Answer

It isn’t online (it was published in a book). I’m copying it here.
 
With God’s help
 
 
 
Concepts:
Constitutive and regulative commandments.
A legal system and Jewish law.
Different dependencies between money and prohibition/commandment.
 
 
Summary:
In this week’s article we deal with the commandment of redeeming the firstborn son, which is made up of a monetary aspect (an obligation to pay the priest) and a prohibitory/halakhic aspect (the obligation to redeem the son). We examine various dependencies between these two components through the question whether one can redeem the son against the will of the priest and against the will of the redeeming father.
We discuss this question in light of a comparison to other transfers in Jewish law, where there is also uncertainty whether a transfer against the recipient’s will is effective. It is clear that in repaying a debt, payment against the lender’s will is effective, whereas in an ordinary gift it is not. What is interesting are the intermediate cases, where there is an interplay between monetary and prohibition/commandment components.
After that we discuss questions about the relationship between the legal and halakhic parts of the Torah, and the various relationships between components that exist within the same commandment itself. We distinguish between situations in which there is a reality that the Torah recognizes and even seeks to reinforce, and situations in which the Torah creates an alternative reality. We also hint at contemporary implications of this dispute regarding the way the Torah and Jewish law are understood.
 
 
 
 
On the matter of redeeming the firstborn son under compulsion
A look at acquisitions and commandments
 
Introduction
In Jewish law we recognize a distinction between the “legal” part (monetary/civil law) and the “halakhic” part (dietary law and laws of daily religious practice). There are situations in which a blending occurs, because the acquisition becomes a commandment. Consecration to the Temple is an acquisition that constitutes a commandment (and also a prohibition). Misuse of consecrated property is damage to ownership that is a transgression. Giving priestly gifts to a priest is a commandment to carry out a transfer of ownership, and the same is true regarding gifts to the poor. The same applies in other halakhic contexts.
One of those contexts is the commandment of redeeming the firstborn son. In our Torah portion the Torah lists several of the priestly gifts, and among them it commands the redemption of the firstborn son (Numbers 18:15):
“Every first issue of the womb of all flesh, which they bring to the Lord, whether man or beast, shall be yours; however, you shall surely redeem the firstborn of man, and the firstborn of an unclean beast you shall redeem. And those to be redeemed from a month old shall you redeem, according to your valuation, for five shekels of silver, by the sanctuary shekel, which is twenty gerahs.”
In this commandment we are instructed to redeem our firstborn son from the priest when he reaches the age of 30 days. The commandment is incumbent on the father, and if he does not redeem his son then the son himself, when he grows up, must redeem himself. The redemption involves giving the value of five sela of silver, or equivalent value, to a priest, and through this the son is redeemed. This giving is nothing other than a transfer of ownership, and it is carried out according to the laws of acquisition (it requires an act of acquisition and so on).
In this week’s article we will discuss a question that touches the seam between acquisitions and commandments, as it appears in redeeming the firstborn son and more generally. We will examine the question of redemption under compulsion. These situations divide into two types: redemption against the will of the father, where the redeemer is acting under compulsion, and redemption against the will of the priest, where the priest is the one under compulsion.
According to Jewish law, acquisitions require consent and intent on the part of the transferor and the recipient. Therefore we would expect that one cannot redeem a son under compulsion. But as we shall see, the matter is not so simple.
 
 
A. Giving against the will of the recipient, and redemption against the will of the priest
 
Giving against someone’s will
The Talmud in Gittin 74b discusses Hillel’s ordinance regarding one who redeems a house in a walled city. As is known, one who sells a house in a walled city can go back and redeem the house from the buyer within twelve months. At a certain point Hillel saw that a phenomenon had developed in which buyers would evade the sellers throughout the year so that the latter would not manage to find them and redeem the sold house. To solve the problem, Hillel enacted that it would be possible to redeem the house in the buyer’s absence by depositing the money in a special chamber established for that purpose. After the money was deposited, the house reverted to the seller against the will of the buyer.
From here the Talmud tries to derive the law of giving against the recipient’s will:
“And Rava said: From Hillel’s ordinance it may be inferred: If one says, ‘This is your bill of divorce on condition that you give me two hundred zuz,’ and she gave it to him with his consent—she is divorced; against his will—she is not divorced. Since Hillel needed to enact that giving against his will counts as giving, it follows that ordinarily giving against his will does not count as giving. Rav Pappa, and some say Rav Shimi bar Ashi, challenged this: Perhaps when he needed to enact it, it was only for giving in his absence; but in his presence, whether with his consent or against his will, it counts as giving.”
Rava learns from Hillel’s ordinance that by the basic law, giving something to someone against his will is ineffective, and here Hillel saw fit to enact that it would be effective in order to solve the problem of the buyers’ evasion. Rabbi Shimi bar Ashi disagrees with Rava, and in his opinion the main point of the ordinance is that the redemption should be effective in the buyer’s absence, but by the basic law redemption against the buyer’s will was already effective (if done in his presence).
The law is decided in accordance with Rava (see Maimonides, Laws of Divorce 8:21, and the Shulchan Arukh, Even HaEzer 143:4), that giving against the will of the recipient is not considered giving.[1] It should be noted that the discussion here concerns a giving that is supposed to fulfill a condition, not an ordinary gift. In an ordinary gift it is fairly clear that giving against the will of the recipient would not help, since a person does not acquire things against his will.
And indeed Rashba, in his novellae here, writes this explicitly, and also adds a discussion of several other cases of giving:
“It follows that ordinarily giving against one’s will is not considered giving. Where Hillel enacted, he enacted; where he did not enact, he did not enact. And the fact that we need to learn from Hillel’s ordinance that giving against one’s will is not considered giving applies specifically where the recipient is obligated by law to receive it, such as redeeming the house. But an ordinary gift, where the other person says, ‘I do not want it’—that required no proof, for it is obvious that he does not receive it against his will, since according to everyone, where he protests from the outset, his words stand (Bava Batra 138a), and in such a case Rav Shimi would not disagree and say that it counts as giving. Since that is so, we must explain that when he says to the woman, ‘on condition that you give me two hundred zuz,’ he is not making the receipt of the money depend on his own will but on the woman’s will—whenever she wishes to give it, he is ready to receive it—and therefore it is as though he is obligated to receive it. That is why we need to learn from Hillel that even in such a case, giving against his will is not considered giving, despite the fact that he made it depend on the woman’s will; and it is on this that Rav Shimi disagrees. It further seems to me that even according to the one who says that giving against one’s will counts as giving, that is only insofar as the giver is discharged by his giving and acquires what is in his hand by fulfillment of his condition; that is the reason in the case of divorce, and that is the reason in the case of the house in a walled city: the woman acquires the bill of divorce in her hand and the other party acquires the house through fulfillment of their condition. The same is true for one who swore to give something to his fellow—he may give it to him against his will and be discharged. But as for the giving being effective for the person to whom it was given against his will—not so, for one cannot confer ownership upon a person against his will. That is the reason in the case of a gift. The same applies, and for the same reason, in the case of a woman who says, ‘Give me a maneh and I will become betrothed to you,’ and the man swore to give it to her and gave it to her against her will: he has fulfilled his oath, but she is not betrothed. That is my view.”
Rashba states that in an ordinary gift it is obvious that giving against the will of the recipient is ineffective. Even Rabbi Shimi would not disagree with Rava on that point. Admittedly, as a matter of law, even in the case of a condition in divorce, the giving does not help, but there there was a need to learn this from Hillel’s ordinance. In other words, it was not obvious to the Talmud that even such a giving, if done against the will of the recipient, would not count as giving.
Why indeed was that not self-evident? Put differently: why does Rabbi Shimi disagree in this case? Rashba offers two explanations:

1. The first possibility is that in this case the condition makes the divorce dependent on the giving of the money, and the husband undertakes to receive it whenever she wants to give it. In such a situation, giving against his will is effective because he is obligated to receive it. It seems that Rashba means to say that when the woman gives the money against his will, the husband also acquires the money (even though ordinarily a person does not acquire against his will), since he is obligated to receive it. And from Hillel we learn that even in such a case, giving against someone’s will is not considered giving.
2. The second explanation Rashba suggests is that the woman’s giving is effective against the husband’s will, but only insofar as it fulfills her obligation. The husband certainly does not acquire the money if he is unwilling to receive it, since a person does not acquire against his will. This is Rabbi Shimi’s view. But according to Rava, in the end we learn from Hillel that if it was given against his will, then not only did the husband not acquire it, but the woman also did not fulfill her obligation.

According to this explanation, the condition in the divorce is a case similar to houses in walled cities, and Rashba compares it also to the case where Reuven swore that he would give something to Shimon; there too, giving against Shimon’s will is effective. It is effective only insofar as the one who swore, or the giver, thereby fulfills his obligation, but not for transferring ownership of the money to the recipient. And it seems that Rava would disagree even with the claim that the giver has fulfilled his obligation.
In any event, in an ordinary gift, according to everyone and under both explanations, it is clear that the giving is ineffective against the will of the recipient. And as a matter of law, even in the case of conditional divorce, giving against the recipient’s will is ineffective.
What about repayment of a debt? It would seem that in a debt one can certainly repay against the will of the lender, for he is obligated either to receive the money from the borrower or to waive the debt. It also stands to reason that even according to Rava, the lender cannot refuse to receive the money and at the same time tell the borrower that he still owes it to him (see Ketzot HaChoshen, sec. 243, subsec. 4, and below).
So there are two extreme cases: repayment of a debt certainly is effective even against the will of the lender. By contrast, an ordinary gift certainly is not effective against the will of the recipient. As for all the intermediate cases—such as one who swore, conditional divorce, houses in walled cities, and the like—Rava and Rabbi Shimi dispute them, and the law follows Rava, who learns from Hillel’s ordinance that giving against the recipient’s will is ineffective even in those cases.
Learning from Hillel’s ordinance merely provides a source from which to derive this law. The essential question is why giving against someone’s will is in fact ineffective in these cases. It seems that this is because in all those cases there is no debt. This is an ordinary giving, except that there is a commandment to give, or there is a condition that creates a framework in which the giving is not entirely voluntary, but still there is no actual debt here. Bottom line: for Rava, all these cases are like giving an ordinary gift and not like repaying a debt.
 
Redeeming the firstborn son[2]
And what about redeeming the firstborn son? Here there is a Torah commandment to give the redemption money to the priest, and there is room to compare this to a debt. That is indeed what the author of Ketzot HaChoshen does, as we will see below. On the other hand, it is clear that this is not an actual debt, and certainly not to any specific priest (except perhaps to the entire priestly tribe).
And indeed we find that the author of Pri Chadash, in the booklet Mayim Chayim, responsum 5 (see Ketzot HaChoshen there, s.v. “However, concerning gifts,” who cites him), wrote that redeeming the firstborn son is effective against the will of the receiving priest. He brings a case of a priest who was in a village and did not want to receive the redemption money from the Israelite, and he ruled that giving against his will is effective. The author of Or Gadol on the Mishnah, chapter 8 of Bekhorot, Mishnah 8, also proved this from Rashi’s words.
The author of Minchat Chinukh likewise proved it from the words of Ran and Rashba at the beginning of tractate Kiddushin. The Talmud in Kiddushin learns that an item of monetary value is like money for purposes of betrothal, meaning that one can betroth a woman with money or with something worth money (= merchandise). Ran and Rashba there discuss the rule that “something worth money is like money,” and state that regarding betrothal, this rule is valid and needs no source, since in betrothal she receives it willingly (and without that she is not betrothed), and therefore it is obvious that if she agrees to be betrothed with something worth money, that too is effective. They add that in the case of a Hebrew slave who is redeemed by reduction of value, a source is needed to teach that something worth money is like money, because there he is redeemed against his will.
Regarding redeeming the firstborn son, there is a special derivation that something worth money is like money (see Shevuot 4b and parallels), by the method of generalization and specification. The author of Minchat Chinukh, commandment 392, subsection 6, concludes from this that giving against the will of the priest is effective, and therefore a special derivation is needed to establish the law that something worth money is like money in redeeming the firstborn son.[3]
The author of Ketzot HaChoshen there discusses redeeming a firstborn son by means of a minor priest. In the course of his remarks he brings what we saw above—that according to accepted law, with debts, repayment against the recipient’s will counts as repayment. He argues there that redeeming the firstborn son is a kind of debt to the priest, and therefore he concludes that giving against the will of the priest is effective here as well, like all priestly gifts. From this he concludes that giving to a minor priest is also effective, even though he lacks legal capacity for acquisition, because such giving is certainly no worse than giving to a priest who refuses to receive it.
So the author of Ketzot HaChoshen compares redeeming the firstborn son to a debt, and therefore rules that giving against the recipient’s will is effective here too. As we saw above in Rashba’s words, even where this is effective there is room to discuss whether the recipient actually acquires the money, or whether the act was effective without the recipient acquiring the money.
From the wording of Ketzot HaChoshen here and later it clearly emerges that his intention is to claim that although the priest does not acquire the money when it is given against his will, the Israelite nevertheless fulfills the commandment even if he gave it against the priest’s will. Therefore he compares it to one who gives the redemption money to a minor priest, for there too the money is not acquired by the priest (since by Torah law he lacks the capacity to acquire), yet the giver has still fulfilled his obligation.
 
