Q&A: Law and Morality — Rights
Law and Morality — Rights
Question
Hello,
I have a question I’ve been struggling with about duties and rights in law and morality.
Simply speaking, a person does not steal an object that belongs to someone else because he has a legal duty not to steal, and that is because the other person has a right to the object.
That would mean that in law, my duty exists because of the other person’s right. If it is an object in which the other person has no right, then I am allowed to take it. The duty is created because the other person has a right.
Therefore, in a case where my life is threatened, and I can save myself by stealing, then apparently from a legal standpoint it is still forbidden. After all, I have no legal right to the object.
Now as for morality: I see someone drowning, and I have a moral duty to help him. Why? Because the other person has a right to live? How does that work?
And in a case where my life is threatened and I can save myself by stealing, then morally the other person has a duty to save me; on the other hand, I have a legal prohibition against stealing. Do I also have a moral right to take the object?
Is there symmetry in morality the way there is in theft?
I seem to remember the Rabbi saying that the state has a duty to care for the disabled, but they do not have a right to that. Something like that. What does that mean? The state has a duty — why? In law, a duty exists because the other person has a right, no?
I wrote this in a confused way, because the topic is confused for me. I hope the Rabbi understands what I wrote. I would be very glad to receive a reasoned answer on this issue.
Answer
Hello Nir.
From the wording of your first sentences, I gather that you read what I wrote on this topic. There I also explained your questions. Or perhaps you only heard about it or read it in a secondary source. So first, read here:
בין הטריטוריה שלי לטריטוריה של הזולת על חובות וזכויות בהלכה ומשמעותן
The duty to help another person when he is about to drown is not the other person’s right, but your duty. By the way, this is true halakhically, legally, and morally. An exception in this matter is Rashba, who writes in a responsum that what allows a person to save himself using another’s property is only that the other person is obligated to save him, so there is no theft here. That implies that the other person’s obligation is by virtue of my right. (Because another person’s duties do not justify my taking them for myself. A poor person cannot take money from me just because I am obligated to give him charity. The duty to give charity does not stem from the poor person’s right, but from my duty.)
Rashi on Bava Kamma 60b indeed writes that it is forbidden to steal even if you would pay with your life for it (unless the owner of the property agrees, or you estimate that he would agree). But most of the medieval authorities disagree with him on this. Building of Zion discusses this at length in responsa no. 186–192 or so.
A legislator has no legal duties, because he determines the law. Only after the law is created does a legal duty come into existence. The state has a moral duty to care for the disabled, which it translated on its own initiative into a legal duty. Now it has a legal duty. But as long as this has not been legislated, there is no legal duty (only a moral one), and the disabled also have no right.
Discussion on Answer
There are instructions above here about how to do this on a smartphone. If it still doesn’t work, please send it to me by email with a link to the original thread and I’ll enter it. Please don’t open another thread, because that confuses me and everyone else.
As for your actual questions:
The duty comes from the Holy One, blessed be He. Exactly like a legal duty (for example, to pay taxes or serve in the army) which comes from the legislator. I did not understand why an explanation of a duty based on a right seems clearer to you. There too you could ask where the right came from.
In the case of priests, we are dealing with terumah that has already been separated, and then in simple terms it belongs to the tribe of priests, even if not to an individual priest. So there there is a right, but it does not belong to one individual person. (If they all granted each other authorization, perhaps they could sue jointly.) When the damager is himself a priest, the possibility of claiming from him is reduced further, because he himself would not join the authorization.
I didn’t understand why you want a source, or what source. Would it enter your mind that if I damage my own property I would become obligated to pay compensation to a poor person? Why would that be so? Terumah is defined as terumah after separation. Perhaps there is room to discuss the law of charity money that has already been set aside but not yet given.
The basic claim that charity is not the poor people’s property and that they have no right to it is simple and needs no source. That is why it appears in the Yoreh De’ah section of the Shulchan Arukh.
By logical reasoning, one could distinguish between charity up to a third of a shekel per year, which I am obligated to give, and regarding that there is room to compare it to terumah, so that it would be the property of the “tribe of the poor” (after separation), and between charity beyond that, where only if a specific poor person stands before me do I have an obligation to give him, in which case it is not the property of the “tribe” at all (and of course not his either).
Nir wrote:
Thank you for this! I had indeed heard about the article secondhand.
Within your remarks it says:
“Because another person’s duties do not justify my taking them for myself. A poor person cannot take money from me just because I am obligated to give him charity. The duty to give charity does not stem from the poor person’s right, but from my duty.”
Could you expand on that? If I have a duty to bring something to someone, where does that duty come from? If the object legally belongs to him, then he has a right to it, doesn’t he? And if moral justice requires it, then that too. In truth, the object ought to belong to the poor person; why doesn’t he have a right to it? In other words: where does a duty without a right come from?
And in general, I think the Talmud says that if a priest damaged terumah, then the priests have no ability to claim against him, because there are many priests, and not because they have no right in the matter. Is it different with a poor person? Could I please have a source for that distinction?