Lecture from 27 Kislev 5767

Table of Contents

• The authority and scope of Jewish law versus a legal system
• The goals of Jewish law and the tension with justice and social order
• The disqualification of relatives as witnesses as an example of built-in harm to legal justice
• Criticism of the attempt to frame Jewish law as an ordinary legal system
• A metaphysical-religious foundation and a value foundation as what distinguishes Jewish law
• The High Court case of force-feeding geese and the limits of drawing from religious values
• Halakhic effect and a metaphysical conception of law: ownership, a slave, torts, and the resting of one’s animal

Summary

General Overview

The text presents an introduction to a discussion of law and Hebrew law, and asks whether, and to what extent, one can draw from Jewish law and incorporate it into a civil legal system. The question serves as a tool for sharpening some fundamental differences between Jewish law and other legal systems. It sketches several axes of distinction: authority and scope, the goals of Jewish law beyond social order, and a metaphysical-religious and value-based foundation that shapes the character of halakhic norms. It then moves into a central detail: the concept of a “halakhic effect” as a basis for presenting Jewish law as a system in which legal norms are understood as the result of a meta-legal reality, and not merely as normative arrangements.

The authority and scope of Jewish law versus a legal system

The text presents the question of authority as a first axis for distinguishing between Jewish law and a civil legal system, and offers Aharon Barak as an example of an approach according to which “the whole earth is law,” everything is justiciable, and everything is subject to the legal system. It cites Menachem Elon, who in debate with Barak asks whether even the right to breathe is supposed to be granted by the legal system, and presents the claim that Barak represents a conception of all-encompassing authority, to the point of a theoretical possibility of prohibiting breathing. The differences around this are also described as a semantic argument about what counts as being inside the sphere of law and what would count as “manifestly illegal.” It argues that in Jewish law, in the simple sense, the principled authority is complete, because religious obligation sees the human being as the handiwork of the Creator and therefore expects obedience to the command in every sphere, even if in practice it is not clear that a person can withstand every test.

The text distinguishes between principled accessibility and practical implementation, and argues that Jewish law can in principle say anything in any area, even in everyday matters, and can also choose not to speak in certain areas. It emphasizes that Jewish law too contains supplementary legislation through rabbinic enactments to fill “lacunae” and gaps, even if their status is lower, and explains that the absence of an authoritative institution today is a technical matter, not a principled one. It argues that in civil law, principled accessibility is problematic because the public is not prepared to grant the legislature legitimacy to intervene in certain areas, and therefore laws of a religious character tend not to be enforced, because the sphere is perceived as one that ought not be handed over to the legislature.

The goals of Jewish law and the tension with justice and social order

The text presents a second difference concerning the goals of Jewish law, and argues that it has additional goals beyond arranging social life and expressing moral values, attributing this distinction to the homilies of Ran. It argues that even the legal part of Jewish law, Choshen Mishpat, belongs to the religious system and therefore also operates toward goals beyond the framework of a decent and moral society. It explains that features such as the laws of evidence, the requirement of prior warning and acceptance of the warning, two valid witnesses who are not relatives, the disqualification of self-incrimination by virtue of ein adam mesim atzmo rasha, and the fact that a robber is not punished beyond returning the stolen item, all indicate that the goal is not only the achievement of social order.

The text argues that according to the homilies of Ran, because Jewish law is directed toward additional goals as well, this may at times come at the expense of justice and social order, to the point that Jewish law may be less just than other legal systems. It describes a legal system as one that seeks to create as stable and just a framework as possible within which each person may do as he wishes, whereas Jewish law wants that too, but not only that.

The disqualification of relatives as witnesses as an example of built-in harm to legal justice

The text presents as a central example the disqualification of relatives as witnesses, and emphasizes that the Talmud, Maimonides, and the Shulchan Arukh rule that the disqualification does not stem from concern for lying, because of the presumption of fitness and because of the presumption that “a person does not sin when nothing is in it for him.” It presents the difficulty that in monetary law, disqualifying testimony from relatives may leave money in the hands of someone who is not entitled to it even when “we know the truth,” and presents this as an intentional gap between the truth and the legal ability to extract money. It argues that in a legal system one might have a qualified attitude rather than a categorical disqualification, whereas in Jewish law there is an absolute disqualification.

The text presents another extreme case: two valid witnesses testify that Reuven murdered Shimon, and two related witnesses refute the first two, so that from the standpoint of truth the first testimony has been refuted, but from a halakhic standpoint, since the refuting witnesses are relatives there is no refutation, and the first testimony remains in force. It describes the formal conclusion as yielding a result in which Reuven may be put to death despite the factual knowledge that he did nothing, and emphasizes that this law is not a “pathological situation” but an inherent product of the rule of disqualification. It argues that the situation cries out that the goals of Jewish law are not limited to returning money to its owner or maintaining social order.

The text brings the example of Moses and Aaron, which is cited in the Talmud, to show that the disqualification does not depend on concern for lying, and argues that if the goal were only to arrive at legal truth, there would be no room to disqualify testimony considered trustworthy. It proposes a hypothesis based on a responsum of Ritva, according to which, similar to the rule of ein adam mesim atzmo rasha, the application of law to a person must also come from an external source, and a person cannot apply laws to himself; relatives are defined as a person’s “periphery,” and so their testimony is perceived as a kind of self-testimony. It also links this to the principle that “a witness cannot become a judge,” and to the requirement to separate roles in the religious court on the basis of “and the two men shall stand before God,” and presents all this as an illustration that technical legal explanations do not explain the full halakhic picture.

Criticism of the attempt to frame Jewish law as an ordinary legal system

The text describes conversations with religious jurists and scholars of Hebrew law, including a mention of Rak Ofer, and argues that they offer legal explanations for halakhic principles out of an assumption that Jewish law “is supposed” to be a legal system in the ordinary sense. It argues that this assumption leads to an attempt to force legal explanations onto every halakhic detail, but that this does not stand up, because many details do not fit such a framework. It emphasizes that justice does matter in Jewish law, but not only justice, and reinforces this through the claim that when there are additional goals, that may come at the expense of the classic legal goals.

A metaphysical-religious foundation and a value foundation as what distinguishes Jewish law

The text presents a third point: Jewish law rests on a metaphysical-religious foundation and therefore is not merely a system of norms, whereas a legal system is a system of norms in which the law obligates but does not “create reality” and does not “reflect reality,” but rather reflects values or arrangements. It argues that in Jewish law, the laws are at times “a reflection of some kind of reality,” and suggests that the fact that the Holy One, blessed be He, stands in the background allows Jewish law to leave some matters untreated in terms of sanctions or human solutions, on the assumption that there is “someone who will settle matters.” It points to the existence in Jewish law of “laws without a sanction,” to the fact that “many prohibitions are not punishable by lashes,” and that “for neglecting a positive commandment there is certainly no punishment,” and sets this against the claim that in a legal system “there is no law without a sanction.”

The text gives the example of “do not stand idly by your neighbor’s blood” as something drawn from Jewish law into Israeli law, and argues that the change that occurred was the addition of a sanction, because a legal system cannot bear a norm without an internal mechanism of punishment or enforcement. It presents a fourth point: the value foundation of Jewish law stems from a religious conception of the human being as “in the image of God,” and therefore generates different implications, such as the attitude toward the right to commit suicide. It cites Maimonides, who says, “for one who kills himself when he is not liable, he incurs liability for his own life,” and sets opposite him Tosafot, who say that it is permitted, though not required, and presents the gap as a result of religious versus secular starting assumptions.

