Ethics, Faith, and Halakha – Lesson 21 – Rabbi Michael Abraham

[Rabbi Michael Abraham] Last time I started dealing with the two-story model. We talked about morality as the first level, universal, and on top of it there is the particular level, the Jewish one. And a Jew is basically defined, normatively speaking, as a two-story structure: he is obligated in all the duties that any human being in the world has on the level of the first story, and on top of that he also has the duties of the second story. And therefore we saw that the Talmud in Sanhedrin 56 says דליכא מידי דלבן נח אסור ולישראל מותר – there is nothing forbidden to a Noahide that is permitted to a Jew. Meaning, there cannot be something that is forbidden to a non-Jew but permitted to a Jew. Why not? Because at the base of the Jew’s obligation there is also the obligation of a non-Jew, on the level of the first story. So everything that exists for a non-Jew also exists for a Jew; a Jew just has more.

Now, if there were something forbidden to a non-Jew and permitted to Israel, how could that be? If it belongs to the first story, then the Jew is obligated in it at least by virtue of the first story, even if not by virtue of the second. So that simply cannot happen. Though we did see that there are certain phenomena in which the second story comes back and intervenes in the first story. We talked about a twitching animal, what Rabbi Kook brings in Pri Etz Hadar. There, a twitching animal is forbidden to Noahides and permitted to Jews. Why? Because אצל בני נח the law is determined by the natural state. And in the natural state, if it is twitching, then biologically it is alive. But for Jews this is determined by the halakhic state. And halakhically it underwent slaughter. So what if it is twitching? For us it is dead, because it underwent slaughter. Meaning, it is normatively dead; it is biologically alive. We are not especially interested in the facts; from our point of view this is a normative view of reality.

Anyone who read Halakhic Man by Rabbi Soloveitchik knows that he speaks there about this perspective of the halakhic man – where others see some beautiful spring and are inspired by the scenery, he sees the law of one who immersed that day before twilight. In other words, the meaning of a spring is a collection of laws, conceptions, terms, abstractions, and so on. The stories say that Rabbi Chaim took the frying pans out of the kitchen. I mentioned this not long ago somewhere, I don’t even remember where. Rabbi Chaim took the frying pans out of the kitchen. What does that mean? We’re used to thinking that a frying pan is some utensil we know – you put oil in it, you cook, we know what that is. From Rabbi Chaim’s point of view, he never saw a frying pan in his life. A frying pan is a concept. There is some vessel used for frying, cooking in oil and not in water, and the product is called fried, not cooked. And then there is another vessel called a pot. I don’t know, I never saw it. But this concept of a pot is a vessel that cooks in water, and the result is not called fried but cooked. That’s it. From there on I can derive all the halakhic conclusions without knowing what a pot is, what a frying pan is, what frying is, or what cooking is – I only know their laws.

So Rabbi Chaim basically took concepts like frying pan and pot and removed them from the kitchen, turning them into concepts, Platonic ideas of a sort. And something like that appears here too. The concept of death for us – or life – is not what we experience when we just encounter a living thing. No, it’s a concept. If it underwent slaughter, then it’s dead. It doesn’t matter at all that I see it alive. The facts don’t confuse me; I look at things through concepts at the ideal level.

We also saw from several places a contradiction between the passage about wrongdoing and disgrace and the passage about one prohibition not taking effect on top of another. In the passage about wrongdoing and disgrace we see that the transgressions of a minor are transgressions, while in the passage about one prohibition not taking effect on top of another in Yevamot, we see that the transgressions of a minor are not transgressions. He only becomes obligated in the commandments from the moment he grows two pubic hairs. And several later authorities resolved this by distinguishing between the kinds of transgressions involved.

The transgression discussed in Sanhedrin is intercourse with an animal. That is something forbidden even to a non-Jew. And since it is forbidden even to a non-Jew, then ליכא מידי דלבן נח אסור ולישראל מותר. Right? Now, if it is forbidden to a non-Jew, then of course it is also forbidden to a Jew. But more than that: from what age is it forbidden to a non-Jew? From the moment he understands. Because for a non-Jew there are no measures like two hairs, age 13 – those fixed legal measures were not said about a non-Jew. So with regard to a non-Jew, the obligations apply from the moment he understands. There are no measures; it’s just a matter of the actual reality. Again, this is natural, not conceptual, not idealized: the moment he understands, he is addressed. For a Jew there are definitions: “understanding” means age 13. We don’t look at when he actually understands. The facts are not what matter here. He has the legal status of understanding from age 13, or from the moment he grows two hairs. It doesn’t really matter whether he understands or not, or whether he understood earlier.

And then what follows? Since a non-Jew is obligated in commandments relevant to him already from the age that he understands – let’s say age six – then clearly a Jew at age six will also be obligated, because there is nothing forbidden to a Noahide that is permitted to a Jew. So it comes out that those commandments that apply to a non-Jew – basically the rational commandments, moral ones, or whatever – the Jew too is obligated in them from the moment he understands, not from age 13 or from the moment he grows two hairs. And that is the passage about wrongdoing and disgrace. Therefore in that passage the assumption is that a minor’s transgression is indeed a transgression, because these are transgressions that also apply to a Noahide. So even for a Jew, although he is a minor, he is obligated in them, because it follows all the more so from the Noahide case.

But the transgressions discussed in Yevamot are idolatry and desecration of the Sabbath. Those are transgressions defined by the Torah for Jews, not for a non-Jew. Obviously the Torah says this only to adult Jews, from age 13 or two hairs onward you are obligated. So those commandments certainly do not apply to a minor, and such transgressions, when done by a minor, are not transgressions. And therefore the Talmud in Yevamot says that a minor’s transgression is not a transgression.

Or in other words, you understand that what we have here is a reflection of the two-story model. Since all the commandments and transgressions that belong to the first story obligate the Jew not by virtue of the second story, but by virtue of the first story, like any non-Jew in the world, independently of Mount Sinai, okay? Independently of the Torah given to us at Sinai. So what follows? If a non-Jew is obligated in this from age six, then a Jew is also obligated in this from age six by virtue of the non-Jew within him. Yes? The non-Jew within him is obligated in this from age six already. The second story won’t apply to him until he reaches the age of commandment-obligation. Fine – but that’s only for the laws that pertain to the second story.

So here is an implication of this view of the Jew as a two-story structure. A similar idea can be found with regard to a minor’s oath. I’m not giving references because that always gets annoying, so just listen, these aren’t long quotations. Maimonides, in the Laws of Claims and Defenses, chapter 5, writes as follows: we do not administer an oath to a minor at all, and he does not even accept a general ban, because he does not know the punishment for an oath. Maimonides says: suppose someone sues a minor. Fine? Now say there is a watchman’s oath, or one witness against him, something like that. A watchman’s oath is tricky because there is no contract; a minor’s contract is not valid. But say they claim the minor owes me money, he stole from me or damaged my property or whatever. Now there is one witness against him, so the minor ought to swear. We don’t administer an oath to a minor. Why not? Because he does not know the punishment for an oath.

But the whole point of an oath is that you are afraid to lie because you know that if you lie under oath your punishment is very severe. That’s also why in court they used to have all sorts of intimidation rituals before administering an oath, in order to make sure the oath would be effective – to create fear in the person, fear of lying under oath. So someone who doesn’t know the punishment for an oath has no special fear of lying under oath more than of ordinary lying. There’s no point in making him swear. So we don’t administer an oath to a minor because he doesn’t know the punishment for an oath.

Now the big question, of course, is: what about a clever minor who does know the punishment for an oath? Do we administer an oath to him? I’d be even more afraid of a clever minor; I’d be even less willing to administer an oath to him, because a clever minor knows that no punishment applies to him – he’s a minor. The issue with a minor is not just that he doesn’t know the punishment for an oath; the point is that no punishment for an oath applies to him, because he’s a minor and not obligated in the commandments. So a clever minor is more dangerous than a foolish or innocent minor. A clever minor – even if you explain to him a hundred times the punishment for an oath – won’t buy it, because he knows he’s a minor, exempt from the commandments. So no punishment for an oath applies to him.

So what is Maimonides writing here? “Because he does not know the punishment for an oath.” The problem isn’t that he doesn’t know; even if he did know, we wouldn’t administer an oath to him, because no punishment for oath applies to him. So what kind of reasoning is that? What I want to argue is that the obligation to swear truthfully, or to keep what you swore to, and things like that, is an obligation that stems from reason, an obligation that also applies to a non-Jew – an ethical obligation, a moral one, whatever you want to call it. If you swear, you swear truthfully. If you swear something to someone, you have to keep what you swore: “you shall keep what comes out of your lips.” So this obligation actually also exists for a non-Jew.