Another proof from Rashba and Ran regarding the blessing over redemption
Ran in Pesachim (4a in the Rif pagination; brought in Machaneh Ephraim, Laws of Acquisition and Gifts, sec. 7; he also cites it there from Maharit Algazi on Bekhorot 1:7, though it is not in our editions) writes that with circumcision and redeeming the firstborn son, the blessing is phrased with “concerning” (“who commanded us concerning the redemption,” not “who commanded us to redeem”), because one can exempt oneself from them through someone else. He means that in these commandments the commandment is not to redeem but that the matter be done, even by another person. Therefore the wording of the blessing should be “concerning.” He challenges himself from the case of heave-offering, which also can be done through an agent, yet its blessing is not phrased with “concerning.” He explains that in the case of heave-offering the agent separates it with the owner’s consent, whereas in circumcision and redemption another person can exempt him without his knowledge. That is, in heave-offering, the other person who separates it is the owner’s agent, and therefore the commandment is a commandment to perform an act of separation. When an agent does it for him, it is as though he himself did it. But in redeeming the firstborn son and circumcision, the commandment is that the thing be done, even if the other person is not the father’s agent.[4] From here there is proof that redeeming the firstborn son is repayment of a debt, and therefore when another person repays it, it is repaid. We see that according to Ran, redemption against the will of the priest is effective, as in repayment of a debt.[5]
And in the book Imrei Binah, Laws of Redeeming the Firstborn Son, sec. 2, he proved something similar from Rashba’s responsum no. 18—that in redeeming the firstborn son, giving against the priest’s will is effective. Rashba explains there that no blessing is recited over the commandments of charity, severance gifts to a servant, and the other gifts to the poor, because those commandments do not depend only on the giver, and it is possible that the recipient will not want them and the commandment will not be fulfilled. He further adds there that over priestly gifts no blessing is recited because the giver is not giving from his own property (for they are the priests’ property, and he has only the benefit of deciding to which priest to give them). But over redeeming the firstborn son one does recite a blessing, and from here it is proven that this does not require the priest’s consent. So too he proved there from Abudarham, who also brought this responsum. It therefore seems that Rashba and Ran are consistent with their own views here.
It should be noted that from Rashba’s words in that responsum it is proven that the redemption money before the giving is not the priest’s property but belongs to the father, for otherwise no blessing would be recited over the redemption for this reason (as with gifts to the poor). If so, this seems at first glance to undermine the reasoning of Ketzot HaChoshen that redeeming the firstborn son is a kind of debt repayment. Seemingly we have here a contradiction: on the one hand, we see that redemption is effective against the will of the priest; on the other hand, this is not a debt, and if so it ought to be like an ordinary gift, which is ineffective against the will of the recipient. In other words, the ruling of Ketzot HaChoshen is correct—that redemption is effective against the will of the priest—but his reasoning is not correct.
But now we are back at the starting point: if there really is a full-fledged giving here with no debt, then why is it effective against the will of the priest? In what way is it different from giving an ordinary gift?
 
Clarification: between debt and acquisition
Up to this point we assumed that in repayment of a debt, giving against the will of the lender is effective because the money is basically already his. He does not need to acquire the money, and therefore there is no impediment to doing this against his will. But that is not necessarily correct. When a person owes someone a debt, it does not mean that the money already belongs to the lender; rather, it means only that the lender has a lien on the borrower’s assets and person that obligates him to transfer back to him that amount of money. Even where there is a debt, repayment is still a transfer of ownership, since the coins being given do not belong to the lender until the borrower gives them to him. In the language of the Sages this principle is described as: “A loan is given for expenditure.” The loan money belongs to the borrower, and only an obligation rests upon him to repay his debt.
If so, why is repayment against the will of the lender effective in the case of a debt? It seems that the reason is closer to Rashba’s first explanation cited above: it makes no sense to allow the lender to refuse to receive the money owed to him (though it is not yet his), and at the same time to claim against the borrower that he has not yet repaid the debt. If the lender refuses to receive the money, that is a waiver of the debt, and therefore the repayment is effective. He cannot refuse the money and at the same time continue to hold onto his rights.
If so, also in redeeming the firstborn son there is no necessity to say that the money already belongs to the priest before the giving. True, there is a debt to the priest here, but the priest is not yet the owner of the money. And just as with a debt, so too in redemption: the priest indeed does not acquire the money against his will, but the Israelite has fulfilled the commandment even though the priest did not acquire it. As we saw, that is exactly what the author of Ketzot HaChoshen explicitly wrote. The very fact that the father gave the money sufficed to discharge his obligation, even if the priest did not acquire it. The reason for this could be one of two things:

1. As with a debt: if the priest refuses to receive the money, it is as though he waived it. This assumes that waiver is effective in redeeming the firstborn son.
2. The redemption depends on the act of giving the money, not on its being acquired by the receiving priest. Therefore if the priest refuses, he indeed does not acquire it, but that does not prevent the redemption.

What is the difference between redeeming the firstborn son and houses in walled cities (by the basic law, absent Hillel’s ordinance) or conditional divorce, where we saw that as a matter of law giving against the will of the recipient is ineffective? It is quite clear that in those two cases there is no debt at all toward the recipient. As a result, mere giving is ineffective and an actual transfer of ownership is required. Rabbi Shimi, who disagrees with Rava, may hold that even in those two cases giving without transfer of ownership is effective, even though there too no debt is involved. In his view as well, the recipient cannot refuse to receive the money and at the same time claim that because he did not receive the money he wishes to continue holding onto his rights. The difference between those two cases and an ordinary gift is that in a gift the recipient refuses to accept the money but claims no rights for himself, whereas here he does. In the case of a debt or redeeming the firstborn son (which is also a debt, according to Ketzot HaChoshen), the recipient cannot refuse to receive it because he wants to continue holding onto rights; in the case of debt, that is impossible.
 