The High Court case of force-feeding geese and the limits of drawing from religious values

The text mentions criticism by scholars of Hebrew law of the High Court case on force-feeding geese, claiming that the Court relied on sources from legal systems around the world and not on Jewish sources, while mentioning the expression “let not the priestess be treated like an innkeeper.” It argues that there is no claim against the High Court, because the system draws on other values and cannot implement religious values that are based on different starting points. It notes the prohibition of causing suffering to animals and the dispute whether it is Torah-level or rabbinic, and presents the idea that even when there is agreement about the prohibition, the hard decisions depend on starting assumptions and on balancing against other values; therefore, citing Jewish sources does not require implementation when there is no belief in the value foundation behind them.

Halakhic effect and a metaphysical conception of law: ownership, a slave, torts, and the resting of one’s animal

The text begins to deepen the point about the internal metaphysics of Jewish law through the concept of a “halakhic effect,” and presents the yeshiva-style intuition that the expression “the halakhic effect of ownership” or “the halakhic effect of a married woman” is not identical to the simple statement “ownership” or “a married woman.” It argues that a “halakhic effect” is a kind of spiritual-metaphysical entity, so that when an object bears “the halakhic effect of ownership,” there first comes into being a meta-legal reality of spiritual connection, and only as a result of that are legal rights and duties derived. It argues that in general law there are only rights and duties as a social convention, whereas in Jewish law the rights are the result of a deeper layer.

The text illustrates this through a Canaanite slave: his release requires a bill of manumission and turns him into a Jew, and a case in which the monetary rights are abandoned creates a state of “delayed bill of manumission,” in which the owner has no monetary rights but the personal status of the slave remains that of a slave. It describes the initial concept of an “ownership of prohibition” alongside “monetary ownership,” and argues that the basic relation between the owner and the slave is not only legal but metaphysical, and therefore a situation is possible in which there is ownership without rights of use. It cites the Talmud in tractate Gittin 42, which rules that one who injures a slave whose bill of manumission is delayed pays the owner, and presents this as proof that ownership is not defined through its legal symptoms.

The text compares this also to benefit-prohibitions such as idolatry and its appurtenances, and cites a dispute among the medieval authorities (Rishonim) whether an object from which benefit is forbidden is still called “mine” even though one gets no benefit from it, including the practical difference concerning an etrog from an Asherah tree and the requirement of “yours” on the first day, while using the rule that “commandments were not given for benefit.” It mentions the Talmudic statement that leavened food on Passover is one of “three things that are not in a person’s possession, yet Scripture treated them as if they were in his possession,” in order to show that there is ownership intended to impose obligations even when there is no substantial control. It emphasizes that the possibility of finding ownership without rights indicates that the concept of ownership precedes the rights and is not identified with them.

The text brings further examples in which ownership imposes duties that are not a matter of monetary rights, such as the prohibition regarding the resting of one’s animal on the Sabbath, where the obligation is on the owner to ensure that the animal does not perform labor. It discusses tort payments for an animal that causes damage, and presents many views according to which the liability is not the result of negligence in guarding it but stems from the very fact that the damage is “his property,” reinforcing this through comparison to “a person is always forewarned,” who is liable even in circumstances beyond his control. It explains the logic through the idea of a person’s “periphery,” in which the body is part of the person, and property is a further periphery, and therefore damage caused by one’s property generates liability similarly to damage caused by one’s body.

The text rejects a proposal that in Jewish law ownership is defined only through duties, and argues that rights and duties come together, so that the laborer can claim his wages and this is not merely the employer’s obligation toward him. It concludes by saying that next time he intends to continue showing how this distinction sharpens the difference between Jewish law and other legal systems, and the implications of viewing the “halakhic effect” as a metaphysical structure from which the legal layer is derived.

At the end of the introduction to the discussion of Hebrew law and משפט עברי as a framework for discussion and as an introduction, so first of all, I spoke more generally, and basically raised the question whether it is possible, and to what extent, and how much it helps, to draw from Jewish law and insert it, or plant it, inside a civil legal system—the state’s legal system, for example. And for me that was only a kind of test question, in order through it to sharpen several important points that relate to Jewish law in general and to its relation to legal systems, mainly the differences between it and legal systems. In the end that framework was an introduction, and now I want to go a bit more into the specific characteristics that distinguish Jewish law from other legal systems. First of all I’ll still speak in a general way about the different areas in which one can look for such differences, and afterward I’ll describe somewhat more concretely two elements, both of which are actually connected to the same aspect, and I’ll clarify that in a moment. Generally speaking, when we want to examine the status of Jewish law as a legal system, we can examine it from several different aspects. The first aspect is the authority and scope of application of Jewish law—that is, regarding what does it have something to say? Or more than what it has something to say about—regarding what is it permitted to say something, or does it have authority to say something, or basically, we are supposed to obey it. So unlike legal systems—there are some that are also imperialistic in the realm of civil legal systems; Aharon Barak is a good example of that—but indeed Menachem Elon asks, in one of the polemics he had with Barak, does even the right to breathe also have to be granted to us by the legal system? Yes, Barak represents the approach that all the earth is full of law, so basically everything is justiciable and everything is subject to the legal system, including of course basic rights, which are obviously permitted and all that—but they are permitted because the legal system permits them. That is, there is nothing outside the sphere of reference of the legal system and outside the sphere of its authority as well. Theoretically it also had the authority to forbid me to breathe. Sometimes it also forbids—that is, systems that are prepared to execute a person, say, as punishment—in substantive terms they are basically forbidding him to breathe, yes? That’s basically what they do. Well, there’s some polemic there which is of course mainly semantic, because no one would accept such a prohibition in a sweeping way—not an execution of a criminal of a certain kind, about which maybe one can argue—but you can call it something outside the domain of the legal system, or say that it is in the domain of the legal system but it permits it, and you can say that such a law would simply be manifestly illegal—a law that forbids a group of people to breathe, or a certain person to breathe. So I think that in very many respects this is a semantic matter. That is, the question whether this really lies within the domain of the legal system or not. As opposed to that, it seems to me that in Jewish law, at least in the simple conception, the fundamental authority is total authority. That is, wherever the Holy One, blessed be He, would decide to command us, and He would command, we would be supposed to obey. Not sure we would withstand every test—that is, if He commanded us not to breathe under some circumstances, I don’t know how many of us, or whether we could withstand the test—but that is a question on the practical plane. I’m speaking right now on the principled plane. On the principled plane, religious obligation usually sees the human being as the handiwork of the Creator, and therefore what He says I am supposed to fulfill; that is the basic assumption. Unlike a legislator, for example, whom I do not feel myself to be his handiwork, and I do not think he can tell me things beyond a very limited area that I am willing to let him tell me. If he wants to say it, let him say it; I’m not willing to accept that upon myself in any case. And it seems to me that most people today really are not willing to place in the hands of the legislator authority over things like whether to breathe. That is, I don’t know where a legislator could take such authority from, if not from the public. On the other hand, the Torah was given as law; today Jewish law exists. Presumably there are a number of places where it doesn’t tell us exactly what to do, and law can continue to innovate all the time, basically. In fact, regarding every area that is empty for us from the law, tomorrow morning it could become an area in which the law has already taken a place. Right, but here one has to distinguish between two aspects that are important for this question. The first aspect is that Jewish law too can deal with things through rabbinic enactments. That is, there is legislation also in the halakhic realm. True, its status is lower—these are rabbinic laws—but that is exactly their role. That is, where there is some hole that needs to be filled, for that the sages sit—those who have authority and are supposed to fill it. Maybe today we don’t exactly have an institution with such authority, but that is a technical matter. That is, in principle in Jewish law too there can be the filling of lacunae, or the filling of empty spaces, halakhic gaps. Beyond that, I am speaking about the principled accessibility of Jewish law to the different domains, not about the question whether in practice it exploits that accessibility. That is, my claim is that Jewish law in principle can tell us everything, in every domain—what to do in the bathroom, what to do at breakfast, what to do on the Sabbath, what to do on Friday. It also speaks regarding those things. Now there are things it can choose not to say. That is, the Holy One, blessed be He, decided that in certain areas He does not want to tell us anything there, or leaves it to our decision. Fine, of course He can also do that. One who can say can also refrain from saying. There is no principled obstacle. By contrast, in the field of law, my claim is that even the principled accessibility is problematic. That is, even if they fill all kinds of lacunae, there will be lacunae that I will not be willing for them to fill. I simply do not give them authority at all to fill them, even if they want to. Because the citizen—not only me, I mean every ordinary citizen, it seems to me—feels that he is not willing at all for the legal system to tell him things in certain domains or others. They will relate to it as a law that is not binding. It seems to me that even in practice one sees this. Although many times it may be infuriating, certainly to the religious public, still in practice one sees that when there are certain laws—someone manages to pass some law that is religious legislation or something like that—usually it is not enforced. It is not enforced, it seems to me, because there is a very deep conception that this domain is not supposed to be handed over to the legislator. Even if under one political constellation or another you managed to pass such a thing, religious matters are supposed to belong to the authority of each individual in his own place, and the legislator is not supposed to interfere in his plate. And because of that, I think that this also penetrates the conception of the institutions, not only the conception of the people. The conception of law today really is relatively restricted. So one can say that philosophically law could intervene; it just chooses not to intervene. That is, it is not principled inaccessibility, it is inaccessibility on the practical plane. I think that is semantics, because the public will not accept such intervention even if it is done. It will not accept it in a substantive sense, it will not accept the authority. Not that it won’t withstand the test and will fail and won’t succeed in keeping the law, but rather it will not be willing that the legislator do such a thing; it will not give him the legitimacy, the authority, to do such a thing. That is the first difference.

