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Mystical Dimensions in Civil Law
By: Rabbi Eli Silberstein

Jewish mysticism is often perceived as ethereal abstract and beyond the ken of all but a select few. It is often considered to have little relevance to the day-to-day life of an ordinary Jew. Indeed, the laws and commandments found in the Torah and Talmud which form the framework of Jewish living can be understood and followed without any knowledge of the mystical literature. Chasidic philosophy teaches, however, that there is an essential, fundamental interrelationship between all levels of Jewish thought, reflecting the unity of their Divine source. In particular, Chasidism teaches, there is an intimate connection between the mystical and the purely legal dimensions of Jewish thinking. The former is not merely a lens through which we gain a unique perspective on the latter; it is rather an inseparable part of it, without which Jewish law would not be what it is. If the law is the physical body, explains the Zohar, its mystical interpretation is the soul. Through joining body and soul-- the legal and the mystical--many difficult-to-understand issues in Jewish taw may be clarified.

Mystical Dimensions in Civil Law
It is perhaps not altogether surprising that understanding issues of ritual concern in Jewish law would be enhanced by a mystical approach. Remarkably, however, we also find this dimension in the area of civil law. Although the Torah approach to issues such as acquisitions, loans, torts, and contracts seems on the surface to be in some ways similar to secular systems, it is in reality far more complex.

Consider, for example, ownership--a key concept in the area of civil law. Ownership is central to any discussion of loans, torts and contracts. In secular thought, ownership is normally perceived as no more than a social convention. Society's welfare depends on the implementation of clearly defined boundaries so as to avoid conflict in a world where people compete for the same turf.(1) (An interesting question from this perspective might be whether Adam, while he was alone in the world, owned anything. He had no need to protect objects that he utilized from other potential users.) Jewish mysticism, however, views ownership in an entirely different light. Judaism understands there to be a real metaphysical connection between the proprietor and the property. The Baal Shem Tov explains that every physical object contains a mystical reality, referred to in Jewish mysticism as a divine spark. These sparks are comprised of a G-dly energy which constitutes the essential existence of that object. The purpose of existence, then, is to elevate these sparks from their state of obscurity, and reveal their inherent divinity within the physical; this is accomplished by using the objects in which they are contained to perform divine commandments. Every person is given a share of the physical world--his physical possessions--which are invested of the divine sparks associated with the divine roots of that person's soul.(2)

Ownership, then, represents the association between the soul and the divine sparks present in the object in question.* *When ownership is transferred, it indicates that the sparks contained in the transferred object require the intervention of more than one soul to be elevated. Rabbi Yehudah Loew, the Maharal of Prague, sees this preordained relationship between owner and property reflected in the following Talmudic dictum (Kiddushin 59:A): "'If a poor man is trying to take possession of a certain cake, and another comes along and snatches it, he can justifiably be called a wicked man, for he has encroached upon the livelihood of his fellow.' A man who is attempting to buy an item or enter a business transaction, and another comes along and seizes the opportunity away from him, the competitor has done an ethical wrong, for the initial buyer can justifiably say, 'why must you ruin my opportunity to profit? If you wish to do profit you can easily do business elsewhere.'"(3)

The Maharal explains that everything regarding a person's material possessions, from the accumulation of property to the extent of a person's income or the manner in which he achieves that income, is preordained. Negotiations between buyer and seller may be an indication of this preordained bond between buyer and property in question. Thus, depriving the buyer from completing the transaction with the seller is perceived in Jewish taw as theft, because it intrudes on the divine establishment of boundaries between territories of ownership. We find an allusion to this spiritual bond in the words of our sages: "The righteous value their physical possessions more than their bodies."(4) Chasidic philosophy expands this idea even further. When a physical entity enters our possession, it is changed and uplifted as a result of the interaction between the divine soul of the owner and the spiritual constitution of the object. Indeed, in relating the story of Abraham's purchase of land from Efron, the Hittite, we find that the Torah uses the phrase, "and the land rose to Abraham," from which we may infer that simply by moving from the possession of Efron, the idolater, to the hands of Abraham, the land itself rose in status.

