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

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.

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.

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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

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

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).

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 seriously, for reasons such as Kant’s old age while writing the book and alleged contradictions with previous works.6 In contrast with the historical unacceptance of Kant’s legal thinking, many scholars have started developing the Kantian ideas about law over the last few decades.7 This increasing interest in Kant and the level of influence his legal philosophy has on legal theory these days require us to think of his philosophy’s relevance to the theory of Jewish law.

I have decided to explore this relevance by comparing Kant’s philosophy with the halakhic thinking of Shimon Shkop. This choice is not obvious. Shkop was a classic head of yeshiva (Jewish theological seminary), and therefore had no formal philosophical education. In this respect, it was more natural to pick someone else among the many Jewish scholars who studied Kant and knew

5 IMMANUEL KANT, THE METAPHYSICS OF MORALS (MARY GREGOR TRANS., 1996). The first part of this book, The Doctrine of Right, is dedicated to a philosophical inquiry of the legal system.

6 KATRIN FLIKSCHUH, KANT AND MODERN POLITICAL PHILOSOPHY 6-9 (2000); Neo-Kantians have focused instead on other parts of Kant’s philosophy, such as his first critique. Cf: Alexander Somek, German Legal Philosophy and

Theory in the Nineteenth and Twentieth Centuries, in: A COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY 339 (Dennis Patterson ed., 2nd edition, 2010); Stephen M. Feldman, An Interpretation of Max Weber's Theory of Law:

Metaphysics, Economics, and the Iron Cage of Constitutional Law, 16 L. & SOC. INQUIRY 205 (1991); Stanley L.

Paulson, The Neo-Kantian Dimension of Kelsen's Pure Theory of Law, 12 OX. J. LEG. STUD. 331 (1992). 7 This new interest in Kant is also a part of an increasing interest in the legal philosophy of the eighteenth and nineteenth centuries. See JAMES GORDLEY, FOUNDATIONS OF PRIVATE LAW: PROPERTY, TORT, CONTRACT, UNJUST

ENRICHMENT ch. 1 (2006).

his philosophy very well. But I believe that there are good reasons for choosing a figure like Shkop.

First, I believe that the alleged disadvantage is actually an advantage. As a head of yeshiva with no philosophical training, Shkop represents the classic Jewish law scholar. In this sense, examining his thought allows us to observe Jewish law “from within”. The second reason follows the first:

Shkop’s has an important place in contemporary yeshivot, so understanding his halakhic view can help us comprehend, at least to some extent, how contemporary (orthodox) Jewish law is taught.

Thirdly, and perhaps most importantly, although he lacked a formal philosophical education, it seems that Shkop has a complex and developed theoretical thinking worthwhile of pursuing. In other words, the value of examining Shkop’s thought is not confined only to the research of halakha but can contribute to general legal theory discourses. One of the main aims of this paper is to extract from Shkop’s writing a developed and coherent theory about halakha. Whereas

Shkop’s view is straightforward in some points, in others it is necessary to connect different dots in order to provide a clear approach to the subject at hand. Although, compared to Shkop, Kant’s philosophy is more consolidated, in some points the same is true in the Kantian context as well

(such as in the case of unjust enrichment, a field that Kant has not dealt explicitly).

One might think—given the familiarity of contemporary theorists with Kant’s philosophy, the anonymity of Shkop, and the fact that this work has been written at a law school—that this work is only a one-directional comparison, from Kant to Shkop. In many cases, I have found it useful to use Kantian terms and structures even when I consider Shkop’s view. But this does not mean that

I try to reduce Shkop’s theory to Kant’s philosophy. Using such a method would distort Shkop’s genuine thinking and would ignore important historical differences. Furthermore, it would prevent any opportunity to see how Kant’s thought, along with contemporary legal theory, could benefit from Shkop’s writing. It goes without saying that I do not intend to claim that Kant influenced

Shkop. As mentioned, Shkop’s distance from Kant and alike is a major reason for choosing his writing. My intention is to explore possible theoretical relations and similarities between them without claiming any direct effect whatsoever.

Interestingly, both Kant’s and Shkop’s approaches were described by some scholars as positivist.8

The view I take here is different. In what follows, I argue that Kant and Shkop are more formalist than positivist. Needless to say, the terms “formalism” and “positivism” are vague and defined differently by different theorists. My analysis follows the distinction made by certain scholars, according to which the main difference between positivism and formalism is that for the latter the legal system is animated by some principles that inform the content of law without being posited by legal authority.9 For Kant, the animating principle is the “principle of right,” which will be discussed below. As I imply below, the parallel principle in Shkop’s writing is vaguer, but I believe that one can track such a leitmotif in Shkop’s theory too.

The paper is divided into two parts. The first introduces the fundamental features of Kant’s and

Shkop’s legal and halakhic thinking. When these characteristics are brought together, they form a

8 For Kant, see: Jeremy Waldron, Kant’s Legal Positivism¸ 109 HARV. L. REV. 1535 (1996). The kind of positivism that Waldron argues for is normative positivism. For the conceptual-analytic movement, that Shkop belongs to, see:

Norman Solomon, THE ANALYTIC MOVEMENT: HAYYM SOLOVEITCHIC AND HIS CIRCLE 86-89 (1993). Wosner argues that Shkop specifically holds a positivist view: Wosner, Legal Thinking, supra note Error! Bookmark not defined., at 220-284. Some researchers have already disagreed with Solomon’s analysis, cf: BENJAMIN BROWN, THE HAZON

ISH 339-342 (Hebrew, 2011). Regarding the specific argument on Shkop, see the concluding section below. On the disagreement regarding Kant’s philosophy, see the next footnote.

9 ERNEST WEINRIB, THE IDEA OF PRIVATE LAW 204-231 (2nd edition, 2012). As Stone rightly argues, some positivists also believe that there is a conceptual category, such as the “maximum average happiness” principle, that informs the content of the law without itself being legislated or determined by legal authorities. The difference is though that utilitarian approaches to law try to promote the separate goal (say, happiness) by using the legal system in order to promote the preferred goal. Formalists, on the other hand, interpret the animating principle (“the principle of right” for Kant, or corrective and distributive justice for Weinrib). Martin Stone, Legal Positivism as an Idea About Morality,

61 U. TORONTO. L. J. 313 (2011).

consolidated notion, which will be called “law/halakha as an idea of reason”. These shared values will enable us to see, in the second part of the paper, how despite the profound connections between the two theories, each thinker implements these fundamentals differently. In the second part, I examine how this general idea is implemented in the context of private law. Here, I analyze

Shkop’s and Kant’s views on property, unjust enrichment, and contract law. Unfortunately, space does not allow me to provide a satisfactory discussion of Kant’s and Shkop’s approaches to public law. In the conclusion section, I try to compensate for this lack by assessing the two parts mentioned above in light of some key features in Kant’s and Shkop’s views of public law.

II. Law and Halakha as Ideas of Reason – A General Overview

Introduction

In this chapter I try to explore the way Kant and Shkop construe their notion of law and halakha

(Jewish law) and to locate the commonalities between their theories. According to Kant, law is a unified idea. The Kantian idea incorporates four aspects that I introduce in detail below. I first sketch Kant’s notion of the idea of reason - the function of reason in systemizing concepts as part of an articulated unity. This notion is related to Kant’s revision of the term metaphysics, and therefore I give some necessary background to Kant’s critical project and locate The Metaphysics of Morals in the broader context of the Kantian project. Then, in section 2, I turn to examining

Kant’s conception of the practical idea of reason: the articulation of concepts made by our free will. This section deals with three important aspects of the practical dimension of reason: (a) Kant’s conception of the free will, (b) the governing laws of this dimension, that is, the laws of freedom,

(c) and the two ways that laws of freedom operate – ethics and legality. Next, the discussion of laws of freedom leads to a discussion of the inherent normative nature of the laws of freedom. This will be at the heart of section 3. Lastly, I introduce the way the legal system operates as a practical

idea. In the last section, I emphasize the relational nature of Kant’s concept of right, an aspect useful for clarifying Kant’s conception of right as well as Shkop’s understanding of the Jewish private law system.

In my discussion of Shkop’s theory, I use the Kantian structure and try to put it in Shkop’s and

Jewish law’s terms. I start first by describing a general movement that had been taking place in the

Jewish law in the nineteenth century, the analytic-conceptual movement. The characteristics of this movement show how analytic scholars, including Shkop, have sought to bring a conceptual unity to the Jewish law in general and to specific halakhic fields in particular. Then I turn to explaining the unique position that human reasoning and human legislation hold in Shkop’s halakhic theory and reveal Shkop’s right-based halakhic view. Next, I demonstrate how Shkop ascribes an inherent normative power to the halakhic system. Last, I suggest a reading of a

Talmudic discussion in light of Shkop’s theory. This reading shows how the Talmudic law should be read from the standpoint of a right-based theory.

1. Law as an Idea of Reason – The Kantian Approach

A. The Idea of Reason

i. Kant’s Critical Project and The Metaphysics of Morals

Kant construes his legal philosophy in his The Metaphysics of Morals. In order to understand the broader context of Kant’s work, the term metaphysics should be analyzed first. In his critical work,

Kant rejects the traditional meaning of the term metaphysics and redefines it as “a system of a priori cognition from concepts alone.”10 The new definition rejects the main premise of traditional metaphysics – the existence of supersensible objects, such as the freedom of the will. At the stage

10 The Metaphysics of Morals, supra note 5, 2:216.

of theoretical critique which Kant deals with in his Critique of Pure Reason, this rejection leads to the conclusion that the freedom of the will cannot be known. Hence, the free will is not an object of our experience. However, Kant claims that instead of knowing the existence of freedom of the will, we can rationally believe in its existence. Therefore, whereas the critique of pure reason investigates the conditions under which empirical experience is possible, the aim of the critique of pure practical reason is to reveal the way in which the freedom of the will can become a rational belief.11

The very possibility of the existence of free will is discussed in Kant’s second critique, the Critique of Practical Reason. In The Groundwork of the Metaphysics of Morals, Kant tries to find the a priori principle of morality, a principle he calls practical reason (or the categorical imperative).

After reading these works, we already know that we have a free will and that our reason commands us to act in accordance with our practical reason. However, we also realize that this command requires a system of principles that guides us when fulfilling reason’s practical requirements. This is the task of The Metaphysics of Morals. In this book, Kant deals with the system derived from the early two stages. As mentioned above, providing a system in which concepts can function is exactly the role of metaphysical science.

ii. Systematization of Concepts

Having this background in mind, we can turn now to unfold Kant’s conception of law as a practical idea. The first aspect of this conception is the systematization of concepts. Systemizing a set of concepts or principles is related to what Kant calls “the unity of reason.”12 Reason, both in its

11 Gregor explains the Kantian idea of metaphysics and the differences between the metaphysics of morals and the metaphysics of nature in more detail: MARY GREGOR, LAWS OF FREEDOM 1-17 (1963).

12 CRITIQUE OF PURE REASON, A302/B359.

theoretical and practical layers, articulates the observed subject matters and gives them unity. The idea of unity consists of two interlocked characteristics: (1) completeness – reason provides the exhaustive number of objects of a certain kind of knowledge; (2) systematicity –reason provides the organization of the concepts and principles of a particular sort of knowledge.13 Systematic unity is the most fundamental expression of reason, and it is the idea of reason. This is a necessary component of reason, as Kant puts it: “for the law of reason to seek unity is necessary, since without it we would have no reason and without that, no coherent use of the understanding.”14 The same principle of unity also applies to specific areas of knowledge. In order to organize a certain sort of knowledge that consists of different kinds of concepts under one principle, reason uses ideas, i.e. specific principles suited to a particular area of knowledge. In Kant’s own words, reason is the “faculty of the unity of the rules of understanding under principles.”15

B. Practical Idea of Reason

As indicated above, the freedom of the will is a rational belief and the products of the free will are systemized by our reason. The second stage of our inquiry is examining the way reason governs the free will’s products. Kant raises this question at the very beginning of his Critique of Practical

13 For a further explanation of these functions of reason, see: PAUL GUYER, KANT ON FREEDOM, LAW, AND HAPPINESS 60-95 (2000). It seems that whereas the metaphysics of morals deals with the systematization of morality, “moral anthropology”, the field that takes into account the subjective conditions of human nature, deals with the aspect of completeness. Kant describes the task of moral anthropology as follows: “it would deal with the development, spreading, and strengthening of moral principles” (6:217). 14 A651/B679. There are some difficulties in Kant’s understanding of reason as unity. Discussion of these would diverge from the purpose of this paper. For a discussion of some of these difficulties, see: Sasha Mudd, The Demand for Systematicity and the Authority of Theoretical Reason in Kant, 22 KANTIAN REV. 81 (2017); Pauline Kleingeld,

Kant on the Unity of Theoretical and Practical Reason, 52 THE REV. OF METAPHYSICS 311 (1998) 15 A303/B358.

Reason, when he seeks for the “determining grounds” of our practical faculty (i.e. our free will).16

Briefly, the question here is about the nature of cause and effect in the realm of will. Is our will determined by laws of nature or does another sort of causality – that of freedom – apply to our will?17 Kant argues that we can assume that the will is independent of the natural chain of cause and effect. Instead of being dependent on natural causation, the will is both the cause and the effect of itself.18

For our purposes – the way the legal system functions as a practical idea of reason - two important things follow from Kant’s conclusion. First, although both theoretical reason and practical reason deal with systemizing concepts of a certain kind of knowledge, they differ in the sort of concepts they systemize.19 The practical dimension of reason’s demand for systematization refers to freedom. Namely, an idea of reason is practical when reason unifies and systemizes an operation of the free will. So, a practical idea of reason is an idea that organizes a sort of knowledge created by the free will. As Kant puts it, a concept of practical reason is “the representation of an object as an effect possible through freedom.”20Second, what follows form above is that freedom is, as is

16 CRITIQUE OF PRACTICAL REASON, 5:15.

17 See: CRITIQUE OF PURE REASON, B472.

18 CRITIQUE OF PRACTICAL REASON, 5:43. 19 As Kant puts it, on the one hand there is only one reason, but the theoretical and practical reason differ in their application: “I require that the critique of pure practical reason, if it is to be carried through completely, be able at the same time to present the unity of practical with speculative reason in a common principle, since there can, in the end, be only one and the same reason, which must be distinguished merely in its application”. THE GROUNDWORK OF THE

METAPHYSICS OF MORALS, 4:391.

20 CRITIQUE OF PRACTICAL REASON, 5:57. In the Critique of Pure Reason, Kant defines the term “practical” in a similar way: “everything is practical that is possible through freedom”, A800/B828; See also: Ernest Weinrib, Law as a

Kantian Idea of Reason, 87 COLUM. L. REV. 481, 489 (1987).

the natural world, regulated by laws. Namely, we should find laws of freedom as we find laws of nature.21 In other words, the laws of freedom should be found.

