Q&A: Does the prohibition of interest belong in Yoreh De’ah or in Choshen Mishpat?
Does the prohibition of interest belong in Yoreh De’ah or in Choshen Mishpat?
Question
Hello Rabbi,
I seem to remember that you mentioned the fact that the prohibition of interest is located in Yoreh De’ah as a sign that this is not an interpersonal commandment but rather one between man and God. That is, it has something in common with the prohibition of pork or mixed species. But recently I discovered that the prohibition of interest also exists in Hinduism, and from this I conclude that people had an intuitive sense that charging interest runs contrary to natural morality (just as there are many moral prohibitions in other religions—do not murder, do not steal, etc.). But wherever the matter of interest is not contrary to natural morality, it seems that it is not prohibited at all. It is not that there is some reason here that is beyond our understanding; rather, our understanding is what defines the prohibition (as with all interpersonal prohibitions). The prohibition of overcharging also seems to be one that is not really practiced nowadays, for the same reason: when the social-economic reality changes, the rules of economic morality change with it. What do you think about that?
Best regards,
Answer
First, I didn’t say that this is a commandment between man and God. It is an interpersonal prohibition, but it is a prohibition and not a legal obligation/right. That is a completely different distinction.
Regarding the question whether a change in norms changes the prohibition—that is a good question, and I’ve thought about it more than once. The accepted view is that it does not, but I’m really not sure. And the same applies to overcharging. With overcharging it is even easier, because that prohibition appears in Choshen Mishpat, and with rights and obligations it is easier to tie them to norms and accepted social conventions. A person who waives a right, the right is voided (something like making a stipulation against what is written in the Torah). Although with overcharging there is no prohibition.
As for interest, I think a change would require something beyond the reason for the verse, which in Jewish law it is commonly accepted not to derive practical rulings from. If you can show that the definition of the prohibition is framed in a way that is not relevant today. There are such statements regarding bank interest.
Discussion on Answer
Who said one can waive interpersonal prohibitions? A person can waive rights, not prohibitions. After all, with interest there is also a prohibition on giving interest. On your approach, there would be no room for any prohibition here, because if he is giving the money then he is certainly waiving it.
Notice that even with rights, as for example in the case of overcharging, they distinguish between the condition “on condition that you have no claim of overcharging against me” and the condition “there is no overcharging in it” (Bava Metzia 51b; Choshen Mishpat sec. 227, para. 21). The first is valid and the second is not. You see that one cannot make a stipulation even about rights. As long as a prohibition is involved, no condition works. The first condition is effective only because it is as though I was accepted to it (that is a gift, not an annulment of the prohibition).
I assume that the inability to waive it stems from the concern that the waiver was not made wholeheartedly, and that there is a kind of exploitation here. Just as nowadays there is a prohibition on prostitution or organ trafficking on the assumption that these things are not done wholeheartedly or with full consent. But where there is no concern about exploitation or incomplete consent, I don’t understand what grounds there are to prohibit it. Or what reason there is that waiver should not be possible?
Let’s take the obligation of charity as an example. If all the poor people were to waive the obligation of charity wholeheartedly, would there still be an obligation to give them charity?
That doesn’t seem likely, because otherwise there would be no difference between “you have no claim of overcharging against me” and “there is no overcharging in it.”
So if you admit that the prohibition of interest is an interpersonal prohibition, then in a case where a person is willing to waive the prohibition for his fellow, why shouldn’t that help? The waiver I mean here is that everyone in society is willing to waive it for one another from now on forever, because that way everyone benefits. If there is no harm here either to the Holy One, blessed be He, or to society, what is the reason to prohibit it?