A Look at Fictions in Jewish Law and Beyond (Column 95)
With God’s help
The laws of the sukkah are full of formalistic rules regarding the walls and the roofing: gud asik and aḥit, lavud, bent wall, “the edge of the roof descends and closes,” the form of a doorway, projecting roofing, and the like. In all these cases, the requirements of Jewish law regarding the wall or the roofing are not actually fulfilled, but we construct a formal-theoretical model and make do with that. Thus, for example, a wall is supposed to be completely closed, so if it has gaps of less than three handbreadths, we regard them as though they were closed. If part of the roofing is invalid, we treat it as though the wall continues in a bent fashion, and only the rest counts as roofing. If there is a wall of ten handbreadths, we regard it as though it rises to the sky and completely closes off the sides of the sukkah.
All these rules are a kind of “as if.” As though there were a wall or roofing here, in place of an actual wall and actual roofing. Not for nothing does this call to mind the well-known story of Napoleon returning to Paris at the head of his troops, when he encountered a delegation of Jews who asked him to pass by another route so that he would not tear the eruv wire. Napoleon asked them what this wire was, and they explained that the wire is considered as though there were a partition here enclosing the city, so that it is deemed a private domain. Napoleon, greatly impressed by the argument, replied that he would nevertheless pass through there, and if the wire were torn they could always regard it as though there were a wire there.
“Yisrabluff”
Our masters, the Gashashim, had already addressed this grave issue in the immortal expression “Yisrabluff”, which entered Israeli jargon at the time as a phrase describing the creation of fictions meant to get around a problem. The source of this expression is a sketch written by Yossi Banai, “The Messenger at the Bank” (in “Offside Story”). Baruch, who seeks to be hired as a messenger at YisraBank, negotiates with the manager and his assistant. They reject his salary demands, but instead offer him various fictitious benefits, such as an allowance for professional literature (our Baruch cannot read), clothing, convalescence pay, car expenses (his job is done on a bicycle), and the like. Our Baruch sums up the negotiation and realizes that “it’s all ‘as if,’ what you’d call Yisrabluff.” He then offers the following Napoleonic proposal: he will not come to work, and they will pay him as though he had worked. “Do you understand this, Baruch?!”…
The connection to the festival of Sukkot
The festival of Sukkot as a whole is marked by insubstantiality. Hevel is something with no substance, like the vapor that rises from a hot dish (steam). We are called upon to leave our home, which is the main locus of our permanence in the world (there is no more central asset than this in our world), and in its place we take a sukkah, which is a temporary dwelling, something insubstantial. And indeed there are contradictory legal requirements regarding the sukkah: it must not be too permanent, but neither may it be too rickety. On Sukkot we are called upon to see the temporary as permanent. Perhaps this is why during the intermediate days of Sukkot it is customary to read Ecclesiastes, which declares vain everything that seems important to us in the world. All the strange rules of the sukkah fit well within this general trend of insubstantiality. In place of a wall we take an “as-if wall,” and in place of a roof an “as-if roof.”
Following the festival of Sukkot, I thought this would be a good opportunity to discuss a bit of halakhic “Yisrabluff,” that is, the question of legal fictions in Jewish law.
The ruling of the author of “Minchat Yitzhak”
To sharpen the point, I will open with a responsum by Rabbi Yitzhak Weiss, in the responsa Minchat Yitzhak, vol. 9, no. 85:
And what appears to me regarding the essence of his doubt is this: with respect to the law of lavud, the concept of lavud in the Talmud means that the gap is treated as though it were actually covered. Accordingly, he is in doubt whether liquids forbidden because of exposure (as in Yoreh De’ah sec. 117) that were left standing, in a place where snakes are commonly found, underneath a chest or table standing less than three handbreadths above the floor of the house, are regarded as covered and therefore permitted for drinking, or not.