Now, if it exists for non-Jews, then in principle it also applies to a minor, right? Like we said before: obligations that apply to a non-Jew begin from the age he understands, and those same obligations in a Jew also begin from the moment he understands, by virtue of the Noahide element in him. Okay? So if the obligation of an oath is an obligation that comes from reason, and obligations rooted in reason apply also to non-Jews – every reason-based obligation applies also to a non-Jew – then clearly this obligation applies to the Jew from the age he understands, not from age 13. Therefore Maimonides says that the minor is relevant to the punishment of an oath; it’s just that we’re not sure he knows the punishment, and therefore don’t administer it to him. But in principle this commandment applies even to a minor, or this transgression applies even to a minor, because if it is something that applies to a non-Jew, then it also applies to a Jewish minor.

Just one note before I continue. I’m assuming here, of course, that anything rooted in reason obligates non-Jews. I already mentioned the words of Rav Nissim Gaon in his introduction to the Talmud, at the beginning of tractate Berakhot – there’s a page printed there with Rav Nissim Gaon’s introduction to the Talmud – and there he asks: we find many commandments that non-Jews are obligated in, so why are we always told that it’s only seven? There are hundreds more commandments discussed in tractate Sanhedrin. So he says that anything dependent on reason, on inner understanding, has always bound the human being. In other words, there are commandments whose basis is reason; אובנתא דליבא means understanding of the heart. So if you understand it and it is something rational, something that follows from reason, then you are obligated even if you were never commanded. Therefore there are seven commandments that the non-Jew was commanded in, and many more obligations he has – everything that follows from reason. Fine? An interesting question about those seven commandments is why he needed to be commanded in them at all, since they also have a rational basis. Fine, there too he was commanded; not important right now. But that is Rav Nissim Gaon’s claim.

What does this actually mean? That anything whose source is reason, not a verse, is not dependent at all on the formal categories of Jewish law when it comes to who is obligated. Adult, minor, non-Jew, Jew, man, woman – irrelevant. Whoever understands the reason is obligated. Right? All these distinctions we make – gender, ethnicity, age – all these distinctions are halakhic categories. If it is the Jewish law that obligates you, then you look in the Jewish law to see whether you are included among those obligated or not. But if the obligation is rooted in reason, then it is irrelevant what Jewish law says about who is obligated and who is not, because Jewish law is not what obligates here – reason is. And whom does reason obligate? Anyone who understands the reason. And it doesn’t matter whether he is a non-Jew or a Jew, a man or a woman, a minor or an adult, irrelevant. Whoever understands is obligated. Okay?

So in this case, the commandments that non-Jews are obligated in, since they are commandments rooted in reason, that is why they obligate them as minors too – not only because they don’t have a fixed age measure, but more than that. If the basis is reason, then it obligates everyone who understands. What difference does it make whether he is a minor or an adult? And for exactly the same reason it also obligates a Jewish minor. Not only because there is nothing forbidden to a Noahide that is permitted to a Jew – that’s the indication – but the real explanation for why a Jewish minor is obligated in these commandments is that these are commandments whose basis is reason. If he understands, he is obligated; anyone who understands is obligated. That is the whole idea in commandments rooted in reason, as opposed to commandments rooted in command. Okay? So if the obligation to keep an oath is an obligation rooted in reason, then basically it is relevant also to a Jewish minor and in fact also to a non-Jew. Okay?

[Speaker C] What, if an Amalekite wants right now to do one of these commandments that he’s obligated in out of conviction, and I kill the Amalekite – am I not causing the cancellation of a positive commandment through my action?

[Rabbi Michael Abraham] Through my action?

[Speaker C] According to this definition, Amalek too is obligated in commandments?

[Rabbi Michael Abraham] Like any non-Jew, yes.

[Speaker C] If I kill him based on the commandment to wipe out Amalek, am I not creating a problem regarding that commandment? Which commandment? The commandment to wipe out Amalek – along the way I cause the cancellation of one of his positive commandments. Nonsense.

[Rabbi Michael Abraham] If you kill a Jew who desecrated the Sabbath and is liable to death, you kill him and you’ve caused him to miss all the commandments he could have done from that point on. Capital punishment is always like that.

So what I want to show you is that oath is indeed that kind of obligation. Now, you know that in Maimonides oaths belong to the Book of Utterances. Vows, oaths, naziriteship – that is basically vows, oaths, and naziriteship. That is what is called formal verbal articulation. What is that? It means to articulate with the mouth. These are things that have to be spoken in order to take effect. When you swear, when you vow, when you accept naziriteship, you have to say it with your mouth for it to take effect. Okay? These are called the laws of formal verbal articulation.

What happens if I vowed or swore, but did not do it verbally – for example, I did it in writing? If I merely thought it, that doesn’t help. But what if I did it in writing – does writing also work? The later authorities disagree about this. Some say that writing is like speech, and some say not. There is a dispute.

The Avnei Nezer, in Yoreh De’ah section 306, brings that there is already a responsum of Ri Migash on this matter. And Ri Migash claims that a written oath is binding. He says as follows: in the responsa of Ri Migash, section 126, if a person wrote an oath in his own handwriting and gave the written note to the other party, he is obligated to fulfill what he swore, even though he did not utter the oath with his mouth. He did not utter it, and not in God’s name and nothing like that. The formal rules of the laws of oaths were not met. And if he did not fulfill it, his judgment is left to Heaven, but no human court can compel him in any way, since he did not utter the oath with his mouth. End quote.

And the Avnei Nezer says: the root of these words needs clarification. Up to here is the responsum of Ri Migash. The Avnei Nezer says: I don’t understand this. Let me spell out what’s unclear. First, you need formal verbal articulation. If you need formal verbal articulation, then how can you tell me that even without it – even if I only wrote it – the oath still obligates me? But second: if I accept that, then why is his judgment left to Heaven? There are lashes. Someone who violates his oath is lashed. So why, if someone swore in writing and violated the oath, is his judgment left to Heaven? He should get lashes. If it counts like formal articulation, then fully so; and if not, then there is no prohibition at all. How can you tell me there is a prohibition but no lashes? Why not?

So he says as follows – I’m skipping a bit: the Mishneh LaMelekh had difficulty in chapter 10 of the Laws of Kings regarding oaths before the giving of the Torah: Abraham and Isaac to Avimelekh, Esau to Jacob, Eliezer to Abraham – we find all sorts of oaths between people even though the Torah had not yet been given, before Sinai. Now he says: but oath is not one of the seven commandments commanded to the Noahides. So the Mishneh LaMelekh asks: then what obligated them in those oaths? Eliezer, Abraham, all of them – Sinai had not yet happened. The commandment “you shall keep what comes out of your lips” had not yet been given. So what obligated these pre-Torah oaths?

And I have another difficulty, says the Avnei Nezer, regarding the oath at Sinai which is the basis of acceptance of the Torah. The Talmud says we are already sworn from Sinai. At Sinai we are under oath. There isn’t really any explicit source for this; it’s not clear where we swore there, where it says an oath happened. But the Talmud says we are sworn and standing from Sinai. I tend to think this is a legal fiction, but no matter – the Talmud says we are sworn from Sinai. So the Avnei Nezer asks the same question as the Mishneh LaMelekh: how are we obligated by the Sinai oath? We swore to keep the Torah. What obligates us? Our whole obligation to keep an oath comes from the Torah. So how can we swear to keep the Torah? If I am not yet obligated to keep the Torah, then the oath itself also doesn’t obligate me. So what does such an oath add?

And as long as they had not yet accepted the Torah, they were not commanded regarding oaths. Moreover, even if they had been commanded, all the force of an oath comes from the commandment “he shall not profane his word.” And what makes this warning any different from the other warnings in the Torah? What additional force does an oath add to the Torah’s prohibitions, since the oath itself is also just a prohibition? Even without the first question, he says: what’s the point of making the people of Israel swear? What, you want to make sure they keep the Torah? Say there is a prohibition against eating pork. Fine. Now, if I don’t want to keep the Torah, I want to eat pork. But now I swore at Sinai, so I’ll refrain from eating pork. Why? Because I don’t want to violate the prohibition of oath. But the prohibition of pork doesn’t bother you? Only the prohibition of oath does? What’s the difference? This is a prohibition and that is a prohibition. In what sense does the oath add anything? What’s the point of making us swear?

