The Psychology And Ethics Of Legal Loopholes

Bava Basra 70

Our Gemara on amud beis describes a legal loophole that allows for something akin to charging interest, which is normally forbidden. It is the framework on which modern day heterei iskas are formulated. Without going into the legal technicalities, we must ask ourselves: Is it moral to take advantage of a loophole? In order to answer that, we must ask ourselves what the function of a loophole is.

Law is confining and constricting. It doesn’t make a difference whether you are dealing with Torah law or secular law. This is because you cannot change the definition of something and the ways in which the system compresses and causes the participants to behave. A law is a human process by which general principles of welfare for a large group are imposed upon everybody for the purpose of a net gain. Law helps society, even if certain individuals do not benefit, or even suffer. This is a necessity for law – because if there were a way to meet all the needs of every individual in a non-contradictory fashion, you wouldn’t need law. Why decree something when it is self-evident to benefit everybody?

Law is not Torah, but Torah is a form of law. The Torah takes many human processes and adapts them within a structure of commandments. As an extreme example, having babies or eating is a human process, but it is co-opted and directed by the Torah in a particular fashion. This is what the Torah does with law.

The Rambam famously explains in the Guide for the Perplexed (III:34) that the commandments are generally for one of three purposes: to promote physical health, spiritual health, or the smooth running of society. General welfare and survival are provided by natural processes, yet individuals may have diseases or defects that nature does not protect them from; so too, the Torah is designed to help most people the majority of the time. But there may be times, or individuals, in which the Torah causes suffering at individual moments.

Caution is required here in understanding Rambam’s idea. He is not advocating that an individual customize his Torah obligations, even if he could verify with absolute certainty that this aspect of the Torah holds him back from experiencing “shleimus” (wholeness). Every person must still follow the law. This is similar to civil law: One is not exempt from obeying the law that is designed to promote the greatest good and common welfare, even if he can offer a strong argument why it does not promote his personal welfare. Even though Rambam states firmly that it is indeed possible for a Torah requirement to be in some way unhelpful or destructive to an individual at a certain point in time or in life, the legal obligations remain unchanged.

This helps us understand the function of a legal loophole. It is moral when it is done with the seasoned judgment of a pious, empathic sage – because it fights fire with fire, so to speak. The same strictures that compel and affect people in an arguably unfair and sweeping manner can be manipulated to free them. Loopholes should not be used to become a naval b’reshus haTorah (a morally disgusting person who behaves within the confines of what is technically permitted). Rather, loopholes should be used to rectify and adjust something that apparently is no longer working, and for which, after careful consideration, the rabbis of the generation used whatever tools they had to compensate.

Loans in particular have precedent for this kind of rabbinic activity. Long ago, Hillel instituted the pruzbol, which used a legal loophole (transfer of debt to real estate liens by the Sanhedrin) to circumvent cancelation of debts during the Shemittah (Mishna Gittin 4:3). On the surface, what could be more cynical and disrespectful to Torah law than to neutralize via judicial manipulation an innovative and brave, socially ideal model of canceling debts every seven years? This idea of canceling debt is so clear that there is no way that anybody could misread the obvious Torah intention to limit a sense of personal wealth and increase a sense of brotherhood and shared fate with those who are less successful financially. How could Hillel have done such a thing, even if it was technically legal?

The answer given by our Sages is that Hillel saw that as the sabbatical year drew near, it became too great of a test to not withhold lending. And the mere act of withholding based on that fear is itself a prohibition. As it states (Devarim 15:9): “Beware lest you harbor the rebellious thought, ‘The seventh year, the year of remission, is approaching,’ so that you are mean and give nothing to your needy kin…” Hillel did not want people to continuously violate this commandment, so he found a loophole to work around the nullification of debts.

But if everybody was eating swine, would we find a way to permit it? Obviously not. The deeper issue must be that Hillel, with a seasoned sagely tradition of the depths of Torah, its values and intentions, ascertained that the economic realities had changed enough. Lending of money and payment of loans occupied a different emphasis in life. Money is money, and lending is lending, but the more complex the economy is, the more one is subject to fiscal dynamics. Hillel felt that the loophole was appropriate, given the needs of the generation and the fiscal realities.