The second difference is a difference that concerns the goals of Jewish law. And about that I already spoke a bit, I think, in several contexts. We see from the differences we pointed to between Jewish law and legal systems that Jewish law has additional goals besides, for example, arranging social life, expressing moral values, and so on. We saw this in the homilies of Ran. We saw this—this is a point that overall we discussed fairly extensively. And the claim is that even the legal part of Jewish law, Choshen Mishpat, also belongs to the religious system. That is, it has certain goals that go beyond the order of a healthy and normal and decent and moral society. Because if that really were its goal, there are many things that are not so understandable in this part called Choshen Mishpat. Yes, the laws of evidence—I already mentioned several things: the fact that a robber is not punished except that he must return the robbery; the fact that they require prior warning and acceptance of the warning and two valid witnesses and that they not be relatives; and that they disqualify a person’s own confession, self-incrimination—what is called “a person does not make himself wicked.” All kinds of things of this type indicate that the goal really is not only, or not merely, the attainment of social order, but that there are religious goals beyond that. That is the second difference. The first difference was the question of the scope of application of Jewish law—where it can speak at all. The second difference is what it wants to achieve, what its goals are. A legal system wants to achieve some proper social framework within which each person can do what he sees fit. So it basically claims to achieve justice as much as possible, and order—that there should be stability. Jewish law may also be interested in that, but not only in that. And we saw in Ran’s homilies that sometimes, because Jewish law is interested in additional things, this comes at the expense of justice and social order, and sometimes there will be a situation in which Jewish law is less just than other legal systems, from our standpoint. So that is regarding the goals of Jewish law. I’ll perhaps bring another example that I mentioned—the disqualification of relatives as witnesses. Relatives, after all, are disqualified as witnesses. The Talmud itself already says, and so too it is ruled by Maimonides and in the Shulchan Arukh, that the disqualification of relatives as witnesses does not stem from our suspecting them of lying. There is no concern that they will lie, for two reasons. First, every person has a presumption of fitness, and until I have some indication that he is lying, the assumption is that he is not lying. And second, a person does not sin where he gains nothing from it. Meaning: even if a person chooses to sin, there is such a presumption that a person does not sin unless he himself profits from the sin. There is such a presumption; I do not suspect a person of sinning so that someone else will benefit. Call it maybe a somewhat pessimistic point of view. At least, if he sins, then why should he sin also for others and not only for himself? But that’s how it is—that’s human nature. Jewish law tries to be very pragmatic in this matter and not get carried away by what ought to be, but perhaps stick more to what is. In practice a person does not just sin for no reason so that someone else will benefit. If I’m already sinning, it is apparently because I want to gain something. So for those two reasons, the Talmud says—and Maimonides and the Shulchan Arukh, this is ruled explicitly as Jewish law in a clear way—that relatives are disqualified as witnesses not because we fear they are lying. There is no fear that they are lying. And nevertheless we do not accept their testimony.

Now I should just note maybe one more thing within this introduction. Usually it is easy for us to accept such a thing; it doesn’t particularly bother us. Why not? Because if relatives testify that someone, I don’t know, desecrated the Sabbath, then we won’t punish him. Jewish law tells us: do not accept the testimony of relatives. So the relatives are disqualified, therefore we have no testimony that he desecrated the Sabbath, so we won’t punish him. But there are situations in which it is not so simple to accept such a thing. In monetary law, which I think I mentioned last time, in monetary law if I don’t accept the testimony of relatives, then the money will remain with someone to whom it does not belong. Right? Two related witnesses come and testify that Reuven owes Shimon money. Reuven and Shimon are litigating before the religious court. Reuven is suing Shimon for money. Two related witnesses come—they are brothers. Relatives to each other, and also relatives to the litigants, are disqualified. Fine? Let us say two brothers come and say: Shimon owes Reuven money. Now we will not accept their testimony because they are relatives. So what comes out of this? The truth is that they are not lying, right? That is the assumption. So what they say is true. So what emerges? That in truth Shimon owes Reuven the money. There was a loan and he did not repay it; he owes him the money. But we will not take the money from him. Why? Because they are relatives. So it turns out that we know that the truth is that he borrowed, and we will not act according to justice. That is, we will not give a person money that is due to him; we will leave money in the hands of someone to whom the money does not really belong, although we know the truth. Sometimes this may be a mistake; mistakes can happen. But here we know the truth. Two witnesses come whom we know speak the truth—related witnesses. We have no reason to assume they do not speak the truth, and nevertheless we do not accept it. A legal system might hesitate somewhat regarding testimony of relatives; it might suspect, maybe yes maybe no. But a categorical disqualification like this would probably be left to the judge’s impression. I am not sufficiently expert in the legal system, but it seems to me that the judge can decide how convincing it is to him, yes or no. Here there is a categorical disqualification.

