The Nature of Halakhic Civil Law

The Nature of Halakhic Civil Law

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Chaim N. Saiman

I. Introduction
The foundation of traditional halakhic thought is that the laws of the Torah are the revealed and eternal word of God. This includes not only the laws that might be classified as “religious,” “natural,” “ritual,” or “spiritual,” but emphatically includes the civil laws as well.

For many Christian theologies however, whether modern or medieval, the specific civil laws set forth in Exodus and Deuteronomy are viewed as regulations for a specific time; either during the desert sojourn and the land of Canaan, or at the latest, until the advent of the Christian messiah. So while the Torah’s civil laws may have divine origin, they are bound to the past have little bearing in the post-biblical present. Thus, even for someone as interested in the content of the revealed word as Aquinas, when it comes to civil law, his discussion leads him to Aristotle rather than Exodus. (See Summa Theologica, Q.91 and 95-97.) Likewise, in discussing the civil laws John Calvin, wrote:

The allegation, that insult is offered to the law of God enacted by Moses, where it is abrogated, and other new laws are preferred to it, is most absurd. Others are not preferred when they are more approved, not absolutely, but from regard to time and place, and the condition of the people, or when those things are abrogated which were never enacted for us. The Lord did not deliver it by the hand of Moses to be promulgated in all countries, and to be everywhere enforced (The Institutes of the Christian Religion, 4:20 ¶16).

For the Talmudic rabbis, such an approach is sheer blasphemy. The specific mitzvot God gave Moshe in the desert—everything from the Ten Commandments, the instructions to build the mishkan, up to and including the rules of contract, bailment and tort, are divine and eternal. Hence Exodus 22:4, which states, “If anyone grazes their livestock in a field or vineyard and lets them stray and they graze in someone else’s field, the offender must make restitution from the best of their own field or vineyard,” or the next verse, “[i]f a fire breaks out and spreads into thorn bushes so that it burns shocks of grain or standing grain or the whole field, the one who started the fire must make restitution,” are as part of the eternal divine law as any other section of the Torah.  

To be sure, how these rules have been interpreted and applied over time is a far more complex matter. Nevertheless, on the essential premise—that such rules are part of the eternal covenant between God and the Jewish people—on this, there is little debate.

II. Foundations of the Law: Revelation at Sinai
To understand the nature of Jewish civil law, we start with the foundational moment of lawgiving, receiving the Torah at Sinai. As this synopsis of Exodus 19 indicates, the Torah presents an extensive account that highlights the “theatrical staging” of this foundational moment:

The Lord said to Moses, “I am going to come to you in a dense cloud, so that the people will hear me speaking with you and will always put their trust in you” . . . And the Lord said to Moses, “Go to the people and consecrate them today and tomorrow. Have them wash their clothes . . . Put limits for the people around the mountain and tell them, ‘Be careful that you do not approach the mountain or touch the foot of it. Whoever touches the mountain is to be put to death . . . On the morning of the third day there was thunder and lightning, with a thick cloud over the mountain, and a very loud trumpet blast. Everyone in the camp trembled . . . Mount Sinai was covered with smoke, because the Lord descended on it in fire. The smoke billowed up from it like smoke from a furnace, and the whole mountain trembled violently. As the sound of the trumpet grew louder and louder, Moshe spoke and the voice of God answered him in thunder . . . And the Lord said to him, “Go down and warn the people so they do not force their way through to see the Lord and many of them perish.

Following the Ten Commandments, Exodus chapter 20 reads as follows: 

When the people saw the thunder and lightning and heard the trumpet and saw the mountain in smoke, they trembled with fear. They stayed at a distance and said to Moses “Speak to us yourself and we will listen. But do not have God speak to us or we will die.” Moshe said to the people, “Do not be afraid. God has come to test you, so that the fear of God will be with you to keep you from sinning.” The people remained at a distance, while Moshe approached the thick darkness where God was.

In Chapter 19, God reveals himself through thunder and lightning, billowing smoke, thick clouds, and blasting trumpets as the law comes booming down from heaven. Law is divine, transcendent, and beyond human experience and intellect; all who approach are consumed. Even Moshe gains access only by spending 40 days and 40 nights in an effectively inhuman existence. Limits, borders, fear; these are the preambles to the law. The Israelites, quite naturally, recoil in terror, and as Ex. 20:16 reports, this was more or less the point. Later on, we are informed of their response: “All that God has said we will obey and we will hear” (Ex. 24:7).The order of the verbs is not lost on the Talmudic rabbis, who famously note the commitment to obey the law precedes even knowing what it requires.