So he says: therefore it appears that the clarification is as follows. Certainly, one who swears to another person – reason itself dictates that he is obligated to fulfill it. No warning is needed for this. It is an obligation rooted in reason that you must keep your oath. And that is the case with the oaths of Abraham and Isaac and Eliezer and so on. And the same applies when one swears to the Holy One, blessed be He – not only when one swears to another person, but even an oath between man and God, that too is grounded in reason.

But one who swears to himself that he will or won’t do something – here there is no rational basis, he says. Not an oath to do a commandment, but an ordinary oath. There, he says, there is no rational basis. I’m not sure about that, but fine. Because to whom has he obligated himself? And if you say: to the Holy One, blessed be He – who says that the Holy One wants this obligation or prohibition? For that, the Torah had to command: “he shall not profane his word,” “whatever comes out of his mouth he shall do.” Meaning, why do I need the Torah’s command? To teach me that even an oath where I am not obligating myself to anyone is still binding. But basically, even without the Torah’s command, I would have known that an oath by which you obligate yourself to someone or to the Holy One is binding. That I would know even without the Torah’s command.

Now he says: and so the oath at Sinai is also understandable, where they swore to the Holy One, blessed be He, to keep His commandments – and this is by force of reason. Why did they make them swear at Sinai? We swore to the Holy One, blessed be He, to keep the commandments. Our obligation to keep that oath precedes the system of commandments. It is an obligation rooted in reason. That is why the Patriarchs also swore: they swore to one another, and reason says that if you swore to someone, you must keep it. So that is the answer to the Mishneh LaMelekh’s question.

Then he says: according to this, my own question is also resolved – namely, why did we swear at Sinai? What do you mean why? Because even before we were obligated in the Torah, we already had an obligation to keep the oath we swore to the Holy One, blessed be He. An obligation rooted in reason. That obligation exists even without the Torah’s command. Therefore we can swear to keep the Torah.

Now he continues: but the obligation that comes from reason – we do not find in the Torah any punishment by human court for that. There is no punishment by human court for this obligation. Right? It is an obligation rooted in reason. Where do we get punishment for an oath from? From the Torah. Since there is a prohibition in the Torah, if you violate that prohibition you are liable to lashes. But if you violate the moral matter, the reason-based matter, there are no lashes for that. You are morally in the wrong, but we do not find court punishments in the Torah for moral transgressions. Court punishments are given for halakhic transgressions. Okay? So he says: if so, if you violate the moral oath and not the halakhic oath, there will not be lashes. Meaning, there is a prohibition here – the moral prohibition – but there are no lashes, because lashes are given only for the halakhic prohibition, not for the moral one.

And therefore he says: now the words of Ri Migash are understandable, because with pre-Sinai oaths the Torah never mentioned verbal articulation or speech. They swore to each other; it doesn’t say they said anything, certainly not in God’s name or with all sorts of details. Rather, it is an obligation rooted in reason. It is not within the halakhic framework. Fine? Therefore there is no difference between speech and writing. In other words, oaths you are obligated in by reason are not subject to all the limiting Torah rules that require formal articulation and say writing doesn’t help and so on. Even if you write it, it is the same thing. But in what sense the same? It obligates you with the reason-based obligation. But there won’t be lashes. Why? Because for lashes you need to violate a Torah prohibition. And you do not violate the Torah prohibition if you didn’t swear verbally, because as far as Jewish law is concerned there is a rule of formal verbal articulation. So this is how he explains Ri Migash: someone who swore in writing really is obligated to fulfill it, but his judgment is left to Heaven. There are no lashes here. Okay?

[Speaker B] Is that only when he swears to another person?

[Rabbi Michael Abraham] Right. Necessarily so. Therefore, one who swears to his fellow in writing and gives him the written note is obligated to fulfill it. But human courts do not punish him, since there is no prohibition here and we do not find any human-court punishment for it.

Now I disagree with him. I accept the principle but not the details. What do I mean? I accept the principle that the obligation of an oath is a moral obligation. Why do we need the verse “he shall not profane his word”? We already know the obligation beforehand. So he says: no, beforehand we know the obligation only when you swear to someone – to the Holy One or to someone else. But how would we know that even if you swear to yourself it is also forbidden? For that we need “he shall not profane his word.” Right? But clearly that is not correct. Because he himself says we need the verse also for oaths to someone else – because otherwise there would be no lashes. Right?

Suppose it had not been written. Suppose there is a rational basis in all kinds of oaths, even when you swear to yourself, not only to another person or to the Holy One. Fine? Everything is based on reason. And suppose it wasn’t written in the Torah. According to him, if everything were known from reason, it would not have needed to be written in the Torah: “he shall not profane his word,” not to profane one’s speech. So his claim is that if we had known everything from reason alone, then no verse would be needed. Therefore one category must be one that does not follow from reason, and for that we need the verse. Which category is that? The category of someone swearing to himself, not to someone else. If you obligate yourself to someone else, there is a rational basis that you have to fulfill it. But if you swear to yourself, who says so? Therefore we need a verse.

But what are you talking about? We need the verse regardless of that. Even for categories I know from reason I still need a verse. Because how would I know there are lashes? How would I know there is a Torah prohibition here? I discussed in another lecture – if you remember – morality and Jewish law, and I divided Jewish law into three categories, or really three subcategories: morally required laws, anti-moral laws, and morally neutral laws. And in the end I said that even with morally required laws – why did the Torah write “do not murder”? Cain was held accountable even without that, right? It was clear that murder was forbidden even before the Torah was given. So why write “do not murder”? Because the Torah came to add a religious prohibition. The moral prohibition was known already beforehand. But the Torah came to say that when you murder, it is not only morally forbidden, it is also religiously forbidden. And we saw that this has all sorts of implications – for example, if you kill indirectly or by confinement or in cases like that, maybe the religious prohibition won’t exist even though the moral prohibition is still entirely there. Right? I am saying the same thing here.

The question that led the Avnei Nezer to distinguish between kinds of oaths simply does not exist. He is troubled by why we need a verse if it follows from reason. Answer: to add a religious prohibition.

[Speaker B] You could ask that on every case of “why do I need a verse if reason tells me it already.”

[Rabbi Michael Abraham] What do you mean?

[Speaker B] “Why do I need a verse if reason already tells me?” But in order for there to be punishment?

[Rabbi Michael Abraham] No – really, go look. In all the places where it says “why do I need a verse if reason already tells me,” there is no practical difference involving punishment. It’s just details within existing commandments. In the Tuesday series I’m talking about this. I happened to run into the same direction, the same topic, in both series.

So the claim I want to make is that the obligation to keep your oath – certainly if it is in God’s name – is always an obligation rooted in reason. Whether you swear to someone else, swear to yourself, or swear to the Holy One, blessed be He, in every case there is a rational basis. And I’m not bothered by why we need the verse “whatever comes out of his mouth he shall do” or “he shall not profane his word.” Obviously we need it to add a religious prohibition, including punishment, including all the details. You need formal verbal articulation; there are all sorts of definitions as to what must exist and what need not exist. And therefore there is no question why the verse is needed.

What do I gain from this? I want to say that the obligation to keep oaths, or not to swear falsely, is an obligation rooted in reason in its entirety, in all its aspects. “He shall not profane his word” comes only to add a religious obligation on top of the reason-based one. So now let’s return to Maimonides. Maimonides says: we do not administer an oath to a minor because he does not know the punishment for an oath. I asked: what does “does not know the punishment for an oath” mean? No punishment for oath applies to him anyway, because he is a minor and not obligated in the commandments. What did I answer? No – oath is an obligation rooted in reason, and therefore it applies even to a minor. We don’t administer it to him because he doesn’t know the punishment, but in principle he too is included in this prohibition, the minor.

I’m saying this is what comes out here. Here we see that the obligation of oath is an obligation rooted in reason. The discussion here is about an oath in writing, because if it is an oath whose basis is reason, then the halakhic limitations don’t exist – as I said, not limitations of age, gender, ethnicity, non-Jew and Jew; and likewise not the other detailed halakhic limitations, that you need formal verbal articulation and writing does not help. All those limitations do not exist. Because what follows from reason – reason itself tells you when it is forbidden and when permitted. And if you swore in writing, then from a moral standpoint it’s the same thing; what difference does it make whether you did it orally or in writing? Therefore the Avnei Nezer, when he talks about the status of a written oath, says that because oath is rooted in reason, writing also binds. I am discussing the status of a minor’s oath, and my answer is exactly the same: because the basis of the obligation is reason, a minor too is obligated, and the halakhic limitations of minor versus adult, oral versus written, and things like that do not apply, because the obligation is a reason-based obligation.

[Speaker C] Is the rationale of an oath not halakhic, but only to show that something has to be done?

