Volume 17 Number 36
                       Produced: Mon Dec 19 22:28:46 1994

Subjects Discussed In This Issue: 

Legal Fictions (4)
         [Steven Friedell, Bill Page, Michael Lipkin, Ralph Zwier]
Payment for Work on Shabbos -- Correction
         [Meylekh Viswanath ]
Scientific truths
         [Ralph Zwier]


From: Steven Friedell <friedell@...>
Date: Mon, 19 Dec 94 10:17:45 EST
Subject: Legal Fictions

     There is a common sense that a legal fiction is an illegitimate use
of the law.  My sense, however, is that all legal systems use legal
fictions as a necessary means of achieving justice.  Lon Fuller wrote a
beautiful little book called "Legal Fictions" where he made this point.
The beauty of the legal fiction is that instead of making some
revolutionary change in the law, one is able to hold onto the old forms,
terminology and concepts, but use them in a new way to avoid injustice.
A classic case in American law is the concept of the child trespasser.
At common law (as in Jewish law), a trespasser is generally owed no duty
of care by the land owner.  But what about the little child who goes
onto a railroad track to play with the switch and is severely injured,
when the railroad could have prevented the injury by installing a lock
at trivial cost?  Sensing the injustice that would result the courts
said that the child was invited onto the land by the attractive
nuisance.  Thus the child was an invitee on the property and was owed a
duty of reasonable care.

     All legal fictions are subject to being misapplied whenever their
original purpose is forgotten.  For example, what if a child came onto
another's land and then saw what appeared to be a swimming pool and
jumped in, only to be burned by acid in the chemical storage pool?  The
U.S. Supreme Court said the child was not invited onto the land by the
sight of the pool and was therefore a trespasser.  Other courts
disagreed.  Today, most courts will not use the legal fiction, but will
directly say that child trespassers are owed a duty of care and that
this is an exception to the general rule of trespassers.

     Now consider an example from Jewish tort law.  Most post-Talmudic
commentaries distinguish between two types of indirect damage, "garme"
for which the defendant is liable and "gerama" for which the defendant
is exempt.  The Rosh, following the Ri's opinion in the Tosafot, lists
three requirements for damage to be garme: 1) the defendant himself does
the injury to the property of another, 2) the injury occurs at the time
of the deed, and 3) the damage be definite ("bari hezeka").

     What happens to this rule when applied to an informer?  The Talmud
says that if an informer shows a violent person property of another Jew,
the informer is liable for the theft of that property by the violent
person.  The Tosafot say that it is considered a case of garme.  There
are three difficulties with this rule.  First, the informer did not
touch the object; he merely showed it to the violent person.  Second,
the loss of the goods did not occur immediately; a period of time passed
after the informer showed the object and before the violent person took
it.  Third, the loss was not definitely going to happen, as it is
possible that the violent person would leave the object alone.  Bava
Kamma 117b.

     The Rosh solves these three difficulties by using legal fictions.
He says that although the informer does not touch the object, "He is
like one who burned it and acted against the property itself."
Similarly, although the violent person takes the goods some time after
they are pointed out to him, there is no problem of lack of immediacy
because "when he pointed them out it was as if he burned them."  The
Rosh solves the problem of the indefiniteness of the injury by saying
that once goods are pointed out to a violent person "it is as if put in
a bull's net, for Scripture compares [pointing out objects to a violent
person] to a bull in a net for it is certain that no one will have mercy
over it."  Rosh, Bava Kamma 9:13.
     The Rosh used the legal fictions for the purpose of avoiding severe
injustice.  The legal forms of garme and gerama are preserved, but the
evil informer who could endanger life and property of other Jews is made
to pay.  Of course, other commentaries (like the Shakh) discarded the
Tosafot s and the Rosh's tests for garme and gerama and would see the
informer rules as cases of fines, essentially exceptions to the general
rule.  But for the Rosh and others who held to their tests, the legal
fictions were useful devices of preserving the law while allowing it to
achieve justice in each case.