Dissenting opinions: in redeeming the firstborn son, giving against the will of the priest is not effective
Up to this point we have seen the opinions that in redeeming the firstborn son, giving against the will of the priest is effective. But among the commentators and halakhic authorities there are also other opinions. The author of Netivot HaMishpat, there in subsection 8, wonders how one could discharge priestly gifts against the will of the priest, since this is similar to a gift, and giving against the will of the recipient is not effective. True, we have already answered that above, but in any event that is the opinion of Netivot HaMishpat.
The author of Ketzot HaChoshen himself also infers this from Tosafot on the words “From where do I say this,” Kiddushin 8a, who write that in redeeming the firstborn son the priest’s reliance of mind is required.[6] This despite the fact that with priestly gifts, giving against the will of the priest is certainly effective.
After that he brings several later authorities who took it for granted that intent is required (like the above view of Netivot HaMishpat), and therefore rejected the inference from Tosafot’s words. They suggested that Tosafot’s intention is not regarding the giving itself, for that certainly is effective against the will of the priest, but regarding various conditions in the giving:[7]
“And in the book Atzmot Yosef there (law 16) he wrote as follows: If he gave the priest five sela, what do we care about the priest’s knowledge, since he has already given him five sela? It seems that since the priest is master of this firstborn, if he has no awareness of the value of the money, the son is not redeemed and intent is required, just as the woman needs to know the amount of the betrothal. But according to what I wrote in the name of Pri Chadash regarding redemption with five sela, that even against his will it is effective, it follows that we do not require the priest’s intent at all. And so it seems, for this is no greater than a creditor, where repayment against his will counts as repayment. And in Derishah on Yoreh De’ah sec. 305 (see there, para. 1) he wrote regarding the practice nowadays to redeem with precious stones and pearls without appraisal, that with respect to the priest his intent is not required; this is contrary to Tosafot in Kiddushin mentioned above, who wrote that his reliance of mind is required.
Now one could say that although repayment against one’s will counts as repayment, that is when one wants to put it into his hand and he does not want to receive it, and so one throws it before him in his presence; but when he wants to receive it into his hand, one must place it into his hand, as explained in Tur and Shulchan Arukh sec. 120. So too in redeeming the firstborn son, it must be given to the priest in such a way that he relies upon it, and therefore an appraisal is needed, following Tosafot’s reasoning. But if he does not want to receive it, one is permitted to throw it before him, and therefore Pri Chadash’s words are correct.”
But in the end, the author of Ketzot HaChoshen himself questions these rejections and writes:
“Still my heart hesitates, because it seems in sec. 120 there that the requirement to place it in his hand when he wishes to receive it is only because the lender says: had you given it into my hand, I would have guarded it—and see there. If so, the priest’s reliance of mind is still not needed. Therefore it appears from the words of Tosafot that although repayment against one’s will counts as repayment, priestly gifts require a mode of giving, and one does not fulfill with giving against his will; and therefore the priest’s reliance of mind is needed. This entire matter still requires further study.”
So the conclusion that emerges is that according to Tosafot, with all priestly gifts, including redeeming the firstborn son, giving against the recipient’s will is ineffective. This differs from an ordinary debt, which can certainly be repaid against the will of the lender. The reason he gives is that priestly gifts require a giving, and giving against the will of the priest is not considered giving.
One could formulate the difference differently: in a debt, a person can waive it and thus the debt is erased; but with priestly gifts there is a commandment to give them, and if the priest waives them then perhaps he can no longer claim them, but the person has still not fulfilled the commandment. The priest cannot waive the obligation that the commandment imposes on the person. Only if the waiver is treated as though he said, “I have received it,” is there room to see this as a giving, and Tosafot apparently do not view waiver in that way.
 
Even according to Rabbi Shimi: between debt and priestly gifts
It seems that even according to Rabbi Shimi above, who as we explained holds that a creditor cannot refuse to receive the money and at the same time continue holding onto his rights, here the situation is different: the priest indeed perhaps cannot hold onto his rights, but the Israelite still has not fulfilled the commandment. And so long as there is a commandment, there is also an obligation. As for ordinary debt repayment, we saw that even Rava agrees that one can repay against the will of the creditor.
This distinction can be formulated as follows: in ordinary debt repayment, the commandment to repay is derived from the very legal existence of the debt. The commandment is not the basic norm; it is a derivative norm (derived from the existence of a debt). By contrast, in priestly gifts, the legal debt (even if we define it as a debt, as the author of Ketzot HaChoshen argued) is derived from the existence of the commandment. That is, the basic norm is the commandment, and the monetary debt is the derivative norm. Therefore, in an ordinary debt, when the lender waives it, even if the waiver is not treated as though he said “I have received it,” the debt is erased, and consequently there is also no commandment (or obligation) to repay. But in priestly gifts, waiver does not apply to the commandment, and as long as there is a commandment there is also a debt. Direct waiver of the debt will not help, since the debt is derived from the commandment. Indeed, we find that this is exactly what the author of Imrei Binah, Laws of Redeeming the Firstborn Son, sec. 1, wrote.
Perhaps the dispute between the Rema and the Vilna Gaon in Yoreh De’ah sec. 305, subsec. 17, depends on this. The Rema there writes that agency is ineffective for redeeming the firstborn son, and a person must do it himself. But the Vilna Gaon comments there and objects that the redemption is nothing other than repayment of a debt (like the view of Ketzot HaChoshen above), and therefore repayment by another person is effective, even without the father’s permission or knowledge, just as one may repay a debt without the debtor’s knowledge.[8]
It would seem that their disagreement is exactly about what we said above. The Rema holds that priestly gifts are a personal commandment, and an act of giving is required, so it cannot be done by an agent. Once the gift is given, the debt is presumably erased, but the existence or nonexistence of the debt is a result of fulfilling or not fulfilling the commandment. A giving done without the father’s knowledge cannot count as his fulfillment of the commandment, and therefore the debt is also not erased. As we saw, this is also the view of Netivot HaMishpat and those who agree with him. By contrast, the Vilna Gaon apparently understood this as an ordinary debt, so when another person repays it, it is erased, and consequently the commandment has been fulfilled. In other words, he understands like the author of Ketzot HaChoshen, that redeeming the firstborn son is nothing but a debt imposed by the Torah, and the commandment is merely to repay the debt; once the debt is repaid, the father has fulfilled the commandment. According to them, here too the commandment is a byproduct of the debt.[9]
 
Three additional proofs
Among the later authorities we find three more proofs in favor of Tosafot’s position, against Pri Chadash, that redeeming the firstborn son against the will of the priest is ineffective. All three are also brought in Rabbi Shimon Shkop’s novellae to Kiddushin, sec. 15, and in Chemdat Shlomo, Yoreh De’ah sec. 31, subsec. 20 (and see there also sec. 32).

1. The Shulchan Arukh, sec. 305:19, rules (based on the Rosh) that if a priest had a son who was a disqualified priestly offspring, who is considered an ordinary Israelite and therefore is obligated in redemption, and he died after 30 days, the priest must separate five sela and keep them for himself. This proves that the commandment is not merely repayment of a debt, because here there is no debt repayment at all, since a person cannot owe something to himself.
2. In Bekhorot 49b it says that if a person who himself was not redeemed has only five sela, he redeems himself rather than his son, because his own commandment takes precedence over his commandment toward his son. Now if redeeming the firstborn son were only a monetary debt, then there would simply be two monetary debts here, and there would be no room for a hierarchy in which he takes precedence over his son. The existence of a hierarchy proves that these are commandments and not debts, and in terms of commandments, his own commandment takes precedence over that of his son.