[Rabbi Michael Abraham] No – oath contains both. Oath has both the religious dimension and the moral dimension. Now if you don’t do it with verbal articulation, or if you’re a minor, then the halakhic dimension won’t be there, but the moral dimension remains. But if you’re an adult and you did it verbally and then violated it, then you violated both a moral transgression and a religious one. There are both. What I gain by seeing there are two things here is that in those situations where the halakhic aspect does not exist, the moral aspect is still there – in a minor, or in a written oath, or things like that.

[Speaker C] In false testimony, it’s specifically the morality that wins out, the reasoning. Why?

[Rabbi Michael Abraham] What do you mean by “wins out”?

[Speaker C] The Rabbi says this commandment comes from reason, right? I assume in order to have a proper society?

[Rabbi Michael Abraham] No, it’s also the reasoning of obligation. You swear in God’s name. If you swear in God’s name, you are desecrating His name – that too is reason. Not necessarily moral reason. He is talking about moral reasoning in what you obligate yourself to another person. I say no – it’s like the reasoning behind not worshiping idols; that too is a form of reason. It’s not moral reasoning; there’s no moral defect in idolatry, but still it’s a matter of reason. Okay. Is the punishment punishment by Heaven? No – lashes, but only for a halakhic oath. So that helps us with Maimonides, who says he doesn’t know the punishment for an oath. Really, no oath applies to him? No – but there is punishment by Heaven. Ah, that he doesn’t know. Right. Meaning, if there is punishment by Heaven, that too will deter him.

The Sanhedrin sat in the Temple, right? In the Chamber of Hewn Stone. Why is that? It connects nicely with the idea that we are basically desecrating Heaven’s name and the Holy One, blessed be He, places Himself in the area of the judges. No, but that’s only the Great Sanhedrin. Only the Great Sanhedrin? Of course not. All courts everywhere judge lashes or oaths. Lashes for an oath can be judged by any court anywhere, as long as they are ordained. It doesn’t have to be the Great Court – on the contrary, the Great Court doesn’t usually judge these things at all. The Great Court judges only very specific matters. These are local courts, in districts, in cities, places like that – a court of three, a court of twenty-three, the Great Court of seventy-one.

Now, an interesting point – I’ve run into this several times already – this Maimonides is really puzzling, and his commentators raise difficulties or are unsure about him: how is a minor relevant to the punishment for an oath? Where does this idea come from? And many times when you find some strange law in Maimonides, it’s worth checking whether it has a source in Ri Migash. It is known that Ri Migash was the teacher of Maimonides’ father, and Maimonides writes in one of his responsa that as a child he merited to see the face of the man who resembled an angel of the Lord of Hosts, Ri Migash – extravagant language of admiration. So from Maimonides’ perspective, Ri Migash was in a sense his teacher, even though he was still a child before Ri Migash died, and Ri Migash had really been his father’s teacher. But Maimonides apparently admired him very much, and certainly ideas passed to him through his father from Ri Migash.

Therefore there are a number of cases where Maimonides has a special position and you can find its source in Ri Migash. Now, we do not have many writings from Ri Migash, so there are surely many more examples we can’t identify. But I found several examples where this really can illuminate puzzling statements in Maimonides – that you see the source is actually Ri Migash. And here, notice: in the Avnei Nezer’s discussion he brings a responsum of Ri Migash, right? That a written oath is binding. And the Avnei Nezer explains this because it is a moral oath. And I claim that this is the source for Maimonides’ statement that we do not administer an oath to a minor because he does not know the punishment for an oath – meaning, there is an obligation and punishment of oath relevant to him, he just does not know it. Where does this come from? Ri Migash. Ri Migash basically introduced the idea that oath is something rooted in reason, and anything rooted in reason obligates in every case, whenever the reasoning says so.

Okay. So again, regarding the two-story model: you see that things rooted in reason belong to the first story. The second story consists of things the Torah commanded us. But once the Torah commanded them, the first story does not get erased. Rather, another story is added on top of it. And therefore very often there can be obligations that do not appear in the Torah, but reason gives them, or morality says them, or whatever – and of course we are obligated in them. We are obligated in them even though the Torah does not command them, but we are obligated in them just like every person is, by force of the first story. Okay?

Excuse me, if at some point morality pressed a person to swear falsely, then the moral ranking goes down, and then we would not be obligated in that matter. Right. In a situation where I agree that on the moral level it is correct to swear, but there is no halakhic permission – say another moral value is being trampled – we do not find that one may violate a Torah prohibition when a moral value is trampled. Okay? So there could be a case where I lie under oath so that someone else will not suffer. Fine? Say I see someone pursuing another person, and I lie to him so that he won’t – not pursuing him to kill him, because if he is pursuing him to kill, then halakhically too everything is permitted – but just so that he will not suffer. He’s harassing him, okay? So I say to him: I swear to you that such-and-such, and by that I get him to stop harassing the other person. Okay? So suppose on the moral level we reached the conclusion that the oath is justified, because the other value is strong enough to override it. Even so, on the halakhic level, the fact that I want to prevent someone’s suffering does not permit me to violate a Torah prohibition, right? If I swear falsely, I violate a Torah prohibition. So if I swore in such a situation, I would still get lashes, because halakhically I committed a transgression. But if I am a minor, where I have no halakhic aspect, only the moral one; or if I am a non-Jew, where I have only the moral aspect; or if I swore in writing, where only the moral aspect exists and not the halakhic one – then in fact it would be permitted from the outset to do it. Nice point.

So in such a case it really would be permitted. Okay? So this is about the two-story model with regard to oaths and the obligations of minors and so on. Meaning, minors are basically like a non-Jew: as long as we are minors, before bar mitzvah, that’s basically a non-Jew. And at bar mitzvah he becomes a Jew in terms of commandment-obligation. Not entirely so – say, with circumcision – but in terms of his obligation in commandments, until the age of commandment-obligation he is a non-Jew, obligated in commandments like a non-Jew.

So where does a woman fit into this? A woman is Jewish, but she is obligated in all the commandments that a non-Jew is obligated in. She is exempt from those religious commandments from which women are exempt, but in moral commandments there is no difference between women and men. Fine? So that is one aspect of the two-story model.

There is another aspect, which is what is called Rabbi Shimon Shkop’s system of civil law. In Gate 5 of Sha’arei Yosher, he makes a very big innovation concerning the law of theft and monetary law in general in Jewish law. He begins with a difficulty raised by the Mahari Basan. The Mahari Basan asks: we know that the burden of proof is on the claimant. What does that mean? If I sue you and I have no proof, then you win the case; the money remains with you because I had to bear the burden of proof and I didn’t. The Mahari Basan asks: but there is a doubt here. If I, the claimant, am right, then you are a thief, right? Even though I brought no proof. So the court is in doubt; they don’t know who is right. An oath is not proof. No, no – no oaths here; we are talking about a situation in which there is no oath-obligation. Fine? So nobody swears, there is no evidence, the situation is doubtful. The court asks: who is right? We don’t know. Doubt, right? Doubt, says the Mahari Basan, with a Torah-level doubt we rule stringently. Why are you not concerned about the prohibition of theft? There is a doubt of theft here. How can you continue to hold this money if there is a doubtful prohibition here? How can we allow the current possessor to keep the money and win the case when there is a doubt of theft, and with a Torah-level doubt we rule stringently?

So why not be concerned about theft vis-à-vis the other side? Some want to say: what should we do? If you return it to him, then maybe you are stealing from the first one. No – put it in the court until proof comes; let it remain until Elijah comes. Then neither side will stumble in theft, neither claimant nor defendant. If they both agree to split it and everyone’s happy, no problem. But if they both persist, then neither of them gets it; let’s leave it with the court until Elijah comes, or until evidence is brought, so that neither will fail through theft.

But the question itself is not difficult. Why not? Because when I sue him – let’s say David – David knows the truth. The court does not know; the court is in doubt. David knows the truth. So you can’t tell David: don’t hold the money, because it’s a doubtful theft and you should be strict. He’ll say: what do you mean? I know the truth. I’m not a thief. I’m calm. Leave me alone; I’ll work it out with the Holy One, blessed be He. Okay? You can’t force me to act according to rules of doubt when the doubt is yours. If you are in doubt, you be strict. What do you want from me? I’m not in doubt; I know the truth.