The background to this is the rule that appears in the Talmud (and is codified in Shulchan Arukh, Yoreh De’ah 116:1) that if one leaves a drink uncovered, without a covering, it is forbidden to drink it because there is concern about snake venom that may have been put into it. The questioner wonders whether a drink standing beneath a cabinet whose space above the floor is less than three handbreadths is permitted for drinking because the opening is deemed closed by the rule of lavud.
The questioner himself is aware of the oddity of the question (after all, it is not certain that all snakes are sufficiently versed in the topic of lavud), and therefore remarks:
And although what the snake has to do with the law of lavud requires analysis, nevertheless something similar is stated in the Jerusalem Talmud (Nedarim 6:8) regarding whether virginity returns if the religious court later decided to intercalate the year. These are his words.
He cites the Jerusalem Talmud in Nedarim, which states a strange rule often quoted by halakhic decisors. There is an assumption that if a girl younger than three has intercourse, or her hymen is torn, it heals again. But after age three there is no more healing. What happens in a case where the religious court decided to intercalate the year, that is, to add another month? Do the young girl’s virginity now return because she is still not yet three years old? The Jerusalem Talmud rules that indeed, in such a case, her virginity returns. And the words of the Shakh (Yoreh De’ah 189:13)[1] are well known, that he proves from here that the course of nature is handed over to the determinations of the sages of Jewish law (this is how he explains the rule of the monthly cycle, the concern that a woman will see blood on a fixed date in the month, which depends on the date fixed by the religious court and can change according to their decision). The questioner here joins these remarks of the Shakh and argues that if the sages (in fact, this is a law given to Moses at Sinai) established the rule of lavud, then nature too will conduct itself according to their determination. That is, the snakes will not succeed, or will not even try, to penetrate beneath the cabinet in question.
With all due respect, it is clear that these words are groundless. The intention of the Jerusalem Talmud is most likely to set a formal threshold (and even if, as its wording suggests, that is not its intention, that is probably the truth of the matter). The condition of virginity and the chances of healing are not a step function—that is, it is not the case that up to age three there is healing and after that there is none. It is a process in which the chances of healing diminish with age, and the sages must set a threshold beyond which those chances are no longer taken into account. They set age three, apparently because from that point on the chance of healing is sufficiently small. What happens when the court intercalates the year (adds a month)? The formal line will continue to be drawn at age three, even though it now includes an extra month. Not because anything in nature changed as a result of the intercalation of the year, but because it is reasonable to keep the legal line fixed and not change it all the time. At most, the chance of healing will now be slightly higher, but still small enough to ignore.[2]
Let us now return to our issue. Rabbi Weiss answers the questioner:
But in my opinion there is no doubt here, for with regard to a concern arising from the actual reality, the law of lavud does not apply. Just as the law of lavud would not help remove the concern that perhaps a prohibition fell into one of two pots, for example (as explained in Yoreh De’ah sec. 111), and the like—so that one could say that if the permitted food is covered and there is an opening of less than three handbreadths, certainly no prohibited substance fell into it—so too here, regarding the concern that perhaps a snake drank from it, a covering that exists only by force of law is ineffective; only a covering that is such in actual reality helps. And this emerges explicitly from the Mishnah in Terumot (8:7): a strainer containing terumah is forbidden because it was left uncovered, exposure. The first tanna holds that even though the lower vessel is covered by the strainer, it is still subject to the prohibition of exposure, because the venom passes through the strainer; and Rabbi Nehemiah permits it, because the venom floats and does not pass through. But no opinion at all maintains that it is permitted because the strainer counts as a legal covering, since the gaps between the holes are not three handbreadths. Since there are small holes through which, in reality, the venom can pass, we are concerned for it. This is clear.
He replies that the concern about snakes is a danger, not a prohibition, and therefore it is determined by reality. Jewish law can be established through legal fictions, but reality proceeds according to physical reality. He does not explain what his view is of the Jerusalem Talmud regarding the virginity of a minor, and perhaps he understands it (or rejects it) as I suggested above.
The nature of the sukkah fictions
These examples raise the question what such artifices mean. Are we “pulling one over” on the Holy One, blessed be He? After all, there is not really a partition or roofing here, and the opening is not really closed. So if a closed opening is required, what good are such artifices?
