Law and Truth in Biblical and Rabbinic Literature

2. Signs of Ownership

42 [O]wnership rights . . . can be made to disappear as if by magic. In the last chapter, we saw how the rabbinic rules of evidence could intervene in the relationships people have with their bodies, creating skepticism where the Bible defers to intuitive knowledge, and providing legal facts to resolve the resulting cases of doubt. In this chapter, another relationship is examined: the relationships between people and things, given legal significance through the concept of property. Specifically, this chapter will explore the question of whether and under what circumstances lost property must be returned. In this area of law, the rabbis again undermine the force of lay, intuitive knowlede, but unlike in the case of menstrual impurity, clear-cut and divinely sanctioned legal solutions are not provided. As the rabbis experience the counterweight of lived truth against their legal realities, property claims remain in a state of perpetual ambiguity. Even as the Talmuds attempt to refine the Mishnah’s vague prescriptions and reach for certainty, the notion of one, true, substantive reality is never dispensed with, and it continues to haunt rabbinic resolves regarding distributive justice. Lost property provides us with an illuminating case study of the rabbinic approach to property law, because while there are many legal means by which one could come to own an object, the basic reality of possession is undoubtedly the cornerstone of legal ownership.1 When objects are literally in the possession of owners, the intuitive and legal understandings of property converge. David Hume writes that “the rule favoring possessors has a natural prominence”; he continues: Two Signs of Ownership Signs of Ownership · 43 As property forms a relation betwixt a person and an object, ’tis natural to found it on some preceding relation; and as property is nothing but a constant possession, secur’d by the laws of society, ’tis natural to add it to the present possession, which is a relation that resembles it.2 Thus the association of property with possession, in Anglo-American law, becomes a convention used to resolve conflicts not simply arbitrarily, but by “exploit[ing] existing associations between claimants and objects. . . . The maxim that possession is nine points of the law . . . describes a pervasive tendency in human affairs.”3 Thus, a person who experiences an association to an object comes to be seen as the owner of that object, and conversely, a person who feels no relation to an object would likely not claim ownership of it. In this sense, the felt reality of a subtle, silent relationship between a person and an object may come to be legally sanctioned. Thischapterexaminesthebiblicalandrabbinicunderstandingsofboth the experiences and legalities of ownership, particularly in order to investigate the uncertainties and ambiguities that arise when property becomes estranged from its owner. In the Hebrew Bible, ownership never dissolves even when it has been disturbed by loss; a lost object is seen merely as a case of possession gone awry, a setback which must be rectified. Biblical lost property law thus assumes a stable relationship between an original owner and his or her property in the absence of any documentation or other evidence —affirming and relying upon people’s lived realities of the relationships between themselves and their possessions. In the case of lost property, biblical law does not equivocate about its status as the property of the original , or “real,” owner; the biblical rules require that a passerby even take temporary possession of a lost object in order to return it to its rightful owner. The tannaitic discussions of lost property, however, represent a significant shift in the concept of ownership from this biblical perspective, and seem to correspond much more closely with a modern understanding of property. The main preoccupation in these laws is the problem of the unobserved and unspoken relationship between the original owner and the lost object—again, the question of how one can come to know the facts that the biblical text takes for granted is what is foregrounded by the rabbinic texts. As a rule, the Mishnah requires clear evidence of ownership: simanim (signs upon the object) and shinuy (something unusual about the 44 · Truth and Human Jurisprudence object). These markings upon the object testify—in the absence of witnesses —to care that has been taken with the object and to its status as property. Without these markings, the object presents itself merely as an enigma; the Mishnah wonders how anyone would know whether the...