The Torah commands us to return lost objects to their original owners (Devarim 22:1-3). The gemara teaches us that there are basically two levels to this mitzva. If the original owner retains a reasonable expectation of finding the object, then it remains his and the finder must return the object. If there is no real hope, then technically the finder may keep the object, but if we know who the owner is or can easily find out, it is still praiseworthy to return the item (SA CM 262:5, 259:5). The first level of obligation doesn’t apply to non-Jews at all; the second often does.
In a previous column, we explained that these two levels of obligation correspond to two levels or approaches to ownership. At one level is the utilitarian or formal rules of ownership, which society adopts in order to create orderly economic relations. Above this is a more profound and spiritual concept of ownership, where ownership of an object involves a responsibility to use our property in furthering G^d’s will and acting as an agent of His providence. This level reaches its highest level among the Jewish people.
The Torah is primarily concerned with eternal, spiritual realities; thus the primary mitzva of returning objects regards this higher second level. However, our Sages acknowledged the importance of orderly and friendly society and in many cases encouraged or required returning an object when only the first kind of ownership persists, because of such considerations as “beyond the letter of the law”, sanctification of G^d’s name, and so on. (See our column from Vayikra 5762, based on writings of Maharal and Rav Natan of Breslav.)
Rav Kook presents an alternative, and ultimately complementary, explanation of these two levels of obligation. At one level, writes Rav Kook, there is insistence on individual ownership. This is exemplified by the character trait of “mine is mine and yours is yours” (Avot 5:10). While this insistence is important, there need to be limits to private ownership as well.
Indeed, Rav Kook mentions that distinguishing the appropriate extent of private rights in property is one of the most difficult topics in judgment. At some stage, the rights of the individual need to give way to those of the collective. The Torah instructs us that after the owner of the property has already lost both physical and psychic connection with his property, “the Divine consideration tipped the balance in favor of the collective”. For this reason, after loss of hope the ownership is collective, meaning that anyone can acquire the object.
Why then is it praiseworthy to return the object even in this case? Rav Kook explains that among the Jewish people, it is usually a fair assumption that the original owner will make at least as good use of the object as the finder. (This is similar to Rav Natan’s explanation that the original owner acquires a special Providential role in disposing of his property.) Given that the owner is likely to make better use, and that the finder is not greedy or acquisitive, it just makes sense to return the object, and so this course of action is praiseworthy.
However, if the finder has a firm basis to believe that he can make better use of the object for the common good than the person who lost the object, then on the contrary, it makes sense for the finder to keep it himself. Thus, returning the object is praiseworthy but not obligatory, since judgment is required to determine the best course of action.
But for mankind as a whole, there is no automatic assumption that the one who lost the object is ideally suited to direct it to its Divine purpose. Indeed, even before loss of hope there is no such presumption. While many people are righteous and G^d-fearing, there are also many individuals who use their possessions in a wasteful or destructive way. Thus, the Torah decreed that among mankind as a whole, ownership passes to the collective as soon as it is lost. However, even in the case of non-Jews we are bidden to exercise our judgment and return the object if it seems to us that this advances HaShem’s plan.
Rav Kook’s reference to the mishna in Avot, via the expression “Mine is mine and yours is yours”, reminds us that while the first opinion in the mishna calls this an “average approach”, the second opinion states that this approach to possession is Sodomic – gratuitously possessive. This hints that sometimes we have to go beyond this narrow understanding. Later on, the mishna states that “Mine is yours and yours is mine” represents the approach of “a common person” (am haaretz). While this expression usually refers to an ignorant person, Rav Kook in other places explains that this expression can also refer to certain basic, healthy human instincts that are found in common people. (This is how he explains the “common people” who took their lulavim from under the rocks where hostile enemies had placed them on Sukkot – Sukka 43b.) For the masses, the appropriate boundary between individual and collective ownership is tipped more in favor of the collective; in a more advanced and public-minded society, the interests of the collective are not harmed if the balanced leans more in favor of the enlightened individual. (Based on Igrot Rayah I:89)