look, how do I move the dead body? They tell him, put a book on it. Where did they get “a loaf and a baby”? That exists only in the study hall. Why? Because in the study hall they probably wanted to teach something—that a baby is something permitted to be moved. There are some intellectual or halakhic points they wanted to express through this. So that is study-hall Torah.

It is clear that the more Torah takes responsibility for life, the more universal and the less particularistic it will become. And as I said last time, I think, that if there will be, God willing, a halakhic state that really conducts itself according to Jewish law, its laws will look very similar to the laws of the State of Israel. We think there will be—I don’t know—some people paint it as Khomeini, some people get excited about who knows what, they think it will be something terribly, terribly different. It won’t. It won’t be something terribly different. There are differences between English law, French law, American law, which also result from differences in people’s character and style, and certainly there are differences from Indian law. And such differences will be here too, but those differences are not astronomical. And therefore it will still suit the needs of practical life, though it doesn’t have to be universal; it will still remain somewhat different.

No, no—I’m saying culture can influence one nuance here and another nuance there. A principle of justice—everywhere it is forbidden to murder, everywhere it is forbidden to steal. The basic principles, by and large, look the same in every civilized place. Fine, so there are nuances: here they relate to something a bit differently, there a bit differently. Of course there are differences among them, but those differences are not, by and large, differences at the level of principles of justice and fairness. And if there are such differences, then they are disputed in France too, in the United States too, and they will be here too. And that’s fine. In a dispute there are two sides, and some choose one solution and others choose the second. Meaning, a principle of justice and fairness does not dictate one unique solution. Clearly there is a degree of freedom here.

Isn’t there in Maimonides an expression of positions different from Ran’s—for example, this concept of “repairing the state”? There are principles, there is expression of principles different from Ran. Usually Maimonides is understood as disagreeing with Ran regarding the role of the king, but the role of the king in Maimonides is a very complicated issue. And Abraham says to the Holy One, blessed be He, “Surely there is no fear of God in this place, and they will kill me because of my wife… Shall the Judge of all the earth not do justice?” It is embodied there.

And we once discussed, for example, the paradox of the scoundrel, the paradox of the scoundrel in the portion of Kedoshim: “You shall be holy.” So Nachmanides says: what does “you shall be holy” mean? Act beyond the letter of the law. And then of course the question arises: what do you mean, there is a commandment to act beyond the letter of the law? So now what is beyond the letter of the law becomes law, because there is a commandment to act that way. So in what sense is it beyond the letter of the law? That’s the law, after all; there is a commandment of “you shall be holy.” These principles—“its ways are ways of pleasantness,” “you shall do what is right and good,” “you shall be holy,” never mind for the moment how exactly to arrange this, and we discussed that too, how to arrange it formally—they still remain meta-halakhic principles. Meaning, they are not really part of formal Jewish law in its simple sense.

So that was the outline in broad terms. Maybe I’ll just finish the outline with two more points. Actually three points.

The first point is really the other side I mentioned earlier that I hadn’t gotten to. This demand to integrate Hebrew law into Israeli law is directed both inward and outward. The religious jurists—those who today, some of them at least, are carrying the banner of what is called Hebrew law—they turn outward and say: look, gentlemen, every nation has a certain culture, a connection to its history. How can it be that in our case the legal system is completely disconnected from its own cultural sources? Maybe you don’t believe in the Holy One, blessed be He, maybe you don’t keep Jewish law, but at least some sort of national-cultural connection to its sources. That is an outward-facing claim. About that we already spoke. The question is how one really achieves that cultural declaration. The more particularistic the principle, the more declarative value it gives—but then, all the more, it is less possible to draw on it.

But the other side of the coin is that there is also an inward-facing claim. Meaning, there is a claim directed at the religious world, not at the general secular world, but at the religious world: let’s make a joint effort and try to make the law as Jewish or as religious as possible, something like that. And here there is already a double meaning. First, because there is that kind of cultural value, as we said outwardly, so too we say inwardly. But the point unique here is that here there is also religious value. After all, in the end we want Jews to keep commandments. I think that is not in doubt. And not to commit transgressions. So now we have an opportunity through the law: if the law conforms to Jewish law, then more Jews will keep commandments and fewer Jews will commit transgressions. If the law obligates what Jewish law says, even at one point or at several points that we manage to achieve, in the end we have gained some religious value from it.

And here we enter the question not of cultural value but of religious value. Is there religious value—not cultural value—in integrating certain halakhot into the legal system of the State of Israel? Here there are several problems.