Law here is presented as an act of pure divine will where God’s word both creates and justifies the law’s foundational norms and intuitions. There is no platform on which one can stand in judgment of the divine law. The very idea is as ridiculous as it is blasphemous. [This topic is extensively analyzed by Christine Hayes in her new book. What’s Divine about Divine Law: Early Perspectives (Princeton: Princeton University Press, 2015).]

This perspective is embodied in the strand of Jewish law that is concerned with punctilious observance. So palpable is the fear of sin—or breach—that we dare not even tread close. Thus, classic example is that in cases of doubt as to whether a piece of meat is the prohibited ḥelev (often translated as suet fat) or the permitted shuman (permitted fat) the halakhah requires abstention since the status is in doubt. Likewise, on Friday evening, when Shabbat begins, we adopt one of the earlier possible definition of “night,” while on Saturday night we adopt a later definition to make sure that all bases are covered. As the Mesillat Yesharim describes the reason to be stringent in cases of doubt: “Anyone with a brain in their head should view prohibited foods as if they are foods that have been poisoned… Because if there is even the smallest doubt as to whether there is poison in a food, would one eat it?”

This view, rooted in the Bible and Talmud, and running through to the present sees all laws as commitments to God. Thus, even civil law is not fundamentally about the work of social governance but a form of obedience to the divine calling. This approach reaches its high-water mark in the hands of Rav Hayyim Soloveitchik and the Brisker school, as attested by the following articulation attributed to Rav Hayyim:

One may think that the reason the Torah instituted [commandments such as charity and performing acts of kindness] is for society to function. But, in truth, it is the opposite. Because there is a commandment not to murder, that is the reason murder leads to destruction. Similarly, because the Torah commanded to give charity, such acts sustains the world . . . Thus the universe is created in accordance with the Torah, and Torah is the blueprint of creation. For in truth, a universe could be created where murder would sustain society and charitable acts would destroy it—is God’s hand limited? Rather because the Torah commanded us to engage in charitable acts and refrain from murder, the universe was created such that charity sustains the world and murder destroys it. All is in accord with what is written in the Torah. Do not think that the Torah was given based on reality (Haggadah Shel Pesah Mi-Beit Levi, ed. M.M. Gerlitz, (Oraysoh 1983) at 182-83, emphasis added). 

One could hardly imagine a clearer expression of divine legal positivism. Our moral understandings of why charity is good and murder bad are simply irrelevant. For Rav Hayyim, Torah alone (including Talmud and its commentaries) determines right and wrong. Considering the law’s functionality, purpose, efficacy, or morality is beyond the pale, the very question betrays a misunderstanding of the nature of law.

III. Exodus 18: An Alternate Conception
And yet, just one chapter prior to the revelation at Sinai described above, we find another, quite different, prelude to the giving of the Torah. Chapter 18 of Exodus tells of Yitro, the Midianite priest and Moshe’s father in law, visiting the encampment in the desert and observing Moshe hard at work dealing with the people’s legal disputes.

The next day Moshe took his seat to serve as judge for the people, and they stood around him from morning till evening.  When his father-in-law saw all that Moshe was doing for the people, he said, “What is this you are doing for the people? Why do you alone sit as judge, while all these people stand around you from morning till evening?”

Moshe answered him, “Because the people come to me to seek God’s will. Whenever they have a dispute, it is brought to me, and I decide between the parties and inform them of God’s decrees and instructions.”

Moshe’ father-in-law replied, “What you are doing is not good. You and these people who come to you will only wear yourselves out. The work is too heavy for you; you cannot handle it alone.  Listen now to me and I will give you some advice, and may God be with you. 

You must be the people’s representative before God and bring their disputes to him.  Teach them his decrees and instructions, and show them the way they are to live and how they are to behave.  But select capable men from all the people—men who fear God, trustworthy men who hate dishonest gain—and appoint them as officials over thousands, hundreds, fifties and tens. Have them serve as judges for the people at all times, but have them bring every difficult case to you; the simple cases they can decide themselves. That will make your load lighter, because they will share it with you . . . Moshe listened to his father-in-law and did everything he said … Then Moshe sent his father-in-law on his way.  

Here, Moshe is presented in a far more human form. Rather than the prophet who transcends his mortal shell to reside on High, we find a leader lacking in administrative skill, who, to put it brashly, appears in over his head. And this very human Moshe then endures a prototypically human encounter—the visit from the father-in-law who comes bearing “advice” about how to perform better at work. But with God’s apparent blessing, Moshe takes advice from a non-Jewish Midianite priest. Moshe then thanks his father-in-law for the tip and promptly “sends him on his way.”

The story of chapter 18 offers at least two points of contrast. First, the same Moshe who stood up to Pharaoh, wrought the 10 plagues, and split the sea here gets schooled by his father-in-law. But second, and more relevant to our purpose, the Torah describes an entire legal system (replete with overcrowded court dockets) as up and running prior to the revelation at Sinai.