Yes, it’s a bit like the priest who came to Rabbi Yonatan Eybeschutz and told him: we Christians are the majority, and your Torah says “follow the majority,” so why don’t you follow us? And he answered: that rule of following the majority was said in a situation where a person is in doubt. If you are in doubt, follow the majority. I am not in doubt. If I am not in doubt, why should I follow the majority? Okay? In other words, this rule of following the majority, or the rule that with a Torah-level doubt we rule stringently, applies where you really are in doubt. Then go stringently or follow the majority. If you are not in doubt, then if someone else is in doubt, let him be strict – what has that got to do with me?

Wait – but if there is a majority of judges deciding something? Not the point. In a regular case… you know the truth is otherwise… You know, but of course you still have to obey them. There is an obligation to obey the court. Not because they are right. Because they are the court. There has to be order, you know. If everyone does whatever he thinks, then even in an ordinary legal system nobody will accept that you think otherwise. If the judge ruled, then you have to do what he ruled. No – I don’t merely think otherwise, I know otherwise. Know otherwise, doesn’t matter. Their authority to determine what I do comes from judges – like appointing a king – where does that come from? No, “appoint judges and officers in all your gates.” I don’t know. Judges have authority.

Isn’t it enough that the court itself is in doubt? And here a person is telling stories? But if the court is in doubt, let the court be strict; what do you want from me? The court is ruling now. It cannot rule over money that isn’t theirs. How are they being strict regarding my money? What are you talking about? Leave my rules of doubt to me. I’ll settle accounts with the Holy One, blessed be He, if I… The obligation to be strict in cases of doubt is not an obligation toward him; it’s between me and the Holy One, blessed be He. Did I or did I not violate the rule of being strict with a Torah-level doubt? Leave that to me; I’ll handle it with Him. The court is supposed to regulate the relationship between me and him. That relationship has been regulated: we are in doubt, there’s nothing more to be done, we don’t know how to add anything. Fine? You can’t force…

So in regular matters too, even if you are not in doubt… He will force me if he knows I am in doubt and I am not being strict; then he will force me. But if I’m not in doubt, then the fact that you don’t know – you also don’t know that I am lying. Meaning, when I say I am right, you can’t extract from me because of some suspicion you have. Suspicion? Prove your suspicion. I tell you I know the truth and I am not bothered by the heavenly court. I’ll work it out with Him, because I know the truth. Fine?

So that is not difficult. But it does become difficult in a case of certainty versus uncertainty. If I sue David, and David says: the truth is, I don’t remember whether I borrowed or not. I sue him for money, yes? You borrowed money from me. Now I claim with certainty: definitely, you borrowed; I remember. And he says: listen, I’m not sure, maybe yes maybe no. Uncertain. Now in such a case there is a dispute among the amora’im, and the practical ruling is that certainty versus uncertainty does not mean certainty wins. Meaning, if you are the current possessor, then in order to take the money from you I need proof. A mere claim of certainty is not enough to extract from a possessor even if he claims uncertainty.

Now in that case the Mahari Basan’s question is really a good one. Because here the possessor himself is in doubt, right? He can’t say: listen, I know the truth, so I don’t need to be strict. Here he is in doubt. So why is he not strict? Why don’t we even force him to be strict? After all, he himself says he is in doubt. So the court should force him to be strict. Why do we say certainty versus uncertainty does not mean certainty wins, and he keeps the money and uses it? That’s the Mahari Basan’s question. He himself raises it. Meaning, that’s not my point – he himself says it’s only difficult in certainty versus uncertainty. Or at least Rabbi Shimon Shkop says that – maybe it’s also the Mahari Basan.

So Rabbi Shimon Shkop brings several answers there and rejects them, but in the end he says the following principle. He says the prohibition of theft is different from all other Torah prohibitions. With all other Torah prohibitions, why is it forbidden to eat pork? Because the Torah commanded not to eat pork. Right? Without the Torah’s command, nothing happens. Fine? But with the prohibition of theft, theft is forbidden to me even before the Torah commanded it. Even without the Torah’s command it is forbidden. Why? Because of civil law. There is a legal order in society, and a legal order is something that reason says is binding, even without the Torah’s command. The Torah – now in my terminology – adds a religious layer on top of the moral, social, legal obligation. Okay? But the legal obligation exists even without the Torah’s command.

He brings proof for this too. He says: where are the Torah’s laws of acquisition actually written? Where are they written? Nowhere. How do we acquire things? There are no sources. Almost all of it is reasoning. There is barter from the scroll of Ruth, and perhaps there is some source for money as acquisition, though that too is doubtful. But lifting, pulling, and all the other forms of acquisition have no source. That’s his proof.

Now Rabbi Shimon Shkop asks: there is a Torah prohibition, “do not steal.” How do I know what theft is? What is theft? Theft is taking something that belongs to someone else. How do I know when something belongs to someone else and not to me? Where is that written? Nowhere. So the Torah’s prohibition “do not steal” actually presupposes that in the background there already exists a system of property law – what belongs to whom, how one buys and sells, how property is regulated among human beings. Because if that were not already regulated before Torah law, then the law of “do not steal” would be emptied of content. What counts as stealing? If you can’t define what belongs to whom, then what counts as theft?

So this means that from the Torah’s “do not steal” it is clear that a system of property law precedes the Torah. Before the Torah even begins to speak, this must already exist. He calls this civil law. And because of that, says Rabbi Shimon Shkop, if the legal rule says that the burden of proof is on the claimant, fine, then on the legal level you are allowed to keep the money. Legally. Now the only remaining issue is the prohibition of “do not steal.” Fine, but maybe you are violating “do not steal”? If the truth is that it’s not yours, then maybe there is a doubtful prohibition of theft. He says no – because the prohibition of theft gives religious force to the legal state of affairs. If the money is not yours and you are holding it unlawfully, then not only is that morally wrong, it is also religiously forbidden. But here the moral/legal prohibition is not present, because the legal layer determines that the burden of proof is on the claimant. If I didn’t bring proof, you may keep the money on the legal level. Right? Every legal system in the world works like this. So on the legal level the money is yours.

If so, then the prohibition of “do not steal” will also not apply here – not even as a doubtful prohibition. Because the entire prohibition of “do not steal” applies where you hold money that is not yours on the legal level. When you violate the civil law, then the Torah says you also violated the religious law, because there is a prohibition of “do not steal.” But if you are not violating the legal prohibition, then there won’t be a religious prohibition here either, because all the religious prohibition says is: preserve the legal prohibition. In other words, there is also a religious problem if you violate the legal prohibition. If there is no legal prohibition, then there is no religious problem either.

Therefore, says Rabbi Shimon, since the legal rule says the burden of proof is on the claimant, and David may keep this money even though we are not sure what the truth is – and even if he himself is not sure, in certainty versus uncertainty – that doesn’t matter. On the legal level we allow him to keep the money. The moment it is legally permitted to him, there is also no prohibition of “do not steal,” even if the heavenly truth is known that the money is not his. Even on that side of the matter, it makes no difference: he is not violating “do not steal,” because the prohibition of “do not steal” is determined by the legal ruling.

Meaning, if he’s not really uncertain, and he actually knows he stole, and he says “I’m uncertain,” would you still let him keep the money? No. If he lies, then the legal ruling isn’t really valid, because the ruling is based on a lie. Fine, but it’s still a ruling, no? No, that doesn’t matter – the ruling is based on a lie. You lied to the court. If you lied to the court, then you can’t say the legal layer itself told you to keep the money. They told you to keep it only because you misled them. It’s a mistaken transaction, so to speak. Fine. But if I’m genuinely uncertain, isn’t that also half a mistake? No. If you’re genuinely uncertain, and they know that, then you didn’t lie to them. They say: the law says that if you are uncertain, you may keep the money. That’s what they say. And that ruling is a correct ruling. No, there is no mistake here on which the ruling is based. But if I only say I’m uncertain? No, that’s not what the law says. The law says if you are actually uncertain, not if you merely say so. The law doesn’t speak about what you say; it assumes that what you say reflects what you really think is true. If you are lying, then no – you simply misled the judges.

Yes Rabbi, just sharpen this for me. A person dies, he has property that should go to his children. The problem is, right now no one knows who his children are. And meanwhile some outsider comes and takes the money. Did he violate “do not steal”? Of course. Why? But legally he didn’t, because right now nobody knows who the children are. No – if he has children then legally too you may not take it. But right now we don’t know at all who his children are. So what? He has children. Maybe. I don’t know. So there is a doubt. Fine – then we have to discuss what the law is in a case of doubt. That’s not our case. Then we discuss the law under that factual uncertainty, and accordingly we tell the person whether he may take the money or not. But you can’t violate the law. So if there is legal uncertainty, will there still be a religious prohibition? Of course. If there is legal uncertainty, then there will also be doubt of a religious prohibition. But if there is no legal problem, if the legal system has spoken, then no religious problem arises merely because of “do not steal.”

