Q&A: A Small Consultation
A Small Consultation
Question
Hello Rabbi,
Since you have been involved for many years in Jewish studies, including with a public that is not observant of the commandments, and have accumulated a great deal of experience in the field, and perhaps also personal experience, I think you are the right address for the following question:
As part of a “beit midrash” program of Lev L’Achim, I end up learning once a week with someone who is becoming more observant. A 34-year-old man, he grew up in a Haredi family and dropped out in high school.
We are learning the Babylonian Talmud, Bava Kamma, chapter “HaKones.”
Several times already he has expressed himself by saying that in his view many of the Jewish laws and legal rules we are learning are not logical, and “don’t make sense to him.”
The question is—what is preferable:
A. To ignore it and keep moving.
B. To try, as much as possible, to bring the matter closer to reason.
For example: he insists that there is no logic in the rule that if someone opens a door in front of another person’s animal and it goes out and causes damage, he is exempt [because that is indirect causation], but if he is the owner of the animal—then he is liable. “What difference does it make whether he owns it or not? Bottom line, because of him damage happened.”
The problem is that explaining things like this is not so simple, certainly not for someone who is not accustomed to these concepts. And I’m a little worried that if I try to get into the issue and explain it, and it still doesn’t satisfy him, he will conclude once and for all that the Torah is irrational. And from there the road is short to the final conclusion that the Torah is outdated, not suited to our times, and at most is a nice book.
What should be done?
Answer
I believe in truth and not in “holy lies.” Therefore, in my opinion one should learn the Talmud as it is and hope that the light within it will bring him back to the right path. Moreover, most areas of Jewish law do contain ordinary human logic, since they are not written explicitly in the Torah itself. The case of opening a door in front of another person’s animal versus one’s own animal is not a law written in the Torah. The Sages established this law (though it is, of course, Torah law), through exposition or interpretation. Therefore there must be some logic to it, and it cannot be dismissed by saying that this is simply a biblical decree and that is that.
But at the same time it is important to preface that there is independence between Jewish law and morality, and therefore the logic underlying Jewish law is not necessarily a logic of justice and morality. Hence moral objections to Jewish law should not trouble us. If Jewish law does not conform to morality, that is because it aims at other goals (and not at creating social order). On the other hand, in certain cases when there are such contradictions, it is the role of the Sages to enact an ordinance to supplement the law and require payment “not under the strict law.”
Now I will explain the halakhic logic: from the standpoint of Jewish law (and not justice and morality), a person who caused damage to someone else is not liable to pay for it (indirect causation in damages is exempt). But that is only in the law of a person who damages. In the law of property that causes damage, the novel rule is that indirect causation is liable (after all, the owner only caused the damage through his animal by not guarding it properly, and yet he is still liable). But plainly, the novelty is not that he is obligated because he is a damager by indirect causation (for indirect causation is exempt), but rather that he bears responsibility for damage done by his animal, so long as he is at fault for that damage—that is, when he did not guard it properly. (True, ostensibly I have taken a side here in the well-known inquiry of Rabbi Avraham Binyamin Sofer, but this can be rejected.)
So when he opens a door in front of his own animal, he is liable—but not because he caused the damage, since indirect causation in damages is exempt, but because the Torah places responsibility on him for the damages his animal causes (and if he opened the door, he is at fault, and therefore the responsibility rests on him). But when he opens a door in front of someone else’s animal, then insofar as he is a damager, it is indirect causation and therefore he is exempt (in human courts), and insofar as responsibility is concerned, he has none, because it is not his animal.
Of course, if from a moral perspective it would be proper to obligate him because he caused the damage, that is a moral consideration and not a halakhic one. As stated, it is the role of the Sanhedrin to determine in such cases that in addition to the law in the strict sense, there should be an ordinance requiring him to pay in such cases as well. So in the bottom line, justice is not harmed, but Jewish law does not strive for justice. So too in the well-known Derashot HaRan, discourse 11, on the king’s justice; see there carefully.
Much success,
Discussion on Answer
How did the Rabbi answer so quickly?
It seems the question was asked 40 minutes ago and was also answered 40 minutes ago.
(And that is after he answered other questions too with phenomenal speed.)
Amazing.
It looks like there’s enough astonishment here for everyone… (Every now and then they upload a bunch of questions from the email all at once.)
With God’s help, Purim in unwalled cities 5782
When a student claims that the exemption for indirect causation in damages is illogical, Rabbi Michael Abraham comes and “pours oil on the fire” by asserting that the law of the Torah is concerned only with the religious side and not with justice and morality. The answer is far more outrageous than the question.
But in fact the opposite is true: from a religious perspective, the obligation is greater than from the legal perspective, for even one who is exempt in cases of indirect causation in human courts is still liable in the laws of Heaven. It follows that someone who causes damage indirectly has a problem directly with the Master of the Universe if he does not compensate the injured party, and that is really no great pleasure.
And there was an incident with one of the Sephardic sages in Jerusalem who came to the synagogue sexton on the eve of Yom Kippur so that he would flog him according to the custom. The sexton recoiled from the thought that he would flog the rabbi, and said to the rabbi: “May God flog you.” The rabbi turned pale and said: “Now I received a proper blow”…
After all, the entire renewal of ordination in Safed was because they wanted to be flogged in a religious court for prohibitions punishable by karet that they had transgressed while living as forced converts, based on the idea that it is preferable to receive lashes in the court below and thus avoid standing in judgment in the court above.
The difference between someone who damages directly and someone who merely causes damage is only in the enforcing court—whether it is a court below or a court above. And in a society of people of faith, getting into trouble with the court above is very frightening.
The exemption in “indirect causation” is one of the rules of the Torah’s criminal law, in which the Torah restricted the authority of the “court below,” which can convict only in a case of full testimony and for a direct act done by one’s own hands. Human judgment will be carried out in only a small fraction of cases, for fear of judicial error or excess, but from those examples everyone will learn the severity of the matter and will exercise self-discipline and social discipline that will keep them from transgressing even without testimony.
It is possible that the concern about entrusting laws of causation to human judges, who might err, stems from the fear that plaintiffs would bring intricate claims for indirect damages, such as the example presented in Wikipedia under “tort law”: a person damaged a car, thereby causing the driver to arrive late to a meeting with a wealthy uncle, and because of the delay the uncle disinherited him from a million-dollar inheritance.
And perhaps for that reason the Torah refrained from imposing sweeping liability for indirect damage, and left the matter to the discretion of the judges or communal leaders—when to obligate payment for indirect damage by enactment or as a temporary protective measure, and when not to. A sweeping obligation leaves the judge no discretion according to the specifics of the case, and invites intricate claims that are impossible to get out of.
In any case, the Torah was stricter on one side regarding a person who damages personally, making him liable even at a very low level of negligence, where he would not have been liable for damage caused by his property, since “a person is always forewarned.” For direct damage the damager is subject to sweeping liability in human courts, and for indirect damage he is liable in the laws of Heaven, and also in human courts according to the discretion of the judges or communal leaders.
Regards,
Yaron Fishel Ordner
Jewish law comes to establish Jewish morality.
Obviously that doesn’t fit with the German Kantian morality that the Rabbi so admires.
As for the issue itself, the law is that he is exempt in human courts and liable in the laws of Heaven.
And if anything, let him challenge that.
I’m speechless from sheer astonishment.