One could of course say that in truth not all the openings in a partition need to be closed. That is the meaning of the rule of lavud or of the form of a doorway. In fact, one can find logic in most of these rules. It is clear that even if there is some hole in a partition, one cannot say that there is no partition here. Rather, the sages or the Torah must determine what size of hole destroys the partition. They determined that three handbreadths is the maximum size. The rule of bent wall also has a logic. If there is an invalid section in the roofing adjacent to the wall, why not view the wall as a bent structure (in the shape of the Hebrew letter resh)? Is there a law that the wall must specifically be straight? The form of a doorway basically defines an opening, and an opening is not considered a breach or an absence of partition. It is part of the partition. The fact that there is an opening in a partition does not mean that there is no partition. It is a functional part of it. Gud asik and aḥit as well, which extend a wall of ten handbreadths, can be interpreted as meaning that such a wall is sufficient.[3]
Therefore, precisely these examples are not fictions in the usual legal sense. Here we are dealing with abstractions. This means that, from the standpoint of Jewish law, the concept of a wall or roofing is abstract, and if the abstract requirements are met, that is enough for us. This also makes clear why these abstractions cannot be used where physical-real requirements are involved, such as snake venom or prohibited matter falling into a vessel. As we saw, these laws do not say that the hole is really considered closed, but rather that it need not be closed. But when a real-world closure is required, an actual closure is needed. It should be noted that this distinction does not divide matters simply into legal requirements and real-world requirements. The distinction is between situations in which closure is required and situations in which an abstract wall or roofing is enough. Thus, for example, even if there were a legal situation that required closure, the rule of lavud would not help.
Other fictions: the enactment of “shelikhutayhu”[4]
In contrast to these rules, Jewish law also contains genuine fictions, in which the “as if” is treated as real without justifications of the previous kind. Such, for example, is the enactment of “shelikhutayhu.” Jewish law determines that only ordained judges may sit on a religious court. At a certain point, the sages realized that in the important community of Babylonia there were no ordained judges (they were all in the Land of Israel). After some time ordination ceased altogether, and then no ordained judges remained anywhere in the world. What does one do in such a situation? The Talmud (Gittin 88b) rules that judges who are not ordained may judge as the agents of the ordained judges. This was true in Babylonia when there were ordained judges in the Land of Israel, but the medieval authorities (Rishonim) extend it also to our own day, when there are no ordained judges at all. Even so, the judges of our day can judge certain matters as the agents of the ancient judges (who died long ago). This is the rule of “shelikhutayhu.”
Such an application of the concept of agency, especially in our time, is very strange and highly problematic. First, agency cannot exist after the death of the principal. Second, in practice there does not appear to have been any actual event of appointment as agents. There is no evidence that there was a session of the Sanhedrin in the Land of Israel at which it was decided to appoint lay judges as the agents of the ordained judges in the Land of Israel. The wording of the Talmud in Gittin also suggests that one Babylonian amora tells his colleague that they operate as the agents of the ordained judges in the Land of Israel. He is not reporting an event of appointment that occurred in the Land of Israel, but defining the character and force of their activity. Moreover, the sages of the Babylonian Talmud themselves (in Gittin there and in Bava Kamma 84b) determine in which matters there will be agency and in which there will not be (common matters involving financial loss). In principle, it is the principal who should determine the scope and authority of the agent.
It is therefore more plausible to see the enactment of “shelikhutayhu” as a legal fiction. The sages found themselves at a dead end. By the standards of Jewish law, there was no one who could sit in judgment, and clearly a society cannot exist without a judicial system. They therefore “invented” a fictitious appointment of agency and determined that they themselves act as the agents of the ordained judges.
The justification for the fiction of “shelikhutayhu”
What is the justification for such a fiction? If, indeed, from the standpoint of Jewish law lay judges cannot judge, then this is in effect a violation of the law. There was not, in reality, an appointment of agency, and without it they have no authority to judge. So how do they permit themselves to violate the law in this way? If the justification is need (the concern over anarchy), why not simply say openly that they are violating the law because of need? What, in general, does the fiction of agency achieve here?