The third proof that the later authorities bring is more problematic:

1. The law is that in a case of doubtful firstborn status, the father is not required to pay the priest, because the burden of proof rests on the claimant (see Bava Metzia 6b; Maimonides, Laws of First-fruits 11:19; and Shulchan Arukh, Yoreh De’ah sec. 305, paras. 13, 20, and 25). At first glance, this seems to prove that this is merely a debt, because from the standpoint of the commandment he ought to have been stringent in the case of doubt and still redeem the son. Yet the Shakh, at the end of the laws of interest, proves from this that even in debts that also involve an element of prohibition, we still rule that in a monetary doubt we are lenient toward the defendant (that is, the burden of proof rests on the claimant). Now if redeeming the firstborn son were only a monetary debt, there would be no proof from here at all. Thus from the Shakh’s words there is evidence in the opposite direction—that there is a commandment here, and it is not merely a debt. Admittedly, his words themselves require examination, because if there really is a commandment here in addition to the debt, then why indeed is he not obligated to be stringent and redeem in the case of doubt? So this proof appears to collapse under its own weight, and this very law seems rather to support the conception of Pri Chadash and Ketzot HaChoshen.[10]

 
A difficulty with the dissenting opinions
We saw that the author of Ketzot HaChoshen inclines to the view that redeeming the firstborn son under compulsion is effective. As we saw, he bases this on the conception (which is disputed) that redeeming the firstborn son is a debt. But we also saw that when a person redeems against the will of the priest, the priest does not acquire the money, yet the son is still redeemed. In other words, there is redemption here without transfer of ownership to the priest. If so, from the method of Ketzot HaChoshen it emerges that although the redemption is indeed merely a debt, it can nevertheless be carried out even without giving and transferring ownership to the priest. The reason for this is that, as with debt repayment, the debt is erased by waiver even if the lender did not acquire the money.
By contrast, the author of Netivot HaMishpat holds that the redemption is a commandment and not only a debt. And yet, in his opinion, unless the priest acquires the money the commandment has not been fulfilled, because waiver is not fulfillment of the commandment.
So an interesting result emerges here: דווקא the author of Netivot HaMishpat, who disconnects the monetary dimension from the commandment, is the one who sees a necessity for a monetary transfer of ownership of the money in order for the commandment to be fulfilled. Whereas the author of Ketzot HaChoshen, who sees this commandment as entirely the repayment of a monetary debt, agrees that no monetary transfer of ownership is required in order to fulfill the commandment.
 
A note on defining the commandment according to Ketzot HaChoshen
At first glance it seems to emerge that according to the author of Ketzot HaChoshen, the commandment is giving and not transfer of ownership, since in his view the father fulfills his obligation even without transfer of ownership.[11] And the author of Kehillot Yaakov, Bava Metzia sec. 18, distinguished between priestly gifts and redeeming the firstborn son. Priestly gifts are the priests’ property even before the giving (with heave-offerings and tithes this is from the moment of separation), and what the owner has is only the benefit of deciding to which priest he wishes to give them, whereas in redeeming the firstborn son, as long as the money has not been given it belongs entirely to the father (for there is no act of separation here), and therefore there a giving is required that includes transfer of ownership to the priest.[12] As we indeed saw above, even according to the method of Ketzot HaChoshen, although there is an obligation upon the father, the coins themselves certainly belong to him until they are given to the priest.
But according to our line of thought, this distinction is not correct. Even in redeeming the firstborn son the commandment is transfer of ownership, that is, repayment of the debt; but just as with a debt, here too if the priest refuses to receive it, the debt is repaid even without the money being transferred to him. This does not mean that what is required is merely an act of giving without transfer of ownership; rather, in such a situation Jewish law treats it as if transfer of ownership had taken place as well.
The proof of this is from a parallel situation in ordinary debt. In the case of ordinary debt, no one would think to say that the obligation is merely to perform an act of giving the money to the lender and not to transfer the money to him. The obligation is to return the money to the creditor. And yet, when the creditor refuses to accept the money, the repayment is valid. The reason is not that the borrower’s obligation is only to perform an act of giving (and not actually to repay), but that if the lender refuses to receive the money he loses his rights, and this is considered as though the borrower actually repaid him the money (or as though the obligation to repay no longer applies to him).
And indeed this is also precise in the wording of Ketzot HaChoshen himself, for specifically when he deals with Tosafot’s view in Kiddushin he speaks about the commandment being that there be an act of giving, and on that he says that according to this approach, giving against the will of the priest is not considered giving. This implies that according to the other medieval authorities who disagree with Tosafot, and who hold that giving against the will of the priest is effective, an act of giving alone is not enough; an actual transfer of ownership of the money is needed (and see also Minchat Chinukh, commandment 392, subsection 6, who understood the author of Ketzot HaChoshen this way).
Again we found exactly these points in Machaneh Ephraim, Laws of Acquisition and Gifts, sec. 7, where he discusses whether another person may redeem his fellow’s son. At the beginning of his discussion he addresses the question whether this works through agency or through the principle of “benefiting a person in his absence,” and he apparently assumes that the redeemer has an obligation to perform an act of giving, and therefore when another person does it for him, that person must be his agent in order for the act to be effective. But in the end he concludes that there is no need here for agency, or for the principle of “benefiting a person in his absence,” because this is similar to repaying another person’s debt, which is effective even without his knowledge (and even against his will). In the end, if his fellow paid the money, then in fact the debt has been repaid and therefore it no longer exists (the obligation to repay has lapsed). If so, it is proven from his words that there is no obligation at all to perform an act of giving, but simply to repay the debt.
 
 
B. Giving against the will of the father
 
Introduction
Until now we have discussed redemption done against the will of the receiving priest. We now turn to redemption against the will of the father. There is certainly room to make the validity of such a redemption depend on the question of the character of the redemption: is it a monetary debt or a commandment? If it is a debt, then even redemption under compulsion is effective, since we compel the father to repay his debt, and the debt is repaid. This is what emerges from the words of Machaneh Ephraim cited at the end of the previous chapter. But if this is a commandment, then we are dealing with fulfillment of a commandment under compulsion, and that may be more problematic.
 