Just think about this: what happens if I stole money from someone now, and nobody knows – I did it quietly at night. Fine? Am I now holding it lawfully? Why not? But the court doesn’t know. If it came to court they wouldn’t take the money from me because they know nothing. You understand that this is absurd, right? Why? Because the fact that the court does not know means nothing. I am talking about a legal ruling the court gives when it knows all the known facts. Now true, there are doubts that nobody knows. Fine. We have to decide what the law is under that factual reality including the doubts. But if I deceive the court, then the ruling is simply based on a mistake and is void.

And what if the other side was wronged? He misled the court, and therefore I don’t obey? Okay. Why? Because that ruling is based on a mistake. Fine. If from one person’s point of view, you know for certain he misled the court? I know for certain. Then it could be that you are allowed to hold it. Anyone who claims something with certainty – knows for certain that the other side is misleading? Not necessarily; the other side could also just be mistaken and not deliberately misleading. Fine. So if he is deliberately misleading and I know this, it could be that I am allowed to keep it. Again, the court won’t allow me; it will force me. But suppose I manage to escape quietly – maybe it is permitted. That already relates to the topic of a person taking the law into his own hands.

So that is Rabbi Shimon Shkop’s claim. I’ll just add one more note. Many tend to think Rabbi Shimon Shkop is not claiming there is a legal prohibition against holding money that is not mine. They think he is only saying there is a legal definition that, if this money is not mine, then it belongs to you and not to me. That is the legal definition, and on top of that the Torah comes and imposes a prohibition. So what exists before the Torah is not a legal prohibition but a definition of legal status. And all prohibitions are Torah prohibitions; there are no legal prohibitions. Do you understand what I mean?

Then one could say: look, before the Torah there was only a definition of which property belongs to whom, but I still could have taken your money without violating anything. So what practical meaning does the definition have? I take it – not just leave it, I take it, I rob you. What practical meaning does the definition have? It’s just a definition. And then the Torah comes and says: if that’s the definition and you took it, then you violated “do not steal.” The Torah innovates the prohibition. Before the Torah introduced the prohibition, all there was was a definition of property status, who owns what. That is how many want to understand Rabbi Shimon Shkop.

That cannot be correct. First of all, as a matter of logic it is completely implausible. Why should I care about property law if it has no normative implications whatsoever? But beyond that, Rabbi Shimon Shkop himself can be shown not to think this way. Why? Because later on, in chapter 4 of Gate 5, he asks himself: although at first glance this is very puzzling, what compulsion and obligation would there be upon a person to do something without the Torah’s command and warning? After all, there is no Torah command here, so why should I be obligated to someone? How can I be obligated if the Torah never warned about it? That’s his question.

Now what does he answer? Like a Jew answering one question with another. He says: but when we examine the matter well, it can be understood. For the very binding obligation to serve God and fulfill His will is also itself an obligation and compulsion according to the judgment of reason and recognition. Similarly, the obligation of monetary subordination is a legal obligation that arises through the ways property is acquired. You ask me: wait, the Torah didn’t command anything, so why should I be obligated? But even if the Torah had commanded, why should you be obligated then? Good question, right? Suppose the Torah did command. Why would you be obligated there? Reason says that if the Torah commands, one must obey. Right? So your reason precedes the Torah. Even what the Torah commands is binding only because your reason says that if the Torah commands, one must fulfill it. So your reason here too says obey even without a Torah command.

You are assuming the Torah’s command is the fundamental thing, but it isn’t. Reason is the fundamental thing. Even the Torah’s command gets its force because reason says that if the Torah commands, one must fulfill it. But for our purposes, what does this mean? If Rabbi Shimon Shkop thought that before the Torah’s command there is only a property definition and no prohibition, then there would be no place for this question at all. What is he asking here? He asks: why should I obey something if the Torah never commanded it? But who said you have to obey? If it is only a property definition and you can take someone else’s money – it’s just defined as his, but you can take it – then indeed you don’t have to obey anything. The duty of obedience would arise only with the Torah’s command. So what is there to ask: how could I be obligated to obey without the Torah’s command? I really would not be obligated. It is clear that Rabbi Shimon Shkop understands that there is an obligation, or prohibition, against theft even without the Torah’s command – a legal prohibition – and on top of it comes a religious prohibition because of “do not steal.” Fine?

Now for our purposes, what does this actually mean? It means that once again we see this two-story structure. Civil law is something universal, right? It doesn’t have to be that legal systems are identical all over the world, but the obligation to the legal system established by the society in which you live – that is a universal obligation. Everyone is obligated to obey the legal system in force in the place where he is. Okay, that is a universal system. On top of it there is the particular religious system, which says: besides the legal prohibition there is also a religious prohibition.

Now when you ask yourself, as a Jew, why is it forbidden to steal? The answer is double: on level one, it is forbidden to steal because of the legal layer; on level two, it is forbidden because of the prohibition “do not steal.” And therefore, for example, Rabbi Shimon Shkop says: what about theft from a non-Jew? There is a dispute among medieval authorities whether theft from a non-Jew is included in “do not steal.” Is theft from a non-Jew forbidden at the Torah level or not? Some medieval authorities say yes, some say no. Rabbi Shimon Shkop says: even according to those who say theft from a non-Jew is not forbidden by the Torah verse, it is still forbidden at the Torah level in another sense. It is forbidden because of civil law. You are forbidden to steal from a non-Jew even if “do not steal” was not stated about theft from a non-Jew, because there is a legal order that forbids theft, and that applies to all human beings, not only to Jews. Therefore, even though you are ostensibly bound to the Torah where it says “do not steal,” and here maybe that verse does not apply – so what is the problem? No. You are obligated not to steal because of the first story, because of the legal layer.

Exactly like with oath: even where I didn’t do it verbally, or I am a non-Jew, or I am a minor, or something like that, and the religious obligation doesn’t apply to me – fine, but there is still the oath obligation from the universal layer of the first story.

Does returning a lost object exist on the universal level too? Of course it does. According to Jewish law one is not obligated. נכון, according to Jewish law maybe not, but according to the universal level yes. There is no religious obligation to return a lost object to a non-Jew, but there is a full moral obligation to return a lost object to a non-Jew. Not everything moral… No, if it’s legal it’s not necessarily also… On the contrary, morality is broader than law. There can be things that are morally obligatory even though there is no religious obligation, and that is exactly the point.

Now, what I think is confusing you is Maimonides, for example, who says that it is forbidden to return a lost object to a non-Jew. Not merely that one is not obligated. Then there is already a clash: morally I should return it, and halakhically it’s not only that I needn’t return it, but that I’m forbidden to return it. So what do I do there? But here too the Meiri speaks about this, and generally there is no prohibition against returning a lost object to a non-Jew. You just aren’t obligated. Except that when non-Jews were morally corrupt and so on, they told you to impose sanctions too – they behave like beasts, don’t return their lost object, nullify their loans, everything. Okay? But that is just a reaction to a problematic moral condition of the non-Jews. If they do not behave morally, don’t behave toward them morally either. Someone who isn’t human is not treated like a human.

But where there are decent non-Jews – what the Meiri calls people “restrained by the norms of the nations” – they behave like normal human beings. Most non-Jews today are decent people, ordinary people like us, the kind we know among ourselves. Some are better, some less so, like anywhere. In such a case there is certainly a full moral obligation to return a lost object to a non-Jew. Not just because of desecration of God’s name, which people always say – return it because otherwise there will be desecration of God’s name. No. There is a full obligation to return a lost object to a non-Jew. A full obligation. Not religious. Moral. And the religious obligation – maybe yes, maybe no. The question is why the non-Jew was excluded from the religious obligation. It may be that what was excluded from the religious obligation was because of his moral condition, and once his moral condition is repaired, there may be a religious obligation to return the lost object too, not only a moral obligation. But a moral obligation certainly exists.

Are there more implications of what happens when one lives in a morally corrupt society, in terms of these two stories, legal and then religious? If the society you live in is immoral, then at least in certain matters, on the moral level you may not be obligated toward it. That still doesn’t tell us what will happen on the religious layer; maybe religiously you are still obligated. Because that’s only on the moral level? No, not always. It can be broader and it can be narrower; each case has to be judged on its own.