     By the way, the Rosh, the Ri and others held that the rules of
gerama and garme were Biblical, not rabbinic in origin.  This suggests
that legal fictions can legitimately be used in Halakha even when a
Biblical law is involved.  The legal fiction is thus another way in
which the law can grow and adapt.  The argument should not be can Jewish
law use legal fictions, and certainly not whether it can grow and adapt,
but how it can best do so.

              Steven F. Friedell, Professor of Law
      Rutgers Law School, Fifth & Penn Streets, Camden, NJ 08102
  Tel: 609-225-6366    fax: 609-225-6516     <friedell@...>

From: Bill Page <page@...>
Date: Mon, 19 Dec 1994 10:36:43 +0600 (CST)
Subject: Legal Fictions

How one views the use of so-called legal fictions in halakhah depends on
one's preconceptions. Two cases in point, both involving shabbat:
1. In the recent New Yorker article on the controversy over
London eruv, one of the eruv opponents commented that it was merely a
device that would allow those within it "to undertake to violate their own
rules."  In the end, eruv proponents gave up trying to make the
secular (Jewish and non-Jewish) opponents understand, and asked them merely
to respect the proponent's priorities.
2. On a recent trip to Israel, I visited a non-Orthodox kibbutz with a
substantial dairy operation.  One of the senior members mentioned the
"shabbat milking," so I asked how that milking differed from others.  He
said it didn't.  If the cows aren't milked (mechanically), he said, they would
suffer and perhaps die, so the milking just had to be done.  He said
that orthodox kibbutzim spill some of the milk in a ritual that "somehow makes
it all right." The non-orthodox kibbutz considered adopting that ritual, but
rejected it as "a fake."  
 I related this episode to some orthodox friends in Jerusalem.  
One woman responded that it is a wrong to simply ignore a shabbat
prohibition in the interests of necessity (short of pekuach nefesh), if
there is a different approach that recognizes the sanctity of shabbat and
the authority of halakhah.  She pointed out that she sometimes will move a
muktzeh object on shabbat with her elbows.  To an outsider, she
acknowledged, such an action may seem ridiculous, but to the shabbat observer,
the use of the device preserves the essential sanctity of shabbat.  

Many shabbat customs allow us to do things like weekday tasks, but in a
different way. And if that different way is consistent with sound halakhic
reasoning, we may adopt it and still keep shabbat.  One may reject such
devices as improperly grounded in halakha--as some authorities do in the
case of the eruv.  But one can make such judgments only with an
understanding of the halakhic reasoning supporting the device.
And one can only understand the reasoning from the viewpoint
of the mesorah.  Consequently, it is often difficult to make
the device understandable to non-orthodox Jews and secularists.

--Bill Page

From: <msl@...> (Michael Lipkin)
Date: Mon, 19 Dec 1994 08:42:00 +0500
Subject: Legal Fictions

In MJ 17:27 Stan Tennen said the following in regard to legal fictions.

>This means that if we
>use methods we must apologize for, we will, in effect, be filtering out
>the best and the brightest and loading Jewish learning with less
>perceptive and less idealistic minds.  Tragically this, in effect, can
>pit the average, dedicated Torah Jew against the Torah Jew (or potential
>Torah Jew) with an exceptional mind - the exceptional can easily be out-
>shouted because of their minority status. 

Does Stan mean people with average minds like Rav Feinstein, Rav
Schneerson, Rav Tendler, Rav Schechter, etc.  I'm sure it was not Stan's
intent, but this sounds rather condescending and elitist.  Whenever I've
inquired about the details of these so-called legal fictions of people
with exceptional Torah minds I received anything but apologetic
responses.  Unfortunately, it's people like me and Stan, with relatively
weak Torah backgrounds (Stan has referred to this weakness in his
postings), who initially feel uncomfortable when questioned about these
issues.  IMHO, the individual with the exceptional mind who jumps to
conclusions based on ignorance and preconceived notions may not, in the
final analysis, be such an exceptional person.


From: Ralph Zwier <zwierr@...>
Date: Tue, 20 Dec 1994 08:00:56 
Subject: Legal Fictions

David Steinberg writes:

> Few would argue that one should not take advantage of a
> [legitimate] tax loophole but pay more taxes than what is required 
> by law.  Intuitively, we understand that you should pay only the 
> minimum tax required... ...we are not required to extend the 
> Rabbinic legislation in a manner not built into the original 
> Takanah. ... And there is nothing wrong in taking advantage of a 
> recognized, valid exemption.