I’ll give you a more extreme example, even in criminal law—not civil law, halakhic criminal law I mean. That is, two witnesses come and testify that Reuven murdered Shimon. Now, if they are relatives, then we do not punish Reuven; we do not impose the death penalty on him, because we have no valid testimony that he murdered. That is still easy for us to accept. We are not punishing someone who maybe deserves it; we are not killing someone, so on the contrary, in our hearts we are even a bit glad that we did not have to do that. To make sure he does not kill again afterward, one can worry about that—there are other solutions—but in terms of killing him, we do not have to. But think of a different situation. Two valid witnesses come and testify that Reuven killed Shimon. Now two witnesses come who are relatives and they render the first witnesses false. Now notice what the situation is at the moment. The situation now is that, in terms of what we know, in terms of the truth—not legally, in terms of the truth—there are two witnesses who rendered the first witnesses false. The second pair is believed; that is the rule in Jewish law. The second witnesses are believed, and the first witnesses are disqualified; they are established as liars. So what emerges? That Reuven actually did not kill Shimon. The testimony against him was false testimony; it was refuted, right? But because the refuting witnesses are relatives, the testimony of the first witnesses is still in force, and they were not legally rendered false. So what comes out? That we will kill Reuven even though we know he did nothing? Do you understand what comes out here? Obviously no one among us would do such a thing. But this is, as it were, the formal Jewish law. That is basically what emerges. Now you understand—this is not something that always goes leniently. This is not something like, fine, so we don’t accept related witnesses, what happened? So we won’t punish the Sabbath desecrator, or we’ll punish him somehow just with a little finger-wagging, but we won’t carry out everything Jewish law obligates us to do to him. Usually we are not alarmed by that; on the contrary. But there are situations in which terrible injustices will be caused here. That is, the question is how this can be. Is there really no concern that relatives are lying? That is the halakhic conception: there is no concern that they are lying. So what—now I’m going to kill a person when I know he does not deserve to die? I’ll take money—less dramatic perhaps—I’ll take money that doesn’t belong to someone, and I know the other one is a liar. I’ll leave him the money, and I’ll take from the other and give to him, although I know that the truth is that the one receiving the money is a liar. How can this be? There is plainly something here that is a violation of justice. Plainly. This is not some corner-cutting. There is something very problematic here.

And here it is not a specific situation. Every disqualification of relatives is like this. Sometimes it can happen that we get stuck—there are clashing values—so one value always pays so that the other value can still be realized. Saving a life overrides the Sabbath, so the value of the Sabbath is pushed aside before the value of saving a life. Fine, there is no choice; reality traps us in such situations. But here it is not a matter of some situation created in a particular case. The basic law is like this. There is a disqualification of relatives as witnesses even though I know that what they say is true. That is built in to every case in which relatives come. It is not something incidental. It is not some pathological situation created by some problem. No—here there is some Jewish law that built-in creates a problem in the halakhic system. And that is not something that only in some particular situation creates a problem accidentally; in every situation in which I apply this law, a problem will be created. Not in some special circumstance that happened by chance and was a highly unusual conjunction of circumstances. This is very problematic. It tells us, it seems to me almost screamingly, that there is something here beyond the goals of restoring money to its owner or creating social order. If those were the goals, who in the world would think not to accept testimony that is trustworthy testimony? After all, all I want is to know whether he borrowed or did not borrow, that’s all. That is what the judge wants to know. So here, he knows. Two witnesses came whom he knows are speaking the truth. Moses and Aaron stood before him with all the robes and all that, all the Hollywood. Moses and Aaron stood before him and told him: Reuven borrowed from Shimon. Do you have any doubt? Obviously Reuven borrowed from Shimon if Moses and Aaron say so. The Talmud itself brings this example, by the way, of Moses and Aaron as an example of how far we go with the disqualification of relatives and that it has nothing to do with concern that they are lying. Here—Moses and Aaron—there is no concern at all that they are lying, and still we will not accept their testimony.

So what, then, is the explanation? I don’t know; one can raise various hypotheses. I have some hypothesis, and I think one can even find support in a responsum of Ritva. It seems to me that—since I already said it, I’ll just finish on this point—I think I have some hypothesis of what this nevertheless is meant to achieve. Why really not go on the basis of testimony when I know it is true testimony? Why not follow it? In Ritva’s responsum it appears somewhat that the basis of the matter is that just as a person does not make himself wicked, a person cannot testify about himself, whether to his detriment or to his benefit. That is, again, not because—when he testifies about himself for his own benefit, naturally we won’t accept it, because if a person testifies about himself that he is righteous, and there is even one witness against him, not two, I assume we would believe the one witness more than him. But if a person testifies against himself, at first glance we would accept it, right? In legal systems it is customary that confession is the queen of evidence. That is, if someone confesses, that is the best evidence there is—confesses against himself, of course. That is the best evidence there is, unless there are concerns that the police exerted pressure and so on. So sometimes they cancel it for technical reasons. But suppose a person comes voluntarily to court and announces: gentlemen, I am the murderer. I killed him on such-and-such a date in such-and-such a place. The police had never even heard of him until he arrived. Would anyone doubt it? That is the queen of evidence. In Torah law no one will write it in the protocol from a halakhic standpoint. He is not believed. A person does not make himself wicked. What does that mean? It means that the halakhic conception says that a legal status that is applied to a person has to be applied to him by some external factor. And again, I’m entering metaphysics here; don’t look for a legal explanation, I don’t have one. I do not think there is any legal explanation at all for such a thing. But that is exactly the point I am trying to show here—that legal explanations are only part of the picture. There is something in Jewish law that sees the application of law to a person as something that is supposed to come upon him from outside. A person cannot apply legal statuses to himself. Now relatives are some kind of periphery of the person himself, and therefore when they testify about him, there is basically here the ability to apply something to himself—apply to himself some law, say that he is a murderer, that he is disqualified as a witness, that he has some status. A person applies to himself Nazirite status. No, obviously—I mean applying legal status in the juridical sense, not every kind of effectuation. Of course yes, I think only the person himself applies such effects to himself. The effectuation of a judicial determination—a judicial determination always needs some external factor to come and apply it to him. We see this, by the way, in several contexts. A witness cannot become a judge. Why can a witness not become a judge? Because witness and judge are two functions in the religious court; you do not mix them. There are medieval authorities (Rishonim) who explain it for technical reasons—because he will not accept being rendered false against himself—and then those are indeed legal explanations. But there are medieval authorities (Rishonim) who say unequivocally, “And the two men shall stand before the Lord”—that is the rule. What does that mean? Two witnesses have to stand opposite the judges. This is one function, that is another function; it is forbidden to mix them. Why not? What is the problem? Why not? Because there are rules: the different functions in the religious court are forbidden to intermingle. Also the litigant and the witnesses may not intermingle. Exactly as witnesses and judges cannot switch roles, so too the litigant and the witnesses cannot switch roles. Everyone has to play his own game in the religious court and not change hats or change roles. And therefore apparently relatives, who are some kind of periphery of me—just as I cannot testify about myself, so too when they testify about me it is as though I am applying testimony to myself, because they are flesh of my flesh. That is, they too are some kind of part of me. Well, this sounds like metaphysical speculation, and maybe that is indeed so. I’m saying—in Ritva it is apparently written. But it does not solve the problem of two brothers who testify about someone that he is—right, it solves only part of the problems. True indeed, with two brothers we would say the same thing: after all, two witnesses are required, and here substantively this is one witness really, because the second is the periphery of the first. And that already enters into disputes among medieval authorities (Rishonim), whether when two brothers come we have one valid witness, or none is valid. In any case, I am only showing this as an example, precisely because I don’t know if I’m convincing you with this explanation, but to show you that legal explanations really do not succeed in explaining to us the halakhic whole—not even the legal parts of Jewish law. And one of the things that drew my attention to all these matters was all kinds of conversations I had with religious jurists, people involved in Hebrew law of various kinds, Rak Over and all kinds of people like that, from whom I was constantly hearing some legal explanations for all these principles, and it bothered me—not bothered me in the sense that if there were such explanations, fine—but it just doesn’t work. That is, it doesn’t explain correctly; many details don’t fit. It can’t be. Only what? There are certain assumptions, some basic assumptions, unfounded in my opinion, that Jewish law is indeed supposed to be a legal system. And once you come with such glasses on, for that jurist naturally yes, only a legal system—therefore everything in Jewish law, you will try to seek legal explanations for it. You do not think you are supposed to find additional principles there. And I think that does not stand the test. Clearly there is an interest in justice, there is an interest—but not only that. There are additional things here. As you said, Ran said that because there are additional goals, this may sometimes harm the goals of justice and the classic legal goals.