Redemption by another person: the view of Ran and Machaneh Ephraim
The main source for this issue is Machaneh Ephraim, Laws of Acquisition and Gifts, sec. 8. Already in sec. 7, cited above, Machaneh Ephraim notes that according to his conception, one can redeem another person’s son, that is, perform a redemption without the knowledge of—and even against the will of—the father who is redeeming. We saw above that Ran in Pesachim says this explicitly, and distinguishes between redemption, where the other person is not acting as the father’s agent, and separation of heave-offering, which requires agency (or the principle of “benefiting a person in his absence”).
But all this is when another person redeems the son for his father against the father’s will. What is the law when the priest himself seizes the money by force from the father? In such a case, can the father take it back from him?
 
Seizure by the priest
From the Talmud in Bava Metzia 6b it apparently emerges that the law of the firstborn of a person and the firstborn of an animal is the same, and in both cases the rule in a doubtful case is that the burden of proof rests on the claimant. Regarding a firstborn animal, the Talmud there is uncertain whether the priest may seize it from the owner, or whether if he seized it we take it back from him. Maimonides rules (Laws of Firstborn 5:3) that if the priest seized it, we do not take it from him. True, this is said regarding a firstborn animal, but the simple assumption is that the same applies to a firstborn human where there is doubt whether he is obligated in redemption.
And indeed Machaneh Ephraim, at the beginning of sec. 8, assumes that the law regarding a firstborn human, if the priest attacks and seizes the money, is that we do not take it from him. But on the basis of proofs from the sugya in Bekhorot 51b he is forced to conclude that the law regarding a firstborn human is different. The explanation he offers is exactly the explanation of Kehillot Yaakov that we saw above, according to which the status of the sela designated for redeeming a firstborn human differs legally from the status of the other priestly gifts before they are given. With priestly gifts, from the moment they were separated they became the priest’s property, and the owner has in them only the benefit of deciding to which priest to give them. But with the firstborn of a human there is no stage of separation, and therefore they are not the priest’s property until after the giving. For this reason, with the sela of human redemption it is clear that if the priest seized them, we take them away from him.
Of course, this conclusion is difficult in light of the words of Ketzot HaChoshen, Pri Chadash, and those who follow them. If this is indeed a commandment and not just a monetary debt, then why should there not be an obligation to give the priest in a doubtful case in order to fulfill the commandment? It would seem that in terms of the laws of prohibition, the father is indeed obligated to be stringent and redeem his son in a doubtful case. But the priest has no right to claim against the father, because in monetary terms he has no rights in a doubtful case. For that reason his seizure of the money is also ineffective.[13] And if this is a debt, why can the priest not take the law into his own hands and seize the money in payment of his debt?
One could perhaps say that all we saw above is only that another person can pay from his own pocket and redeem the father’s son, even without the father’s knowledge. The ability to redeem against the will of the father exists only if the redeemer pays from his own money and redeems another man’s son. But one cannot forcibly take the father’s money in order to redeem his son (except that a religious court could do so, under the law of coercing the fulfillment of commandments). According to this, the priest himself is no exception, and he too cannot forcibly seize the five sela from the father.
 
When a priest seizes
The discussion in the Bava Metzia passage and among the authorities is about a case of doubt, and the question there is whether there is an obligation of redemption and whether seizure is possible. Our principled discussion here concerns a case of certainty. A person does not want to redeem his son, and the question is whether another person can forcibly take money from him and give it to the priest.
It seems that the conclusions in the two questions are interdependent: if in a case of certain obligation a person cannot forcibly seize and redeem, then all the more so in a doubtful case he will not be able to do so. Conversely, if in a doubtful case he can forcibly seize and redeem, then in a case of certainty it would seem obvious that he has the right to seize the money.
According to the above view of Machaneh Ephraim, the conclusion is that in a doubtful case the priest cannot seize, but regarding a certain case one can discuss whether perhaps he would indeed have the right to do so (from his words in sec. 7 it seems that he can do so only with his own money, but not with the father’s money).
These matters also depend on whether the obligation to redeem is defined as a monetary debt (in which case perhaps one can attack and seize) or as merely a commandment (in which case certainly one cannot seize), as above in the previous chapter.
 
 
C. Money and commandment/prohibition
 
Introduction
We saw a dispute among the halakhic authorities about the relationship between commandment and acquisition. There are commandments that serve as the basis for a monetary claim (such as redeeming the firstborn son and houses in walled cities, according to some opinions), and there are commandments that derive from a legal situation (such as repaying a debt). The distinction between these two kinds bears on the question whether the rule “the burden of proof rests on the claimant” applies. That rule certainly applies where the debt is the basic element; but where the commandment is the basis, then apparently there should be an obligation to pay even in a doubtful case, under the law of doubt concerning a prohibition.
Moreover, we saw the view of the Shakh, according to which even in a place where there is simultaneously a commandment and a prohibition (neither of which depends on the other), the rule still applies that the burden of proof rests on the claimant.
We explained these distinctions by treating money and prohibition independently. That is, with respect to the monetary aspect we say that the burden of proof rests on the claimant, and with respect to the prohibitory aspect we do not. Even according to the Shakh, it may be that he agrees that from the side of the prohibition there is an obligation to pay in a doubtful case, but he argues that the other side has no legal standing against the obligated party, because from the perspective of monetary law the rule is that the burden of proof rests on the claimant.
This picture raises a number of aspects that call for examination and discussion. First, what is the relationship between prohibitions and monetary law generally? What is really the difference between the laws in civil law—legal obligations—and the other laws? Are not all laws “commandments”? What is the relationship between this question and the distinction in modern law between civil law and criminal law?[14] Why are there situations in which the legal obligation is a result, whereas in other situations it is the basis and the commandment is the result? More generally, one can ask regarding every halakhic context in which two aspects appear: when do we treat one as a byproduct of the other, and which of the two, and when do we give them equal and parallel standing?
Each of these questions requires a detailed article of its own, and here we will address briefly one particular aspect that touches the latter questions, and through them a bit of the former ones as well.
 
Constitutive and regulative laws
We saw that a debt is first and foremost a legal reality. From the existence of the debt on the legal plane there arises a commandment to repay it (“repaying a creditor is a commandment”). One can generalize and say regarding all monetary law that before halakhic norms can apply to it, there must exist a legal infrastructure that determines relations of ownership and acquisition. For example, if the Torah forbids theft, this means harming monetary ownership. If so, the prohibition “you shall not steal” presupposes the existence of rules of ownership and acquisition that precede it, and apparently precede Jewish law in general.
So in repayment of a debt, as in all monetary law, there is a unique halakhic aspect: the halakhic obligation applies to an existing legal reality. It does not constitute the legal reality but regulates it. True, the Torah could have chosen not to recognize this legal reality and to abolish private ownership (for example, by adopting communist or nihilist positions and the like), but it did not do so. In these situations the Torah anchors systems that precede it by overlaying them with a halakhic-normative mantle. The Torah decided to strengthen and fix the civil laws by placing a prohibition upon them. From now on, one who harms another’s property is not only a legal offender but also a halakhic one.
But this addition is not merely the addition of a parallel law. The legal picture described up to this point could have created a situation of parallel tracks: there is a legal rule of ownership and there is a halakhic prohibition of “you shall not steal,” and the two do not depend on each other. But that apparently is not the case. For where there is no ownership, there will also be no prohibition of “you shall not steal.” In other words, the general legal rule determines the halakhic rule and serves as a condition for it. They do not exist side by side; rather, one is conditioned by the other,[15] and in this case the halakhic depends on the legal.
 