We saw this in the Maharal, if you remember, when I brought the Maharal on returning lost property. He says there that after despair of recovery – when the owner has given up hope – you are not obligated. Right? But morally you should still return it after despair, because after all it is his lost object – why are you taking it? Okay? So that is a stringency morality has beyond Jewish law. But he also brought the opposite example, where Jewish law is more stringent than morality. For example, if you find silver or gold vessels and they have identifying marks, so the owner has not despaired, but he never comes. It’s been sitting with me ten years and he never comes. He’s never coming. Okay? Morality says: fine, at least use it yourself. Why should everybody lose? At least you use it. You guarded it for him, behaved correctly, everything was fine, and you see he never comes – use it. Jewish law says: let it remain until Elijah comes. No – if you took it before he despaired, it is not yours, period. And the Maharal says: that is a stringency that Jewish law has beyond morality. Whereas the case of returning lost property after despair is a stringency morality has beyond Jewish law. So you see there is no one side here that is always stricter than the other; it goes both ways.

Another note from this issue – maybe I mentioned it already, I don’t remember. There are often claims about defining Judaism. How do we define Judaism? For example, when a convert comes to convert, we inform him of some of the commandments, we teach him, yes – he has to accept the yoke of the commandments. Which commandments are we talking about? “Do not murder,” “honor your father and your mother” – though he won’t have a mother anymore because after conversion he is like a newborn child. Which commandments? Usually the focus is on ritual commandments: eating kosher, menstrual purity, Sabbath, things like that. And the claim is: why? Are the moral commandments less important? “Do not murder” is a much more severe transgression than almost anything else.

I once saw someone ask: Yigal Amir murdered Rabin. Okay? Everyone understands that he is a religious person who sinned and failed. Okay? But if he ate pork, then he’s not religious. So what – is eating pork more severe than murder? Murder is far more severe. So why? Again, a question of defining Judaism. Why is murder irrelevant to defining Jewish identity, while eating pork is? Murder is much more severe. The answer is that definition – I don’t remember if I said this already – definition, as Aristotle taught us, has to gather the unique features of the thing being defined, not the important features.

For example, if you want to define a human being – what is more important, that he has two legs or that he has a heart? Obviously a heart, right? Much more essential to life. But having two legs distinguishes him more than having a heart does. Most animals have four legs – not all, but most. Therefore a definition involving two legs will be more precise for a human being than saying he has a heart. Not because having two legs is more important, but because it is more unique. When you want to define something, you need to distinguish it from similar things that are not it. You need to find features unique to it, that do not exist in its cousins, its siblings, the neighboring concepts.

Okay? When you want to define a Jew, you need to find features of a Jew that are unique to him and do not exist in a non-Jew. Obviously when someone converts I’m not going to tell him, “in our community we don’t eat pork.” Right, exactly. That’s not the point at all. You have to examine features that will make clear to him what he is entering into, and make clear to us that he has really decided to enter it. Now if he says, yes, I accept upon myself not to murder – am I now convinced he wants to be a Jew? A non-Jew also has to refrain from murder. What do you mean? That’s irrelevant. I want to test whether he will eat kosher, or keep family purity, or things like that, because that is what really distinguishes a Jew.

Therefore the definition of the concept “Jew” has to come only on the basis of the second story, not on the basis of the first story. Let’s return to the two-story model. Not because the first story is less important – the first story may even be more important, or at least more fundamental. If you violate the first story, then you are not a human being. If you violate the second story, you are a human being, but not a Jew. Fine? And if you are not a human being, then you are not a Jew either, because a Jew is a kind of human being.

How do we relate to a person like Elisha ben Avuyah, who began to be pushed out of Judaism and then we somehow bring him back? Then we bring him back. I didn’t understand the question. Say, I don’t know, someone who became a heretic and then wants to return to being head of the rabbinical court. What questions would we ask him to verify that he really returned? That’s not a question of returning to Judaism, but of repentance. You have to see that he repented of the very thing in which he sinned. That’s all. It’s not a question of definition. In conversion you need a definition: what defines a Jew, in order to test whether he has really decided to move from there to here. Okay? When he sins, you need to check whether he has stopped the specific sin into which he fell. It doesn’t matter what is more or less important.

He could say he stops because he wants to be religious. Yes, נכון, in principle he could say that too. But these hair-splittings – even the rabbinical judges aren’t aware of them. These are my innovations, so I’m not… Actually on this point one could ask the convert whether, when he refrains from murder, he refrains because it is a religious commandment or because it is a moral commandment. If he says it is also a religious commandment, then that too becomes a unique characteristic, even though it is “do not murder,” because the universal aspect is the moral dimension, and this really would be a particularistic marker. Fine. But nobody makes these distinctions.

There is another aspect of this two-story model in the realm of marriage. What happens there? Maimonides, at the beginning of the Laws of Marriage, writes as follows: before the Torah was given, if a man encountered a woman in the marketplace, if he and she wished to marry, he would bring her into his house and have relations with her privately, and she would thereby become his wife. Once the Torah was given, Israel was commanded that if a man wishes to marry a woman, he must first acquire her before witnesses and only afterward she becomes his wife, as it says, כי יקח איש אישה ובא אליה – “when a man takes a woman and comes to her.” First he takes her, and then comes to her. Meaning, “takes” means betrothal, and “comes to her” means marriage.

But why does Maimonides preface the Laws of Marriage with this historical introduction? Is he teaching me history? What happened before the Torah was given? Let him tell us how the world was created too – why does he stop only here? I claim that this introduction has halakhic meaning. Maimonides brings it at the beginning of the Laws of Marriage because it is itself a law, a law at the start of the Laws of Marriage. Namely: before the Torah was given, the institution of marriage operated naturally. Right? We said that for non-Jews, the law is determined by nature, by the ordinary facts. What does that mean? A couple wants to build a home and live together. They talk to one another, agree – no problem. He brings her into his house, comes to her, and they are husband and wife. No need for formal legal ceremonies.

After the Torah was given, the Torah told us: כי יקח איש אישה ובא אליה. In other words, first he takes her and only then comes to her. What does that mean? There is an act of taking, what is called betrothal, which must precede the act of marriage. The act of marriage is what existed before the Torah was given. The Torah obligated us to precede marriage with betrothal. First we have to betroth the woman through money, document, or intercourse, and only afterward bring her into his house, come to her, and then they truly become a couple.

What does the Torah add to the social order by doing this? It wants there to be some legal contract before this institution of the home is established. Was that not lacking before the Torah was given? Apparently not; people didn’t do that. Before, people did what they understood. The Torah says no – this has to be preceded by a legal arrangement. You have to understand that tractate Kiddushin deals only with betrothal. You won’t find there almost anything about marriage itself. Because marriage is a natural, everyday act. There is nothing much to define halakhically as “marriage.” Marriage is living together. That’s what existed before the Torah too. All we discuss halakhically is the laws of betrothal, because betrothal has countless details. It requires money, document, or intercourse; it must be worth a perutah; before two witnesses; witness of transfer, witness of signature; lots and lots of details, the whole tractate Kiddushin and more. Okay? But all of that concerns only betrothal, not marriage, because betrothal is the formal religious part in creating marriage. There is also the natural part that already existed before the Torah – simply deciding to live together, to build a home and live together. That’s all.

Now what happens? I’ll jump to the end and ask the question directly. What happens if I did what people did before the Torah was given? I met a woman, we spoke, decided to live together, I brought her into my home, and now we are living as a married couple. We did not perform betrothal according to the law of Moses and Israel; we did nothing. What is our status? Ask ordinary people and they’ll tell you: nothing, no status. Just two unmarried people living together. Maybe concubinage in some circumstances. But ordinarily, no status at all. Nothing happened. You didn’t do betrothal, so nothing happened.

But that is not correct. I claim there absolutely is such a status. We are married – we simply did not precede it with betrothal, as the Torah asked us to do. But the Torah added betrothal as a second story; it did not cancel the first story. The first story of marriage that existed before the Torah was given still exists now too. The Torah merely required us to precede it with betrothal. We failed to do so, and thereby violated the Torah’s words. But that does not undo the fact that we are married. We are still married, because the universal human social institution of marriage also exists in Jewish law. We are married on the level of the Noahide within us. We are married the way Noahides marry to this day – they simply agree and begin living together. If we do that, then we have created a home, but a Noahide home. I call it Noahide marriage.

Two Jews can marry in Noahide marriage. And all the marital prohibitions – “do not covet,” “your fellow’s wife” – all that won’t apply there? The halakhic prohibitions probably won’t apply there. But the moral prohibitions will, yes. Because on the social-moral level she truly is your fellow’s wife. There is a religious “married woman.” On the other hand, that needs proof. If you bring evidence for it, I don’t reject it. But without proof, I think not. In the simple sense, she is not married to you on the halakhic level but only on the social level. And “do not covet” speaks on the halakhic plane, not the social one.