As we will see below, Kant defines the concept of right as relation between free beings. Therefore, it is necessary to introduce (briefly) what freedom of the will means for Kant.22 The freedom of choice has negative and positive aspects. Whereas the negative concept of freedom, called

“Willkür”, is “independence from being determined by sensible impulses”, the concept’s positive counterpart, “Wille”, is “the ability of pure reason to be itself practical”, or the determining ground of a purposive activity.23 Wille is, to Kant, “practical reason”. Practical reason is a formal concept: not the content of a choice matters but the very possibility of choosing something, namely to pursue a particular end. In other words, the negative aspect of freedom can be called freedom of something, and the positive one can be called freedom to [do] something.24

According to Kant, in order to be free in the fullest sense, one should act in accordance with his or her practical reason. Since practical reason is indifferent regarding the content of choice, acting in accordance with practical reason should have the same meaning for all purposive beings, regardless of their particular desires or inclinations. Therefore, an agent is free if he or she follows a universal law that implies his or her purposive nature. In Kant’s own words:

21 Note that since we have no knowledge of our freedom, we also have no theoretical knowledge of the laws of freedom. Therefore, laws of nature provide only a model of law-likeness that can be used as an analogy to laws of freedom. See: Flikschuh, Kant and Modern Political Philosophy, supra note 6, at 74-79. 22 In The Metaphysics of Morals, the idea of free will appears in a unique way, and I focus on this version of Kant’s definition. 23 6: 214.

24 See: Stephan Zimmermann, Kant on “Practical Freedom” and Its Transcendental Possibility, in: METAPHYSICS OF

FREEDOM? KANT’S CONCEPT OF COSMOLOGICAL FREEDOM IN HISTORICAL AND SYSTEMATIC PERSPECTIVE 91, 91-94 (Christian H. Krijnen ed., 2018).

For as pure reason applied to choice irrespective of its objects, it does not have within it

the matter of the law; so … there is nothing it can make the supreme law and determining

ground of choice except the form, the fitness of maxims of choice to be universal law.25

Governance of the negative aspect of freedom (free choice) by the positive aspect (practical reason) can be achieved in two ways. One way is when the individual himself makes practical reason the objective of his act. Another way is when an external power causes the individual to follow the requirements of practical reason. Whereas the former leads to ethics, the latter leads to legality.26

Therefore, the difference between the realm of law and the realm of ethics is rooted in the question whether the agent follows the laws of freedom autonomously or non-autonomously. Being autonomous means that the free agent sees the universal law as the objective of her actions. But from it does not follow that if the incentive of an individual to conform with the universal law is not the universal law itself, he or she is not free. If the free agent acts in conformity with external practical reason, he or she is indeed a non-autonomous being. But a person who is determined by other incentives can still be free, though non-autonomous, as long as she act in accordance with the universal law.27

25 6:214. 26 For a further discussion of this possibility, see: Weinrib, Law as a Kantian Idea, supra note 20, at 501-502; and in more detail: Flikschuh, Kant and Modern Political Philosophy, supra note 6, at 57-60. In separating ethics and legality, Kant continues the Natural law tradition which was prevalent in his time: Helge Dedek, A Particle of Freedom:

Natural Law Thought and the Kantian Theory of Transfer by Contract, 25 CAN. J. L. & JURIS. 313, 320-321 (2012). 27 Indeed, as Kant explains in The Groundwork of the Metaphysics of Morals, the negative and positive aspects are conceptually united. But as the introduction of The Metaphysics of Morals shows, it does not entail both having to appear in the same person. See: Katrin Flikschuh, Justice Without Virtue, In: KANT’S METAPHYSICS OF MORALS: A

CRITICAL GUIDE 51 (LARA DENIS ED., 2010).

C. The Normative Force of Practical Idea of Reason

The analogy between laws of nature and laws of freedom reveals the inherent normative force of the latter. In laws of nature, there is a necessary connection between cause and effect: the cause necessarily leads to the effect. So as in the realm of freedom, the imperatives imposed by practical reason summon the agent to follow it. Namely, there is an inseparable relation between the obligation and the action that fulfills this obligation. That is the very meaning of obligation: it poses a duty to conduct an action that stand in accordance with it. Therefore, for Kant, the normative aspect of practical reason is obvious. In addition, as Weinrib rightly argues, in order to preserve the unity of the idea of reason, we cannot import normative justifications from outside, but the normative justification has to be an inherent part of legality and ethics.28

D. Law as a Practical Idea

i. The Concept of Right

This background allows us to proceed to Kant’s establishment of the concept of legality or right.

For Kant, right is “the sum of conditions under which the choice of one can be united with the choice of another in accordance with a universal law of freedom”.29 This notion of right consists of three aspects: first, it refers only to external and practical actions of individuals. As indicated above, by practical Kant means actions made by the free will; the second aspect follows from the first: the concept of right involves only the relation of one’s choice, as opposed to one’s wish, to others’ choices. Namely, the concept deals with actual, external choices, not with internal desires or wishes. To illustrate: one may have the desire to dive like a fish, but her physical capability

28 Weinrib, Kant as a Kantian Idea, supra note 20, at 485-486. 29 6:230

makes this a mere wish, and therefore she cannot choose to do so; and third, as mentioned above in the section on the practical idea of reason, the concept signifies the form, not the content, of one’s choice as it relates to others’ form of choice. Based on the last point, what matters is that one can choose something freely, regardless of the substance of this free choice.

So, the concept of right means that one’s freely chosen action can be compatible with others’ chosen actions. Therefore, for Kant, any action is right “if it can coexist with everyone’s freedom in accordance with a universal law”.30 Kant calls it “the universal principle of right”. According to this principle, since one’s actions can be compatible with others’ actions, whoever limits one’s ability to act freely does her wrong. As we have seen above, in addition to the derivation of this principle from the concept of right, an additional derivation is that when it comes to right actions what matters is the action itself and not the incentive that leads to it.31

The definition of both the concept and the universal principle of right consists of the coexistence of free choices in accordance with the universal law. Kant describes this law in a way that recalls his idea of the categorical imperative: “act externally that the free use of your choice can coexist with the freedom of everyone in accordance with a universal law”.32

The next step in Kant’s construction of right is the direct relation between right and coercion. For

Kant, the authorization to coerce is included in the concept of right. Namely, the concept of right is not made up of two elements, an obligation to act in accordance with universal law and an

30 Ibid. 31 6:231 32 Ibid. In this context, it is worth mentioning that Kant’s commentators disagree on whether the universal principle of right is derived from the categorical imperative: Marcus Willaschek, Why the Doctrine of Right does not Belong in the Metaphysics of Morals: On Some Basic Distinctions in Kant’s Moral Philosophy, 5 JRE 205 (1997); Paul Guyer,

Kant’s Deduction in the Principle of Right, in: KANT’S SYSTEM OF NATURE AND FREEDOM (2005); Arthur Ripstein,

FORCE AND FREEDOM 355-388 (2009).

authorization to coerce others to fulfill this obligation. Conversely, the right to freedom and the legitimacy of coercion are two sides of the same coin: “right can also be represented as the possibility of a fully reciprocal use of coercion that is consistent with everyone’s freedom in accordance with universal law”.33

Even at this early stage, it is clear that Kant’s concern is about the relations between free beings.

The interaction between individuals is at the heart of his conception of right, and therefore the system of rights emerges from this interaction. Moreover, at least on the level of a mere definition, right involves only negative obligations.34 Additionally, not the content of the choice matters but the fact that the choice is made freely. However, to better understand his specific definition of the freedom in the context of right, we should turn to analyzing his definition of the most fundamental right – innate right – the only right that Kant sees as belonging to every human being by virtue of his or her humanity (namely, as a purposive being).

ii. Innate Right and External Freedom

According to Kant, every individual has the right to be free, as long as the freedom of one person coexists with others’ freedom in accordance with a universal law. In this context, Kant defines freedom as one’s independence from being constrained by another’s choice.35 Therefore, the right to be free is, by definition, an external and a relational concept. That is to say, it does not refer to one’s free will or his or her ability to be free but is instead termed as an obligation of others not to

33 Ibid. 34 Weinrib clarifies the latter point by using common law terms: the concept of right deals with misfeasance and nonfeasance. Weinrib, Law as a Kantian Idea, supra note 20, p. 489. 35 6:237.

interfere with one’s choices.36 Kant deals here with a particular sort of freedom, its external aspect: the right to not be interfered by others. In order to understand the direct line between our external freedom and the concept of right, we can look at the example Kant provides. If I am holding an apple and you take it from my hand without my consent, you damage what is internally mine – my freedom. In doing so, you contradict the concept of right.37

Kant argues that innate right includes several “authorizations”. The first is innate equality, that one’s freedom limits others only to the same extent that their freedom limits his or her freedom; the second is that every individual is entitled to be his or her own master; The third is the right to be beyond reproach (i.e., the presumption of innocence), as long as one’s performance does not interfere with others’ rights; and the forth assures one’s entitlement to do anything to others that does not diminish their rights.38

36 Many scholars have discussed the relational nature of the concept of right. To use Kiehl’s words, innate right can be either a right to do something or a right against all others who interfere with one’s external freedom: Betty Kihel, The One Innate Right, 5 JRE 195, 196 (1997) [arguing for the first, non-relational option]. Flikschuh also refers to this question in her review of Arthur Ripstein’s book Force and Freedom (supra note 32). Flikschuh criticizes Ripstein's understanding of innate right by pointing to the ambiguity of his interpretation. On the one hand, Ripstein defines innate right as relational – that is, as each person's entitlement to independence from another's power of choice or control. On the other hand, Ripstein maintains that the right to independence is identical to a person's right to set and pursue his or her means and ends. See: Katrin Flikschuh, Innate Right and Acquired Right in Arthur Ripstein's

Force and Freedom, 1 JURISPRUDENCE 295, 300 (2010). In his response, Ripstein argues that even though the definition of innate right is nonetheless relational, innate right applies only to beings that have the capacity to stand in such a relation. Ripstein provides a useful analogy to think of the relational nature of rights that presupposes non- relational features: in order to be an uncle, you have to stand in relation with your nephew or niece, making being an uncle purely relational. However, being an uncle presupposes non-relational aspects, such as being biologically capable of having offspring and siblings. Arthur Ripstein, Reply to Flikschuh and Pavlakos, 1 JURISPRUDENCE 317 (2010). 37 6:250. See also Byrd’s and Hruschka’s discussion on the relation between the axiom of law and the axiom of external freedom: SHARON B. BYRD, JOACHIM HRUSCHKA, KANT’S DOCTRINE OF RIGHT: A COMMENTARY 80-81 (2010). 38 For a further explanation of the innate right and the authorizations, see: Ripstein, Force and Freedom, supra note 32, at 30-52.

Note that even though innate right is defined relationally, it seems that it must presuppose human beings’ ability to pursue their own ends. In other words, individuals have to be capable of being their own masters. Without this presumption, the definition of freedom as independence is meaningless. If one is not capable of performing a certain act, others’ constraint of not interfering with that act has no meaningful implication. Put differently, if one is not capable of performing any act, others’ constraint of not interfering with him or her has no meaningful implication.39

39 Arguing that the concept of right is meaningless without presupposing one’s capability of pursuing his or her ends can be interpreted in different ways. For example, it can simply mean that the concept of right is somehow supposed to serve individuals. Under this view, there is no point in imposing legal duties if they do not promote people’s ability to manage their own lives by themselves. Beck holds this view, contending that the Kantian system of right is designed to help an individual foster her natural capacities and powers of reason, as well as to promote the happiness of others:

Gunnar Beck, Immanuel Kant’s Theory of Rights¸19 RATIO JURIS 371 (2006). Under this view, the concept of right is indifferent to the promotion of autonomy. Mary Gregor suggest another view. On the one hand, says Gregor, juridical laws cannot force one to be good, because if juridical laws did so, the choice to be good would not be autonomous choice but forced by external causes. Therefore, these laws are necessarily indifferent to one’s motives. On the other hand, juridical laws still serve one’s autonomy and are actually necessary for it, since the meaning of autonomy is the ability to choose to be good. Hence, in order to be autonomous, more than one option needs to be available for the autonomous agent. The agent must be free also in an external sense to be free to choose between moral and other (non- moral) options, and this is the role of the system of right. Gregor, Laws of Freedom, supra note 11, Ch. 2. Having said that, it is worth mentioning that this argument is not analytical. That is to say, one can define the concept of right as relational, i.e. as the right to independence, and still assume that human beings are not free. Furthermore, simply being independent of others’ choices can be normatively valuable. For instance, following Spinoza’s understanding of the concept of freedom, being determined by internal causes could be more valuable than being affected by external causes, such as others’ choices. See Spinoza’s definition of freedom: “That thing is called free, which exists solely by the necessity of its own nature, and of which the action is determined by itself alone”, Baruch

Spinoza, ETHICS, Part 1, Definition 6. More importantly, according to Fletcher, in the context of right, that view is also Kant’s view. For Fletcher, Kant’s concept of legal obligation does not presuppose one’s capacity to abstract from his or her inclinations, and therefore it has nothing to do with free will in its positive sense. George Fletcher, Law and

Morality: A Kantian Perspective, 87 COLUM. L. REV. 533 (1987). Benson rightly mentions that under this view, the positive and negative aspects of freedom described above are not two sides of a single concept of will but are two different and mutually independent sorts of wills: Peter Benson, External Freedom according to Kant, 87 COLUM. L.

REV. 559, 561 (1987).

2. Shkop’s Halakhic Theory

A. The Conceptual Movement – The Search for Unity

As indicated above, the first aspect of the Kantian idea of law is the systematization of concepts.

Clarifying the relevance of this aspect to Shkop's halakhic approach requires a discussion on a general movement that had been taking place in the Jewish world during the nineteenth century – the analytic-conceptual movement. Shkop was one of the leaders of this movement, which tried to conceptualize halakhic terms and discussions and to apply rationales and unity to the halakhic system. Thus, according to this movement, halakhic laws are “matters of abstract thought and orderly concepts which combine (to produce) a unified, consistent theory”.40

The seek for unity is expressed in a variety of ways. First and foremost, it applies to the halakhic material. The analytic scholar’s main interest is to understand the fundamental premises of the canonical Jewish law’s book, the Talmud, especially the Babylonian Talmud. Some analytic works focus on the code of Maimonides as well. The Talmud incorporates different tractates, each of which deals with another halakhic field, such as Shabbat law, tort law, laws related to the Temple rituals, etc. The nature of the Talmud is casuistic; it provides case laws and discussions of the rabbis on these cases. One of the aims of the code of Maimonides is to classify these cases into legal fields and to derive conclusions from the rabbis’ discussions. Despite its casuistic nature and the fact that the Talmud consists of discussions from different generations and locations, analytic scholars are determined to find coherence in it. If possible, they try to resolve apparent

40 Aharon Lichtenstein, The Conceptual Approach to Torah Learning: The Method and Its Prospects, in: LEAVES OF

FAITH: THE WORLD OF JEWISH LEARNING 19, 49 (2003) (quoting Joseph B. Soloveitchik, DIVREI HAGUT VE-

HA’ARACHA 80 (1981)). In this reference, Soloveitchik gives the example of dietary (Kashrut) laws. For a further discussion on this movement, see: Chaim Saiman, The Turn to Conceptualism in Nineteenth-Century Jewish Law, 21

L. & REL. J. 39 (2005); Solomon, The Analytic Movement, supra note 8.

contradictions between one Talmudic discussion and another. This is the first aspect of analytic scholars’ aspiration for unity, consistency and coherence in the legal text.41

Indeed, many Jewish law scholars have dealt with the same issues that the analytic movement has brought to the fore. In the context of seeking unity in the halakha, it is worth mentioning the code of Maimonides and other codifications of the Talmudic law. One of the aims of the code of

Maimonides is to classify Talmudic cases into legal fields and to derive conclusions from the rabbis’ discussions. But to use terms we have mentioned in the discussion of Kant, Maimonides’s codification enterprise is more closely related to completeness, while the analytic scholars have dealt with the systematization of the halakha. As Maimonides explains in the introduction to his code, his aim is to provide a comprehensive guide to the laws of the Talmud.

