Q&A: Questions about the article with the summary of today’s lesson
Questions about the article with the summary of today’s lesson
Question
How many questions regarding the last lesson and the summary you sent us:
1. Regarding the passage in Bava Kamma (David and the warriors)-
Rashi’s words were said only according to Rav Huna’s explanation, so how do we know that “this is how Jewish law was ruled”? הרי according to the other explanations there is no proof at all from the passage for this matter?
And regarding the inference from the Rashba, it seems that his two answers contradict one another, as you yourself noted, and if so, perhaps the second answer was said only in the mode of “according to your own position” (and I found that the Rashba uses the expression “just consider” in this way in at least two other places in the responsa: 1:248; 7:244), and one cannot infer from it that he agrees in principle with Rashi’s view.
2. If the Torah itself establishes the boundaries of the rights given to each person (and not “legal theory” or “psychology”), what is the meaning of Rabbi Shimon Shkop’s statement about a theory of law that precedes the commandment?
3. Why, according to Rabbi Meir, can one not make a stipulation concerning monetary matters?
4. Regarding Zimri and Pinchas—if Zimri is indeed permitted to go on sinning, because this is “his territory,” and therefore he may even defend himself against Pinchas, what is the meaning of the rule “zealots may strike him”?
5. Why does public agreement have binding force on every individual? In the lesson you explained this in a way similar to a “social contract,” but why does the individual have no power to challenge the principles of the existing social order (anarchism, for example, but not only), and in such a case why does the public have the power to intervene in the sphere of his rights?
Thank you
Answer
Y., hello.
1. In Talmudic passages of this kind, it is usually understood that there is no halakhic dispute between the explanations. The dispute is interpretive—what makes more sense to read into the verses. But the Jewish laws that emerge from there can still be agreed upon. In any case, all the halakhic decisors ruled this way in practice.
I no longer remember which two answers are being discussed, but that is not important for our purposes. I am referring to the Rashba’s explanation in the responsa, which makes this depend on the fact that there is no theft here. That explanation follows Rashi’s approach. If the Rashba there offers another explanation as well, then perhaps it does not follow that approach. I only wanted to show that Rashi is not alone in his basic view. There are other medieval authorities who disagree with him, and perhaps the Rashba’s second answer can be grouped with them as well. That is not important to me.
2. At least in the realm of property acquisition, Rabbi Shimon explains that the Torah de facto recognizes the boundaries set by legal theory (and applies the prohibition “You shall not steal” to them). By contrast, in the area of the laws of bailees or damages and the like, it itself sets the boundaries. In any case, Jewish law recognizes these laws as rights and not only as obligations, and that was what mattered to me. Whether the source of the rights is the Torah, or whether it merely recognizes them de facto, does not matter for our discussion.
3. He apparently understands monetary law not as rights but as obligations, like the rest of Torah law. But in practice, Jewish law is ruled in accordance with Rabbi Yehuda.
4. “Zealots may strike him” is a permission, not a commandment (if they strike him, they will not be punished, and perhaps there is even some virtue in it). Precisely because of that, Zimri retains the right to defend himself, and the attacker has to take that into account (it is possible that there is even an intention here to filter out the zealots, so that not just anyone turns himself into a zealot, but only someone who is truly willing to pay the price and take the risk). By contrast, an agent of the religious court who comes to kill a person who desecrated the Sabbath or who murdered someone—that offender cannot kill him, because there it is a command upon the court’s agent to kill, and not merely a permission as in “zealots may strike him” (the Mishneh LaMelekh noted this in the laws of murder).
5. The halakhic assumption regarding the relationship between the individual and the public is like the assumption accepted in every legal system. Like the law of the state, which assumes that every individual must obey it, and that the government has the right to punish one who does not obey. I understand this as something that is not really obedience. There is an ontic conception here according to which the individual is part of society, and when it decides something, that binds him because he himself decided it (or his representatives did). Moreover, in Jewish law, in my opinion there really is a possibility of stepping outside society and outside obligation to the commandments: if a person does not accept his obligation, he loses the possibility that his actions will have religious meaning. His transgressions are not transgressions and his commandments are not commandments. I wrote an article about this, and you can see it here:
https://mikyab.net/%D7%9B%D7%AA%D7%91%D7%99%D7%9D/%D7%9E%D7%90%D7%9E%D7%A8%D7%99%D7%9D/%D7%91%D7%A2%D7%A0%D7%99%D7%99%D7%9F-%D7%94%D7%9B%D7%A9%D7%9C%D7%AA-%D7%97%D7%99%D7%9C%D7%95%D7%A0%D7%99-%D7%91%D7%A2%D7%91%D7%99%D7%A8%D7%94/
Regarding the relationship between the individual and the public, you can see here:
https://mikyab.net/%D7%9B%D7%AA%D7%91%D7%99%D7%9D/%D7%9E%D7%90%D7%9E%D7%A8%D7%99%D7%9D/%D7%9E%D7%91%D7%98-%D7%A0%D7%95%D7%A1%D7%A3-%D7%A2%D7%9C-%D7%97%D7%95%D7%91%D7%AA-%D7%94%D7%99%D7%97%D7%99%D7%93-%D7%91%D7%AA%D7%A4%D7%A7%D7%99%D7%93-%D7%A6%D7%99%D7%91%D7%95%D7%A8%D7%99/
And also here:
https://mikyab.net/%D7%9B%D7%AA%D7%91%D7%99%D7%9D/%D7%9E%D7%90%D7%9E%D7%A8%D7%99%D7%9D/%D7%94%D7%99%D7%91%D7%98%D7%99%D7%9D-%D7%90%D7%A7%D7%98%D7%95%D7%90%D7%9C%D7%99%D7%99%D7%9D-%D7%9C%D7%91%D7%A2%D7%99%D7%99%D7%AA-%D7%94%D7%A4%D7%A8%D7%98-%D7%95%D7%94%D7%9B%D7%9C%D7%9C-%D7%95%D7%93/
And also in note 15 in my book Two Wagons and a Hot Air Balloon.
Goodbye,