Therefore, at some point the collective rabbinic consciousness took a feature of the law, built on precedents such as the iska of our Gemara, and began using it in a wholesale fashion. But just as the pruzbol was made to preserve a deeper need over that particular law of debt cancellation, because people did not lend money there would be no debts to cancel. In the case of lending money before Shemittah, if no one would lend money that year, in the end, people on the lower end of the financial class would suffer more. So too in regard to usury – while money lenders can be exploitative, the ability to lend money freely and charge reasonable interest actually benefits everybody in the economy. Think of the American way of life where it is impossible for anyone who is middle-class to purchase a home without the ability to obtain a mortgage. This system is a cornerstone of the economy and cannot easily be eliminated.

Another interesting loophole is how chametz is sold by many people before Pesach. Although there are some who do not utilize this heter, the argument in favor of it is similar. Modern life necessitates a different relationship with food and how we store it. While in earlier times grain could be stored in a fashion where it was not considered chametz, our flour is already considered chametz, aside from frozen foods, canned foods, etc. It is not economically feasible for most people to destroy chametz every Pesach.

We see therefore, that judiciously applied loopholes are an appropriate way of preserving the law and working within the law. This is true for secular as well as Torah systems because just as electricity behaves like electricity no matter where you are, law behaves like law no matter where you are.

Much Ado About Nothing

Bava Basra 75

Our Gemara on amud aleph teaches us about the end times:

And Rabba says that Rabbi Yoḥanan says: In the future, the Holy One, Blessed be He, will prepare a sukkah for the righteous from the skin of the Leviathan.

How can we understand this aggadah? Peri Tzaddik (Succah 11) draws a comparison between this festive meal from the slaughter of the Leviathan at the end of days, and the slaughter of the evil inclination at the end of days, described in Succah (52a-b):

In the future, at the end of days, G-d will bring the evil inclination and slaughter it in the presence of the righteous and in the presence of the wicked. For the righteous, the evil inclination appears to them as a high mountain, and for the wicked, it appears to them as a mere strand of hair.

To Peri Tzaddik, this slaughtering of the evil inclination is one and the same as the Leviathan. The Leviathan is a primordial foe, representing ancient forces and archetypes that are part of the structure of the material and spiritual world. The menacing serpent that Rabbi Yochanan saw (Bava Kamma 117) was a snake with its tail in its mouth, known in the Gemara as an “Achnai.” This is an ancient symbol, called the Ouroboros, which seems to connote the eternal cycle of life. Likely this is symbolized by the tail in its mouth, and possibly also because a snake sheds its skin and goes through a rebirth of sorts. The first known archaeological representation of the Ouroboros is on one of the shrines enclosing the sarcophagus of Tutankhamun.

The ancient tradition of this Ouroboros is also related to the Leviathan, which has connotations of a powerful force present at the time of creation which G-d subdued (see Yeshayahu chapter 27, Iyov chapter 40, Bava Basra 74b, and Rashi on Bereishis 1:21 quoting a midrash.) The Zohar (Tikkunei Zohar 52:2) describes it as similar to a circular intestine in the body. Similarly, the word Akalason found in those same verses in Yeshayahu could be translated as a twisted serpent. Thus the Leviathan, the Akalason, and the Ouroboros seem to be one and the same.

The Babylonian epic of Baal also describes a primordial battle of Baal with a giant serpentine creature. Even if it became distorted with idolatrous imagery, the Ouroboros may have been part of a shared mystical tradition from many ancient sources, originally a Jewish tradition. See Rambam (Laws of Idolatry 1:1), where he characterizes the original idolaters as having descended from Adam’s progeny who worshiped G-d but then distorted their teachings. We also might wonder if King Tutankhamun utilized the Ouroboros-Leviathan symbol as part of a tradition learned from Joseph. The Midrash (Sotah 36b) tells us that Yosef taught Pharaoh Hebrew; perhaps he taught him a whole lot more.

The evil inclination is an essential but twisted serpent. We need it because it represents our drives and the essence of physicality by which we cannot live. Like the skin of a snake, it sheds itself and is not what it seems; like the Achnai it is circular and eats its own tail because due to it, we cannot be fully connected to G-d, and are subject to entropy and death. Yet we cannot live in this world without it. Nevertheless, like all bullies, the Yetzer Hara is both big and small, depending on your perspective, attitudes, fears, and triggers.