It may be that the basis of the matter is as follows. First, there is the need to prevent anarchy and allow for a judicial system. But even if the sages were to enact that laymen may judge (assuming it is possible to enact a positive violation of Torah law), this would still be only rabbinic authority. Such authority cannot help for certain purposes, such as conversion, for example (judges who are not valid under Torah law cannot convert someone into a Jew in every respect; see Tosafot on Gittin there). The conclusion is that it is certainly the will of the Torah, and consequently also the will of the ordained judges who once existed, that lay judges should judge as their agents. True, there was no appointment, but there is an appointment by implication. After all, it is clear that if they had been asked, and if they had considered this situation, they would have appointed the current judges as their agents. Therefore, from our perspective, it is as though there were an actual appointment. In many cases we treat a person’s unexpressed will as though it had been carried out. If a person intended something in a transaction he made, then from our perspective that is what he wanted even if he did not say it. If a person wanted something in a transaction and it did not come about, then even if he did not make an express condition, from our perspective there is an implied condition (when the matter is obvious, in his own mind and in the mind of every person), and therefore if his will was not realized, the transaction is void even without an express condition.
Example: a Roman fiction
We have seen that fiction is treating what ought to be as though it were actual. In this context I will illustrate the point through another fiction from a foreign legal system. In the aforementioned thread on Atzor Kan Hoshvim I brought the following example. Under ancient Roman law, a will was defined as the expression of the last will of a Roman citizen. If it was found that at the time of expressing his last will the testator was not a Roman citizen, then he could not make a will validly. In addition, under ancient Roman law, a citizen who fell into captivity was not recognized as a citizen for as long as he remained captive. If we combine these two assumptions, it follows that any will made by a Roman citizen who died in captivity is invalid. The needs of life required a change in this situation. Reason could not tolerate a state of affairs in which a respected Roman citizen would go to war on Rome’s behalf, fall into captivity, and die there—and his heirs would be dispossessed of his estate because his will was not, according to law, the will of a Roman citizen. To remedy this situation, the Roman legislator enacted the lex cornelia, which established a legal fiction (Fictio Legis Corneliae), according to which the captive was considered as though he had died at the moment he was captured. From this it followed that he was a Roman citizen at the time of his death, and therefore his will was valid.
I do not know why they did not simply change the law and determine that someone who dies in captivity is considered a Roman citizen and therefore can bequeath, but in practice they needed a solution by means of legal fiction. Once again, need led them to see what ought to be as though it were actual. There was a need for such a person to be regarded as a Roman citizen, and from that it followed that in practice he was treated as such. Such a fiction goes much further than the fiction of “shelikhutayhu,” since one might perhaps speak there of an implied appointment of agency, whereas here we are speaking of a change in a physical fact (the moment of death). On the other hand, in the Roman case the one who prohibited is the one who permitted, since the Roman legislator is the one who set the law, and he can also change it, circumvent it, or devise a way around it. But in the halakhic context, the one who set the law is the Torah or the Holy One, blessed be He, and the one devising a way around it is us. It is hard to see any justification for such a thing unless it has a justification within legal thought itself, such as appointment by implication. In effect, what we are saying is that God’s determination that ordained judges are needed in order to judge is nullified because of His own implied condition. Had He considered the possibility that we would reach a situation in which we could no longer judge, He would have permitted it. If the ancient judges had considered such a situation, they would certainly have appointed us as their agents. Therefore there is here an implied act of the legislator. I think this is the most plausible justification for legal and halakhic fictions.