I am unable to follow through the analogy which David Steinberg  
draws. As regards tax, there is no reason to pay higher taxes than 
necessary. But with regard to Avodat Hashem lehavdil there is every 
reason to try to  achieve exactly what the legislation first intended 
without resorting to a loophole.If David Steinberg's view held up, 
we would see the loopholes being used occasionally. However,the usage 
of these loopholes has become the norm in some cases but not others. 
Why ?

Here in Australia when a certain piece of tax legislation has a
loophole and using the loophole becomes the norm, the legislators 
tend to either close the loophole or alter the legislation so that 
the activity in question  becomes permitted without the loophole.

(BTW, the use of the words "loophole", and "take advantage of" which 
Dave Steinberg prefers sound just as subversive to me as "Legal 
Fiction". And "exemption" sounds to me like a euphemism for the other 
Ralph S Zwier
Double Z Computer, Prahran, VIC Australia       Voice +61-3-521-2188
<zwierr@...>                        Fax   +61-3-521-3945


From: Meylekh Viswanath  <PVISWANA@...>
Date: Mon, 19 Dec 1994 13:52:32 EST5EDT
Subject: Re: Payment for Work on Shabbos -- Correction

In mj. vol. 17:30, in my reply to Bobby Fogel and discussing the 'spirit' 
of a halokhe, I said:
> I think that we can assume that we know the 'spirit' of any given law,
> independent of the words.  And the words are always subject to
> interpretation.  If the interpretation changes, the 'true' meaning of
> the words changes.  

I meant to say:  

I _don't_ think  that we can assume that we know the 'spirit' of any 
given law, independent of the words.  

Also, in today's New York Times (Dec. 19) there is an article on the 
Institute of Technology and Halakha (in Elon Shvut), a rabbi is quoted as 
saying that hashem's law has no defects.  He put in the loopholes (that 
the institute's machines are using) when He made the law.  (I am quoting 
from memory; I apologise in advance for errors of detail.)

Meylekh Viswanath


From: Ralph Zwier <zwierr@...>
Date: Mon, 19 Dec 1994 05:50:47 
Subject: Scientific truths

Jonathan Katz writes:

> That there is water in apple juice is a scientific fact which is not
> in question (nor even under discussion) by the Rabbis when >>they<<
> decided that fruit juice+flour is not Chametz.

Jonathan Katz's answer would satisfy me if Chametz were a Rabbinical 
enactment. In that case I would not be able to question why one thing 
came under the decree whilst another didn't.

However since Chametz is Mid'oraitha I still feel entitled to ask on 
what basis can it be said that some particular mixture of water and 
flour is chametz whilst another mixture of water and flour is not. I 
would have expected that the Chachmei HaTalmud themselves would have 
asked the question "why is apple juice and flour permitted when we 
know it contains water?". They could have returned the answer :It is 
learned out from this Passuk... OR they could have said "Halocho 
leMoishe MiSinai". In all these cases I would then be satisfied that 
the matter (my question) had been appropriately dealt with.

However IMHO it seems to me that they thought fruit juice to be a pure
non-water-containing food substance, and therefore it immediately
follows that mixing it with flour has no consequences with regard to 
Chametz on Pesach. Therefore it is not necessary to "learn out" the 
din of fruit juice+flour from any Passuk (verse). It is a case of 
pure logical consequence.

The whole basis of what substances are pure elements, compounds, and 
mixtures has only developed over the last 300 years. In my previous 
submission I was not seriously suggesting that we change a Halocho 
based on an open Gemoro in the light of modern science. Nevertheless 
what we have is a question which has arisen from modern science, and 
which would not have been an issue in the time of the Gemoro. 

This question is : 


Where does the Torah exclude fruit juices ?---

Ralph S Zwier
Double Z Computer, Prahran, VIC Australia       Voice +61-3-521-2188
<zwierr@...>                        Fax   +61-3-521-3945


End of Volume 17 Issue 36