The first problem, perhaps the most basic one, is found in Maimonides, Laws of Kings. In chapter 8 of Laws of Kings, halakhah 11, Maimonides says there—he is talking about a resident alien, and he says that a resident alien means a gentile who accepted upon himself to keep the seven Noahide commandments. Then he may remain in the land, and there are various implications, because a gentile who does not keep the seven Noahide commandments in practice may not be allowed to remain in the land, but gentiles who do keep them may remain, and this has various implications, not important right now.

So he says, what is called a resident alien? When he defines what a resident alien is at the end of chapter 8, he says that any resident alien who keeps the commandments because reason compels him, and not because the Holy One, blessed be He, gave them to Moses at Sinai—he is not among the pious of the nations of the world and not among their wise men, or rather among their wise men—there are two versions here. “Not among the pious of the nations of the world and not among their wise men,” or “but among their wise men.” One version says that he is among their wise men, yes, but not among the pious. The other version says not among the pious and not among the wise—it’s worth nothing.

What is actually written in Maimonides? It seems to me that when you look at the root of the matter, what is written in this Maimonides is: there is no such thing as keeping commandments without belief in the Holy One, blessed be He. But even belief in the Holy One, blessed be He, is not enough. One needs belief in the Holy One, blessed be He, in the giving of the Torah, and in commitment to what was given to us at Sinai with the Torah. Someone who keeps commandments out of those principles—his commandments are commandments. Someone who keeps commandments because of rational compulsion, as Maimonides says there, because it seems sensible to him, seems right to him—he is not among the pious of the nations of the world, perhaps among their wise men. That depends on the versions. Apparently “but among their wise men” is the more well-established version, as I understand it at least.

What does that mean? It means that these things have no religious value, only moral value, human value. Meaning, if you act correctly, then you are a better person. But there is no religious value in it, because religious value exists only for something done with the motivation of serving God. Serving God exists only for someone who believes in the Holy One, blessed be He, knows there was revelation at Sinai, and accepts upon himself what was given at Sinai—and on that basis performs the commandment. If a gentile now does not murder or does not steal or keeps laws—one of the seven Noahide commandments is to establish laws and so on—because it seems sensible to him, he is not keeping the seven Noahide commandments. It is not considered that he is keeping the seven Noahide commandments. Keeping the seven Noahide commandments exists only if he does it because the Holy One, blessed be He, commanded it—but not only that: commanded Moses at Sinai. That is how Maimonides defines it.

Now usually—and the Rabbi here innovated a few months ago that this also applies to a Jew according to Frankel—yes, right, right, we spoke about it, that it’s shocking, it’s shocking. I just wrote some article now that’s stirring up some waves, claiming the opposite is correct. Meanwhile I still haven’t found that refutation. Where is the Rabbi’s article? Fine.

So basically what Maimonides writes is that commandment observance not done out of commitment to the Torah given at Sinai by the Holy One, blessed be He, is not commandment observance. At most it is a good thing. Meaning, if someone behaves morally, behaves well, then he is a good person, then he is among their wise men, let’s say—“but among their wise men.” So he is among the wise of the nations of the world, but not among the pious of the nations of the world. Meaning, he is not keeping commandments. That’s not what “pious” means; it means one who keeps commandments. He is not keeping commandments, he is doing the acts of a good person. That’s all.

Now, as I mentioned, quite a few commentators on Maimonides—I saw one who doesn’t say this, who disagrees with it—I think the plain sense is this, at least in my opinion: that Maimonides does not mean only the resident alien. Maimonides means this also about a Jew. Meaning, a Jew too, if he does not keep the commandments out of the motivation that the Torah was given at Sinai and that what the Holy One, blessed be He, says obligates me—those commandments are not commandments; they are worth nothing as service of God. It may turn him into a good person, fine, if the commandments concern the moral sphere, the moral commandments. But as service of God, it has no value of commandment.

People often speak about the pioneers who settled the land and physically fulfilled the commandment of settling the Land of Israel with self-sacrifice. A large portion of those pioneers did not believe in the Holy One, blessed be He. It is impossible to fulfill commandments if you do not believe in the Holy One, blessed be He. There is no such thing. He can be a good person, he can be loyal to his people in the national sense, he can be someone to whom we owe immense gratitude. He cannot be someone who fulfills commandments. There is no such thing as fulfilling commandments without believing in the Holy One, blessed be He. The concept of fulfilling commandments is bound up with a certain consciousness; it is not a technical matter.