This incongruity did not escape the rabbis of the Talmud or their medieval heirs. (See, for example, Rashi and Hizkuni to 18:13; and Ramban, Ibn Ezra and Seforno to 18:1.) In fact, Zevahim 116a records a debate as to whether Yitro arrived in the Israelite camp prior to the giving of the Torah or afterwards. The source of the controversy is easy to understand. Textually, the Yitro episode is presented in Exodus 18, just prior to revelation. Conceptually, however, the issue is more complicated: How could there be an intricate legal system before the Torah was given? How could Moshe have set up an entire administrative bureaucracy, taught the people the statutes and decisions to “make them know the way in which they must walk and what they must do” before Sinai?

Whether Yitro arrived before or after Sinai, the Torah chooses to present his story as taking place beforehand. In this way, Exodus 18 offers a rather different image of law than what we saw in Chapter 19. Rather than booming down from heaven, law is something that already exists within the human experience. In place of the harsh and transcendent imagery of smoke, fire, thunder, lighting, boundaries, and danger, we find the more immanent qualities of prudence, judgment, reason, and virtue. Moshe is not an otherworldly figure who bridges the gap between heaven and earth, but himself is one who must be educated. In this image of the law, even an outsider like Yitro has much to contribute. In fact, this might be what the Midrash alludes to when it asks why Moshe’s father in law, who is known by seven names, came to be memorialized in the Torah as Yitro? The answer, according to the Tanḥuma (Yitro §4), is that “he added, יתר, a chapter to the Torah.”

The Bible thus offers two introductions to the giving of the Torah, and hence two understandings of the law’s foundation and purpose. The “official” introduction of chapter 19 depicts that law as a pure expression of the divine will—where man’s only contribution is obedience. But spending no more than five moments with the Talmud reveals that, at best, this is half the story. The Talmud brims with debates, disputes, arguments and reasons where the rabbis take an active (some might say dominant), role in constructing and creating the God’s law. Here law is determined based on prudence, practical reasoning and the human ability to judge what is right, what is just, and what conforms to reason. To signal this aspect of the law, the Torah provides an alternate introduction to the giving of the Torah—the introduction of Yitro.

The question, which has occupied rabbinic thinkers from the Talmud to date, is how do these two modes of thought interact. How can a system premised on divine absolutes govern the contingent affairs of man? Nowhere is this more acute that in the case of civil law, where ever-changing economic and social circumstances impact how legal principles are administered and applied.

IV. Rav Shimon Shkop’s Account of Jewish Civil Law
Above, we noted how Rav Hayyim adhered to a strong version of the divine positivistic account where even the civil law is hard-wired into creation. However, one of his primary students, Rav Shimon Shkop, the leader of what can be called the Telshe strand/competitor to the Brisker school, offered a rather different perspective on halakhic civil law.

Like his mentor, Rav Shimon was primarily a talmudic legalist, rather than a philosopher. His jurisprudence does not proceed in the language of Aristotle, Aquinas, Arendt, or Ackerman, but in traditional rabbinic fashion: by showcasing an analytic or legal inconsistency in the halakhic corpus followed by a proposed resolution.

Rav Shimon’s entry point is as follows: Above we noted that if one confronts a piece of meat of unknown status, halakhah requires abstaining from it to avoid even the possibility of prohibition. This principle is known as “safek de-oraita le-humra,” meaning, that in cases of doubt concerning a Torah-grade prohibition, one must act stringently. This rule carries echoes of Exodus 19. The fear of transgression leads to abstention, even as the fact of prohibition remains uncertain.

Rav Shimon notes however, that theft is also a biblical prohibition. The logic of stringency in the case of doubt would therefore counsel that when there is factual or legal doubt as to whether A or B owns an asset, (as in any litigation between A and B), the holder should refrain from possessing or using the asset for fear of violating the biblical prohibition against theft.

Rav Shimon notes however, that this is emphatically not the halakhic rule. The baseline of halakhic civil law, like its secular counterparts, assumes that the plaintiff bears the burden of proof, or as the Talmudic phrases it, “one who wishes to extract an asset must supply convincing evidence.” Unless and until the plaintiff proves his burden, the defendant is permitted to retain and use the disputed asset. This causes Rav Shimon to wonder: why is this different than the piece of meat of uncertain kosher status?

Standing behind this traditionally framed halakhic question are some of the ideas discussed above. The rule mandating stringency in cases of doubt draws its inspiration from the image of law generated in Exodus 19. Law comes from on high, and man cowers in submissive fear. “Can’t touch this,” as a colorful entertainer from the ‘90s put it. In face of the potential of sin, the only sensible response is to cautiously back away.

