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Immanuel Kant's Legal Philosophy and Shimon Shkop's Halakhic Theory

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Immanuel Kant's Legal Philosophy and Shimon Shkop's Halakhic Theory Law and Halakha as Ideas of Reason: Immanuel Kant’s Legal Philosophy and Shimon Shkop’s Halakhic Theory By Ben Ohavi A thesis submitted in conformity with the requirements for the degree of Master of Laws Faculty of Law University of Toronto August 2019 Law and Halakha as Ideas of Reason: Immanuel Kant’s Legal Philosophy and Shimon Shkop’s Halakhic Theory Ben Ohavi Master of Laws Faculty of Law University of Toronto 2019 Abstract The purpose of this thesis is to explore possible relations between legal philosophy and philosophy of Jewish law, through the lens of the work of Immanuel Kant and Rabbi Shimon Shkop. It argues that Shkop and Kant share a fundamental idea - that law is based on reason. After introducing their general approach, the paper examines how each of these thinkers implements his perspective to specific legal areas. The paper focuses on Kant’s and Shkop’s views on ownership, property law, unjust enrichment, and contract law, and highlights the commonalities and differences between their conceptions of these legal realms. ii Acknowledgements I am very grateful to my supervisor, Professor Ernest Weinrib, for his guidance. In many respects, this work is an engagement with Professor Weinrib’s ideas as much as it is with those of Kant and Shkop. I am also grateful to Professor Peter Benson for many insightful discussions on Kant, Hegel, and private law theory. I also thank Pinny Huberman for engaging in countless hours of arguments over the topics of this paper. Lastly, I deeply thank my parents, Eliezer and Rivka, for their constant support. iii Table of Contents Abstract ................................................................................................................................................... ii Acknowledgements ................................................................................................................................ iii I. Introduction ..................................................................................................................................... 1 II. Law and Halakha as Ideas of Reason – A General Overview ............................................................ 5 Introduction ......................................................................................................................................... 5 1. Law as an Idea of Reason – The Kantian Approach ...................................................................... 6 A. The Idea of Reason .................................................................................................................. 6 i. Kant’s Critical Project and The Metaphysics of Morals ......................................................... 6 ii. Systematization of Concepts ................................................................................................. 7 B. Practical Idea of Reason ........................................................................................................... 8 C. The Normative Force of Practical Idea of Reason ................................................................... 12 D. Law as a Practical Idea ........................................................................................................... 12 i. The Concept of Right ......................................................................................................... 12 ii. Innate Right and External Freedom ..................................................................................... 14 2. Shkop’s Halakhic Theory ........................................................................................................... 17 A. The Conceptual Movement – The Search for Unity ................................................................ 17 B. The Place of Reason in Jewish Private Law – Shkop’s Torat Ha-Mishpatim ........................... 20 C. The Normative Force of Non-Religious Laws ......................................................................... 24 D. External Freedom and Torat Ha-Mishpatim ............................................................................ 26 III. Private Rights ............................................................................................................................ 30 Introduction ....................................................................................................................................... 30 1. Property and Ownership ............................................................................................................. 31 A. The Kantian Approach ........................................................................................................... 31 i. The Possibility of Having Something as One’s Own ........................................................... 31 ii. Kantian and Other Approaches to Ownership ..................................................................... 35 B. The Concept of Ownership in Jewish Law and in Shkop’s Writing ......................................... 37 C. The Concept of Ownership and Its Implication on Unjust Enrichment .................................... 44 i. Using One’s Property Without Causing Damage................................................................. 44 ii. Incidental benefits .............................................................................................................. 45 iii. Shkop’s Distinction between Enjoyment and Enrichment................................................ 47 iv. A Kantian Concept of Unjust Enrichment ........................................................................... 50 iv 2. Contract ..................................................................................................................................... 53 A. The Kantian Approach ........................................................................................................... 53 B. Jewish Contract Law and Shkop’s View of Contractual Obligations ....................................... 58 i. Similar Problems ................................................................................................................ 58 ii. Liens in Jewish Law ........................................................................................................... 60 IV. Conclusion – The Independence of Private Rights and the Role of Public Law ........................... 64 v I. Introduction The purpose of this paper is to explore possible relations between the work of Immanuel Kant and Rabbi Shimon Shkop.1 As we shall see in detail below, Shkop and Kant share a basic idea that law is based on reason. However, even though they begin from the same theoretical ground, each reaches different conclusions regarding specific legal areas. The influence of Kantian thought on modern Jewish thought is undeniable. Many Jewish thinkers have approached the halakhic system by using Kantian terms and views. The influence varies from one thinker to another: some have adopted Neo-Kantian traditions and translated them into Jewish law terms;2 others have taken the Kantian moral philosophy and applied it into the halakhic system;3 whereas other scholars have adapted Kant’s philosophy in many other ways.4 Despite his great general impact, Kant’s legal philosophy has not yet been considered in the context of Jewish law. At first glance, this fact could be surprising: given the legal nature of the 1 Rabbi Shimon Shkop was born in 1859, in Turetz, Minsk. He studied at the famous yeshiva (Jewish theological seminary) in Volozhin. In Volozhin he met Rabbi Chaim Soloveitchik, his famous intellectual rival and another leader of the analytic-conceptual movement, a movement which will be discussed in detail below. Shkop served as a rabbi and head of yeshiva in several places, such as Grodno and Telshe. He died in 1939. Shkop had many students who developed his innovative approach, and his influence is still apparent in contemporary yeshivot. For further biographical details, see: Shai Wosner, LEGAL THINKING IN THE LITHUANIAN YESHIVOTH: THE HERITAGE AND WORKS OF RABBI SHIMON SHKOP 12-19 (Hebrew, 2016). 2 The classic example is J.B Soloveitchik’s philosophy, especially as it appears in his books The Halakhic Mind and The Halakhic Man. On the Kantian and Neo-Kantian dimensions in Soloveitchik’s thinking, cf: Almut S. Bruckstein, Halakhic Epistemology in Neo-Kantian Garb: J.B. Soloveitchik’s Philosophical Writings Revisited, 5 JEW. STUD. Q. 346 (1998). 3 See, for example, Yeshayahu Leibowitz’s attempt to borrow from Kant’s moral philosophy: Naomi Kasher, Leibowitz’s Conception of Religion Compared to Kant’s Concept of Morality, in The Yeshayahu Leibowitz Book (I. Kasher and J. Levinger eds., Hebrew, 1977); Yonatan Yisrael Brafman, Critical Philosophy of Halakha (Jewish Law): The Justification of Halakhic Norms and Authority 63-68 (PhD dissertation, Columbia University, 2014). 4 An interesting example is the writing of the Zionist ultra-Orthodox rabbi, Isaac Breuer. See ALAN MITTLEMAN, BETWEEN KANT AND KABBALAH: AN INTRODUCTION TO ISAAC BREUER'S PHILOSOPHY OF JUDAISM (2012). 1 Jewish religion, one might expect that when borrowing from Kant’s philosophy, Jewish philosophers would use Kant’s legal philosophy more than any other branches of his philosophy. But on second thought, this phenomenon should not surprise us if we consider the historical (un)acceptance of Kant’s legal philosophy. For many years, Kant’s main book on law, The Metaphysics of Morals,5 was neglected. Even those who considered themselves Kantians tended not to take this book
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