Rabbi Shimon Shkop’s reasons
We have already mentioned in the past (see the article on the Torah portion Lech-Lecha, 2007, and elsewhere) that this thesis is developed at length by Rabbi Shimon Shkop in his book Shaarei Yosher, throughout gate 5. He brings several proofs for it and also resolves a number of halakhic difficulties and problems by means of it. At the beginning of that section he gives two reasons for our obligation to obey the legal system that precedes Jewish law:[16]
“Just as the category of acquisitions and the laws of ownership in property are legal matters even without the prohibition ‘you shall not steal,’ as we explained above, for it is impossible in any way to say that the fact that we attribute an object to Reuven is because Shimon is warned by the Torah not to steal it from him. Rather the matter is the opposite: the prohibition of theft comes only after the issue has already been determined according to the legal rules that define the boundaries of ownership…
And although at first glance this seems puzzling—what compulsion or obligation can there be upon a person to do something without the Torah’s command and warning? But if we examine the matter well, this can be understood. For even the obligation and compulsion to serve God and fulfill His will, may He be blessed, is also an obligation and compulsion according to the judgment of reason and recognition; similarly, monetary obligation and encumbrance are legal obligations that arise according to the modes of acquisition…”
Two main reasons for his claim emerge from these words of Rabbi Shimon Shkop:

1. The prohibition “you shall not steal” is a prohibition against harming ownership. But in order for this prohibition to have meaning, we first need to define the concepts of ownership themselves. Only after defining those concepts can we say that one who violates them also transgresses the prohibition of “you shall not steal” (in addition to the legal prohibition).
2. The binding force of the obligation to obey the legal system exists even without a command. Rabbi Shimon Shkop’s reasoning is that even the force of the obligation to serve God in general is not derived from a command (for the obligation to uphold any system cannot itself be just one rule within that same system).[17]

It should be noted that the second reason assumes an additional premise regarding the relationship between the two planes. In light of the first reason, one might have seen the legal plane as merely a theoretical definition of ownership, and as only a background for the halakhic prohibition of “you shall not steal.” According to that conception, one who violates this and harms another’s property transgresses only one prohibition, “you shall not steal.” But Rabbi Shimon Shkop’s words imply that this layer also has independent normative significance. One who harms another’s property transgresses, in addition to the halakhic prohibition of “you shall not steal,” also a legal prohibition.[18] The legal layer does not merely define the boundaries of ownership but also carries value-normative force. For example, Rabbi Shimon Shkop himself argues that even according to those opinions that stealing from a non-Jew is permitted by Torah law (that is, the offender does not transgress “you shall not steal” on a Torah level), there would still be a legal prohibition involved, since no one disputes that a non-Jew has ownership of his property, and legal ownership itself creates an independent prohibition in addition to “you shall not steal.”
 
Back to the picture from the previous chapters
We can now understand why, with regard to repaying a debt, the commandment is derived from the legal situation, and therefore in the absence of a legal debt there will be no commandment of repayment. As we saw here, the Torah does not innovate an independent prohibition of its own, but rather backs and strengthens a legal prohibition that exists independently of Jewish law.[19] In such a case we would indeed expect the dependency to run in that direction.
But this also gives us a clue to understand why in other cases the situation is different. For example, in redeeming the firstborn son or in priestly gifts, we saw opinions that the debt depends on the commandment and not the reverse, and therefore it cannot be waived. The reason is that in these cases it is the Torah that constituted the legal situation, rather than merely giving it reinforcement and validity after the fact. Without the Torah’s command there is no debt from the father to the priest, neither with respect to redemption nor with respect to other priestly gifts, and therefore there the commandment is the basic foundation and the debt is built on top of it.
True, there may be situations in which the Torah constituted the debt, but once that debt has been constituted it forms an independent legal basis and is no longer conditioned on the commandment. For example, as we saw, there are opinions regarding redeeming the firstborn son that one can waive the debt or repay it against the will of the priest, because if the debt was repaid then the commandment was fulfilled as well. In this case, at least according to those opinions, the Torah is not merely giving validity to a reality independent of it; rather, it itself constituted the debt. But all the Torah wants is that one person give money to another, and once the money has been given the commandment has no additional significance. Therefore, although the commandment is the basic foundation, still on the normative level the commandment depends on the debt and not the reverse. All the Torah does in these cases is add an element to the a priori legal system, and from then on it should be treated as an integral part of it.
 
