Answer

Hello.
I read it quickly, and the points are interesting. I have a few brief comments.
1. I’m not a professor.
2. Even in civil law there are things that are really not effective, such as exemption for indirect causation.
3. In the dispute at the end of the first chapter of Makkot between Rabban Gamliel and Rabbi Akiva and Rabbi Tarfon, it seems to me that the difference lies in the role, which projects onto the approach. Rabbi Akiva, as is known, was not on the Sanhedrin (he was the son of converts; that’s why he says, "Had we been in the Sanhedrin"), and therefore he is a theoretician. Rabban Gamliel is the head of the Sanhedrin, the officeholder responsible for imposing order. So the theoreticians explain what is really correct (theoretical truth), while Rabban Gamliel makes practical, effective considerations.
4. It was not explained why the Torah leaves effective criminal law to the sages. Even if we accept the distinction that retribution by definition is not effective, why does the Torah focus specifically on retribution and not on the rest?
5. I have actually wondered in the past whether a religious court can also exempt contrary to the strict law, just as it can punish contrary to the strict law. That is, can a religious court prevent punishment when it is not effective, in other words tailor the punishment to the needs? Intuitively it seems so, but I don’t recall discussion of a religious court exempting someone who is liable for death or lashes.
6. It seems to me that the authority of the sages to punish contrary to the strict law is rooted in the law of the king. It began when the king was responsible for political order and therefore was not bound by the laws of the Torah. And the Torah reserved for itself the pure true law (not necessarily effective). After the monarchy was abolished, that authority passed to the religious court (which is why Hillel, Rabban Gamliel, Rabbi Yehuda HaNasi, and their line were descendants of the House of David). That is, the fundamental division is between the Torah and the king, not between Torah law and rabbinic law. The transfer of authority to the sages is a historical accident, a result of the loss of monarchy. One expression of this is that community governance and methods of decision-making entered the Shulchan Arukh. They don’t really belong there, but nowadays the Shulchan Arukh is responsible also for the king’s domain.
7. The fact is that civil law, specifically, is subject to enactments, changes, stipulations, local custom, and the law of the king more than criminal law is. If it is effective, meaning suited for practical application in every situation, then it should actually be less subject to changes and more rigid. Criminal law, by contrast, is described in the article as depending on circumstances and situations because it deals with retribution, but there halakha seems more rigid.
8. In my opinion the distinction there is correct, but it is general. All Torah law, criminal and civil alike, speaks about the truth (like Rabbi Akiva and Rabbi Tarfon) and not about practice, and does not try to be effective. The sages or the king are supposed to adapt it to circumstances and needs, that is, to make it effective. In the attached article (On Duties and Rights) I addressed this point among others. Something similar appears in the articles and book of Shai A. Wozner: that halakhic law, at least in yeshiva-style thinking, does not aim to achieve results but to reflect a theoretical truth. See also another article on ownership.
All the best and much success,

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A.:

Hello.
I read it quickly, and the points are interesting. I have a few brief comments.
1. I’m not a professor.
Take it as a blessing.
2. Even in civil law there are things that are really not effective, such as exemption for indirect causation.
As is well known, according to Maimonides anyone who causes damage is liable. In any case, this is not a rule that collapses effectiveness. By the way, the claim is that Torah law deals with justice, except that in monetary law this is usually enough also to make it effective. This claim explains the small number of puzzling laws in monetary law, such as exemption for indirect causation according to Rabbi Yitzhak.
3. In the dispute at the end of the first chapter of Makkot between Rabban Gamliel and Rabbi Akiva and Rabbi Tarfon, it seems to me that the difference lies in the role, which happens to shape the approach. Rabbi Akiva, as is known, was not on the Sanhedrin (he was the son of converts; that’s why he says, "Had we been in the Sanhedrin"), and therefore he is a theoretician. Rabban Gamliel is the head of the Sanhedrin, the officeholder responsible for imposing order. So the theoreticians explain what is really correct (theoretical truth), while Rabban Gamliel makes practical, effective considerations.
A very nice explanation. In any case, what was explained was what Maimonides actually ruled in practice, and that is ineffective.
4. It was not explained why the Torah leaves effective criminal law to the sages. Even if we accept the distinction that retribution by definition is not effective, why does the Torah focus specifically on retribution and not on the rest?
I didn’t understand. It says exactly the opposite—that the Torah deals with justice, and therefore halakhic criminal law also deals with justice. However, since this is a field whose essence is by nature mainly purposive, halakha is not effective there.
5. I have actually wondered in the past whether a religious court can also exempt contrary to the strict law, just as it can punish contrary to the strict law. That is, can a religious court prevent punishment when it is not effective, in other words tailor the punishment to the needs? Intuitively it seems so, but I don’t recall discussion of a religious court exempting someone who is liable for death or lashes.
I found a source for the idea that the king can exempt: David’s ruling regarding the woman of Tekoa, to save her son from death. See Ralbag and Malbim there, who wrote that the king can exempt.
6. It seems to me that the authority of the sages to punish contrary to the strict law is rooted in the law of the king. It began when the king was responsible for political order and therefore was not bound by the laws of the Torah. And the Torah reserved for itself the pure true law (not necessarily effective). After the monarchy was abolished, that authority passed to the religious court (which is why Hillel, Rabban Gamliel, Rabbi Yehuda HaNasi, and their line were descendants of the House of David). That is, the fundamental division is between the Torah and the king, not between Torah law and rabbinic law. The transfer of authority to the sages is a historical accident, a result of the loss of monarchy. One expression of this is that community governance and methods of decision-making entered the Shulchan Arukh. They don’t really belong there, but nowadays the Shulchan Arukh is responsible also for the king’s domain.
That is indeed what the Ran writes in the homilies. By the way, this is not an accident but a response to the destruction, which teaches that halakha allowed for organizational flexibility that increased its survivability.
On the substance, I am unsure whether the Ran’s view is really the center of the halakhic field. There is something in this statement that seems foreign to halakha.
Surely you would agree with me that in commandments between man and God, the enactments are also in the hands of the sages—for example, the prohibition of muktzeh—and if so it is hard to limit this only to this area.
7. The fact is that civil law, specifically, is subject to enactments, changes, stipulations, local custom, and the law of the king more than criminal law is. If it is effective, meaning suited for practical application in every situation, then it should actually be less subject to changes and more rigid. Criminal law, by contrast, you wrote, depends on circumstances and situations because it deals with retribution, but there halakha seems more rigid.
Local custom is part of the strict law, since it affects the intentions of the parties.
Enactments and the law of the kingdom do not replace halakha; they complement it.
By contrast, in criminal law the impression is that much more than supplementation is needed, and therefore halakha “retreats” to the world of retribution alone.
In other words, in monetary law the basis is retribution plus regulations at the margins, and therefore there is room for enactments.
In criminal law there is a basic problem of effectiveness, and therefore the focus is only on retribution.
8. In my opinion the distinction there is correct, but it is general. All Torah law, criminal and civil alike, speaks about the truth (like Rabbi Akiva and Rabbi Tarfon) and not about practice, and does not try to be effective. The sages or the king are supposed to adapt it to circumstances and needs, that is, to make it effective. In the attached article (On Duties and Rights) I addressed this point among others. Something similar appears in the articles and book of Shai A. Wozner: that halakhic law, at least in yeshiva-style thinking, does not aim to achieve results but to reflect a theoretical truth. See also another article on ownership.
I haven’t yet read what you attached, but I think I know your argument from your other articles that I have read.
I’m very hesitant about these points.
Your distinction is between legal conceptual analysis and justice. That is, you are basically showing that the halakhic ruling runs against moral intuition, and you attribute it to rigid, illogical criteria. This claim contradicts what the Torah says: that all the nations of the world will say about the people of Israel that they have “righteous statutes and laws.” Likewise, from my experience this is what happens on the ground—the rulings of the religious court are reasonable and understandable to any decent person. Moreover, I think a judge is supposed to examine the result he reached from an intuitive angle, and if it is unreasonable he should check himself again. I have a nice example of one of the leading sages of the generation who wrote an article whose conclusion was unreasonable, and further examination showed that the ruling was contrary to the words of the later authorities and to common sense.
I feel that the source of these claims is yeshiva-style conceptualism detached from actual ruling, but if I am mistaken, I apologize in advance.
Of course, the meaning of your claim is that a world governed by Torah law would be immoral, and that is inconceivable to me.

All the best and much success,