A third point that distinguishes Jewish law from legal systems: the first, we said, was the scope of application; the second was the goals of Jewish law. The third point is the metaphysical and religious foundation of Jewish law. And here this can find expression on several levels, and that is what I want to dwell on a little. By the metaphysical and religious foundation of Jewish law I mean that Jewish law is not merely a system of norms. That is, unlike a legal system: a legal system is a system of norms. They establish a law, and now that law binds. That law does not reflect some reality, nor does it create reality, nor does it reflect reality. It reflects values in a given society—values or arrangements, it doesn’t matter; not everything here is exactly values—but values or arrangements or things of that sort. Jewish law sometimes reflects reality; it is an image of some reality. This I want to prove later, so I won’t dwell on it now; for the moment I’ll just say it. That is one point—the point of structure: what the laws themselves mean. In Jewish law, the laws themselves are an image of some reality, unlike a legal system where the law is some detached norm. And this has consequences, as we will see.

The perhaps much more conspicuous difference is that Jewish law is something with the Holy One, blessed be He, standing behind it. And therefore perhaps Jewish law, for example, can allow itself to leave some things specifically untreated, even though in principle its accessibility is complete—that is what we said at the beginning. But for example, I’m saying, look: if there are two relatives who are disqualified, then what will happen with justice? What will happen now? Fine, there is Someone who will close the account. That is, we are not alone in the world. So since the Holy One, blessed be He, is in the background, perhaps I can be a bit more relaxed. Whatever I can do myself, I will do, but if the Torah tells me, listen, relatives are disqualified, a robber you punish only with return of the robbery—so what will happen with this robber? Leave the Holy One, blessed be He, something to do as well. That is, at least there is the possibility—although again Jewish law does not tend to do this, and usually the sages will deal with the matter, because Jewish law does relate as though the task is in fact placed upon us. But still, in the background of things there definitely can be such laws—laws without sanctions. There is no such thing in legal systems, laws without sanctions. That is, if there is a law then there is a sanction. We spoke about this in the context of “do not stand idly by your neighbor’s blood,” where precisely the fact that they inserted a sanction does not suit Jewish law. In Jewish law there are many laws without sanctions. Many prohibitions are not punishable by lashes. Neglect of a positive commandment certainly has no punishment. So in what sense—a legal system does not recognize a law without a sanction beside it. At most, in administrative law for example, and in our legal system—administrative law, which is a terrible distortion, but that is what exists there—it is true that there is no external sanction, but the act that you did is nullified. That is, if it does not conform to administrative law, if you acted unlawfully, then what you did is void. What is absent there is penal sanction—that is, you will not sit in prison for it or pay a fine for it—and that is a bad illness. But that is for another discussion. In any case, in Jewish law of course there are many such things. And why? Because after all the Holy One, blessed be He, is also in the background. So a person knows that if he desecrates the Sabbath without witnesses and prior warning, then he is not liable to death, nor to a sin-offering if done unintentionally or something like that, but he will give judgment—if not here then there. That is, there is something, some backing, for all kinds of situations in which perhaps Jewish law as such has no answer. A legal system cannot allow itself such a thing; it must close all the gaps as much as it can. If there are misses, then it must correct them. A legal system cannot say, “Fine, the Holy One, blessed be He, will take care of this,” if it matters to it. It can say, “Look, there are things that do not matter to me, so do what you want,” but things that do matter to it, it cannot leave in the hands of the Holy One, blessed be He. And I gave, for example, the case of “do not stand idly by your neighbor’s blood,” which was supposedly borrowing from Jewish law into Israeli law, and this is a huge success—but what did that borrowing actually do? It took something that has no sanction attached to it—someone did not help his fellow despite the fact that he was in distress or danger—there is no sanction in Jewish law. He does not deserve punishment for it, although he transgressed a prohibition. No sanction. But now that this entered into law, there is also a sanction; there is no law without a sanction. So it entered, and there is a sanction attached to it. Why does it come out that way? Why does this distortion really have to happen? This is an example of a distortion that must happen when you take from the halakhic system into the legal system. Because in the halakhic system there is Someone who will deal with that person who did not act properly even if there is no punishment in a religious court. The law does not accept such things; the law must deal with what it thinks should be dealt with. It cannot leave things to some entity—I don’t know whether it cannot, but in any case it certainly does not want to leave things to some such entity that will close the gaps for it. So this is another difference.