Constitutive and regulative commandments
We will conclude with a brief broadening of the distinction we have made here. There is a common approach in the Torah world according to which the Torah creates an alternative world in place of the real one. The ordinary world is irrelevant to the Torah, and some go so far as to say that it is nothing but a test for us—how well we can ignore it and live within the alternative Torah bubble.[20]
By contrast, some would say that the Torah is not a substitute for reality; rather, its purpose is to direct and elevate reality.[21] According to this approach, when the Torah deals with building a family unit, it is not constituting that concept out of nothing. It is not a creation of the Torah; rather, it exists independently of the Torah, and the Torah merely regulates it—something like what we saw regarding the relationship between Jewish law and the legal system that precedes it.
Of course, there is no need to see things in a sweeping or extreme way, and there can certainly be approaches according to which there are commandments that the Torah constitutes and others that it only regulates.
One example, among many, may be found in a possible nuance in the Torah’s wording in the portion of Shelach. In the section about fringes, the Torah writes as follows (Numbers 15:37-39):
“And the Lord said to Moses, saying: Speak to the children of Israel and tell them that they shall make for themselves fringes on the corners of their garments throughout their generations, and they shall place on the fringe of each corner a thread of blue. And it shall be for you as fringes, and you shall see it and remember all the commandments of the Lord and do them, and you shall not stray after your hearts and after your eyes, after which you go astray.”
After the Torah defines the concept of “fringes,” and together with the Oral Torah we know it as a combination of blue and white threads tied in certain ways on the corners of the garment, it then uses a puzzling phrase: “And it shall be for you as fringes.” From this wording it seems that the concept of “fringes” already existed beforehand. The Torah is not constituting the concept of fringes; it is merely instructing us how to make fringes. This will count for you as fringes, and not something else. In other words, the concept of fringes existed even without the Torah’s command, and the command only regulates it rather than constituting it. What is that “fringe”? Ibn Ezra explains that the meaning of the expression is a symbol or marker, like a lock of hair. If so, the Torah is not constituting the concept of fringes but only instructing us how one should make proper fringes, and what will not count as proper fringes.
So those who hold the more closed approach will treat the concept of “fringes” as one that exists entirely within the halakhic sphere. By contrast, those with a more open approach will see it as a concept with broader, general-human meanings, which the Torah merely instructs us how to realize. It certainly exists also outside the halakhic context, but this is not the place to elaborate.
[1] Afterward another version is brought in the Talmud, but we will not go into that here.
[2] On this matter see the (highly recommended) book Milu’ei Choshen on Ketzot HaChoshen, sec. 243.
[3] Interestingly, in the book Shaar HaMelekh, Laws of Marriage 3:1, he cites the book Kol Yaakov, which proved from the words of Ran and Rashba exactly the opposite (against the method of Pri Chadash). His proof is this: if in redeeming the firstborn son giving against the will of the priest were effective, then from here one could also learn regarding the Hebrew slave that even though reduction of value is done against the will of the owner, it can still be done with an item of value rather than money. If Ran says that a special source is needed for that, it proves that it cannot be learned from the source regarding redeeming the firstborn son.
However, see what the author of Shaar HaMelekh wrote there. And below we will bring yet another proof that Rashba’s view is indeed that redemption against the will of the priest is effective.
[4] See on this our article on the Torah portion Bereshit, 2007, in the discussion of circumcision as a result-oriented commandment.
[5] Maharit Algazi rejected the proof of Machaneh Ephraim from Ran, though his words are strained. See the commentary Birkat Moshe on Machaneh Ephraim there, subsection 4.
[6] Indeed, the Chazon Ish, Even HaEzer sec. 148, emends the wording of Tosafot and removes this inference. But in the parallel Tosafot HaRosh it is clear that our version is correct. And so too the Vilna Gaon reads it in Even HaEzer sec. 31, subsection 1, though that seemingly contradicts his own view to be brought below in the next paragraph.
[7] Rabbi Shimon Shkop, in his novellae to Kiddushin sec. 16, argues that the priest’s consent is not required in order to acquire the money but in order to preserve its value. If the priest claims that the value of what he received is not worth that amount to him, then five sela were not given here. See there.
[8] See a lengthy discussion and references in Machaneh Ephraim, Laws of Acquisition and Gifts, sec. 7.
[9] One may discuss whether the redeemer would be obligated to pay the father ten gold coins, under the law of one who snatches a commandment from another. One could say that he merely repaid a debt, and the commandment was thereby erased. That is, he did not fulfill a commandment in place of the father; he merely prevented him from fulfilling his obligation. But if we understand that the commandment is result-oriented, then perhaps this repayment would indeed count as the father’s fulfillment of the commandment. This entire matter requires further study. After writing this, I saw a brief discussion of it in Machaneh Ephraim, Laws of Acquisition and Gifts, at the end of sec. 7, but this is not the place to elaborate.
[10] The Shakh and those who follow him apparently understand that with any monetary debt there is a rule that we go leniently, even if it is accompanied by a commandment. True, from the side of the commandment there is a rule that doubts are treated stringently, but since fulfillment of this commandment involves giving money, there is no obligation to be stringent here. That is, with commandments that involve giving money, there is no rule that doubts are treated stringently. With them the opposite rule applies: doubts are treated leniently. Still, this is conceptually difficult, for there is no source for it (and even the rule regarding an ordinary monetary matter, that in a doubt we are lenient toward the defendant, is not learned from any source but from reasoning).
Perhaps he means that in a doubtful case the priest has no monetary-legal claim against the father, but the father, for his own part, is obligated to give to priests in order to fulfill the commandment. And since there is no monetary debt here—for in doubt we do not extract money—the priests cannot claim the money from him (and certainly cannot seize it from him; see on this in the next chapter). A religious court might perhaps compel him to redeem under the law of coercion of commandments, but not under ordinary monetary law.
[11] The author of Kehillot Yaakov, Bava Metzia sec. 18, challenged him from the sugya in Bava Metzia 11, and was forced into a strained interpretation of the sugya. But see Milu’ei Choshen (end of note 37), which gives a good resolution of this.
[12] Something similar was written by the author of Machaneh Ephraim, in the source to be brought below in chapter B. However, he only notes this distinction between redeeming the firstborn son and priestly gifts, but does not apply it to the question of redemption against the will of the priest.
[13] This is somewhat like what we explained in the view of the Shakh in the note above.
[14] The division of laws into these types is not sharply expressed in early halakhic sources. Rabbi Jacob ben Asher, author of the Tur (14th century), was the first to define the body of legal laws as a distinct category by gathering them together in Tur Choshen Mishpat.
[15] It is not correct to say that one determines the other, because there are situations of ownership without a prohibition of theft, as in the case of a non-Jew according to some opinions. Thus legal ownership is a condition for the application of the prohibition “you shall not steal,” but it does not determine it in a one-to-one way.
[16] See on this the article by M. Abraham, “‘How shall I curse whom God has not cursed, and how shall I denounce whom the Lord has not denounced?’—a discussion of monetary law in the Kovno ghetto,” Tzohar 20.
[17] This is also well known in legal philosophy, where many have pointed out that the duty to obey the law cannot itself be included within the law—who says one must obey that very law itself?! See, for example, Chaim Gans, Obedience and Disobedience, Hakibbutz Hameuchad, Tel Aviv 1996 (see there at the beginning of chapter 1, p. 21). See also M. Abraham’s book Man Is Like Grass, the third in the quartet Two Carts and a Hot-Air Balloon, which was, with God’s help, soon to be published.
[18] One implication of this point appears in M. Abraham’s article, “The problem of the relation between the individual and the collective and the ‘Defensive Shield’ dilemma,” Tzohar 14, spring 2003. There he points out that Rashi’s position in Bava Kamma 60b, that a person may not save himself with another’s money even if he pays, is necessarily based on such a conception (and see there at the beginning of chapter 3 that although all the other medieval authorities disagree with Rashi on this, their words too clearly imply a similar principled conception).
[19] Though there is certainly room to see this extra-halakhic prohibition too as stemming from God’s will—that is, it is extra-halakhic but not extra-Torah.
[20] Broadly speaking, one may say that this is the Haredi approach.
[21] Broadly speaking, one may say that this is the approach of Modern Orthodoxy.