This work would collect the entire Oral Law (i.e. the rabbis’ interpretation to the Torah),

including the positive legislations, the customs, and the negative legislations … Thus, I

have called this work the Restatement of the Law (Mishneh Torah), for a person reads the

Written Law (i.e. the Books of Moses) first and then reads this work, and knows from it

the entire Oral Law”.42

41 Lichtenstein, ibid, at 25-26.

42 MOSES MAIMONIDES, INTRODUCTION TO MISHNE TORAH (the Mamre institution trans.). Weber claims that there are two kinds of codifications: in one case, the motivation behind the codification lies in the legislature’s attempt to bring unity and stability to the legal system. In this case, the legislature would create new rules and eliminate some old rules. Another case is when there are no radical changes in the content of the legal system, and the aim of codification is to reorganize the legal material and bring it unity as well as make it more rational. MAX WEBER, ECONOMY AND SOCIETY

839-865 (EPHRAIM FISCHOFF ET. AL. TRANS., 1978). It seems that Maimonides’s code fits more to the latter type of codification.

In contrast, the analytic scholars do not aspire to provide all the details of the halakha but to reveal the principles and the logic of the halakhic system. For that reason, many analytic scholars focus on the code of Maimonides, since the need for conceptualization applies to this work as well.

The second aspect of systematization and conceptualization follows the first one. While resolution between one case and another is impossible, the analytic scholar searches for a local unity. In this case, the analytic scholar tries to classify each discussion by making use of another legal field. For example, the Talmud discusses the issue of intention or volition in different cases. In the case of

Shabbat laws, Jewish law determines that one violates the prohibition to do any labor on Shabbat only if he or she intents to do that labor, as opposed to cases in which the labor is conducted accidentally. In addition, intention is an important component in tort law. But the meaning of intention appears to vary from one discussion to another. In order to preserve the unity of each field, the analytic scholar determines that there are two concepts of intention: one applies to

Shabbat law and the other to other legal fields. In Shabbat law, the key feature is the agent’s awareness that her action would certainly cause a forbidden outcome. So, in Shabbat law, intention is translated to awareness of the outcome (Melechet Machshevet). In contrast, in other legal fields what matters is the intention only, not the awareness of the outcome. Therefore, as far as the doer does not desire a certain outcome, the act would not be considered as intended, even if the forbidden outcome would certainly occur.43

The abovementioned distinction between one appearance of a term and another is related to the widespread analytic method of haqira (research, investigation or enquiry).44 To achieve unity in a

43 Chaim Soloveitchik, NOVELTIES ON MISHNE TORAH, Shabbat Laws, 10: 17. To some extent, Soloveitchik’s distinction is parallel to the modern distinction between being indifferent to the outcome and intending the outcome. And see below, note 108. 44 For example, Shkop’s book subtitle is called “halakhic investigations” (hiqrei halakhot).

certain legal field, one should look for the fundamental principles that govern this particular field.

Shkop, more than any other analytic scholar, attempts to reveal the rationales of halakhic fields and, for instance, investigates the grounds of liability in tort law. In cases in which someone’s animal damages someone else, Shkop asks whether the grounds of the owner’s liability lie in the owner being negligent by not ensuring that her animal cannot damage another, or the liability is a direct consequence of the owner’s property having caused damage.45

Therefore, according to the analytic scholars, the primary task is to provide a-priori definitions to halakhic terms. For instance, the Talmudic rabbis disagree regarding the probability of a debtor paying his debt before the agreed time with the creditor. The analytic scholar attempts to understand how this disagreement is derived from the very idea of creditor and debtor, and steers away from psychological explanations. In doing so, the analytic scholar tends to provide theoretical, a-priori explanations for halakhic disagreements.46

B. The Place of Reason in Jewish Private Law – Shkop’s Torat Ha-Mishpatim

The second stage in the Kantian idea of law refers to the systemization of products of our free will. this leads us to the place of human reasoning and human legislation in Shkop’s theory. In contrast to other scholars, Shkop and his circle, the Telshe yeshiva (Jewish theological seminary) aspire to provide rationales and justifications for the halakha. While in most of the analytic work we can find only reasoning that depends on halakhic premises, Shkop and the Telshe tradition use

45 NOVELTIES ON BAVA KAMA, para. 1. His discussion follows similar lines to the modern distinction between strict and fault-based regimes. Solomon discusses the method of haqira in more detail: Solomon, The Analytic Movement, supra note 8, at 117-150; See also Saiman, The Turn to Conceptualism, supra note 40, at 50-62, for useful examples of haqirot. 46 Lichtenstein, The Conceptual Approach, supra note 40, at 29.

philosophical terminology and normative discussions.47 The heads of Telshe yeshiva try to synthesize individualism and halakhic observance; and especially in respect to financial matters

(i.e. private law), the autonomy of the Jewish law scholar is essential. So, for Shkop, “the basis of the obligation is not heteronomous but autonomous; it is not external but internal”.48 As we will see below, Shkop maintains that in private law issues, the rabbis use their reason to determine new laws and to clarify existing ones. As Friedman puts it: “R. Shkop's method is then seen to embrace human reason both as the motivator to study reasons of the halakha … but reason also plays a role as the creator of new halakhic legislation”.49

The use of philosophical terminology and normative justifications to halakha does not entail that the Telshe tradition does not perceive the halakhic system as a close, unified legal system. On the contrary: the Telshe scholars believe that any aspect of human reason, including philosophy, exists implicitly in halakhic system. Therefore, Shkop and his followers only add another layer to the halakhic interpretation: whereas most of the analytic scholars ask “what” the halakha commands and attempt to conceptualize the halakhic material, Shkop also asks “why” the halakha commands this or that obligation.50 From this perspective, the Telshe tradition is only a unique version of a broader perception the analytic-conceptual movement – the Pan-Halakhism. According to this approach, the legal system is able to provide an answer to every human problem in any given situation.51

47 Solomon, The Analytic Movement, supra note 8, at 190-191; 228-229 48 Shai Wosner, On the Duty to Obey the Law in Halakhic Thought: Reflections on the Thesis of R. Shimon Shkop, 20

JEWISH LAW ASSOCIATION STUD. 353, 355 (2010).

49 Elisha Friedman, Natural Law and Religious Philosophy in R. Shimon Shkop’s System, 49 TRADITION 53, 69 (2016). 50 Friedman, ibid, at 55-56. 51 For a further discussion of this approach and its relation to the conceptual movement, see: Solomon, supra note 8, at 223-239.

For understanding Shkop’s approach to the relation between reason and the halakhic (Jewish law) system, it is necessary to introduce his wider idea of Torat Ha-Mishpatim (“the theory of law”).

In a nutshell, Shkop dichotomizes between the religious part of halakha (Jewish law), such as

Shabbat (Saturday) laws and dietary laws (Kashrut), and its secular-private aspects, such as tort and property law.52 I quote at length from Shkop’s major work, Shaarei Yosher:

Financial laws, which govern the relations among people, operate differently from the other

commandments of the Torah (The Five Books of Moses). In respect to all other

commandments … our obligation to fulfill them rests on our duty to obey God’s command.

Matters of Mamon (financial or private law) however, are different; there must be a legal

duty before a religious obligation arises to pay damages or make restitution … When we

deal with a legal right in acquisition of property or with a lien, the focus of our concern is

not the observance of a religious commandment but rather the objective circumstances

determining who has the legal ownership of the object or is legally entitled to its

possession.53

Shkop argues for two layers in Jewish private law. In private law, prior to the halakha’s determinations of to what extent the wrongdoer should compensate the sufferer, we first need to acknowledge the existence of tortuous liabilities. Likewise, even though the halakha consists of

52 Elon rightly argues that this dichotomy has been made by earlier scholars, but in a less articulate form. See:

Menahem Elon, The Legal System of Jewish Law, 17 NYU. J. INT’L L. & POL. 221, 227 (1984). To some extent, Shkop's conception is related to the unique phenomenon in Jewish law, that is the coexistence of two legal orders, the Noahide and Sinaitic. Before the revelation on Mount Sinai, the Noahide laws had governed all humanity. According to some commentators, the Noahide code constitutes, among other things, a civil legal code. For a further discussion on Noahide and Sinaitic legal systems, see: Suzanne Last Stone, Sinaitic and Noahide Law: Legal Pluralism in Jewish

Law, 12 CARDOZO L. REV. 1157 (1991).

53 SHAAREI YOSHER, Gate 5, para. 1. Translated by Elon, with minor edits of mine.

theft law, in order to have theft law we must presume that people are able to acquire and hold property, something that the halakha just accepts implicitly. In other words, halakhic laws are a response to the idea of tort or property, but do not define them. According to Shkop, the source of the first layer is not a divine command but it is rooted in human reason, namely it is a product of human beings. Ownership, for instance, is not defined by divine axioms but it is a part of human legislation. Shkop contends that human legislation cannot be arbitrary or with no justification but has to be reasonable. So, when the rabbis have determined legal principle regarding private disputes “they certainly considered it reasonable from a legal perspective”.54

The dual nature of private law can lead to a conflict between the two sources. Since the premises of private law are made by reason, when we arrive at the second stage of halakhic precepts, some contradictions or tensions can occur. For example, according to the Torah law, one should not lend money with interest. But this is a religious law that applies to a secular legal idea (contract) that does allow this. So, for Shkop, in this case the bargain is valid but not enforceable due to divine law.55

Nonetheless, Shkop’s idea of Torat Ha-Mishpatim is quite radical. By contending that the religious part of Jewish law corresponds with a secular rights system already in existence, Shkop acknowledges that the duties of private law stem from persons’ rights. The duty to compensate the sufferer or to pay the creditor her money back came into existence because the sufferer and the creditor have a right to be compensated or reimbursed. In contrast with that view, most Jewish law scholars have argued that the Jewish law is a duty-based system. As Moshe Silberg, the former

54 Ibid. I leave for now the important debate between Sagi and Wosner regarding torat ha-mishpatim. I will come back to it in the concluding section below. 55 Sagi discusses this point in more detail: Avi Sagi, Religious Commandments and the Legal System: On the Halakhic

Thought of R. Shimon Shkop, 35 DAAT 99 (1994, Hebrew).

justice of the Israeli supreme court and an important Jewish law scholar, observes, in Jewish law

“when a person refuses to pay his debt … the concern of the court is not the creditor’s debt … but the duty of the debtor, his religious-moral duty”.56Shkop offers another view in which the duty of compensation does not stand independently but correlates with the creditor’s right.57

C. The Normative Force of Non-Religious Laws

Kant argues for the inherent normative justification of the legal system. From a religious point of view, this issue is fundamental and raises the questions why non-religious premises mentioned above are binding. In other words, what is the normative force of law made by our reason? Shkop states: “this is puzzling, for what could create an obligation to do something without a command and a warning from the Torah?”. Shkop asks the same question regarding the normative power of another legal source, the rabbinical law. Jewish law incorporates many laws that have been enacted by the rabbis. The normative status of these laws is different than laws which are perceived as derived from the Torah (The Five Books of Moses). Shkop questions their obligatory power too:

“is it possible that we should be obliged to obey the sages without the Torah commanding us to do so?”.58 Shkop’s answer is quite surprising. Instead of answering the question he poses, he expands the question to include the normative power of divine law itself:

56 Moshe Silberg, Law and Morals in Jewish Jurisprudence, 75 HARV. L. REV. 306, 312-13 (1961). 57 For a further discussion on the difference between right-based and duty-based theories (as well as goal-based theories, such as utilitarianism), see for example: RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 208-214

(Bloomsbury edition, 1977); John L. Mackie, Can There Be a Right-Based Moral Theory?, 3 MIDWEST STUDIES IN

PHILOSOPHY 350 (1978); Jeremy Waldron, Right-Based Arguments, in: THE RIGHT TO PRIVATE PROPERTY 62 (1990). 58 Shaarei Yosher, gate 1, ch. 7. Regarding the normative power of rabbinical law, see: Wosner, On the Duty, supra note 48.

But when we delve into this problem, this matter is readily comprehensible. The obligation

… to worship God … and obey his will, are an obligation … according to the laws of

reason and recognition too. This is also the case concerning financial liabilities, which are

legal obligations incurred in line with laws of property.59

On the surface of his analysis, Shkop determines merely that both the religious and the private components of the halakhic system are rooted in reason. But a further examination will show that

Shkop distinguishes between two stages in which reason takes place in defining the halakhic system. Regarding divine law, reason plays only a normative role, i.e. it justifies the observation of this law. Conversely, the origin of private law is reason. Namely, both the existence of private laws and the normative justification to follow them are dependent on reason.60

The need for normative justification for both divine and human law resembles the famous dilemma posed by Plato in his dialogue Euthyphro: “Is the pious being loved by the gods because it is pious, or is it pious because it is being loved by the gods?”.61 For Shkop, the normative power of law should be treated separately from the source of that law. Indeed, a similar question arises in the context of Kant’s moral philosophy. Some of Kant’s commentators argue that Kant’s idea of self- legislation means that we, as autonomous beings, bring the moral law into existence. Others argue

59 Shaarei Yosher, gate 5, ch. 1. 60 There might be some implications to this distinction regarding the ontological nature of divine and private laws. From my point of view, since private laws are rooted in reason, they do not exist outside of our cognition. On the other hand, according to Shkop, divine laws independently exist. This distinction is crucial in Shkop's halakhic thinking, and some of his commentators do not distinguish between the ontological nature of divine law and the epistemological nature of private law. See also note 99 below. 61 Euthyphro, 10a. Wosner also makes this analogy: Wosner, The Duty to Obey, supra note 48, p. 357.

that the meaning of self-legislation is that we freely accept moral law, which holds an existence outside of us.62

In sum, the distinction between religious and private laws enables us to understand the common thread of Kant's conception of law as a practical idea of reason, as well as the inherent normative power of the legal system, and Shkop's approach. Shkop’s theory is parallel to Kant’s view in three aspects: the unity of the legal system, the role of reason in creating laws, and the normative power of reason that makes the legal system inherently normative. Where the theories diverge is in pinpointing the exact principle that unifies the legal system: while Kant suggests a universal law based on the concept of external freedom, it is unclear what unifying principle Shkop identifies.

Put differently, the question is whether Shkop positions the concept of freedom or another concept as the base of the legal system. In the next section I turn to examine this question.