And what would Rabbi Kook say about that? His outlook would not have been—Rabbi Kook would probably say, at least as far as I understand, and I’m no great expert on Rabbi Kook, that at root they are in fact doing it because of that. Meaning, he does not disagree with the point that if it is not done out of commitment to the Torah from Sinai, then it is worth nothing. He just says that it is done that way, only unconsciously. They did not know, they did not understand; they had some inner awakening whose root was religious, and they themselves were not even aware of it, and they thought they were doing it because of all sorts of considerations of “my father and my people,” exactly. So I think that solution does not help at all. In my humble opinion, it helps with nothing. Because in a bill of divorce, they beat him until he says “I want to”—no, no, there it’s something else, I think. Because there, in the end—if it’s not something else, then there too I don’t accept it.

Meaning, the claim there—and we explained this too in one of the previous classes—what happens in the bill of divorce? I think in the bill of divorce something real happens. And therefore today too, if you coerce someone until he says “I want to,” that was the conclusion, it won’t help at all. In a society in which it is clear and self-evident that what the Holy One, blessed be He, says must be done, and there is someone who has an evil inclination, you beat him until the evil inclination departs, and then he really does it because the Holy One, blessed be He, said so—because ultimately that lies within everyone. But in our society today it is not like that. Human beings who did not grow up within a world of Torah and commandments—it is by no means self-evident to them that they are supposed to do what the Holy One, blessed be He, said. And no amount of “beat him until he says ‘I want to’” will help. That is my humble opinion.

Maybe that was Maimonides’ view, maybe it is indeed related to his approach regarding the king’s law, the status of the king’s law? No, no, but that has nothing to do with the king’s law. I’m speaking now about Torah law, and also about ordinary Torah laws—someone who keeps the Sabbath, not laws—no, it’s completely consistent. These are entirely different topics. There is one topic dealing with the relationship between the king’s law and the law of the court, and there Maimonides probably disagrees with Ran. That’s one question; we’re done with it. The second question is: what is the status of someone who keeps commandments because it seems right to him? Here Maimonides says something. I know of no Ran who disagrees with him, and I don’t see the connection to the previous issue. Why create a dispute here? What’s the connection? Do you see a connection between the two issues? It sounds like an explanation, I don’t know—I don’t see the connection.

In any case, what happens in such a situation? It follows that you cannot perform commandments not out of awareness and commitment to the Torah given at Sinai. Now if that is so, I return to the question of religious value. The religious value of integrating halakhot into the Israeli law book basically says: let us prevent people from committing transgressions, let us cause them to perform commandments through the law book, at least we will gain some Torah values from this. What? Prevent them from committing transgressions? Wait, I haven’t gotten to that yet.

So I am saying here: to perform commandments not out of commitment to the Torah but because that is what is written in the law book—you are “performing commandments” as mere mechanical action; it is not commandment performance at all. It is worth nothing. Worth nothing in the sense of performing commandments. Again, if it makes things more proper, more moral, then that is good because you are a good person. But it has no meaning whatsoever as service of God. One cannot speak of religious value.

Now I argued in that earlier class that this is true also of prohibitions. One cannot commit transgressions either if one does not believe in the Holy One, blessed be He. Your transgressions are not transgressions either. Therefore, as a practical implication—for example, causing a secular Jew to sin—in my opinion there is no problem at all. A secular Jew who does not observe, who does not believe in the Holy One, blessed be He—for example, to pass by a movie theater in Petah Tikva, there is no value there. He does not keep religion. In my view, no. Unless, again, there may be some of the viewers there—because this is a generalization—there may be some of the viewers who are indeed believing Jews and the evil inclination takes them there, I don’t know. Then perhaps for them it is a transgression. I am speaking generally, theoretically.

And culturally too, there are ongoing implications, the issue of working on the Sabbath even without—no, fine, I didn’t say there that in that topic one must discuss it. I’m only saying that the religious value of preventing transgression here is highly questionable. Very questionable. Meaning, I don’t know to what extent—this also applies regarding a tinok shenishba. That’s exactly where it comes from. On the contrary, especially regarding a tinok shenishba. I argue that this is the necessary, consistent conclusion if you really relate to them as captives among the gentiles. You can’t dance on both sides of the coin at once, enjoying all worlds. On the one hand to say, look, they’re not guilty of anything, they’re like captives among the gentiles, therefore they don’t believe, but they didn’t grow up with it—what can they do? By the way, I truly and sincerely believe that. I genuinely think this is not a fiction at all; it is very true, it is a correct description of the average secular Jew. Again, these are always generalizations.