It is interesting to note that the word kinyan, which in Hebrew means "possession" or "taking possession," is often used in Biblical Hebrew to describe the inherent relationship between Creator and creation.(5) In the Talmud, it is used to describe a special bond between G-d and particular entities such as Abraham, the Torah, and Israel.(6)

The consequence of this intimate bond between owner and property is often reflected in Jewish taw which regards ownership not merely as a legal concept but as a reality that remains unchanged even when the idea of ownership as a utilitarian notion becomes meaningless. Most rabbinic authorities, for instance, believe that the power of ownership is independent of any use or lack thereof which the owner may derive from his property. Jewish law, for example, prohibits the use of a condemned animal for any purpose, from the time it is condemned until it is put to death. And yet, the owner of the condemned animal is still regarded by Jewish law as its rightful owner, making him liable for any damages it may cause between condemnation and death. Likewise, one is guilty of theft if he steals the condemned animal.

Moreover, even when one owns something which by law he is forbidden to own, title of ownership is not legally revoked. This is clearly illustrated by the prohibition to own leavened food stuffs during Passover. Even so, if a Jew has neglected to sell his leavened foods prior to Passover, he is still regarded as their legal owner.(7) Indeed, it is only possible to violate this prohibition of chometz by owning it. We may infer from all this that not only is the legal concept of ownership not defined by the practical use or benefit derived from the object or property, but it is also not diminished by the legal prohibitions against ownership.

We find a striking illustration of this in the laws of contracts. A contract involving an illegal service, such as one regarding the pay due to a hired hit man, has no legal validity in any secular legal system. This is not surprising: the law is established for the sake of providing a moral frame, work of conduct; it cannot sanction activities which contradict this principle.(8) In Jewish law, however, this is not the case. The validity of a contract is completely independent: of its legality. Take, for instance, a case where someone engaged in a contract in which he hired two individuals to commit perjury on his behalf. Is he legally obligated to pay the perjurers after they have committed the crime as agreed? When this case was brought to the attention of Rabbi Yakov of Lisa, he ruled that the perjurers are entitled to their fee, in spite of the illegality of the service that the fee is claimed for.(9)

A similar situation was recently brought before a Jerusalem rabbinical court, in which an individual interested in purchasing an apartment agreed to pay the seller an amount set by an impartial assessor. The buyer then went behind the seller's back and made an agreement with the assessor to set the appraised value of the property at a much lower amount than its real worth, in exchange for a five thousand dollar fee. The appraiser fulfilled his side of the agreement and the sale was executed. When the appraiser demanded his fee, the buyer refused, claiming that such a contract was legally meaningless. They brought their arguments before a rabbinical court. The verdict was unequivocally in favor of the assessor. The contract was enforceable in spite of its illegal nature. (10)

In Jewish law, illegal contracts retain their validity not only when the crime has been committed, but even when the illegal act has yet to take place. Jewish law, for example, forbids two Jews to participate in a loan agreement in which interest is charged; this prohibition applies equally to lender and borrower. Nevertheless, once the loan was already made under this agreement, the transaction remains valid. In fact, from the perspective of Jewish law, the contractual obligation of the borrower to make his interest payment remains in force; but he is not permitted to fulfill his agreement because of a biblical law prohibiting the taking and charging of interest. So the individual is at once held responsible for his contractual agreement, yet prohibited from fulfilling it by Torah law.(11) While the contract remains valid, it obviously cannot override a Torah prohibition.

This idea is not merely of abstract interest but it has rather tangible legal ramifications. One example of how the laws of usury may be applied in this way concerns the transaction of marriage. If a man gives a woman an object of minimum required value, with the intent (by both parties) of marriage, the two become husband and wife by Jewish law.

Now according to some opinions in the Talmud, the law does not insist upon the transfer of a strictly tangible object to facilitate a marriage contract; the groom may for give the bride a loan and thus effect the transaction necessary to validate a legal marriage. This raises a question, however, with regards to interest: Would the law find acceptable for the marriage contract, the groom's forgiveness of the interest on a loan to the bride, but not the loan itself? Charging interest on the loan is, we know, prohibited by Torah law. Yet, the interest was agreed upon by both parties. Many authorities argue that forgiving interest should be no different than forgiving a loan since in principle, the woman owes the creditor interest as agreed upon, but the Torah prohibits her from paying it.