You could say that “do not covet” also deals with coveting on the more general human plane, like everything else. According to your approach, do non-Jews have “do not covet”? They should, right? Because they have marriage. If you covet your fellow’s wife, fine, and she is married to him in Noahide marriage, then you violated “do not covet.” No – but I’m speaking about the halakhic prohibition of “do not covet.” And who says that the halakhic prohibition speaks about the human layer? Presumably. Why? Why should it? Maybe it speaks about the religious layer – your fellow’s wife in the religious sense, meaning that she is fully his wife. But she really is his wife. What Maimonides writes is that it’s the same thing. The idea of a man and woman living together, and she being his wife, is the same thing. They were simply also commanded to precede it with something. It’s not that if that element is absent, something essential is missing. As I said, they are married in Noahide marriage even without betrothal.

The question is whether “do not covet” speaks about Noahide marriage. I don’t know – I would need proof for that. Because they really are married. They really are married, but who says “do not covet” refers to marriage as such, and not to betrothal-and-marriage in the halakhic sense? It doesn’t say “married” there. It says “your fellow’s wife.” You could say that means a woman who belongs to your fellow. “Belongs” could mean that he acquired her – that is, betrothal. The term “married” isn’t written there. Again, if there were proof, I wouldn’t reject it; it’s possible. I’m only saying I think proof is needed. Without proof I wouldn’t say it.

Could you just sharpen how we deal with the place of common-law spouses, civil marriage, and the two…? There’s no difference at all. Civil marriage and common-law spouses are the same thing. They have no status from the standpoint of Torah law. They have no halakhic status, but they do have social status, and Jewish law recognizes social status.

And what about two non-Jews who were married and then converted? A convert is like a newborn child. So they’re not married now? Meaning, his parents are no longer his parents – that’s even more far-reaching than marriage. He’s really viewed as a new being. And then… could he marry his sister, for example? By strict law, yes, I think so. Maybe rabbinically there is some decree not to do that. But doesn’t that violate “you shall greatly guard your lives”? No, that’s another issue. But there’s also the issue that it shouldn’t look like Jews are lenient where Noahides are stringent. As a Noahide, he was forbidden to marry his sister. Now non-Jews don’t understand all this sophistication, that now “he is like a newborn child” – again, because non-Jews go by nature, while we speak in halakhic categories. In halakhic categories they are two strangers. And he could marry her. Since the world doesn’t see it that way, the rabbis forbade it, but by strict law he could marry his sister.

What about honoring parents? We said that a convert is like a newborn child, and that is a halakhic definition. So is he also not obligated in honoring parents? Halakhically, no. Morally, absolutely yes. By the way, I actually know one convert like this. Certainly – he even has non-Jewish children, a non-Jish wife and children in Germany, and he converted and now lives here as a religious Jew who keeps the commandments, and of course he is in full contact with them. He cares for them and everything. At least a moral obligation certainly exists here.

So that is Maimonides’ view. Maybe I’ll sharpen, or define better, what I said here. Look: one can define two kinds of commandments – constitutive commandments and regulative commandments. In analytic philosophy they distinguish between two systems of rules: constitutive rules and regulative rules. For example, the rules of chess are a constitutive system of rules. Why? Suppose I move the knight the way a bishop moves. Will they say I’m a criminal? No. I’m simply not playing chess. I’m playing something else, but not chess. Right? That system of rules constitutes the concept of chess. If you don’t do it according to the rules, you are simply not playing chess.

By contrast, if I drove not according to traffic laws, went above the speed limit, then I’m an offender. What does that mean? I drove unlawfully. But the driving is still driving even if I did it unlawfully. It’s not as if they say: if you did it not according to the law, then you simply didn’t drive. Obviously I drove, I used the road, and I committed an offense.

Or a more philosophically interesting example – I once heard a lecture in some Tel Aviv pub during the World Cup, I don’t remember whether it was two or three World Cups ago. Two lecturers from the Open University were giving a talk on the philosophy of soccer. One of the questions they discussed was the status of a foul in soccer, basketball, whatever. You understand that in basketball, say, someone who commits a foul – is he “not okay”? Let’s not talk about a technical foul or an unsportsmanlike foul, violent foul – I’m not talking about that. I mean an ordinary foul, the kind that’s part of the tactic. Right? “Commit a foul” so that he won’t score. Right? People always say that. It’s part of the tactic. What does that mean? It means that the concept of “foul” in that context is regulative, not constitutive. Because if it were like chess – in chess, when you move the knight like a bishop, you simply are not playing chess. It’s not that it’s against the rules; the rule system defines the game, so if you don’t act according to the rules it’s simply not this game.

In basketball there is also a rule system that defines the game, but by and large most of the rules do not define the game; they regulate it. If you step out of bounds, the ball goes to the other team. Will anyone say you are morally bad? What do you mean “bad”? You stepped out of bounds. It’s foolish because you lost the ball, but there is nothing morally wrong here, right? You went out of bounds; the rules say what happens – the ball goes to the other side. So you understand that the foul here doesn’t define the game. It’s not that if I did this, then I’m not playing basketball. No, I am playing basketball, and there are rules in basketball about what happens if I commit a foul. An unsportsmanlike foul is already something more exceptional, because then they look at you as really not okay. It’s not just, okay, the ball changes sides and he also gets two free throws. No, you are also not okay, and in extreme cases they’ll throw you out. There it already begins to approach the constitutive side. But an ordinary foul is regulative. It just says how the game is played and what the rules say if this happens or that happens.

So that’s the distinction between a regulative and a constitutive system of rules. Regarding commandments too one can ask: is a commandment constitutive or regulative? For example, in the Torah’s passage about fringes, in Deuteronomy, it says והיה לכם לציצית – “and it shall be for you as fringes.” Now it describes there the fringe, the corner, the blue thread, and so on, “and it shall be for you as fringes.” What does that verse mean? Have you ever thought about it? It’s a very strange formulation. The Torah here is defining the concept of fringes, right? This is what is called fringes. But after defining it, it says: “and this shall be for you as fringes.” As if the concept of fringes is already known, and the Torah is saying: I want your fringes to be made this way. This will be your fringes, not something else. In other words, the concept of fringes is not being created here; it already existed beforehand, and the Torah is regulating it. It is not constituting the concept of fringes. It’s not that before this passage there was no concept of fringes; there was. The Torah says: but I want your symbol to be this particular symbol and not another.

Ibn Ezra, for example, says that fringes are like the hair tuft on the head – a symbol. Fringes are the Jew’s symbol, but people can make symbols in all sorts of ways. The Torah wants specifically this symbol. Do you understand that this means the commandment of fringes is regulative and not constitutive? It is not constituting the concept of fringes. That concept exists even without it, before it. The Torah is only directing it, telling us how to do it correctly or incorrectly.

I claim that what Maimonides says here at the beginning of the Laws of Marriage is that the commandment of betrothal is also regulative and not constitutive. The concept of couplehood and home exists already beforehand, even without the Torah. It exists among Noahides and before the Torah was given. The Torah directs how to do it correctly. But it does not mean that if someone did not do it as the Torah said, then there simply is no betrothal and they simply are not married. No – they are married, just not correctly; he committed a transgression. Fine? This means that for Maimonides the concept of betrothal is regulative and not constitutive. It is a directing concept; it does not define the concept of marriage. The concept of marriage already existed. It is a social, universal concept. It belongs to the first story. The concept of marriage belongs to the first story. The second story adds rules about how to do it correctly. Fine?

That is what Maimonides says here, and we’ll continue. You can already see the connection to the two-story model. Marriage belongs to the first story; it is universal; it is unrelated to Torah. The Torah added the second story: betrothal. Fine? So here too there is a two-story model.

Could you just give an example of a constitutive commandment? A sukkah. Meaning, if you built it according to the law, then you have a sukkah. If not, you have nothing. Why is sukkah different from fringes? Because sukkah apparently didn’t exist before. There is no such concept among non-Jews. There are pergolas, but not sukkah in the sense we mean. It doesn’t exist anywhere else. The Torah created it through the commandment to make a sukkah. The Torah constituted it. But with fringes too, the specific kind we do now – didn’t the Torah constitute that? Yes, but the concept of fringes is a symbol. What is fringes originally? A symbol. Fringes are a symbol. The concept of symbol exists among many peoples in many places. The Torah wanted our symbol to be this particular one. Okay, but with sukkah you can’t say a similar thing: there is sukkah in general and the Torah wanted our sukkah to be like this. No. The Torah constituted the concept of sukkah; without it, it does not exist. Fine?