Rabbi Bleich on Kinyan
Frum attorneys, kiruv people, Partners in Torah mentors, law school profs – you need to see Rabbi Bleich’s latest contribution to Tradition.
Kinyan is a leitmotif of so many sugyos, but does not have an effective analogue in Western legal thought. “Conveyance” just doesn’t do it. When we try to teach people whose legal sensibilities are shaped entirely by Western law, we are often at a loss in explaining as fundamental a concept as kinyan.
We could explain, of course, that in Western law the point in time at which title passes from one party to another is a function of agreement between the parties. When no such agreement has been made explicitly, the law will figure out for the parties what they are presumed to have agreed upon, or what statute dictates. We will go on to explain that kinyan is much more than that, and has the feel of something substantive, a change in the nature of the object itself.
We would probably swallow hard, and call it a metaphysical change.
This is exactly what Rabbi Bleich does, although he does it better than most of us could imagine, in “The Metaphysics of Property Interests in Jewish Law: An Analysis of Kinyan.” (Full disclosure: I proudly consider myself a Rabbi Bleich groupie, and devour anything that he writes.) While Tradition’s website is accessible only by subscription, this article appears on the site of DePaul Law School where the paper was first delivered.
True to form, Rabbi Bleich won’t throw in a term like metaphysics without some deep consideration of the role of metaphysics in legal and moral thought, with the help of Plato and Kant. He contrasts Western concepts of ownership and its alienation with that of halacha, which sees kinyan is an ontological element. Significantly, he develops what he calls the Myth of the Tentacles, a way of analogizing the underlying metaphysics that is effective in explaining many different halachic sugyos. (I told Rabbi Bleich that I will from now on be unable to learn Bava Kama without thinking of an octopus.) He shows how this theory explains many halachic phenomena. In a remarkably succinct tour de force, he provides great review to many ideas in Choshen Mishpat: different kinyanim for different objects; kinyan geneivah; hefker; performance contracts and shibud;davar shelo ba le-olam; davar she-ein bo mamash; kinyan peiros.
In other words, if you ever find yourself tongue-tied in comparing and contrasting Western and halachic understandings in this area, simply give the other person this article and ask them to read it. It will not be easy reading; every line is laden with meaning, and the style is academic. This way, however, they will have to deal with feeling stupid, rather than you!