This idea, however, is much harder to apply to a system of civil justice were law must pragmatically order human affairs. Possession creates a presumptive claim of right, and it falls on the plaintiff to sustain the burden of proof. Here, we hear echoes of Exodus 18, where the law is less focused on the awesomeness of the Divine, and more concerned with effective administrative governance.

But how do these two systems of reside within the same halakhic rubric? Rav Shimon responds to this challenge by proposing a novel understanding of halakhic civil law. The rules of private law, claims Rav Shimon, are not primarily established by divine mandate. Instead, rational reasons and institutions that create the system of property, ownership, contract, and tort. He calls this sub-biblical system of law “torat ha-mishpatim,” probably best translated as “civil law.” While some of these rules are indeed determined by Torah verses, the bulk are generated by human reason rather than Torah (narrowly defined).

Rav Shimon’s own words present a striking intervention into rabbinic discourse:

Answering this question requires a general introduction to the commandments (mitzvot) of civil law that govern the interactions between people. These laws are not like the other mitzvot of the Torah. Regarding all other mitzvot, the central issue is the fulfillment of God’s command incumbent upon us. But this is not the case regarding the civil laws. Because, before there is mitzvah to pay certain monies or return a certain asset, there must be a duty arising from civil law” mandating payment … A related principle is as follows: When we seek to determine the rights or liabilities with respect to assets, we are not engaged in a question relating to the observance of a mitzvah. Instead, we are asking a question regarding ownership based on the rules established by the civil law. Thus, the Talmud declares that plaintiff bears the burden of proof, because the rules of private law presume that one who possesses an asset is entitled to its use (Sha'arei Yosher 5:1).

According to Rav Shimon, because the rules serve different purposes, there is no contradiction between the civil law rule requiring the plaintiff to bear the burden of proof and the religious prohibition against theft. At the initial stage, the law must determine who has ownership over a given asset. This is accomplished via the civil law rules which assume that an asset belongs to its holder (A) until a challenger (B) offers compelling proof otherwise. Rav Shimon’s innovation is that the theological stakes, and the correlated concept of issur (religious prohibition), only kick in once ownership has been determined via the civil law. Hence, if the civil law determines that B rather than A owns the asset, A violates the religious prohibition against theft by keeping it. However, when the civil law merely results in doubt over A’s ownership status, no religious prohibition prevents A’s retention of the asset in question.

Rav Shimon’s discussion of the “torat ha-mishpatim” encompasses many pages of dense halakhic writing (not a genre known for its philosophical clarity), and his account has been the subject of several competing interpretations. Thus, Avi Sagi has argued that Rav Shimon’s “torat ha-mishpatim” is a form of “halakhic natural law” based on human conceptions of justice that are conceptually prior to many divine positive commandments. By contrast, Shai Wozner has argued, more convincingly in my view, that Rav Shimon is not interested in determining whether halakhic civil law reflects natural law, human positive law, or divine positive law, but instead intends to distinguish between rules that create legal status (whether formulated by human convention, rabbinic legislation, or Torah mandate) and mitzvot that call on humans to act in accord with divine will.

No matter which understanding of Rav Shimon we follow, his view of civil law contrasts sharply with that of his teacher. Reb Hayyim, and his strand of Brisker thought more generally, could not envision a foundational norm predating or conceptually prior to God’s express command. The divine commandment is what establishes the normative universe, and all subsequent norms necessarily derive from the primal set of divine laws. However, as Elisha Friedman recently wrote, Rav Shimon “rejects the Brisker claim that reasons are irrelevant to halakhic study because the [d]ivine wisdom is unfathomable.” Rather, Rav Shimon maintains that “[d]ivine wisdom at its core, must reflect the human experience” such that “only through offering reasons in halakhic study can one hope to arrive at the truth of Torah.” Rav Shimon thus posits a normative order of “civil law” that includes humanly ordained norms which create legal rights and obligations conceptually prior to the divine command. What the mitzvah adds, per Rav Shimon, is the divinely-mandated requirement to act justly and in accord with one’s legal rights and responsibilities.

These two perspectives on the purpose and foundations of law resonate with the dual introductions presented for the acceptance of the Torah. Chapter 19 presents a model of law where the idea that man has standing to formulate the law’s primary norms seems blasphemous. Chapter 18, by contrast, offers a different prelude to revealed law where legal relationships are sorted out through reason prior to the divine command coming into play.

In Rav Shimon’s account, the civil law allows for human intuition and reason to establish legal entitlements and liabilities. But it is the transcendent divine call, a call still heard echoing from Sinai, that calls upon us to live up to these obligations.

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