But if so, then their commandments also have no value. They are not guilty of anything—I am not accusing them, on the contrary, this is judging them favorably. I accuse them of nothing. What do you want? In their situation I too would not keep anything, and it would make no sense to keep anything. If I do not believe in the Holy One, blessed be He, what sense is there in commandment observance? And on top of that they forgive him for all the sins? What do you mean forgive him? It’s not a transgression. He is still obligated. And therefore I am obligated to try, and he is obligated—and therefore I am obligated to try to bring to his awareness that he is obligated, so that he will know and keep it. But as long as he truly does not know, and I have not succeeded in bringing it to his awareness of obligation, then in my opinion his transgressions are not transgressions either, not only his commandments.

That’s it—you can see this in the article; I brought some proofs there as well. Wait, then it is forbidden to cause him to stumble if so. No, I think one may. Because it is not causing stumbling. What? Here there is a confusion between two planes. Several responses fell into this.

No, there are those who are wicked sinners—yes, to the extent one can imagine such a person—who believes, knows his Master, and intends to rebel against Him. Toward such a person I have no obligation because he is wicked, and therefore perhaps I am allowed to cause him to sin—“feed the wicked and let him die,” things like that. It could be; one has to check what the boundaries of that principle are, but let’s say yes. That’s one side of the coin.

The other side is the tinok shenishba, who is righteous; he is guilty of nothing, certainly not wicked. And therefore my interpersonal obligations toward him certainly apply; he is “your fellow” in every relevant sense. All the laws between people certainly apply to him. But what? I am certainly forbidden to cause him something bad. But causing him to sin is not causing him something bad, because it is not a sin. Not because I have no obligation toward him—I do have an obligation toward him. Only, causing him to transgress is not called causing him something bad, because for him the act he is doing is not a transgression.

I’m not saying it’s some great commandment to cause him to sin. I don’t think we should be out there trying to make so-and-so stumble. What about a Sabbath gentile? He cannot be a Sabbath gentile, because the moment there is someone who doesn’t know, and you tell him to do something, the transgression is on you. Maimonides says: one who clothes his fellow in kilayim. Not to tell him. If he turns on the light, can I benefit from the Sabbath desecration of…? It could be yes. It could be yes. Because it is not considered inadvertent sin; what they forbade was only inadvertent sin. And it could be. There are various halakhic implications here. Benefit from Sabbath labor? Sabbath labor? Are you saying it is inadvertent? It could very well be yes. I haven’t yet checked this topic. So from a gentile? So from a gentile it is forbidden and from a Jew it is permitted? According to the Sephardic view that prohibits a Sabbath gentile. When he does it for me. When he does it for me that’s something else. A gentile is permitted. If he does it for himself, then what’s the problem? It could be that with the Jew too, if he does it for himself, it’s okay. It could be yes; I can’t tell you right now, because I haven’t checked the topic. I haven’t checked this topic, so I’m not committing myself.

To wait until the stairwell light goes off? That sounds like a reasonable conclusion from what I’m saying. The secular neighbor turned on the stairwell light—should I wait until it goes off or not wait? That too is a question. The secular neighbor, assuming he meets these criteria of tinok shenishba according to his definitions, of a Jew who is not Sabbath observant—in the workplace and everything, all of it. To ride in the elevator with a secular Jew? You see? There is a problem there, because if you add weight to the elevator then more current is used. You know, the side issues. But pressing the buttons is not a problem like with a gentile? If he is not aware of it, I think… It’s the issue of deriving benefit from Sabbath labor. I’m not committing myself right now because that is a topic that has to be checked on its own. I haven’t checked it. But yes, just to sharpen the point, that ought to be one of the conclusions from what I’m saying.

Okay, let’s return to our matter. The claim was—I won’t even finish what I wrote—the claim was: if a secular person later becomes religious again, does he need another symbolic extraction of covenantal blood because his parents did it only for social reasons? Big question—someone asked me that once. It could be. I don’t know. Also, with tinok shenishba, I don’t know anyone who says this about him. So I don’t know, really don’t know. Hard question. There are many implications here that need to be checked one by one. But again, I have no proofs in either direction, so that won’t decide it. It’s a practical question. Yes, a practical question. Regarding a gentile, you say a gentile who converts needs another circumcision act, as it were. The issue of circumcision is also—well, that’s a bit different. If he becomes observant too, again? Yes, that’s what Yossi said, no? Symbolic extraction of covenantal blood. Fine, there are many implications; each needs to be checked. And indeed, yes.