Maybe one final difference is the value foundation of Jewish law, and again that is of course connected to its religious character: when one looks at the attitude toward the human being, for example, then clearly there is a very big difference between coming with religious glasses, where you see the human being as in the image of God, and secular glasses—not religious, secular moral glasses, I’m not talking about wicked people—but it is a different conception, and that different conception will have consequences. For example, the right of a person to commit suicide—a very common example, and in the literature it is brought in this context. Through secular glasses many people will say: fine, he wants to take his life, that is his decision, his own matter. In a religious system there is no such thing. You are in the image of God; you do not own your own soul. You may not commit suicide; that too is forbidden. Maimonides says, “For one who kills himself in a case where he was not liable, he incurs liability for his own life”—a strange expression of Maimonides. Yes, one who gave up his life not for one of the three severe transgressions. So Maimonides holds that it is forbidden; Tosafot say that it is permitted, only not obligatory. Maimonides says forbidden. Not only forbidden, but one who did so has thereby incurred liability for his own life. How can he incur liability for his own life after he is dead? But that is what he says, and I assume he means something—who knows—up above perhaps. The attitude toward animals, the attitude toward human beings, it doesn’t matter—a huge number of things are nourished by religious perception. One of the critiques of people in Hebrew law also, which at the beginning was part of the things that accelerated my entry into this issue, was about the High Court case of force-feeding geese. There was a High Court case about prohibiting the force-feeding of geese—they did awful things there. In the end the High Court did deal with the issue, and it brought sources from all the legal systems in the world, but not a single verse and not a single Jewish source, and so on. Then of course the people of Hebrew law wrote an indignant article: how can this be, what do you mean, should not a priestess be no better than an innkeeper, and so on and so on. And again, I think—what were they supposed to do? Use some verse in a way that tears it out of context just for illustration? Fine, maybe that has some cultural value, but I don’t think it is worth fighting a war over. This is a system nourished by different values. It cannot take religious values that relate to animals in one way or another, for better or for worse, and apply them into a world that starts from a completely different point of departure. How can one take concepts like the image of God regarding a human being—or regarding an animal, I assume they did not use such a concept, but still there is a prohibition of causing suffering to animals. And suppose, for example, regarding the use of—I don’t remember where I read in Jewish law something about some reservation connected to the fact that Torah scrolls and phylacteries and mezuzot are made from animals, so that this is only on condition that in any case you needed to slaughter the animal—some such thing. I don’t remember; I can’t recall where I encountered it. Yes, yes, in Jewish law, completely in Jewish law. That is, it is not automatic that one must avoid causing suffering to animals unless—right, absolutely. There are views that causing suffering to animals is Torah-level / of biblical origin. A dispute among the halakhic decisors. There are views that it is Torah-level / of biblical origin, and there are views that it is rabbinic, but it is certainly a prohibition against causing suffering to animals. But still, the basis of the prohibition—to draw principles: when you are deliberating about something, then of course everyone finds it important that animals not be made to suffer; that is true of secular people and religious people in principle. Again, the question is to what degree and how much, and when there are values that stand against it. Then you begin to deliberate, and in the deliberations the starting points already arise—how you analyze it, why it is so, how it stands against other values. How can one take something that comes from completely different starting points? Regarding the same prohibition, both sides agree that there is a prohibition. Every member of Knesset who votes in favor of some law has some different formulation—one thinks animal suffering, one thinks, I don’t know, health. If someone raises it, then fine—if there is a religious Knesset member and he thinks that the issue of suffering to animals should be nourished by the halakhic conception, that is perfectly fine. But when you have a claim against the High Court—why are you not citing Jewish sources?—then I have no claim. They are not nourished from there; they do not believe in them; their starting points are completely different. And therefore what would help if they cite a verse—so what? They won’t implement it; they don’t believe in it. And also slaughtering—well, that’s not suffering—that’s fine, about slaughter there were already long arguments. But clearly there is some goal there nevertheless to minimize suffering in any case. That is clear. Yes, but what they claim is: if we take something from Torah law about animal suffering, they’ll say, wait, what animal suffering? This isn’t animal suffering? Maybe you should anesthetize the animal first. No, that is something else. They can afterward come and say: look, we are also forbidding you to slaughter animals. But still, you can come and ask them: wait, why did you not use Jewish sources that deal very extensively with the prohibition of causing suffering to animals in the High Court case on force-feeding geese? You say I am inconsistent, meaning that one should also not slaughter animals? Fine, then afterward forbid me to slaughter animals as well. That is another argument. But first of all, why did you not use Jewish sources, of which there are many, regarding the prohibition of causing suffering to animals? So I think the claim is that the value foundation that stands at the basis of the issue is an entirely different foundation, and therefore I do not see how one can take from there into the legal system. So that is the fourth difference, regarding the value foundation of Jewish law and basically its religious essence.

Now I want to begin really to enter a bit more into the details, and this is connected to the metaphysical element that exists in Jewish law—the metaphysical background that exists in Jewish law, and not in relation to the Holy One, blessed be He, but rather the character of Jewish law itself. And here this is, I think, a very interesting point. Those of us who are accustomed to studying Talmud or Jewish law know that many things in Jewish law use the term called chalut, a legal effectuation or halakhic status: the legal status of a married woman, the legal status of ownership. By the way, even in the legal system they use this too, but I think in a different way. The simple intuition in the yeshivot is that this concept has some added value beyond using the same thing without attaching the concept of chalut. For example, when I say that there is a legal status of my ownership over a certain thing, that is not the same thing as saying that I own a certain thing. It is not the same thing. There is something different in the first statement as opposed to the second. Or when there is the legal status of a married woman attached to a certain woman, that is not the same thing as saying that she is a married woman, although that seems like synonymous wording. But the concept of chalut, or chaloys as they call it in the yeshivot, has something beyond the ordinary description that is usually accepted. Now if you ask yeshiva students what exactly the difference is—I tried this—they do not know how to define it. And most of them, after you ask them, will actually say: who said there is a difference? But in intuitive thinking, before they are attacked with questions and difficulties, it is clear to everyone that it is not the same thing. There are places where one uses chalut of ownership and places where one uses ownership, and it is not the same thing. And the question is what exactly the difference is between these two things. My claim, which I ultimately want to support here, is that chalut is a certain kind of spiritual entity. When I say that a certain object is owned by me, I am saying that I have rights in the object and that others are forbidden to use it without my permission, and so on. When I say that the object bears the legal status of my ownership, I am basically saying that the object carries on its back some kind of spiritual, metaphysical entity called my legal status of ownership. The result of the existence of that entity is the rights and the legal aspects, but that is only a result, and they are the result of something that exists on a meta-legal plane even prior to the legal aspects. That is, when I say in Jewish law that someone owns a certain object, I am actually saying two things. First, there is some metaphysical relation between him and the object—some spiritual, emotional, metaphysical connection, call it what you like, between him and the object. As a result of that connection, legal rights are created. I am allowed to use this object, and others are forbidden to use it without my permission, or obligations too, yes—rights and obligations. But the rights and obligations in general law, that is the only thing there is; there is nothing else. I have rights and you are forbidden to use it because it is mine. In Jewish law—and that is why I am clarifying the concept of chalut—in Jewish law there is some metaphysical foundation that stands at the base of the legal layer. The legal layer is the result of some reality that stands behind it or at its foundation. That is the basic claim, and I want to show, first, to define it more precisely, and second, to show the consequences of this. Because this is a very good demonstration, it seems to me, of the difference between Jewish law and other legal systems, and of the consequences of that difference, without even bringing the Holy One, blessed be He, into the picture—simply to see how these two systems function one against the other. So let us begin maybe with this concept of chalut of ownership. What does it mean that there is a legal status of ownership? The claim is that when I own something, this grants me all kinds of rights. The rights are only the result of some metaphysical fact, of some metaphysical entity that crouches upon this object—the legal status of my ownership—which it, as it were, carries on its back. And because of that I have rights and all the legal consequences.