In LeOr HaHalakha, the late Rabbi Zevin takes the issue even further: Imagine two people engaged in an illegal contract, in which the money for the illegal service was paid in advance. The party who paid backs out of the deal before the service has been performed, claiming before the court to have changed his mind because of its illegal nature. The other party claims that since the contract is legally binding, and he is ready to perform the service, he is not obligated to repay the advance.

What is the law in such a case? The court can't tell him to perform the service and keep the money, for the act is against the law. Furthermore, he cannot claim that he is able to perform the service (even though it is technically possible for him to do it), for the force of the law prevents him from doing so! On the other hand, the force of the contract protects the defendant from having to repay the money so long as he is willing to abide by the agreement. In a detailed analysis from talmudic sources, Rabbi Zevin shows conclusively that in such a case the willing party is not obligated to repay his advance. Despite its illegal nature, the contract remains binding on its signatories. The implications of this case point to the strength of a contract; even when it involves forbidden activity, a Torah prohibition is powerless to invalidate it.

It seems problematic that the law should be dictated by two mutually exclusive conditions. For if the law realty disapproves of certain agreements, logic dictates that it should invalidate them, Why allow a conflict of legal principles within one system? This is especially bizarre in a religious system whose purpose it is to promote moral behavior. It seems so much more reasonable to invalidate such agreements so as to deter corruption.

This peculiarity, however, is a direct consequence of the unique nature of the Jewish legal system, which acknowledges a mystical reality--such as exists between property and proprietor--and the shift in reality when an agreement is made to transfer property, be it money or even a service. Whereas secular law attempts to construct its own reality by the conditions it imposes on a given situation, Jewish taw, by contrast, acknowledges an independent reality, and responds to that reality. Hence, a contract between two people is perceived by Jewish law as a creation of a new metaphysical reality. So although the content of the contract may itself be contrary to Jewish law, this does not in any way invalidate the contract itself.

The ultimate challenge of understanding any given law in the Jewish legal system may be to conceive it in accordance with its mystical counterpart. In an anecdote about Rabbi Chaim of Sanz, a 19th century authority on Jewish law, we are told that he was once observed. being deeply absorbed in thought. When asked about his unusual preoccupation, he said that he had just received a letter from Rabbi Menachem Mendel of Lubavitch (author of the Tzemach Tzedek), containing a very complex legal question. To arrive at a resolution that would satisfy Rabbi Menachem Mendel, explained Rabbi Chaim, was a very demanding task, for it required

Indeed, when seen from the perspective of Jewish mysticism, the commandments are not merely practical tools for enhancing human life, but are themselves the embodiment of a Divine reality.

  1. John Locke, Second Treatise, Ch. 5; See also Hume's essay on The Origins of Justice and Property; Blackstone, Commentaries on the Laws of England, Vol. II, Ch. 1.
  2. See Keter Shem Tov, #218; Ohr Torah, p. 101; Likutei Sichot Vol. 12 p. 118
  3. See Choshen Mishpat 237.
  4. For a discussion on the value of material possession over the value of the body, see Likutei Sichot Vol. 15, p.288.
  5. See, for example, Genesis, 14:19, or the Amidah.
  6. See end of Pirkei Avot.
  7. Rabbi Shneur Zalman of Liadi, Shulkhan Arukh, Hilkhot Pesach, Ch. 435 Kuntres Acharon.
  8. See Hendrix vs. McKee, 281 Oregon 123 (1978).
  9. Netivot Hamishpat No. 9, 1.
  10. Responsum Netzach Yisrael No. 17 by Rabbi Yisrael Grossman.
  11. Mishne L'Melech, Hilkhot Malve V'love Ch. 8 #1; Avnei Miluim No. 28; Likutei Sichot Vol. 12 p. 119.Yisrael No. 17 by Rabbi Yisrael Grossman. 11. Mishne L'Melech, Hilkhot Malve V'love Ch. 8 #1; Avnei Miluim No. 28; Likutei Sichot Vol. 12 p. 119.