We are dancing at two weddings. We call them tinok shenishba, we forgive them, we get angry at anyone who is angry at them, on the one hand. But on the other hand—okay, what are the implications? He is tinok shenishba, meaning he believes in nothing, he is guilty of nothing, I have no claim against him. Fine, then his commandment observance is also not commandment observance. Decide. Someone who doesn’t know that today is the Sabbath? Fine, inadvertent sinner, unrelated. You say it’s not the same thing—that’s inadvertent. There is a dispute in the Talmud whether a tinok shenishba is an inadvertent sinner or not. Dispute of Rav and Shmuel, complicated sugyot in their own right. Let’s not get into that now; it’s tangential.

I just want at least to finish what I wrote. Yes, it does matter if you don’t rule that he is inadvertent. What is the dispute there, in bottom-line terms? No, my claim irrespective of inadvertence for the moment—how this Maimonides aligns with the Talmudic passages is a topic in itself. But this Maimonides says there is no value to commandment observance if it does not come from belief in the Torah from Sinai, from the Holy One, blessed be He, at Mount Sinai. There is no commandment observance without that. So there is no religious value to…

You forgot Pascal’s wager. Here, according to Maimonides, a person says: I don’t know whether Moses is true and his Torah is true or not, so I’ll keep the commandments because if it is indeed true, then I’ll have fulfilled my obligation, and if not… That’s Pascal’s wager. Fine. If we’re doing Pascal here, then we’re finished. Listen, who can say of himself that he is 200 percent certain? So where does this stop? At 50 percent? 60? 70? Where exactly does it stop? At what point does the commandment begin to count? The moment you have such a possibility and because of that possibility you act, it seems to me that it counts. That’s Pascal’s wager.

And with commandments between people, what is the dimension of service of God that…? Same thing. No difference at all, in my opinion. Meaning, commandments between people are commandments that certainly have value, and one who performs them is among the wise of the nations of the world—or Jews too, anyone who does them—but he is not among their pious in the sense of service of God.

But take gentiles who rescued Jews as “Righteous Among the Nations”—what is the issue there? What is the connection between terms? Because specifically those gentiles who saved Jews did so from a sense of humanity. Fine, “Righteous Among the Nations” with respect to those gentiles—the concept is more philanthropic than halakhic; it’s a humanistic term. There’s a contradiction there. No, but it’s not a halakhic term? No, halakhic people established this term. Right, right.

As for punishment, first of all I’m walking on safe ground. It’s clear that this is true. No one disputes that. After all, if someone is tinok shenishba, no one says he is punished. But this isn’t tinok shenishba—someone who says “I don’t believe there is a Holy One, blessed be He.” If he doesn’t believe that, then he is tinok shenishba. But he grew up in a Jewish family and all that. Doesn’t matter; he’s tinok shenishba all the same. The Radbaz says there is such a thing as coercion in matters of opinion. If he truly does not believe in the Holy One, blessed be He, then what do you want him to do? He is completely coerced. Completely coerced. He really doesn’t believe. He also won’t answer “what is this that I am doing?” Yes, fine, I already said that: if someone does answer that, then he is not sane, and therefore should not be punished. And that itself—not believing—is a transgression. Fine, that’s Maimonides’ famous paradox. Maimonides counts it as a commandment, so that’s another topic.

Okay, I want to focus again on our topic. So these are all in terms of religious value. There are many more problems here. For example, we would want to import the laws of bailees into Israeli law. So what do the laws of bailees include? An unpaid bailee—or a paid bailee, doesn’t matter—has to swear if the item was lost through unavoidable circumstances, for example. He has to swear, right? Clearly they are not going to make him swear in court; that’s not even a meaningful concept with regard to a person who doesn’t believe. Even if the entire court consists of righteous people with beards down to the floor—if the person doesn’t believe, there is no point in making him swear; his oath is worth nothing. The whole value of an oath is that you mention God’s name and are afraid to lie because of that. If someone isn’t afraid of that, what’s the point of making him swear?

So if there will be no oath, then part of the contract is gone, and then the contract becomes unjust. Because a contract is always an obligation of the depositor corresponding to an obligation of the bailee. The bailee undertakes to swear if something happens, and I undertake to pay him, say, if he is a paid bailee. There are reciprocal obligations, like any contract. Now what do we want to do? Take this thing into Israeli law. Then what will happen? We’ll remove the oath because it is irrelevant, and what remains are only the depositor’s obligations, not the bailee’s obligations. So again the contract becomes unreasonable from a legal standpoint. Fine, one can fix it somehow, but again it won’t be a paid bailee; it will be something else. It never really works.