I’ll bring one or two examples. The Talmud in tractate Gittin says on page 42 that one who injures a—let us first perhaps preface. There is something called a Canaanite slave and a Hebrew slave. A Hebrew slave is a slave who is Jewish; he is sold because of his theft or sells himself; six years, and in the seventh he goes free. A Canaanite slave is a permanent slave who is a non-Jew—not necessarily Canaanite; any non-Jew whom I bought to be a slave in one way or another, and now he is my slave. Now when I want to free a Canaanite slave, I need to give him a deed of manumission. Just as one gives a woman a bill of divorce, there is also such a deed for a slave. And after I free him he becomes Jewish. That is the rule. With a Canaanite slave this is half a conversion; after I free him he becomes a full convert. But in principle, if you free him, he is freed. That is, in most circumstances it is forbidden unless there are certain circumstances in which one needs to. What happens if that slave, the Canaanite slave, belongs to me—he is my property? Certain medieval authorities (Rishonim) write: like his ox and his donkey—that is, he is my property just like my dog. Not that I may treat him like my dog, but he is my property entirely, meaning simply my possession. I can do with him what I want, unlike a Hebrew slave where there are more limitations, although there too his body is acquired, according to the conclusion of the Talmud. What happens if I completely renounced the monetary rights that I have in the slave? No, I renounced them. I can renounce any property I have; I renounced the slave. On the face of it, this thing is called a slave whose deed of manumission is delayed. That is the name, the legal term, for such a state: delayed deed of manumission. What does that mean? It means this person in practice no longer belongs to me in any sense. I have no rights in him; he does not belong to me in monetary terms. But his status, his personal status, is still the status of a slave. Consequence: he is forbidden to marry a Jewish woman until he is freed; he is not yet fully Jewish. Chained like an agunah, yes, something like that. Indeed, regarding such a case there are arguments in the Talmud whether there is a commandment to free him and not leave him chained. In any case, the status is basically this: the monetary ownership has lapsed, but the ownership and the personal status remain—he is still a slave in terms of personal status. Until I give him the deed, and then he becomes Jewish also in his personal status. Fine? So notice carefully that the deed actually does not operate here on the monetary plane. Right? I already renounced the monetary plane, now I have no monetary rights; he is no longer mine. He is only called a slave—that is his status in personal standing. When he receives the deed, he becomes Jewish; he stops being a slave in status and becomes a fully valid Jew. We know other such cases in which there is some expiration, or partial expiration, of rights. For example, prohibited benefit. There are things from which the Torah forbids me to derive benefit—idolatry and its appurtenances, and things like that. So I am forbidden to benefit from them. What does that mean? Suppose there was an idol that I worshipped and acquired fully legally; it is mine by every legal standard, but the Torah forbids me to derive benefit from it. So in practice I have no right that I can—no right? I cannot use this object and derive some benefit from it; forbidden, simply forbidden—the Torah forbids it to me. But on the legal plane it is mine. What is the status of such an object? There is a dispute among the medieval authorities (Rishonim) whether such an object is considered mine but I am forbidden to use it, or whether, since I have no rights at all regarding it, it is not mine either. What does it mean for it to be mine? To be mine means that I can derive some benefit from it. If I am forbidden to derive anything from it, then in what sense is it mine? But there are medieval authorities (Rishonim) who say yes, it is mine, although I cannot derive any benefit from it. How? How can such a thing be? Because the obligation is imposed upon you to get rid of it, cast it away, I don’t know, into the Dead Sea. No, the question, again—that is an obligation, but the fact that I own it gives me nothing; maybe it imposes obligations on me, but it gives me nothing. So you know what? I’ll renounce it. I don’t want it. That is, an object that imposes only obligations on me and no rights, I usually do not relate to as my property. There are, say, children sometimes—just joking—who bring you problems. If I own meat with milk, or I own leavened food that remained over Passover, while I am the owner I still have the obligation to get rid of them in the way Jewish law prescribed. Clearly, certainly—but the question is really: if I own some carcass, I don’t know what, then I also have to get rid of it according to Jewish law. With leavened food, indeed, the Talmud says: three things are not in a person’s domain and Scripture treated them as though they were in his domain, and one of them is leaven on Passover. Leaven on Passover really is not mine in any sense, but in order to impose upon me the obligation to get rid of it, they treated it as though it belongs to me anyway, although it does not really belong to me. So it is my task to destroy it and scatter it to the wind or whatever. That is placed upon me. Indeed there are obligations regarding it. “Everything for whose safekeeping I am liable, I thereby render myself liable for its damages.” If my ox gored, it will not help at all if I renounced it. Okay, right. So what? The fact that the object gives me no permitted benefit whatsoever, still I still have obligations regarding it. You have obligations regarding it. And we know this too. My abandoned car—it is I who will need to make sure it gets scrapped. I have obligations regarding it. There are obligations also regarding objects even if they are not mine. There are such things too. That is, the fact that regarding a certain object I have an obligation cannot serve as the exclusive indication that I own it. There needs to be something more in it for me to count as its owner. I have the obligation of a father regarding his son—so what, do I own my son? I do not own him. He does not belong to me; he is not my property. A corpse found with no one to bury it, say? It doesn’t matter. There are things regarding which I have obligations and they do not belong to me. So here you can say that since it was mine, since in some sense I am responsible for what happened, therefore they imposed an obligation on me. But why does that mean that I own it now? In what sense does that ownership find expression? So indeed there are medieval authorities (Rishonim) who say no, it is not mine. It is not mine. A practical difference, for example, an etrog from which benefit is forbidden—the question is whether one may fulfill the obligation with it on Sukkot. An etrog from an idolatrous grove. It must be “for you,” right? Yours, from your own. The four species have to belong to me. If that etrog is not mine, I cannot fulfill the obligation with it on the first day of the festival. You’ll say: fulfilling the obligation itself is benefit. If it is forbidden in benefit, then what difference does it make whether it is mine or not? No—commandments were not given for benefit. That is, one can perform commandments even with something from which I am forbidden to derive benefit. Unless there is some indirect benefit, like immersing in a spring or something like that. But waving a lulav has no benefit beyond the fact that I am doing the commandment. So that is one of the consequences they discuss, for example.

In any case, for our purposes, we see that there are situations in which ownership appears without its legal symptoms. That is, I am called an owner, but all the rights that usually accompany the concept of ownership do not accompany it; they do not appear. So the example I started to mention earlier regarding the Talmud in tractate Gittin—the Talmud there says: what happens with a slave whose deed of manumission is delayed? That is, he was effectively renounced in monetary terms, but his status, his personal standing, is still the standing of a slave. Now someone injured him. If it is a slave who belongs to me, if someone injures him, he pays me, not the slave. Because who suffered the loss? I suffered the loss, right? I have a slave who is now worth less. He belongs to me like an ox or donkey. So if someone injured him, he has to pay me. What happens with a slave whose deed of manumission is delayed? The Talmud says he also has to pay me. The Talmud in Gittin says so. Why does he have to pay me? The slave does not belong to me. I am not the one who suffered the loss. I am forbidden to work him; I have no rights in this slave. If now someone cut off his hand, then who lost? He himself lost. Now he is in his own domain. You deprived him of the earning capacity that that hand gives him. Why should he pay the owner? More than that: such a state of delayed deed of manumission is called by the medieval authorities (Rishonim)—the Talmud does not use this expression—but it is called by the medieval authorities (Rishonim) a kinyan issur, an acquisition of prohibition. There is a property acquisition and an acquisition of prohibition. That is, when I renounced my monetary rights in the slave, he no longer belonged to me in any sense, but I still have in him an acquisition of prohibition. What does it mean that I have in him an acquisition of prohibition? His personal status is that of a slave. In what sense—why is that called an acquisition that I have in the slave? What acquisition do I have in him? So the answer to these two questions is the same answer. I won’t go into the medieval authorities (Rishonim) and later authorities (Acharonim) who discuss this, but in the end this is the picture that emerges: the connection between me and the slave when he was fully mine was also not merely a legal connection. The fact that I have rights in him is the result of some legal status of ownership resting upon him, some metaphysical connection, some certain character that characterizes this slave, and the legal consequences are that this gives me rights—I have rights in the slave as in property. What happens when I renounced all the rights? Regarding a slave specifically—regarding ordinary property, if I renounce some book, all the connections between us are severed. Nothing remains. But regarding a slave, because he still remains in the status of a slave, then the metaphysical connection remains in place, and therefore I am still considered his owner—but this is ownership without any legal consequence. I cannot do anything with him, cannot make him work, I cannot profit from him in any way. He is an independent person in the sense of ownership over himself. He does not belong to anyone else. And still I am called the owner. And therefore if someone harms him, he pays me. Why? Because the concept of ownership precedes its legal consequences. To be an owner does not mean that I have rights and others do not. That I have rights and others do not is a consequence of the fact that I am the owner; it is not the essence of the concept that I am the owner. Usually in legal conceptions they understand: what is ownership? That I have rights and others do not. That is the meaning of the concept of ownership. What I am saying is that in Jewish law ownership, the meaning of the concept, is something metaphysical. There are legal consequences—that I have rights and others do not—and they are consequences of the concept of ownership. Where do you see the difference? There are situations in which I have ownership but no legal rights at all. That means there is something beyond the legal rights in the concept of ownership. Okay? Is what I’m saying clear? So these are two examples that show this. I can give several examples in Jewish law that will sharpen it more.