D. External Freedom and Torat Ha-Mishpatim

Admittedly, there is no clear answer to this question. However, I want to point to one option that makes Shkop’s theory much closer to Kant’s concept of right, which, as we have seen above, is defined as the right to independence or the right to not be interfered with. In the Bava Kama tractate in the Babylonian Talmud, we find an interesting discussion. The Talmud depicts a

(probably imaginary) dialogue between King David and his Sanhedrin (the supreme legal institution at that time). King David poses a question regarding the permissibility of using

62 Westphal examines Kant’s (and others’) moral philosophy through the lens of Plato’s dilemma: KENNETH R.

WESTPHAL, HOW HUME AND KANT RECONSTRUCT NATURAL LAW: JUSTIFYING STRICT OBJECTIVITY WITHOUT

DEBATING MORAL REALISM, 15-26 (2016). See also: ONORA O’NIELL, BOUNDS OF JUSTICE, ch. 1 (2000); Flikschuh, Justice without Virtue, supra note 27, p. 57-60.

another’s property in order to rescue oneself, and the Sanhedrin replies that it is forbidden.63 The early Talmudic commentators (the Rishonim) disagree on how to interpret King David’s question.

Many understand the issue to be related to the question of compensation or restitution. Under this view, the question at stake is not whether or not one is permitted to rescue one’s own life through the destruction of another person’s property. The answer for this question is obviously affirmative.

Instead, King David asks whether the owner is entitled to be compensated, and the Sanhedrin replies that even in this extreme case, the owner has a right to compensation.64

In contrast, according to one prominent commentator, Rashi, the Sanhedrin’s answer is that one cannot rescue himself even in cases in which she is willing to compensate her fellow, and more importantly, despite the fact that her life is at stake.65 Rashi’s interpretation is very puzzling. In

Jewish law, it is highly accepted that there are only three prohibitions that must be obeyed even at the cost of one’s own life: the prohibitions against murder, idolatry and illicit sexual relations.

According to Rashi, the Talmudic discussion adds another prohibition of stealing. Not surprisingly, many commentators reject this interpretation.66

Shkop accepts the more intuitive explanation. For Shkop, from the fact that one has a religious obligation to rescue his own life it does not follow that she can diminish another’s rights: “even though he [the one who rescues his own life] is permitted and [even] obliged to do so according to

63 Babylonian Talmud, Bava Kama, 60b. 64 Cf: Tosafot, Ibid, s.v. Mahu. 65 Rashi, Ibid, s.v. Vayatzila. 66 For an overview of this subject, see: Ronnie Warburg, May One Destroy a Neighbor’s Property in Order to Save

One’s Life?, in: 1 TURIM: STUDIES IN JEWISH HISTORY & LITERATURE PRESENTED TO DR. BERNARD LANDER 331

(MICHAEL A. SHMIDMAN ED. 2007).

the Torah law, he is still obliged to compensate [the owner], since monetary law (Din Mamon) is not dependent upon [religious] prohibitions and permissions (Issur Ve’Heter)”.67

As mentioned above, Kant’s conception of right is relational. One’s entitlement to pursue his or her ends must be consistent with others’ entitlement to pursue their own ends. Additionally, Kant distinguishes between choice and mere wish. In this respect, in the realm of right, others’ rights limit one’s actions, and in a sense those rights function as physical limitations that transform some ends into wishes only. The property right of that person makes that option unavailable. Having said that, for some Kantians, under some circumstances, the law recognizes that a right has been infringed, but at the same time signifies that this infringement is not wrongful.68 It seems that our case is a good example of such a circumstance. The Talmud recognizes that one’s property has been damaged and therefore he is entitled to compensation, but at the same time, the action is justified since the perpetrator’s life was at risk.

Interestingly, many scholars explain the less intuitive interpretation, that of Rashi, also in light of

Shkop’s Torat Ha-Mishpatim. As we have seen, for Shkop, the Torah laws respond to a prior legal system that determines some basic rights, such as property rights, the right to compensation, etc.

The duties the Torah imposes on one arise only after these basic rights have set. Therefore, one’s actions are limited by others’ rights, or as Michael Avraham puts it, everyone has his or her own

“territory,” limited by others’ territories. When the Talmud determines that only three prohibitions stand in the way of a person saving his or her own life, it refers only to one’s territory. But any

67 NOVELTIES ON BAVA KAMA, sec. 25; See also: NOVELTIES ON KIDUSHIN, sec. 25. 68 Ernest Weinrib, Private Law and Public Right, 61 U Toronto L. J. 191, 206-210 (2011). For Weinrib, this kind of case reflects what he calls the systematicity of public right. See also: Weinrib, The Idea of Private Law, supra note 9, at 196-203; For another view, see: Alan Brudner, A Theory of Necessity, Ox. J. Leg. Stud. 339 (1987).

divergence from this territory, namely any damage to others’ territories, is forbidden.69 Rabbi

Yaakov Ariel, a contemporary Jewish law scholar, acknowledges the right-based logic of Shkop’s theory:

The logical explanation is that the prohibition against theft stems from the monetary

ownership of one’s neighbor. Monetary ownership is a reality which predates the

prohibition and causes it (i.e., the prohibition) to materialize. Therefore, there is no basis

for arguing that the proscription against theft ought to nullify the saving of life. Since before

the emergence of the prohibition there is a reality that the assets belong to the other and no

one else possesses a right, neither legal nor moral to infringe it, it is as if it does not exist

for anyone else except the owner.70

Be the interpretation as it may, Shkop’s right-based halakhic view as reflected in this Talmudic discussion might show that also for Shkop the aim of the halakhic system is to balance between everyone’s freedoms. The very fact that the Talmud seeks for justification in a case that one’s life is at risk might imply the normative power that animates the field of property law in particular and private law in general. In the context of Shkop, the next part of the paper can be seen as a further examination of this possibility.

69 Michael Avraham, Between My Territory and Another’s Territory: On Duties and Rights in Halakha and Their

Meanings, MEISHARIM (Hebrew, 2012): see also: Warburg, May One Destroy, supra note 66, at 35-356.

70 Yaakov Ariel, Halakhic Perspectives Regarding Withdrawal from Portions of the Land of Israel, 9 MORASHAH 31, 35 (1975). Translated by Warburg, ibid, at 356.

III. Private Rights

Introduction

In this part I examine how Kant and Shkop implement their general idea about law in the context of private law, and particularly in the contexts of property law, unjust enrichment and contract law.

In the context of private law, Kant proceeds from the only right that every person has by the virtue of being human (innate right) to a different sort of right – private/acquired right. The existence of private rights is related to the possibility of owning something that is external to one’s person. For

Kant, one can have only three kinds of external objects: (1) a thing (as opposed to a person); another’s choice to perform a specific deed; (3) and another person’s status in relation to that person. The first kind establishes property law, the second - contract law, and the third one establishes, what we would today call, family law (and maybe labor law as well). 71 I begin the chapter with an analysis of Kant’s conception of property law, and more precisely his idea of ownership. Kant provides a metaphysical account to the concept of ownership, and argues that ownership incorporates two interlocked rights: the right to use and the right exclude. I then proceed with a discussion about Shkop, claiming that although Shkop does not accept the metaphysical account of Kant, he does define ownership in a similar way. In doing so, Shkop diverges from the way the majority of Jewish law scholars have understood the idea of ownership.

Shkop’s unique analysis of the Talmudic sources which deal with ownership and property law will lead us to a discussion about unjust enrichment and related issues, such as cases of gain-based damages. Although sharing some fundamental ideas with regard to unjust enrichment, Shkop and

Kant (represented by contemporary Kantians) are in disagreement about how to conceptualize the

71 6:247, sec. 4.

nature of the duty that unjust enrichment cases create - whether it creates an in personam right to the owner, or rather the enrichment itself belongs to the owner.

The second part of this chapter focuses on contract law. At the heart of the Kantian conception of contracts stands the idea that, upon a contractual agreement, the promisee acquires the promisor’s choice to perform a certain deed (the one related to the agreement between the parties). The concept of contract is thereby distinct from property law, since whereas in property law the owner has an in rem right, in contract the promisee has an in personam right. After introducing Kant’s idea of contract, I turn to analyze Shkop’s understanding of this concept. I argue that Shkop’s innovative conceptualization of creditor-debtor relationships encapsulates Kant’s view of contracts, but I also acknowledge that although this interpretation is possible, Shkop himself provides a more pre-mature view of contractual obligations.

1. Property and Ownership

A. The Kantian Approach

i. The Possibility of Having Something as One’s Own

Kant’s discussion of property right is divided into two questions: the possibility of having private property and the ability to acquire external objects. The question of ownership is more related to the concept of private property but also affects the second issue. What Kant tries to explore is whether the idea of right, until this point confined to innate right, can be extended towards objects to such an extent that their relation to one person makes the use of them by another wrongful. Is it possible that something external to my person could rightfully be mine, and that therefore the use of this object without my consent would wrong me?

What is at stake here, and Kant emphasizes it at the very beginning of his discussion, is not whether one can wrong me by using something that is in my physical possession. If one interferes with my holding an apple (e.g. by snatching it out of my hands), it is wrong regardless of the possibility of having external objects as mine, since this kind of interference is wrong based on its interference of my person and therefore my innate right. Instead, Kant is concerned with whether it is possible to have something external as my own even when I do not physically hold it. Kant calls this kind of possession an intellectual or a rightful possession, as opposed to a physical or sensible possession.72

As indicated in the previous chapter, the system of rights is derived from the laws of freedom. This allows us to think of relations that deviate from time and space. When we deal with the laws of nature, an object can be cognized only through our senses and thereby has to be located in a certain time and space. But in the realm of freedom, our reason alone can cognize an object. Therefore, as far as the laws of freedom are concerned, we can establish relations between persons and objects that are not merely empirical but rational. Following Kant’s discussion in the Critique of Pure

Reason, a rational possession is a nominal definition of the relation between a person and a thing, whereas empirical possession is a relation based on appearance.73

72 6:245, sec 1. Interestingly, this issue is parallel to the well-known issue raised by Hume: For Hume, it is impossible to infer from non-ethical premises (such as natural facts) to ethical conclusions. Accordingly, for Hume it would be impossible to move from factual or physical possession to rightful possession. See: Richard A. Epstein, Possession as the Root of Title, 13 GA. L. REV. 1221, 1240-1241 (1979). In this context it is also important to mention that Kant does not mean here that there is some kind of a parallel world in which the owner is in physical possession of his or her object, even when in our world the owner is not in physical possession of it: Ripstein, supra note 32, at 95-96.

73 6:249. Kant discusses this distinction in more detail in the first critique: CRITIQUE OF PURE REASON, A236/B295 – A259/B315.

So, the question regarding the possibility that one can own an external object is based on the possibility that one can rightfully possess something external. This leads to a third question about the existence of synthetic a priori propositions about rights. The proposition that you are wronging me if you snatch away an apple that I am holding is inferred analytically from the existence of my innate right: it is just one way of interfering with what is internally mine, i.e. my person. One cannot distinguish between my freedom and my body, and thereby the right to bodily integrity is identical to the right to freedom. Conversely, when we talk about the possibility of wronging someone by using something that is a part of his or her person, this is a synthetic a priori proposition: synthetic because it is not derived directly from the right to freedom, and a priori because it is not based on empirical evidence but on reason.74

In order to prove that one can have something external, Kant presents the postulate of practical reason with regard to rights. According to this postulate, “It is possible for me to have any external object of my choice as mine, that is, a maxim by which, if it were to become a law, an object of choice would in itself (objectively) have to belong to no one (res nullius) is contrary to rights.”75

At the heart of this statement stand two ideas: the idea discussed above of external freedom, and

74 6:249-6:250, sec. 6. For a further discussion on analytic and synthetic principles, see: CRITIQUE OF PURE REASON, A150/B190 – A162/B202. 75 6:246 (italics and brackets in original). Another version of the postulate appears in 6:252: “It is a duty of right to act towards others so that what is external (usable) could also become someone’s.” A third version appears in 6:256: “Whoever acts on a maxim by which it becomes impossible to have an object of my choice as mine wrongs me.” Kant maintains that the postulate is of practical reason. In the Critique of Practical Reason, Kant defines a postulate of practical reason as follows (5:123): “a theoretical proposition which is not as such demonstrable, but which is an inseparable corollary of an a priori unconditionally valid practical law”. As we have seen, this means that we can rationally believe in its existence but it is theoretically indemonstrable. For an expansion on this issue, see: Katrin

Flikschuh, Kant’s Indemonstrable Postulate of Right: A Response to Paul Guyer, 12 KANTIAN REV. 1 (2007). Flikschuh distinguishes between practical proof (for Guyer, our postulate is such a proof) and practical justification (which Flikschuh argues that our postulate is an example for it).

the usability of objects. Kant argues that if external objects, which are usable for people, could not possibly be used, this would contradict the ability to exercise one’s external freedom. This means that since we have the capacity to use external objects and because our ability to use them does not contradict others’ external freedom, the use of objects in the world is rightful. If one could not use his or her freedom, even though it does not interfere with others’ freedom it would contradict the right to external freedom. In other words, things have no external freedom and therefore if one could not use things this would create limitations not derived from someone’s external freedom.76

As a result, Kant concludes, one can think of any object as something that could be his or hers.

Again here, Kant does not talk about a particular way of using something. What matters is that using external things is an object of one’s choice, and as long as this choice can coexist with others’ choices, it is permissible.77

Kant calls this postulate “a permissive law (lex permissiva) of practical reason.” This term appears in different contexts in Kant’s writing, but as it appears here it means that the permitted act is morally indifferent and merely allowed. Hence, permissive law refers to actions that are neither

76 See: Ernest Weinrib, Ownership, Use, and Exclusivity: The Kantian Approach, 31 RATIO JURIS 123, 130-133 (2018). Note that Kant deals also with situations in which one’s taking of an external object would violate no right to external the freedom of others. In this case, taking the apple per se is not a violation of the system of rights, and still by not allowing someone to use external objects in itself stands against the concept of right. See: Sharon Byrd, Intelligible

Possession of Objects of Choice, in: KANT’S METAPHYSICS OF MORALS: A CRITICAL GUIDE 93, 95-96 (Lara Denis ed., 2010). 77 6:246.

prohibited nor commanded.78 In the context of private right, permissive law authorizes private persons to unilaterally impose obligations on others by acquiring external objects.79

ii. Kantian and Other Approaches to Ownership

Kant’s view of ownership stands in contrast to other approaches to ownership and property. For

Kant, private property is not enacted by the state as a part of its broader distributive agenda, as contemporary political philosophers argue. Kant’s account of property does not depend on positive law, and property rights exist (at least in power) in the state of nature. Similarly, at the first stage,

Kant’s focus is not on the possibility of original acquisition, as Lockeans contend.80 Nonetheless,

Kant does agree that the civil condition has an important role in protecting property rights,81 but this does not mean that the concept of property cannot be established in the state of nature.82 The

78 In the introduction to the Doctrine of Right, Kant calls this kind of law “merely permissible,” as opposed to permissive laws. See: Byrd and Hrushka, Kant’s Doctrine, supra note 37, ch. 4. 79 Permissive law appears in Kant’s treatment of both private and public right. For a discussion on the different appearances of permissive law in Kant’s legal writing, cf: Jacob Weinrib, Permissive Laws and the Dynamism of

Kantian Justice, 33 L. & PHIL. 105 (2014). In contrast with other interpretations of the term, Weinrib argues that one can find unity and consistency between them. According to Weinrib, the difference between the way Kant treats permissive laws in private right and public right is rooted in the fact that each kind of right involves different kinds of juridical relationships, and thereby each involves distinctive kinds of authorizations.