One of the worst examples of this, it seems to me, is the law that passed in the Knesset to the joy of all the Hebrew law people, the law of “do not stand idly by your neighbor’s blood.” Hanan Porat’s law, over which everyone jumped up and rejoiced. Yes, please. What do you mean it passed? Today there is a law in Israel, what Christians call the Good Samaritan law. Meaning, a law that says you have to help someone who is in trouble. The question of how much it is enforced is another matter; presumably it is not enforced, but there is such a law.

Now what happened there? Seemingly an impressive achievement. First, look—we succeeded in putting a Torah-level halakhah, “do not stand idly by your neighbor’s blood,” into the law book: traditional, religious. That’s also good because it is obviously morally correct in itself, regardless of dimensions of service of God; we achieved a result that is, by all accounts, a positive result. But the question is whether this actually involves importing from Hebrew law. The answer is no. Unequivocally no. Because what does Jewish law say about “do not stand idly by your neighbor’s blood”? Jewish law says that you are forbidden not to extend help to a person in distress. But Jewish law does not impose sanctions on someone who does not extend help. Meaning, this is a standard that remains on the plane of prohibition and permission. It is not a standard… I owe this only to the Holy One, blessed be He. Of course it is a commandment between people, but it is not Choshen Mishpat. Meaning, it is not a legal obligation such that the person has a right to sue me for it. It’s not that I am legally liable to him; rather there is a commandment upon me to do it, or a prohibition against not helping.

What do they do when they pass such a law? When they pass such a law, after all, this value already existed before as a value. No one denies that there is value in helping someone in trouble, right? But they wanted to put it into the law book so there would also be sanctions. That is the meaning of placing something in criminal law, right? The fact that a given rule appears in the law book on the side of criminal law means that a sanction is attached. That’s all. Values are not there—maybe in the preambles to laws, but not in the laws themselves. Values are something that is supposed to exist in society, and indeed does exist. I don’t think we have any special problem today in this specific area, of seeing people in distress and not helping them. It doesn’t seem so to me. I don’t think we are in any special crisis precisely on this point. Doesn’t seem to me at all.

But they put it into the law book, and then what happened? So yes, the declaration arrived—there is a verse, “do not stand idly by your neighbor’s blood,” in the law book. But apart from that, nothing is connected to Jewish law. So what happened here, in effect? Until now everything fit Jewish law, because there was such a value, only without sanctions attached. And what they did now, by putting it into the law book, was to add a sanction, which is against Jewish law. Now it says—it’s a prohibition that involves no action, there is no sanction for it. What sanction is there? There are no lashes for it; it’s a prohibition involving no action. Okay, because there’s a difference—there is nothing else, no sanction.

So what did they actually do here? In the end, when you try to draw something from Hebrew law, because you need to make all the adjustments and accommodations, in the end nothing remains of the source. People are not really keeping halakhot this way. And by the way, if one reads the discussions in the committee that preceded the law’s passage, one sees that a large part of the opposition to the law—part of the opposition was, I think, Yossi Beilin, who opposed it because he thought it was wrong to institutionalize it in law. It is an important value that all of us should uphold, but not every important value needs to enter the law book—and that is certainly true. So he said that this matter should not enter the law book. Notice: that fits Jewish law perfectly. Meaning, it is an important value, just not—and Hanan Porat and the Hebrew law people fought to put it into the law book so that it would no longer fit Jewish law.

I don’t think Jewish law objects if we decide to impose sanctions; it’s not that it is forbidden. But still, if you are trying to implement Jewish law, then look what absurdities come out. The second objection, the other camp that objected, basically said—and here I agree—it is indeed good that this be in the law book because it is an important value, but not at all because it exists in the Torah. Since it is a universal value, I… the Good Samaritan law exists elsewhere too; in continental legal systems there is a Good Samaritan law. In America there isn’t, but in continental systems there is. So we see that this is indeed a universal value and therefore it is adopted. Why? Not because it belongs to the Torah and Jewish law and the Shulchan Arukh, but because it fits my values as a secular person; therefore I accept it. I do not accept it because it is Judaism.

And more than that: because of the title “do not stand idly by your neighbor’s blood,” there were wars over it. They didn’t want to put it in the law book even though they agreed with the content of the law. Why? Because the title is a verse: “do not stand idly by your neighbor’s blood.” Meaning, every absurdity one could possibly describe around this matter of drawing Jewish law into state law accompanied this legislation. In the end, something emerged that had fit Jewish law exactly and ceased to fit Jewish law the moment it entered the law book. That’s what happened.

Now I am not saying this is negative, by the way. That’s not the point. I’m not judging this right now in terms of positive or negative. I’m only judging it in terms of: did we achieve more commandment observance here? Did we achieve more service of God? No. I don’t think we achieved more service of God here.