There is a prohibition called letting one’s animal rest on the Sabbath. An obligation is imposed upon me that my animal must rest. According to most commentators this is not the same thing as the prohibition of driving an animal. The prohibition of driving means to perform labor with the animal on the Sabbath. And that is a prohibition because I am simply doing labor forbidden on the Sabbath through an animal. But with the resting of one’s animal, that is not the problem—the problem is not the labor I am doing. The problem is that the animal is doing labor. Like the donkey of Pinchas ben Yair, which did not want to desecrate the Sabbath, right? Was that the donkey of Pinchas ben Yair? I don’t remember. It did not want to eat untithed produce and produce of the Sabbatical year. What? It did not want to eat. Yes—and there was some animal that also did not want to work on the Sabbath when it had been sold to a non-Jew. I no longer remember. “Thus did our sages…”—there was something, something. What is written in the Talmud I’m skipping over. So what is the meaning of this matter, really? Obviously the animal is not obligated in commandments. No one imposes duties on an animal. Clearly the duty is on me as its owner. But there is a duty on me to see to it that the animal not desecrate the Sabbath. And if it desecrates the Sabbath, I transgressed a prohibition. Not because I performed labor by means of the animal, but because the animal performed labor forbidden on the Sabbath, and I need to ensure that that does not happen. Why? Because I own it. One who does not own it need not ensure that. The duty is a duty on the owner. That is, we see that there are practical consequences of ownership that do not concern at all the question of monetary rights. Entirely different things.

I’ll perhaps give another example regarding payment for damages. My animal causes damage. There too there is much discussion in the yeshivot, how to explain my obligation to pay if my animal caused damage. There are views among the halakhic decisors, among the medieval authorities (Rishonim), among the later authorities (Acharonim), that understand that my obligation to pay is the result of negligence in guarding. I did not guard properly. I have a duty of guarding because it is my animal. I was negligent in guarding, and as a result damage was caused, so I have to pay. It is a sort of penalty for negligence in guarding. But most views—I think it is most views among the medieval authorities (Rishonim) and later authorities (Acharonim)—say that it is not because of that. That is, I am obligated to pay because it is my animal. Regardless of whether I was negligent in guarding. True, if I was not negligent perhaps I may be exempt, but it is not the negligence that causes the obligation of payment. What causes the obligation of payment is the very fact that my animal caused damage, and the fact that it is mine. That is all. The guarding is a different topic. How can one understand such a thing? So what if it is mine? What does that have to do with it? It caused damage, not I. You can tell me I was negligent in guarding—that I understand. I was negligent, I was not okay, I have to pay. But how can they obligate me to pay—so what if it is my animal? What does that have to do with the fact that it is mine? It caused damage, therefore I have to pay—why? The answer is because this is like asking the same question in a more extreme form: what if I myself caused damage with my own body? Can I claim: well, my body caused damage, not me—I am the soul. Why should you obligate me? Clearly one cannot make such a claim, right? Why can’t one make such a claim? Because the body is some kind of periphery of me. What does that mean? The body is part of me myself. I am not only a soul; I am a soul within a body. The body is some kind of periphery; the soul may be the core of the person. But the body too is some kind of periphery of the person. A person’s property is the next periphery. It too is a kind of periphery. Earlier we spoke of relatives as a kind of periphery. So here a person’s property is some kind of periphery of him, and therefore if it causes damage then the person has to pay for it, just as if his body causes damage, the person has to pay for it. Not because you were negligent in guarding. The fact that you have to pay because your body caused damage is not because you were negligent in guarding. As is known, a person is always forewarned; he is liable whether awake or asleep, even if under compulsion, he has to pay. Why? What’s the issue? My body caused damage—what does that have to do with me? I was not negligent in guarding; I was under compulsion. There is no such thing. What do you mean you were under compulsion, negligent in guarding? That is you. It is not that there is a guard and a thing guarded and I did not guard properly or did guard properly. My property too is me. That is, the connection between me and my property is not only a connection of monetary rights and obligations, but there is some metaphysical connection, and the legal rights are the result of it, not its essence itself. What does this actually mean? It means that in the halakhic conception the concept of ownership is not a concept that exists only in the legal sphere of rights, obligations, and things of that sort, but the legal sphere, or what exists in the legal sphere, is the result of some deeper metaphysical layer. Now this of course exists in Jewish law; it does not exist in other legal systems. No legal system will define the legal status of ownership as some metaphysical being. They simply do not speak in such language there. Clearly there they define what is permitted, what is forbidden, what rights there are and what rights there are not. In Jewish law too that is defined, but in Jewish law that is not the foundation of the matter. And therefore, for example, in Jewish law one can find situations in which I am an owner although I have no rights at all. Nothing accrues to me from this, and nevertheless I am considered an owner. And this also imposes all kinds of obligations upon me. But this also exists in legal systems. I threw a refrigerator in the middle of the street; once I threw it away I have no rights in it, any junk collector may take it, but if someone is injured by it—yes, but there they will obligate you only because of negligence in guarding, and not because it is your refrigerator, full stop. In the end they will always need to reach you, not the refrigerator, and Jewish law will obligate you because the refrigerator is yours, even if theoretically you guarded it properly. All right? The explanations will always show you the difference, even if in terms of legal consequences it appears similar. But in ordinary language, that too is the conception of ownership: because I own it I have to guard it. But why do they obligate me to pay? Because I did not guard it properly. In Jewish law, negligence in guarding is not what obligates payment; the very fact that it is my property is. That is, because it is mine I have to pay. It is as though part of me. There is some connection between me and it that turns it into part of me literally, and the consequences are of course legal consequences, but it begins with the metaphysical connection. So basically it is a connection—why in Jewish law is this a metaphysical connection or some such connection? No, nothing of the sort; it is a legal definition, a legal convention. The moment we decide that it is yours, it is yours, and then you have such rights and not other rights, or others do not have such rights. It is a matter of conventions, social agreements. Maybe this stems from a conception of Jewish law in which really not rights are the determining parameter but duties. I have a duty not to deal with objects that belong to someone else, and therefore he benefits from them, but not that the definition defines my rights. We do not define the rights of the worker to receive wages from the employer; we define the duty of the employer to pay wages to the worker. I think those two come together. The worker has rights, and the employer has a duty to give him the rights that are due him. Otherwise the religious court would have to compel the employer to pay the worker, but the worker would not be able to sue him. They would tell him: you are not my litigant—what are you doing here? Who are you in this picture? This is only business between us and him. No—I have rights; I can claim that he should pay me what is due to me. It goes together; it is not each thing separately. Fine, maybe I’ll continue with this next time, and we’ll see it in a somewhat sharper way.