80 John Locke, TWO TREATISES ON CIVIL GOVERNMENT, Book 2, Sec. 27. For more recent Lockean accounts of property, see, for example: L. T. Hobhouse, The Historical Evolution of Property, in Fact and In Idea, in: PROPERTY:

ITS DUTIES AND RIGHTS 1 (2nd edition, 1915); ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 149-182 (1974). Epstein also provides an argument in favor of first possession theories: supra note 72, esp. 1225-1230; 1238-1243.

For another criticism on Lockean approaches to property, see: MARGARET RADIN, REINTERPRETING PROPERTY 98- 119 (1993). 81 6:255-6:256. Furthermore, as Byrd and Hruschka rightly mention, “The permissive law empowering me to be a property owner requires the state to provide the institutions I need to be an owner of property.” Byrd and Hruschka, Kant’s Doctrine, supra note 37, at 110 (emphasis in original). 82 6:256-6:257.

same is true concerning the original acquisition: Kant sees it as an important question and discusses it in detail,83 yet holds that it is a secondary question to the that of ownership.84

Following his rejection of the dependence of property on the civil condition and his focus on the possibility of having something external, Kant’s approach stands also in contrast to a well-known approach to property that is usually referred to as the “bundle of right” theory. According to this theory, the concept of property is an aggregation of non-related rights, such as the right to exclude and the right to use. As indicated in the previous chapter, Kant seeks a local unity within each legal field, and this unity makes the body of knowledge an idea of reason. Therefore, for Kant, one should look for an organizing idea that unifies the body of knowledge at stake, in this case the concept of property. By looking for an organizing principle, Kant rejects the bundle of rights theory, since for him each component has to be related to the other components that construe the concept of ownership. 85

83 6:258-6:270. It is worth mentioning that Kant’s steering from the position that original acquisition is the pivotal point of ownership allows him to deal with the concepts of property and contract under the same theoretical umbrella. As we will see below, in contracts, the promisee acquires the promisor’s performance. It is impossible to acquire someone’s performance originally, since one’s performance is connected with his or her innate right. Therefore, it is only possible to transfer one’s ownership over a certain deed from one to another, but not to originally acquire it. If the focus of property right was original acquisition, this would create an important gap that could not be bridged. 84 For a further discussion of Kant’s opposition to other approaches, see: Ripstein, Force and Freedom, supra note 32, at 86-96. Weinrib focuses on the differences between Grotius’s and Kant’s conceptions of ownership: Weinrib,

Ownership and Exclusivity, supra note 76. See also: Howard Williams, Kant’s Concept of Property, 27 PHIL. Q. 32 (1977). 85 Some contemporary property law theorists have embraced Kant’s moral justification of private ownership, and in so doing have rejected the idea of ownership as a bundle of rights. But most contemporary versions of the moral justification of ownership diverge from Kant’s (and more broadly, from natural law theorists’) justification, in the sense that they put the moral significance of property rights in instrumental terms. See: Anna di Robilant, Property:

A Bundle of Sticks or a Tree, 66 VAND. L. REV. 869, 892-894 (2013). Although they explain the theoretical grounds of ownership differently, some more recent property theorists have also seen Kant’s points as defining the fundamental

As we have seen, the organizing idea for Kant in the context of property is that it is the usability of things that makes them possible objects for possession. Usability as the animating idea of ownership can be broken down into two interrelated rights: (1) the right to use the owned object and (2) the right to full control over the object, or the right to exclude others from using the object.

From Kant’s standpoint, none of these rights has priority over the other, but they both construe the concept of ownership simultaneously.86

B. The Concept of Ownership in Jewish Law and in Shkop’s Writing

The Talmud and the Jewish law literature that follows it raise (mostly implicitly) many important questions regarding the concept of ownership. In his article on the idea of ownership, Porat suggests that the Anglo-American and Jewish traditions provide different answers concerning the meaning of ownership. While the common law tradition, Porat argues, defines ownership as the right of exclusivity, the majority of Jewish law scholars have understood ownership as the right to exclude.87 The main difference between these two conceptions is in how the owner exercises his or her ownership: if ownership is defined as the right to exclude, the owner must exercise his or

aspects of ownership. Consider, for instance, Hobhouse’s (usually considered as Lockean) description of ownership: “His (the owner’s) possession must in the first place be recognized by others, i.e. it must be of the nature of a right. In the second place, with regard to things of a permanent nature, his right must also have a certain permanence. He must be able to count on the use of the thing. His right over it, though it may be limited in time, must not be confined to the moment when he has it in his hands, but be respected in his absence. Thirdly, his control must be exclusive.” Hobhouse, supra note 80, at 6. 86 Some have argued that views similar to Kant’s, which identify ownership with “the right of exclusivity” or the “right of exclusive use”, fail to capture the idea of ownership and succeed only in associating exclusive use with possession. See: Avihai Dorfman, Private Ownership, 16 Legal Theory 1 (2010). Although Dorfman argues that this criticism applies to Kant’s account too (see note 72), it seems that the primary task of Kant is to avoid this failure.

87 Benjamin Porat, Ownership and Exclusivity: Two Visions, Two Traditions, 64 AM. J. COMP. L. 147 (2016). Indeed, many have contended that there is no clear definition to ownership in Jewish law. Cf: Neil W. Netanel and David

Nimmer, Is Copyright Property? The Debate in Jewish Law¸12 THEO. INQ. L. 241, 250-252 (2011).

her right actively; if defined as the right of exclusivity, using someone’s property is wrongful regardless of whether or not the owner expressed his or her right to exclude.88 By defining ownership as the right of exclusivity, the Anglo-American tradition expresses the way Kant conceives the idea of ownership.89

One of the strongest pieces of evidence for the confinement of ownership to the right to exclude lies in the interaction between two Talmudic principles: “one benefits and the other suffers no loss” (Ze Nehene V’ze Lo Chaser, hereinafter: one benefits), and “one is compelled not to act in the manner of Sodom” (Kofin Al Midas S’dom, hereinafter: manner of Sodom). Although these principles have appeared in different contexts and locations, the majority of Jewish law scholars have defined these two principles in terms of the latter. The “manner of Sodom” principle is based on the claim that I have no right to prevent you from deriving benefit from my rights if in so doing you do not cause me any damages. The paradigmatic case of “one benefits” was interpreted in the light of this claim. The case is presented in the Talmud as follows: “one who resides in another’s courtyard without his knowledge [or consent], must he pay him rent, or does he not need to?”.90

Following the identification between the principles, Jewish law scholars have interpreted the case as follows: since the owner suffers no loss, the law prevents him from suing the user, for suing in such a case is conceived as acting in the manner of Sodom. Following the understanding that the

88 Note that the fact that Jewish law requires the exercise of a power does not mean that the power to exclude is distinctly different from the owner’s right to exclude. It rather means that it is up to the owner whether to exercise his or her right. In this respect, the Jewish and common law traditions are alike. See: ARTHUR RIPSTEIN, PRIVATE WRONGS 271 (2016). 89 Having said that, it is noteworthy that this does not mean that the common law tradition is committed to Kant’s metaphysical assumptions regarding the relation between persons and things. In our context, this point is crucial, since Shkop seems to hold the same view as the common law, but without sharing with Kant his metaphysical grounding of the concept of ownership. 90 Babylonian Talmud, Bava Kama, 20a.

“one benefits” principle is ramified from the “manner of Sodom” principle, Porat concludes that for the majority of Jewish law scholars, ownership does not include the conception that only the owner is entitled to use the property, unless he or she explicitly prevents others from using it.

In what follows I would like to suggest that Shkop does not share the viewpoint presented by Porat.

Shkop deals with the concept of “one benefits” when analyzing the Talmudic query mentioned above: “one who resides in another’s courtyard without his knowledge [or consent], must he pay him rent, or does he not need to?” The Talmud explains that the circumstances are such that although the place is appropriate for habitation, the owner did not intend it to be rented out. The question then is whether the user can tell the owner: “what loss have I caused you?” or, rather, whether the owner can say that although he suffered no loss, “you [the user] have derived benefit” from his property. Although in this case the Talmud does not provide a clear answer, it has been accepted by Jewish law scholars that when one benefits (or more precisely, saves money) by using another’s property without causing damage, the user need not pay the owner.

As mentioned above, according to the majority of Jewish law scholars, the owner is not entitled to compensation because it is a case of “manner of Sodom”: The owner cannot prevent the user from using the residence, since in doing so he would act in a “manner of Sodom,” which is morally and legally condemned.91In contrast, Shkop refers to Tosafot’s interpretation, according to which the principle of “manner of Sodom” does not apply in this case, and the owner is entitled to prevent

91 Some have argued that the “one benefits” principle is the counterpart of the Pareto optimum idea, according to which a relocation of resources that makes at least one person better off while making no one worse off is a re- distributional improvement. See: Roman A. Ohrenstein, The Talmudic Doctrine of “The Benefit of a Pleasure”: Psychological Well-Being in Talmudic Literature, 66 Econ. & Soc. Am. J. 661, 666-668 (2007). As we will see below, Shkop seems to reject this parallel.

the user from using the property.92 Following the Tosafot, Shkop does not accept the identification of “one benefits” with the “manner of Sodom,” and he further develops the Tosafot’s claim in two steps. First, he claims that there is no identity between the two principles, since the principle of

“one benefits” is mentioned also when the used property belongs to the Temple, and the “manner of Sodom” principle does not apply to the use of a Temple’s property. Instead, Shkop maintains that “one benefits” is a rational concept (sevara): a claim cannot be raised when the owner has not suffered any loss. Second, Shkop contends that since the “manner of Sodom” principle involves a coercion of the owner, it does not apply in cases in which the owner would lose the ability to control her property. By coercing the owner to let someone else use the property, we recognize that the user has some kind of right over the property, and this would weaken the ownership rights of the owner. This explains Tosafot’s standpoint that owners are not required to allow someone to live on their property: The Talmud discusses a case in which the user is already living on the premise, and now the owner has the choice whether to exercise his ownership rights and evict the user.93

So, for Shkop, the owner has no claim against the user. By this statement, Shkop does not mean that although the user did wrong the owner, the claim fails due to a lack of actual damage. Instead,

Shkop claims that when no damage is involved, the user does not use the owner’s object, but an object: “it seems to be clear that when [the owner] suffers no loss, [the user] is not called ‘benefits from his fellow.’”94 In other words, Shkop maintains that even an owned object has some kind of

92 Tosafot, Bava Kama, 20b, s.v. Ha Itahanit.

93 NOVELTIES ON BAVA KAMA, sec. 25.

94 NOVELTIES ON BAVA BATRA, sec. 6.

separate existence, and thereby can be used without interfering with the owner’s rights.95 But note that what follows from this standpoint is that only the owner has the right to use her property. By identifying the case of “one benefits” as a ramification of the “manner of Sodom,” the majority of the Talmudic commentators hold that nonowners have some rights to use one’s property, and therefore the right to use is not exclusive to the owner. In contrast, Shkop argues that the right to use the property is limited to the owner only. Therefore, whereas the majority of Jewish law scholars see the right to exclude as the sole principle that defines ownership, Shkop adds another right, the right to use, to the concept of ownership. Only this view can explain, I believe, Shkop’s following statement: “whoever brings a new thing into the world thereby acquires all the rights

(zechuyot) in it.”96 By this, Shkop means that all rights and duties attributed to the owned object belong to the owner, who has the right to use the property and is the one responsible for damages occurred by the property.

Shkop’s contention that ownership means that the owner has an exclusive right to use the object is apparent in other contexts as well. For instance, his approach is expressed in the debate over whether one is permitted to consecrate a stolen object to the Temple. In Bava Kama tractate, R.

Yohanan states:

Rabbi Yoḥanan says: [If one] stole [an item] and the owner has not [yet] despaired [of

having the item back], neither of them is able to consecrate [the stolen item to the temple].

This [the thief] because it does not belong to him, and that [the owner] because it is not in

his possession.

95 Shkop’s argument is further developed by his successor in the Telshe yeshiva, Chaim Rabinowitz. See: Norman

Solomon, Concepts of Ze Neheneh in the Analytic School, 3 JEWISH L. ANN. 49, 55-62 (1980). 96 Shaarei Yosher, gate 5, sec. 1.

In Jewish law, as long as the owner did not despair of having the property returned, the object still belongs to the owner, although the object is in the possession of the thief. However, by possessing the owner’s object, the thief is liable for any damages incurred to the property. Namely, the liability for damages makes the thief an owner-like. R. Yohanan argues that since the object is not in the physical possession of the owner, it is impossible to consecrate it. The thief is unable to consecrate it either, since the item does not belong to him.

Following R. Yohanan’s statement, the Talmud’s later commentators ask whether the consecration is valid in cases where both the owner and the thief agree to consecrate the object. For Shkop, this question is dependent on how the thief’s liability for damages affects the owner’s ownership rights.

One option is to say that since the thief is liable for any damages, the thief has some kind of right to (or more precisely, duty toward) the object and therefore the original owner is no longer the sole owner. In other words, the owner and the thief have become some kind of partners. If this view is correct, when the owner and the thief together consecrate the object, the consecration is valid, since their rights and duties over the objects are complementary.97

Another option is to understand the thief’s possession as loosening the owner’s rights since the object is no longer under the owner’s full control. Here, the owner’s lack of power to consecrate arises from his inability to act as the owner in practice. From this point of view, the owner’s rights and the thief’s duties are not complementary but rather contradictory, and thereby their joint act of consecration would not be valid, because neither holds sufficient power to change the object’s status. Shkop argues that the latter view is correct, and he emphasizes the connection between ownership and the control of the object. Shkop’s analysis shows that for him a full control over an

97 See: Yom Tov Lipman Halperin, ONEG YOM TOV RESPONSA, sec. 93.

object is closely related to the concept of ownership. Therefore, Shkop would find it impossible to accept doctrines such as “one benefits” as interpreted by the majority of Jewish law scholars.98

To conclude, Shkop disagrees with Kant at the metaphysical level regarding property rights. This leads them to arrive at different conclusions concerning the question of what is considered as wrong. Given Shkop’s distinction between the object’s independent existence and its characteristic as being owned by someone, it is possible to use an object without interfering with the owner’s property rights.99 This is the case of “one benefits”. Kant does not accept this separation: for him, the relation between persons and objects is manifested in the realm of laws of freedom—that is, in a domain that transcends time and space. According to Kant, when using someone’s property without his or her permission, the user interferes with the owner’s rights. As Ripstein puts it, in the case of property rights, there is a distinctive type of wrong: the wrong of interference.