Maybe religious legislation achieves this in such a way that first of all it reduces pressure on religious people regarding service of God. Fine, then that’s concern for us, not for the public character. Certainly there is room for struggle so that a person won’t have problems. It also makes things easier for religious people—a kind of concern for ourselves. Fine, okay, that is certainly legitimate, and I have nothing against it.

The last point with which I wanted to conclude is: what really lies behind this debate? And with this I finish the framework—not the whole topic; afterward we’ll get into the details in the coming sessions.

What really lies behind this debate? It is what I said before, in practice: one has to distinguish between two parts of Jewish law. There is the part of principles of justice and fairness, and there is the part of pure halakhah, the more particularistic part. What this basically means is that the halakhic part is precisely that part that does not fit moral principles. Moral principles are some other part, a complementary part, which together with it creates the whole of Jewish law. It’s not that it isn’t part of Jewish law, but it is another part.

The claim of the Hebrew law people is basically that they refuse to recognize this distinction. And you can see it in many articles, by the way. Consistently, they do not distinguish between these two systems. Consistently. Also Westrich here had various disputes over these matters—consistently they do not distinguish between the two systems. It’s all the same thing; it’s all Hebrew law.

Now, this is a semantic question, but what stands behind it? What stands behind it is the idea that behind all halakhic principles there sit principles that are basically moral, social, legal. That is the view. And therefore Jewish law is the expression of Hebrew morality. It is not two systems; rather Jewish law itself is the expression of Hebrew morality.

Now where does such a view come from? Notice—this is upside down. Actually this conception comes from a position that sees religiosity—now I’m sliding a bit beyond the legal level, to what lies behind things—as meaning mainly one of two things, really two main parameters that characterize religiosity. One is moral behavior, and the second is religious experience or religious feeling, something like that.

Where does this notion come from? As you may recall, Kant had criticism of Judaism. I don’t think he knew very much, but he had criticism of Judaism. He perceived Judaism—he called it something like a statutory religion. Meaning, not really a religion. It’s some system of laws designed to manage social affairs. Notice, superficially that sounds very much like the view of the Hebrew law people, but it’s the opposite—completely the opposite. That’s why I said upside down. I’ll explain in a second why.

Why? Because he sees here an extremely formalistic system with masses of details, all kinds of principles and casuistry, and simple justice is not what determines what happens here. A sort of technical formalism, not obedience to the command of conscience. This criticism, in fact, has Christian roots. Ancient Christian criticism already began this way. The two foundations that Christianity—from early Christianity until today, I think—claimed were missing in Judaism as it saw it, and that it embraced warmly, were morality and religious feeling or experience, religious emotion. These two things are not central in the Jewish conception.

Now, some emphasize this more, some less; I’m not entering the details now. Broadly speaking, a Jew is not judged on the basis of whether he is moral, nor on the basis of whether he has a religious experience—I mean a religious Jew. Religiosity is not measured by that. Religiosity is measured, just as Kant indeed said, by whether he keeps the regulations. That is the criterion. One cannot deny this, first of all, as a matter of fact. Factually, that is the criterion. Maybe that’s not good, maybe it’s bad, one can argue later. But first of all, factually, that is certainly the case.

Now the Christian criticism against the Pharisees at that time—when the Pharisees were precisely shaping Jewish law into the form we know today, this formalistic pattern—was exactly this criticism: where is the morality and where is the religious feeling? So throw all the halakhah in the trash, which is exactly what the Christians said. Forget all these halakhic details already; move on to emotional, experiential worship and being a moral person. That’s all. Those are the two basic conditions that come to replace the definition of religiosity in the Jewish sense. And from then until today, because Christianity as we all know spread rather widely in the world, from then until today even within the Jewish world—because Christian influences entered very deeply by all sorts of interesting mechanisms, some perhaps through Hasidism as well—the conception is that religiosity means morality and religiosity, that’s what it means to be religious.

So how can one come and say something like what I said? What do you mean? Then the whole specifically Jewish religious complex, the particularistic one, is disconnected from morality. Morality is something universal; it has nothing to do with Judaism. It is something that obligates every human being as such. It is not a defining feature of Judaism at all. It goes against the whole conception of Judaism as something religious.

And indeed, some of Kant’s students, some of whom were Jews, and their students as well, often tend to defend themselves by saying: well, Kant didn’t really know that much, but of course Judaism is “its ways are ways of pleasantness,” and morality and experience and all kinds of things like that. But that’s nonsense. They knew Judaism even less than he did. He was right—not because he knew it so well, but factually he grasped it correctly. He was right, he was right.

Why did they fall into such apologetics? Because they too adopted those Christian patterns that say religiosity means morality and religiosity. So how can it be that there is a Jewish religion without those two terribly fundamental characteristics? Therefore obviously Kant must be wrong, and “you shall do what is right and good,” and “you shall be holy,” and “why do I need your many sacrifices?” and prophetic morality and whatever else you want. But all those speeches prove precisely that nobody really treats that as the criterion. If one sees someone who does not behave morally, nobody says he is not religious. But if someone eats non-kosher, then he is not religious. That’s all. And if he does not have religious experiences every morning and evening—show me someone who does. If someone doesn’t have religious experiences every morning and evening, so what? Nobody cares. It’s not a parameter at all.

Maybe it has value, maybe it’s good, a third story, I don’t know—we once spoke about levels. The Rabbi spoke about the difference between a sociological definition of religiosity and who knows what other definitions. My obligation toward the Holy One, blessed be He—I certainly am obligated in “you shall do what is right and good.” Certainly yes, I’m not saying not. And my religious feeling is measured by whether I have intention while reciting the Shema, not by whether I dance while reciting the Shema. No—you are certainly obligated to be moral. Let there be no misunderstanding. Certainly one must be moral. Not only that—Torah demands that one be moral. But that is not the basic criterion of your religiosity.

Everyone cries out. Why do they cry out? Because it is not being fulfilled. Why does everyone cry out and rebuke—“why do I need your many sacrifices?” Because people understand that “your many sacrifices” is the definition of Judaism, and they are right. They are right. That really is the definition of Judaism. Why? For a very simple reason.

There are many critiques of this today; it is very popular today to criticize Orthodox Judaism on this point. I think this is very accurate. Why is it accurate? Because when defining something, you always have to define it through what distinguishes it from everything else. That is what a definition is. When I want to define a human being, I say: a living being that speaks. Meaning, I take the broader reference group and give the special characteristic of the group I want to define.

Now if I want to define a Jew, what do I say? A person who is moral? Morality is an obligation to the Holy One, blessed be He. But morality obligates the whole world. Even morality as an obligation to the Holy One, blessed be He, obligates the whole world, every Noahide—according to Judaism. Right, right, so what? But that doesn’t define a Jew. If a gentile is moral, does that make him a Jew too? No. So what? That is a Jewish demand upon a human being—that you be moral. It is not the Jewish definition of a Jew.

When you want to define a Jew, you have to take what uniquely characterizes him, something different in him from all the others. Remember? We spoke about the particularistic part and the universal part, the generally human. The particularistic part is what defines. Commandments between man and God define a Jew, not commandments between people. I know this contradicts all the ethical talks, and that commandments between people are no less important. They really are no less important, but that’s not the point. Definition in the logical sense always refers to the unique characteristics.

But a definition of Judaism as a system of laws and regulations that among other things obligates moral behavior, even for gentiles—correct. Judaism obligates gentiles in certain behavior; that is Judaism. Very good. But that is not the basic definition. Look, there are many values in Judaism. When you want to choose the central parameters, the parameters without which you are not Jewish—there was once an article in HaKdamot, someone said: wait, why is Yigal Amir a murderer and nevertheless considered a religious Jew who failed? But the Rabbi himself defined the “religious person” sociologically. Right, the whole concept of a “religious Jew” is a sociological definition. The entire concept is a sociological definition. But Judaism is not necessarily only a sociological definition—leave that. As a halakhic condition, there is commandment observance. That’s what I know; I don’t know anything else. Even Maimonides’ thirteen principles are a sociological definition. What religious meaning does that have? Just that these are principles and not… They are the things that constitute Judaism. That is more of a sociological characteristic than a religious one. It’s all sociology. But in the end, behind that sociology there sits something essential.

So Kant, to the best of his justice, and the claim of the Hebrew law people, comes back through the back door together with Kant’s students, with a Christian conception of religiosity. Because it basically says: wait a second, it cannot be that this legal system is just some formal mechanism meant to achieve goals that I can’t even exactly define. Obviously it must express something moral, some justice, a divine idea, things of that sort. It sounds very beautiful and enlightened, but it is not true.

No, it’s both. It’s both, but not only that. They claim it is only that—that is the claim. It isn’t true. So in short, I think that is what lies behind this debate, and with that I’ve finished the framework. From here we will now enter the unique characteristics of Jewish law as against other systems in more specific contexts.

This week, Monday, the eve of the 21st of Kislev, the eleventh of December, a class by Rabbi Michael Abraham. There won’t be a class next week? There won’t.