Therefore, if someone trespasses on another’s property without her permission, the trespasser limits the owner’s ability to use the property as she wishes.100 Despite this fundamental disagreement, I have argued that Kant and Shkop share a similar conception of ownership. Both

98 NOVELTIES ON BAVA KAMA, sec 43. I thank Benjamin Porat for a discussion on this point. 99 In my opinion, Shkop’s conception of ownership stands in contrast with the common claim that the later Talmudic commentators—and Shkop in particular—hold a naturalistic and ontological view of the halakhic world. According to this line of thought, the later commentators had based on strong metaphysical assumptions regarding the ontological nature of halakhic norms. Further, Shkop and his circle have treated the halakhic norms in the same way that the laws of nature are treated. See: Shai Wasner, Ontological and Naturalistic Thinking in Talmudic Law and Lithuanian

Yeshivot, 25 DINE ISRAEL 41 (Hebrew, 2008), especially his discussion on ownership. My discussion on ownership shows that we should doubt whether this claim really captures the way Shkop and other later commentators have viewed the halakhic system. In addition, as I have argued earlier, Shkop’s torat ha-mishpatim indicates that as far as private law is concerned, financial halakhic norms do not exist out of our cognition, and therefore they have no ontological basis. See supra note 60 100 Ripstein, Force and Freedom, supra note 32, at 66-69.

of them understand ownership as an exclusive right of the owner to use the property and to exclude others from using it.

C. The Concept of Ownership and Its Implication on Unjust Enrichment

The way Kant and Shkop conceptualize the idea of ownership form also their understanding of what is counted as unjust enrichment. I would like to argue that Kant and Shkop approach to unjust enrichment differently, but in order to do so, it is needed to separate between cases of unjust enrichment and other paradigmatic cases. For our purposes, two types of cases are important: the issue discussed above of using one’s property without causing it any damage, and what might be called incidental benefits:

i. Using One’s Property Without Causing Damage

As indicated above, given Kant’s idea of intellectual possession, it seems that any use of property without the consent of the owner is wrong, regardless of whether the property has been damaged or not. Therefore, if I am using your home, I am wronging you, and you are entitled to compensation. From a Kantian perspective, it seems that in that case, the measurement of the damage would be “gain-based”—namely, the focus might not be on the plaintiff’s actual loss

(which is none, in this case) but on the gains that the defendant has enjoyed by using the plaintiff’s property. At the heart of this claim stands the idea that there is no clear difference between sparing and gaining money. That is to say, when I spend the night at your house, I save money that I could have spent on renting a place for the night. But as a matter of fact, I earn this money by using your place, and therefore you are entitled to this benefit.101 As we have seen, Shkop disagrees with Kant on this, since he does not accept Kant’s metaphysical claim. But as will be explained below, this

101 ERNEST WEINRIB, CORRECTIVE JUSTICE part 4, esp. at 125-132 (2012).

is true under one condition: Shkop agrees that there is no distinction between saving and earning money. Therefore, in the paradigmatic case of “one benefits” (spending the night at someone’s house), the user would need to claim that if she would have known that she would need to pay, she would have rather spent the night on the streets and therefore saved no money by staying at the owner’s house. However, as detailed below, there is no distinct conceptual difference for Shkop between this case and that of unjust enrichment. The mere relevant question is whether the defendant has been enriched because of the plaintiff. Conversely, according to Kantians, one should distinguish between cases in which the defendant benefited from using the plaintiff’s property and cases in which the defendant has been enriched by the plaintiff. According to the

Kantian line of thought, although restitutionary damages and unjust enrichment cases operate in the same way of reversing a transfer, it does not follow that they are based on the same rationale.102

This point will be clarified below.

ii. Incidental benefits

Intuitively, no one would imagine charging someone who, while walking down the street, smells the sweet smell that comes out of a bakery. From a Kantian perspective, it is important to mention why, despite Kant’s robust conception of ownership, not every “enrichment” is considered an infringement of one’s property rights. In the previous chapter we have seen that one of the main ideas of Kant’s legal philosophy is the co-existence of everyone’s freedoms and rights. When I am

102 Some scholars have accepted this claim, but on a different basis than the one suggested by Kantians such as Ernest Weinrib. According to these scholars, there is indeed a distinction between unjust enrichment and gain-based restitutions such that their aim is to strip the defendant’s profits. For these scholars, the reason for this distinction is that gain-based restitutions are concerned with deterring breaches of duty, a concern that does not apply to unjust enrichment cases that deal with non-wrongful actions, such as wrongfully receiving payments. JAMES EDELMAN,

GAIN-BASED DAMAGES: CONTRACT, TORT, EQUITY AND INTELLECTUAL PROPERTY 65-111 (2002).

sitting in your chair without your permission, I prioritise my freedom (e.g., to sit wherever I want) over yours (to use your chair as you like). But if I am walking down the street, and you demand that I pay for the enjoyment I am experiencing from the smell that comes out of your shop, you prioritise your freedom over mine, for my enjoyment is not at your expense, and since this enjoyment does not interfere with your using your property as you like, in this case the right solution that provides room for both our freedoms is that I need not pay for this side effect of enjoyment.103

Shkop does not seem to draw a clear distinction between incidental benefits and other cases. Again here, if the defendant has been enriched by the plaintiff, he must pay. Therefore, if one’s field is surrounded by the field of another, and the owner of the outer field fenced his field, and as an outcome the inner field is fenced too, the owner of the inner field must also pay for the fencing.104

On the other hand, following his metaphysical claim, if the benefit is not “real” or actual, Shkop would not consider such an enjoyment as use.105 Therefore, looking at a beautiful building or enjoying the smell that comes out of one’s bakery is not counted as use and even less as an enrichment.

103 Nadler takes this argument further, using the following example: Suppose that A mistakenly paints B’s house and B refuses to pay for the improvement. If we decide that B needs to pay A, in fact we prioritise A’s freedom over B’s. For Nadler, this example, as well as others, shows that the plaintiff’s freedom of choice cannot be the idea that underlies the concept of unjust enrichment. Jennifer M. Nadler, What Right does Unjust Enrichment Law Protect?, 28

OX. LEG. STUD. J. 245, 251-254 (2008). 104 See: Mishna, Bava Batra, 1:3; Shaarei Yosher, gate 3, sec. 25, s.v. venire le’aniyut daati de’baze. 105 Following one of the first commentators, the Ran, for Shkop incidental benefit is identical with non-physical benefit. On this view, Talmudic debates on whether smelling is considered as enjoyment (hanaa) is at its basic a question on whether smelling is a physical enjoyment just like eating and drinking. Shkop, Shaarei Yosher, gate 3, sec. 25, s.v. Uveikar.

iii. Shkop’s Distinction between Enjoyment and Enrichment

Shkop limits the application of the “one benefits” principle in another interesting way. For Shkop, if one’s property is the cause of another’s benefits, the earnings belong to the owner of the property.

In this case, it is not an anonymous object that is used but the owner’s object, and every benefit gained from the property belongs to him. Shkop’s innovation lies on a distinction between “one benefits” and another paradigmatic case: the Talmudic query in which the king withdraws a payment for a citizen’s debt from his crop yield. Since every person must tithe his or her crop, the debtor saves money because the King includes the tithe in the debt. For instance, if the king collects crop yields that equal one hundred dollars, he does not take into account that ten percent of it does not belong to the debtor but to the priesthood. Therefore, the Talmud states that this person must tithe from another crop. Seemingly, this ruling contradicts R. Hisda’s statement, “One who causes damage to gifts of the priesthood or who consumed them is exempt from having to pay.”106 The

Talmud answers that in this case, R. Hisda’s ruling does not apply because the King’s confiscation

“causes benefit for him (mishtarshei leh).”

Following the Talmud’s query, Shkop distinguishes between two terms: enjoyment and enrichment. He associates the first one with tort law and the second one with what we would call unjust enrichment. Literally, “one benefits” is translated into “one enjoys”. According to Shkop, when one enjoys another’s property, the question is whether or not the user’s enjoyment has caused the owner a loss. If not, the “one benefits” principle is applied. In contrast, when the owner’s property is the cause of one’s enrichment, the issue is not whether the owner has suffered a loss.

In this case, as long as the owner’s property caused the enrichment, the benefit belongs to the

106 Babylonian Talmud, Chulin 130b.

owner. Therefore, each case involving an alleged use of another’s property should be analyzed from two perspectives: first, did the user enjoy the other’s property? If not, did he or she gain benefit from it? While in cases of enjoyment the main question is whether the owner has suffered a loss, if the defendant has been enriched, and the source of the benefit was the plaintiff’s property, even if the plaintiff has suffered no loss, the user still must pay.107

According to Shkop, two main features define cases of enrichment: the defendant’s passivity and the plaintiff’s lack of loss. Although the defendant has been enriched without doing anything, he must pay. From the plaintiff’s side, the plaintiff must show that her property caused the enrichment, and also prove that the defendant actually gained something.108 But there is no need to show that the plaintiff actually lost something. Therefore, in the paradigmatic case of “one benefits”

(spending the night at someone’s premises), the reason that I need not pay is because I can argue that if I had known that I would have had to pay for it, I would have rather slept on the street. In other words, the owner cannot prove that I actually saved money by using her property.109 In this

107 Shaarei Yosher, Gate 3, Sec. 25. From this perspective, one act can establish two types of wrongs, as Gordley nicely puts it: “[T]he same act can constitute both an appropriation of the benefit [from one’s property] and an interference with these rights. One who moves into another’s house may invade his privacy or disturb his activities but, in any case, appropriates the benefits that goes with private living space”. (notes in brackets are mine). James

Gordley, The Purpose of Awarding Restitutionary Damages, 1 THEOR. INQ. L. 39, 44-45 (2000). 108 At this point, Shkop makes an interesting observation about causation. When I am enjoying eating an apple, I cannot deny that the apple is the cause of my enjoyment. To put it in contemporary legal terms, my enjoyment of eating the apple is incontrovertible. On the other hand, when the benefit is not interconvertible, only when I recognize that this thing has caused me enjoyment, I establish the causal connection between the thing and my enjoyment. With this observation, Shkop explains the complicated issue of intention that I have briefly dealt with in the accompanying text next to note 43. See Shaarei Yosher, gate 3, sec. 25, s.v. ulefi ze. 109 This point has also been recognized by contemporary unjust enrichment lawyers, as Birks puts it in the context of spending money that was mistakenly received: “It is an important feature … that you spent the money on things that you were going to buy anyway. The outcome would be different nowadays if, still honestly believing that you had somehow underestimated your short-term liquidity, you were led into inviting your friend to lunch. Let it be that you

case, since the owner has suffered no loss, she is not entitled for compensation. In contrast, in the case of the king’s confiscation, instead of taking ten dollars from the debtor, the king has taken ten dollars from the priesthood. Therefore, the priesthood is the reason why the debtor has ten dollars more. In this case, the debtor cannot claim he gained no benefit from the priesthood, since the benefit is actual: the debtor has ten dollars more in his bank account.110

Shkop counts three kinds of enrichment as outcomes of another’s property: (1) a quantitative or qualitative improvement; (2) saving property from a loss or total destruction; and (3) when one’s property remains in his or her possession (e.g., the case of the king’s confiscation). Shkop makes clear that since the owner’s assets have caused the enrichment of the user, the owner becomes the owner of the enrichment too. To use Shkop’s analogy: just as the cow’s offspring belongs to the cow’s owner because the cow is the cause of the offspring, so too does the enrichment belong to the priesthood in the case of the king’s confiscation, since the priesthood’s money is the cause of the enrichment.

Cases of enjoyment, by contrast, incorporate two aspects: (1) active participation of the defendant and (2) a loss by the plaintiff. Compared to enrichment cases, the emphasis here is not on whether by using your property I saved or earned money. Rather, the focus is on the correlation between

would have spent £5 on a snack. The overpayment leads you into buying lunch for two, with a glass of wine each. The bill is £30. Having used up most of the money in an expenditure which you would not otherwise have incurred, you can now reasonably say that the shop is attempting to shift its whole loss to you. Your assets are no longer swollen beyond the £5 difference between what you would have spent and what you did spend. Repaying the mistaken £30 in full will take your wealth below the level at which it would have been had you not received the overpayment”. PETER

BIRKS, UNJUST ENRICHMENT 7 (2005). 110 According to Shkop’s explanation, in R. Hisda’s case (“one who causes damage to gifts of the priesthood or who consumed them is exempt from having to pay”), the one who enjoyed the gifts need not pay only because he has not damaged a particular priest, and therefore there is no plaintiff.

the user’s enjoyment and the owner’s loss. For Shkop, if I ate your apple, I did not spare an apple of mine, since I can claim that if I knew that it is your apple, I would have not eaten an apple at all. Therefore, in torts, the question at stake is whether the plaintiff’s loss has been caused by the defendant. I must pay you for eating your apple not because you spared me another apple (and in so doing you, allegedly, enriched me), but simply because I ate your apple and hence you are entitled to compensation.111

Before proceeding, it is important to note that the passivity aspect of enrichment cases allows us to compare Shkop’s view of enrichment with contemporary cases of unjust enrichment, since the defendant’s passivity is one of the aspects that distinguishes unjust enrichment from other cases of restitution law. But the lack of loss complicates the comparison because this feature is more related to the cases discussed above of gain-based damages.

iv. A Kantian Concept of Unjust Enrichment

Now let’s turn to the Kantian take on unjust enrichment. Kant does not address unjust enrichment, so in what follows, I discuss one suggestion made by a contemporary Kantian, Ernest Weinrib. A case of an unjust enrichment incorporates three elements: (1) the plaintiff has been enriched, (2) the enrichment has been at the defendant’s expense, and (3) the enrichment was unjust.112 As

Weinrib frames it, cases of unjust enrichment involve a transfer of value, from a transferor to a

111 An interesting question is how the enjoyment should be measured: according to the defendant’s enjoyment or the plaintiff’s actual loss. Although Shkop provides no clear answer, it seems from other Jewish law sources that in cases in which the defendant is not liable for the damage she must still pay for her enjoyment, but only for that. The classic example is when someone’s beast eats another’s crops in the public domain. According to the Mishna, the beast’s owner is not liable for the damages, but “[i]f [the beast] benefited, [the owner] pays what it benefited”. Mishna, Bava Kama, 2:2. 112 See: Weinrib, Corrective Justice, supra note 101, at 185-190.

transferee, for nothing. Although the value is accepted passively (such as in the classic example of mistaken payment), the non-donative transfer of value by the plaintiff and the retainment of the value by the defendant trigger the duty to repay.

For Weinrib, in cases of unjust enrichment, the defective transfer of value creates a bilateral relation between the transferee and the transferor. Namely, the transferee has an in personam duty to retransfer the value gained by non-donative transfer of value. As we will see below, according to the Kantian concept of contract, one party acquires the other party’s performance. Under this view, a contract does not pass the subject of the contract (e.g., the horse that A promised to sell to

B), but the promisee is given possession of the promisor’s certain deed (to do as the contract requires). The subject of the contract will pass to the promisee only upon the physical transfer of the object.

The emphasis on a defective transfer of value explains why the owner is not entitled to compensation in the bakery shop example. According to Weinrib, since the labor (e.g., baking pastries) was done on the owner’s property and for the owner’s purposes, the value of this labor has been retained by the owner and has not passed to the one who enjoyed it indirectly. This distinction reflects common law decisions, concluding that so far as the defendant’s benefit was gained not on the defendant’s property and as the defendant’s enjoyment was a result of work done for the plaintiff’s own purposes, the principle of unjust enrichment does not apply.113

113 See: Weinrib, ibid, at 197-198. See also: Weinrib, The Idea of Private Law, supra note 9, at 140-142. According to Saprai, in The Idea of Private Law, Weinrib includes two paradigmatic cases under the name of “unjust enrichment”: the restitution of wrongdoing and cases in which there were no wrongdoings, such as mistaken payment. see: Prince

Saprai, Weinrib on Unjust Enrichment, 24 CAN. J. L. & JURIS. 183 (2011). As indicated above, Weinrib’s recent approach sharply distinguishes between those cases. More on Weinrib’s view as presented in The Idea of Private Law,

Following Kant’s understanding of contract, Weinrib argues that the owner has the right to the user’s performance in unjust enrichment cases—namely, the user has a duty to retransfer the value.114 From this standpoint, the emphasis is on the retransfer, rather than on the value. Weinrib introduces the two possible options of how to understand unjust enrichment as follows: “On one view, the plaintiff asserts a right to the value, with the retransfer being merely the mechanism for getting it. On the second view, the plaintiff asserts a right to retransfer, with the value being merely the object of the retransfer.”115 Weinrib holds the second view. In doing so, he distinguishes between unjust enrichment and gain-based damages cases. As indicated in the section on gain- based damages, there the plaintiff has an in rem right over the earnings. From this perspective, the question whether the gains have been made passively or actively has an important significance.

As mentioned above, Shkop explicitly argues that the plaintiff has an in rem right over the enrichment, even in cases that the defendant has done nothing. Therefore, the emphasis for Shkop

see: Andrew Botterell, Property, Corrective Justice, and the Nature of the Cause of Action in Unjust Enrichment, 20

CAN. J. L. & JURIS. 275 (2007). 114 As discussed below, according to Kant, in contract, the parties’ wills are united, and their united will makes the contractual agreement possible. This element of the united will is absent in unjust enrichment cases. For Weinrib, the exact opposite occurs in unjust enrichment cases. The parties’ wills “converge on the non-gratuitousness of the transfer of value”. So, here the convergence of the wills is found in the absence of agreement. Some scholars have seen this to be a serious problem in conceptualizing unjust enrichment cases as an in-personam or contract-like relationship:

Matthew Doyle, Corrective Justice and Unjust Enrichment, 62 U. TORONTO L. J. 229, 250-252 (2012). Somehow similarly, Brudner and Nadler criticize Weinrib’s account by claiming that his argument fails to explain unjust enrichment cases which are not quasi-contractual, such as mistaken payments. THE UNITY OF THE COMMON LAW 251- 253 (2013). From a different perspective, Smith argues that unjust enrichment is closer to tort law rather than contract, in contrast with Weinrib’s and Birks’ contention: Stephen A. Smith, Unjust Enrichment: Nearer to Tort than Contract, in: PHILOSOPHICAL FOUNDATIONS OF THE LAW OF UNJUST ENRICHMENT 181 (2008). 115 Weinrib, Corrective Justice, supra note 101, at 221 (emphasis added). As Birks explains, on the view of “the right to retransfer”, in cases such as mistaken payment the plaintiff’s claim is not for the coins or notes received. Rather, the claim is to an abstract debt measured by the amount received. Birks, Unjust Enrichment, supra note 109, at 168- 169.

would be on the plaintiff’s right to the value, as the first option in the passage above.116 Shkop’s emphasis on the owner’s property causing the user’s benefit shows that for him the owner has a right to the value, and as an effect the user must retransfer the value to the owner. Therefore, it seems that Shkop’s lack of difference between passive and active enrichment seems to obscure the distinction between unjust enrichment and gain-based damages claims and even collapses them into one paradigmatic case of enrichment.117

2. Contract

A. The Kantian Approach The second sort of external object that one can own is a possession of another’s choice. According to Kant, this kind of possession is possible only through a contractual agreement. Kant defines contract right as an act of a united choice of two persons by which something that belongs to one party passes to the other.118 By having a contractual agreement, one has a right over another’s choice to enact a certain deed.119

For Kant, every contract consists of four steps: two are preparatory, and two are constitutive. Kant calls the first two offering and assent, and the others promise and acceptance. The first two steps are essential, since one’s declaration cannot be called a promise unless the other party knows the details of the promised offer and assents to them. Therefore, at the first stage, the promisor makes

116 The first interpretation is associated with Aquinas. For a recent defense on Aquinas’ view, see: Gordley, supra note 7, at 420-457. 117 By contrasting his view with those of some Natural Law scholars, Gordley criticizes Weinrib for drawing this distinction between innocent and wilful wrongdoing. James Gordley, The Purpose of Awarding Restitutionary Damages, supra note 107, at 52-58. Indeed, he does so for another reason than the one mentioned here. 118 6:271 119 Ibid.

an offer to the promisee, who assents to the conditions of the offer. Then the offer becomes a promise accepted by the promisee.120

As Byrd mentions, Kant’s four-step structure appears somewhat foreign to those familiar with contemporary contract law, since the latter consists of only the first two acts.121 Furthermore, Kant deals only with very particular issues raised by the concept of contract and leaves aside many other important issues, such as the meaning of mistake or duress. From Kant’s point of view, this structure is necessary in order to separate the agreement upon which the promisee acquires a right over the promisor’s performance, and the agreement upon which the ownership rights of the promisor over a certain object pass to the promisee. So, when one has a contract with another to sell her watch, two separate things occur: at the first stage, the promisor passes his ownership of a certain deed (to sell the watch) to the promisee, and then at the second stage, they agree to pass the ownership rights of the thing itself (the watch itself, not the promisor’s deed) from one to another. Whereas the first stage puts emphasis on the act itself, the second emphasises the actual transfer of the object.

What is crucial in Kant’s view of contract is that the four steps create a united will of the promisor and promisee to pursue a certain goal. What the promisor promised to the promisee does not pass to the latter whenever the promisee accepts it; both promise and acceptance must happen simultaneously. Of course, the declaration of each party occurs at a different time: the promise must come before the acceptance, so the promise may be contemplated by the promisee. But the offer must continue to the time the acceptance occurs, and at that point the offer and the acceptance happen simultaneously. This need for a united will explains why we find so many ceremonial

120 6:272.

121 Sharon Byrd, Kant’s Theory of Contract, 26 THE SOUTHERN PHIL. J. 131 (1997).

gestures at the moment of concluding a contract: when the parties shake hands or clink glasses, they emphasise that their declarations still exist and are happening simultaneously.122

One way to illuminate the idea of united will is in the light of the categorical imperative. One version of the categorical imperative, usually called Formula of the End in Itself, goes as follows:

“[A]ct in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means but always at the same time as an end”.123 Robert Nozick mentions that this formula raises difficult questions as to what is considered as using someone as a mere means. To use Nozick’s example, in getting a pleasure from seeing a good-looking person walk by, does one use the other as a mere means? For Nozick, this kind of questions is an ethical question, but it is not an issue for political philosophy.124 However, according to one interpretation of the imperative, there is a close relation between the imperative and the Kantian idea of contract.

As O’Neill puts it, to use someone as a mere means is “to involve them in a scheme of action to which they could not in principle consent”.125 The notion of united will reflects126 this principle by saying that you and I can use each other only as far as both of us consent to take a part on each’s objectives.127

122 Ibid.

123 GROUNDWORK OF THE METAPHYSICS OF MORALS, 4:429. 124 Nozick, Anarchy, supra note 80, at 32.

125 Onora O'Neill, A Simplified Account of Kant's Ethics, in: EXPLORING ETHICS: AN INTRODUCTORY ANTHOLOGY 88, 89 (Steven M. Cahn ed., 2009). 126 By pointing out this resemblance, I by no means try to take a side in the important debate regarding the connection between the Categorical Imperative and Kant’s legal philosophy. See supra note 32. 127 Ripstein explains that the idea of united will incorporates two familiar ideas: the first one, which we have already discussed in the previous chapter, is the distinction between wishing for and choosing something. As indicated above, in the realm of rights, only external choices count. The second idea is introduced in Kant’s analysis of contract: the idea of a voluntary transaction between two people that engages both of their capacities to choose. According to the

The requirement of a united will follows Kant’s abovementioned distinction of empirical and intellectual possession. As explained above, the realm of rights abstracts from the empirical world, and rights relate persons to things or to other persons not empirically but intellectually. Without the idea of a united will, my passing the watch to you can be explained as two separate actions: I ceased my possession of the watch, and you just acquired an abandoned watch. These sequenced actions do not capture the phenomenon of transacting something through a contractual agreement.

In order to transact something via contract, the end of my ownership of the watch and your acquiring it must happen simultaneously. This occurs when your will to buy the watch and my will to sell it coalesce and result in one act, operated by our united will.128 By stressing that the idea of contract abstracts from the empirical world, Kant criticizes approaches like Mendelssohn’s, that,

second idea, the decision of one is not binding anyone else unless they both join their choices and create a united choice. For Ripstein, when these two ideas are brought together, they reveal the meaning of consent as it appears in contractual interactions, as well as in other contexts. In this view, consent is to be understood as two persons uniting their wills, and in so doing, creating new rights and duties between them. In other words, by having a consent (which is, for Kant, always a mutual consent), the united will of both parties enables each party to have plans on the account of the other in a way that otherwise would be considered wrongful, i.e. would interfere with his or her external freedom. Ripstein, Force and Freedom, supra note 32, at 107-142. Dagan and Heller criticize Ripstein (as the representative of the Kantian approach to contract law) in two ways: first, they argue that the Kantian approach understands contract as a transfer of some “thing” (the promisor’s performance), and in so doing treats contract law and property law alike. But contractual obligations, to put it simply, are not property. Second, Kantians conceptualize contract law in terms of tort law, meaning, they view its nature as duty-imposing. In contrast, for Heller and Dagan, contract law works differently: contract is power-conferring, rather than duty imposing.

See: HANOCH DAGAN AND MICHAEL HELLER, THE CHOICE THEORY OF CONTRACTS 36-39 (2017). Regarding their first point, as we have seen, although Kant focuses on the acquirement of the promisor’s performance, it is not accurate to say that Kant and his followers treat contract just as another kind of property. As to the second criticism, it seems to be clear that all Kantian private rights are power conferring. See, for example: Sharon Byrd, Intelligible Possession, supra note 76. And see also below, the accompanying text next to note 156. 128 6:272-6:273. In order to clarify the idea of united will, some have used a metaphor in which the united will acts like a third person that unifies both parties: Dedek, supra note 26 at 134 (citing Kresitng’s Wohlgeordnete Freiheit).

although it grasps the relational nature of contracts, fails to address the idea of contract as an abstraction from empirical relations between the promisor and the promisee.129

For Kant, what is acquired through a contract is not the promised object (in our example the watch).

Rather, what you acquire when you and I have a contract is my performance (to pass along the watch to you). Upon accepting the promise, my choice to perform a certain act becomes an external object belonging to you. Although both contract and property law address the acquirement of external objects, there is a crucial difference between contract and property. As we have seen, when I acquire an external object, I create an obligation that no one can use this object without my permission. By contrast, when we have a contract, I have the right that you will perform in accordance with the agreed terms. In this case, I have a right vis a vis you, not against the rest of the world. In other words, whereas acquiring property creates in rem rights to the new owner, contract creates in personam rights.130

The idea of united will and Kant’s contention that what is acquired is one’s performance stands in contrast with the attempts of some scholars to base the idea of contract on the promisor’s duty to keep promises. Although Kant agrees that a contract creates a moral imperative to keep promises, in the context of legal interactions, this duty must corelate with the promisee’s right. Moral duties such as keeping promises are not relational, namely, they do not corelate with another’s right. By contrast, promise theories, such as that of Charles Fried, focus on the moral duty of the promisor, and in so doing do not address the question of how the legal relation between the promisor and promisee is established. As Benson puts it: “In Kantian terms, all that Fried has shown is that the

129 6:273. For a further discussion of Kant’s criticism of Mendelssohn, see: Peter Benson, External Freedom According to Kant, 87 COLUM. L. REV. 559, 564-565 (1987). 130 6:275, sec. 21.

promisor’s duty to perform is a duty of virtue, not a juridical obligation of right.”131 In the context of contract law, the separation between morality (as Kant understands it, as creating non-relational duties) and legality is even clearer, given the inter-relational function of contract law.132

As Benson mentions, Kant’s view solves a serious, and perhaps the most fundamental, problem in the concept of contract remedies. For many, the classic contract remedies, such as expectation, do not fit easily with the generally accepted notion of compensation in private law. Seemingly, in contract law we remedy the plaintiff for something he never had, namely something he just expected to have in the future as a result of his contract with the defendant. Kant solves this problem by arguing that following the contractual agreement, one party possesses the other party’s particular performance (the one that is related to the contract). Now the promisee is the owner of that performance, and if the promisor does not fulfill her duty to perform, she injures the promisee’s right.133

B. Jewish Contract Law and Shkop’s View of Contractual Obligations

i. Similar Problems

According to Jewish law, one cannot impose on himself or herself future obligations. Furthermore,

Jewish law does not recognize promises as legally binding, and even when one has already promised something, she is still able to step back from her promise, as Maimonides states:

131 Peter Benson, Contract as a Transfer of Ownership, 48 WM. & MARY L. REV. 1673, 1682 (2007). 132 This fundamental aspect of contracts has led contemporary contract law theorists to reject promise theories Cf:

Randy E. Barnett, A Consent Theory of Contract, 86 COLUM. L. REV. 269 (1986). 133 Peter Benson, Contract as a Transfer, supra note 131. But note that Kant’s view is not the only possible answer for this difficulty. Hegel, for example, solves this problem by arguing that following the conclusion of the contract, the promisee acquires the promised object, and not only the promisor’s performance. See: G.W.F. HEGEL,

PHILOSOPHY OF RIGHT para. 77-78 (T.M. KNOX TRANS., 1952).

Title to an article purchased is not acquired by verbal agreement alone, even if witnesses

have testified to such an agreement. If, for example, one said to a person: "I am selling you

this house …” and both agreed on the price: the purchaser was pleased and said "I have

bought it," and the seller was pleased and said "I have sold it"; then they said to witnesses:

"You be our witnesses that A has made a sale and B has procured a purchase," this counts

as nothing, as if there had never been an oral agreement between them.134

Assuming that promises and future obligations are essential to modern contracts, Jewish law scholars have found some difficulty in conceptualizing the Jewish law parallels to comparative contract law.135 But as we have seen, the legal significance of promises and the connection between the moment of the contract’s conclusion and the future fulfillment of the contract’s terms have bothered general contract law theorists as well. With this in mind, it becomes easier to contemplate the ways Jewish law and other traditions have dealt with these problems. In the context of Shkop’s writing, the potential similarity is even clearer, given the important role of the parties’ will in financial matters. Shkop maintains that in a contractual relationship the will of both sides is required, and these wills establish the relationship. In financial issues, the change in legal status is operated by the will manifested through the act, while in other cases the only thing that matters is

134 MISHNE TORAH, Sales, 1:1. However, the promisor is morally condemned for not keeping the promise: “Anyone who transacts business by verbal agreement alone should keep his word, although he has received no money, made no mark, and left no pledge. If either of them, purchaser or seller, retracts, he belongs to the class of dishonest men and the sages are displeased with him, although he is not required to receive the curse formula,” ibid, 7:8.

135 See: Itamar Warhaftig, Introduction, in: UNDERTAKING IN JEWISH LAW: ITS VALIDITY, CHARACTER AND TYPES (Hebrew, 2001).

the act itself.136 In what follows I try to conceptualize Shkop’s approach to contract through his view of liens.

ii. Liens in Jewish Law

According to Jewish law, at the time of the loan, the creditor gets a general lien on all (real) property in the possession of the debtor. The lien’s meaning is that the law empowers the creditor to collect his debt either from the debtor’s property, or, in a case that the debtor does not have enough property to collect from, from properties that the debtor has sold to another person (after receiving the loan). The Amoraim (the Talmudic sages) disagree on whether the creditor’s lien over the debtor’s property follows from the Torah law or is an invention of the sages (shiabuda deoraita or de’rabanan).

Shkop interprets the idea of lien in accordance with his general idea of torat ha-mishpatim.. As indicated above, for Shkop, in monetary issues one’s duty to pay a debt derives from the creditor’s right to be paid, and not, from the debtor religious duty to repay, as most Jewish law scholars have understood the creditor-debtor relationship. According to Shkop, the law does not create the creditor’s right but only responds to it. Following this assumption, Shkop argues that the disagreement regarding the origin of the creditor’s lien is related only to the question of whether the creditor has a lien over the debtor’s property. But apart from this kind of lien, Shkop claims that there is a general agreement that the creditor has a lien over the debtor’s body. The latter sort

136 Saiman discusses the differences between financial transactions and other legal acts in more detail: Saiman, supra note 40, at 59-62. See also: Benjamin Porat, Coercion and the Principle of Justice in Contract Law: A Philosophical- Legal Study in the Subject of ‘talyuhu vezabin”, 22 DINE ISRAEL 49 (Hebrew, 2003).

is an invention of neither the Torah nor the sages, but is inherent to the relationship between the creditor and the debtor, a relationship that, according to Shkop, is pre-halakhic in origin.137

What does it mean that the creditor has a lien over the debtor’s body? In what follows I would like to argue that according to the way Shkop understands it, the expected logical conclusion is that bodily lien refers to an in personam right. Furthermore, I contend that we can read into Shkop’s analysis a meaning that the creditor has a right over the debtor’s performance, as Kant understands contract rights. But seemingly, Shkop does not go that way.

In order to clarify my argument, one more introduction is needed, this time regarding the Jewish court’s coercive power. Generally, in a matter where the agent’s will is required, under some circumstances the Jewish court is entitled to force the agent to express his or her will, and in these cases the act is not considered coerced. For the court assumes that the agent wants to fulfill his or her obligations, and all the court does is to persuade him or her to actualize his or her “hidden” will. For example, according to Jewish divorce law, the husband needs to give his wife the divorce bill (get) voluntarily. On some occasions, when the court finds that a divorce is required, and the husband refuses to give the get, the court is permitted to put pressure on the husband to express his will. As Maimonides puts it:

If the law requires that a man should be compelled to divorce his wife and he refuses to do

so, the Jewish court anywhere, at any time, should lash him until he says “I am willing”;

then he should write the get, and it will be valid … Why is this get not void? For he is being

compelled - either by Jews or by gentiles - [to divorce] against his will [and a get must be

given voluntarily?] … [because this man] wants to be part of the Jewish people, and he

137 The notion of bodily lien does not exist in the Talmud, and it is an invention of its first commentators.

wants to perform all the mitzvot and to distance [himself from] prohibitions; it is only his

evil inclination that presses him. Therefore, when he is beaten until his inclination is

weakened, and he consents [to give the get], he is considered to have performed the divorce

willfully.138

So, in the case of divorce, the court just forces the husband to express his will. The act of giving the get is still made by the husband himself, and not by the court. The same is true in the case of interest. As mentioned above, according to Jewish law, lending money with interest is prohibited.

So, also in this case, all the court can do is to force the lender to give the interest back. In both cases the reason is that it is important not only that the wronged act would be corrected, but also that the wrongdoers would correct their wrong themselves.

In contrast, in the case of debt, although the debtor has a mitzvah to repay her creditor, when she refuses to do so, the court is entitled to collect the debt from her property, and the court does so without trying to persuade the debtor to fulfill her obligations. Whereas in get or interest the focus is on the wrongdoer performing the mitzvah, in debt the action is completed by either the court or the plaintiff. For Shkop, the reason for this difference is rooted in the fact that the creditor has a lien over the debtor’s body, and thereby when the creditor collects the debt by himself, he actually also performs on behalf of the debtor.139

How should the difference between get or interest and debt be understood? From Shkop’s standpoint, the difference is explained by the different origins of each duty. In the case of get and interest, the wrongdoer has a religious duty to act in accordance with the Torah laws. In contrast,

138 MISHNE TORAH, Divorce, 2:20. 139 Shaarei Yosher, gate 5, parts 1-2.

the debtor’s duty stems from the creditor’s right to be paid. According to Shkop, the creditor’s right is expressed by his possession over the debtor’s body. But this possession can be explained in two different ways. Kant would approach it as follows: following the contractual relation between the two, the creditor has a right that the debtor will perform a certain deed. In this view, what the creditor possesses is the debtor’s performance. This interpretation explains why the husband’s will is required in get but the debtor’s, in his situation, is not, for in the latter case the creditor possesses a portion of the debtor’s freedom, and thereby even if the creditor collects the debt, it is considered as being done by the debtor.

The second way is to say that the creditor not only possesses a certain deed, but a physical possession over the debtor’s body. Just as an owner physically possesses his slave, so the creditor becomes an owner of the debtor. The main difference between these two interpretations is that in theory, the creditor can collect the debt from the debtor’s body by, for example, selling her into slavery.140 Nonetheless, Shkop seems to go this way, but as indicated above, logically, the Kantian view is also acceptable.

140 These two interpretations reflect the development of the concept of obligation (obligatio) in Roman law, as well as in other traditions. Roman law tradition is probably the first legal tradition that established the concept of contractual obligations. But at earlier stages, this kind of obligation was only the expression of the promisor’s warding off the impending execution on his person. In this respect, Shkop’s understanding of the body’s lien refers to a premature version of contractual obligation, whereas I suggest that the more developed idea of contractual obligation can be read into Shkop’s analysis. For a discussion on the development of contractual liability in Roman law, see: REINHARD

ZIMMERMANN, THE LAW OF OBLIGATIONS: ROMAN FOUNDATION OF THE CIVILIAN TRADITION, ch. 1 (2012). Wosner suggests a somewhat similar reading of Shkop’s invention of the body’s lien, but also acknowledges that Shkop seemingly interprets this concept differently. Wosner, Legal Thinking, supra note Error! Bookmark not defined., at 266 104n.

IV. Conclusion – The Independence of Private Rights and the Role of Public Law

Unfortunately, space does not allow to examine Kant’s and Shkop’s views on public law in detail.

Instead, I want to give some concluding remarks in light of the relation between private law and public law. According to Kant, not some empirical evidences or necessities make public law and authorities necessary, but the rightful condition requires them a-priori.141For Kant, the public authorities must represent the citizens’ freedoms. Therefore, the sovereign rightly exercises its political authority only when this exercise is compatible with the freedom of every citizen, or to use Kant’s own words: “what a people … cannot decide with regard to itself and its fellows, the sovereign can also not decide with regard to it”.142 Kant provides three arguments in favor of public authorities: first, although, in principle, one is able to acquire something external (private rights are permissive laws, as Kant calls it), a public authorization is still needed so one’s unilateral act would gain the power of the public; second, acquired rights cannot be enforced without a public institution; third, public authority is required in cases of disagreements about rights.143 Each public institution is designated to solve one of these problems: the legislative authority deals with the first problem, the executive authority with the second, and the third problem is solved by the judicial authority. Judicial authorities, according to Kant, have the right to award to each what is his or

141 6:312 142 6:329 143 Ripstein discusses the three defects in the state of nature in more detail: Ripstein, Force and Freedom, supra note 32, at 145-181.

hers in accordance with the law, 144and they deal with the indeterminacy of the general rules, namely with the application of general rules on particular cases.

Shkop deals with the issue of public authority through the prism of the role of eyewitnesses in the legal procedure. One way to understand his innovative approach is to examine it through the question of the status of circumstantial evidence. In Jewish law, witnesses have an important role, and in most of the cases eyewitnessing is the only applicable evidence. Throughout history, Jewish law scholars have tried to understand why the Talmudic law distinguishes between eyewitnesses and circumstantial evidence, even in cases when circumstantial evidence is very credible.

According to Shkop, the difference is rooted in the normative role of the witnesses. Shkop contends that witnesses are not only assist the court to approach the factual truth. Rather, they also have a normative role, namely they empower the court to decide in favor of one of the litigants.145 Shkop points to the fact that the requirement of two witnesses is confined only to situations which involve more than one person, namely especially financial disputes. The normative power of the witnesses is twofold: to allow the court to decide in favor of one of the litigants, and to enable the court to enforce its decisions. Since judicial decisions involve coercion, the Torah requires that the coercion would be on behalf of the people through their representatives – the witnesses. In other words, the eligibility of the court to solve financial disputes is derived from the power of the people.146 So,

144 6:313. 145 Shaarey Yosher, gate 7, p. 1, s. 3 146 The normative role of witnesses can be found in other legal traditions as well. For instance, Frisch describes the emergence of the “epistemic” witness in the modern legal world, and contrasts it with the paradigm of witnessing in medieval European legal practice – the “ethical” witness. Frisch shows that medieval witnesses were not always possessed knowledge or experience of the event which they testified on. Even though they could not bear witness on the facts, they brought to the court in order to testify on the plaintiff’s character. Thus, in order to give a testimony, a witness had to be a legitimate affiant in the eyes of the community. Frisch contends that this legitimacy “was not based on a witness's epistemic capacities, but rather on his socio-ethical status. As a consequence, the "verdicts" reached via

Given the non-governmental nature of Jewish law, Shkop assigns to the court two distinct roles.

Kant, on the other hand, divides these roles into two different institutions.

The third issue, the legislative role, is raised in the context of the relation between Shkop’s torat ha-mishpatim and the halakhic-religious layer of the Jewish law system. Among Shkop’s commentators there is a disagreement as to how to understand the normative power of torat ha- mishpatim. According to Sagi, although not mentioning the term explicitly, Shkop’s idea of torat ha-mishpatim represents an example of Natural Law theory of halakha. On this view, halakhic financial laws are legislated directly by reason or common sense, and thereby are completely independent of religious law. From this perspective, there is a variety of legislative sources within the halakhic system, and each of which has its own normative root: it could be God’s words, the sages’ orders, or the laws of reason.147 By contrast, Wosner argues that the idea of torat ha- mishpatim only means that reason creates, to use Hart’s terms, power conferring rules. This means that reason does not play a legislative role. In order to be binding and enforceable, a religious authority (the Torah or the sages) must anchor those rules. Torat ha-mishpatim only creates new statuses: for instance, A lend B 100 dollars. In order to collect this debt rightfully, the Torah or other religious authorities must empower B (or the court) to do so, by making a law, stating that a debtor must pay his or her creditor. Hence, according to Wosner, although rooted in reason, the reason halakhic financial laws are binding is dependent upon a legislative act of religious-halakhic authorities.148

testimony were not considered synonymous with objective knowledge about the facts under dispute.” Andrea Frisch

THE INVENTION OF THE EYEWITNESS: WITNESSING AND TESTIMONY IN EARLY MODERN FRANCE 38 (2004).

147 Avi Sagi, Religious Command vs. Legal System -A Chapter in the Thought of Rabbi Shimon Shkop, 35 DAAT 99 (1995). 148 Wosner, Legal Thinking, supra note Error! Bookmark not defined., at 220-284.

In the introduction I mentioned that both Kant and Shkop were perceived by some scholars as positivists. The key evidence for this conclusion was the important role that public law plays in their legal thinking. For instance, Wosner’s reading of Shkop’s torat ha-mishpatim has led him to the conclusion that Shkop is more of a positivist rather than a Natural Law jurist. But both in Kant and Shkop cases, it is important to be aware that the importance of public law in their theories do not necessarily lead to a positivist view. The emphasis of public law is on the balance and interaction between one’s rights and another’s. Private rights are authorized by laws of reason, not by a positive law, and even still public authority is needed in order to provide these rights public authorization as well as to protect and enforce them.149 Therefore, when considering if a given legal philosophy is positivist or not, the important question is not whether this philosophy admits the necessity of public authority or even public legislator. Rather, the crucial question is, to go back to the definition of formalism that I used in the introduction, whether when public authorities treat private rights they do so in light of the principles that animate the entire legal system, or they use external or arbitrary considerations when contemplating the several options that stand in front of them.

This last point, regarding the nature of considerations that public authorities take, has a unique significance to this paper. One might ask what is the importance of selecting two figures from two distinct traditions and comparing them. A better strategy could be to focus on the legal areas and doctrines themselves, and provide a range of opinions that reflect each tradition. But if the view I

149 See above, note 81. See also: Ripstein, supra note , at 156-159. Like Byrd and Hruschka, Ripstein emphasizes that power conferring rules need the power of omnilateral authorization. Moreover, from Kant’s perspective, one might think that the indeterminate nature of private rights necessarily rejects a non-positivist view of the legal systems. But in fact, a non-positivist view of those systems does not reject the indeterminate nature of their general rules. See: Weinrib, The idea of Private Law, at 222-226; Ripstein, at 168-176.

have taken here is correct, the decision to focus on Kant and Shkop makes sense. Both Kant and

Shkop examine the legal and the halakhic system “from within”. When Kant, as we have seen in the second part, deals with the nature of contract, he does not invent a new contract law. Rather, he tries to capture the idea that underlies the already existed phenomenon called contract.150 It is more obvious in the context of Shkop. His religious commitment to halakha prevents him from changing even a word in the laws that he examines. But this commitment does prevent him from seeking a normative justification for a given halakhic rule, as we have just seen in his discussion on the role of eyewitnesses. This approach of Shkop and Kant make their philosophies an interesting prism to examine an entire legal tradition. Put differently, although in this work the focus was on Shkop’s and Kant’s arguments and justifications, in fact their unique approaches require us to engage with the legal principles and doctrines themselves.

150 Similarly, when dealing with the “alleged right” called “the right of necessity”, Kant does not reject the existence of such a right, as one might think (6:235-6:236). Instead, he gives it a new interpretation that is consistent with the animating principle of the legal system.