Problematic fictions
There are fictions that many decisors do indeed use, but in my opinion they have no justification or validity whatsoever. We are dealing with a situation in which the truth is clear, but there is a formal legal technique that can ostensibly circumvent it. Thus, for example, people expect decisors to permit an agunah—a woman unable to remarry because her husband’s fate is unresolved—to remarry on the basis of assessments without real evidence. In other words, they call upon a decisor to permit the woman to remarry even though there is concern that her husband is alive, on the strength of various formalistic arguments. Suppose a non-Jewish witness comes and says that her husband is alive; they will say that the non-Jew is disqualified from testimony. This is despite the fact that, factually, it is clear to us that the husband is alive. It is told that at a wedding officiated by R. Moshe Feinstein, the bride’s mother confessed under the wedding canopy that her daughter was a mamzeret (of illegitimate halakhic status), and therefore she could not be married. R. Moshe immediately ruled that she was not believed, and continued with the wedding as planned. I am not sure that this was the right thing to do. Factually, it is fairly clear that the daughter is a mamzeret, and therefore the mother’s formal lack of credibility cannot serve me here to get around the facts. If the mother lacks legal credibility, does that mean the daughter is not a mamzeret?[5]
Sometimes use is made of the sages’ permission to rely on a single witness (even if he is disqualified) in permitting an agunah (what is known as “edut ishah,” testimony regarding a woman’s marital status). But it is important to understand that such permissions, which are leniencies in the laws of evidence, are based on a clear factual assessment that the husband has indeed died. No decisor will use a fiction to permit an agunah where there is real concern that, factually, her husband is alive. Once it is clear to us that the husband is dead, if there are formal impediments arising from the laws of evidence, that is when these special halakhic permissions are used.
The same is true regarding mamzer status. There is an expectation (which is sometimes realized) that a decisor will invalidate a woman’s betrothal in order to permit her son, and will do so fictitiously. If it is clear to me that the betrothal is valid, I will not use tricks from the laws of evidence to “invalidate” it (for this does not invalidate it, but at most prevents me from recognizing it). A fiction is not a magic device for producing whatever result we want. Only if, in our assessment, the Holy One, blessed be He, and the Torah want that result is there justification for using fictions. It seems to me that this is not the case in these instances (although the criterion is, of course, not sharp and clear).
Fictions that are not fictions: sales for legal purposes
There are accepted halakhic mechanisms that are criticized on the grounds that they are fictions, but in my opinion they are not necessarily such. Take, for example, the sale permit (heter mekhira), or the sale of leavened food. If the sale is indeed valid, then it does not matter that one does not really intend to sell, and it does not matter that it is done only for a legal purpose. So long as it is sold, it is sold. And once it is sold, there is no Sabbatical-year prohibition and no leavened-food prohibition. A legal need is a legitimate purpose for carrying out a sale, so long as the sale is indeed valid and the non-Jew can take what is his if he should so desire. And even if we inserted clauses into the contract because of which it is clear to us that the non-Jew will not exercise this right, that is of no importance at all. If he can exercise it and the right is indeed his—the sale is a sale in every respect. Therefore, to the best of my judgment, sales for legal purposes are not a fiction. In light of this, the heter iska (a contract that recasts a loan as an investment) should also be discussed, but I will not go into that here.
Summary
What emerges from this brief discussion is that there is indeed room for legal formalism, but it does not come to replace the truth. In the background of legal mechanisms stand values (not necessarily moral ones), and they are meant to achieve goals. This is not a game that was given to us so that we may do whatever comes into our heads. Precisely I, as someone who sees Jewish law as something rather formal (not aimed at achieving moral values), find it appropriate to emphasize that it is still binding, and it is still meant to achieve things, and we have no permission to circumvent Jewish law without a real justification.
[1] See also Responsa Mahari Mintz no. 6.
[2] To be sure, the wording of the Jerusalem Talmud suggests that it bases this on an agreement between Heaven and the earthly court, but it can be explained that this is merely rhetorical flourish. It is only a literary way of setting the formal line.
[3] This is probably a dispute among medieval authorities (Rishonim): whether gud asik means that the wall rises to the sky, or whether a wall of ten handbreadths is sufficient for us like a complete wall up to the sky.
[4] On fictions, see also the book Mishpat HaAdam, by Avinoam Ben-Ze’ev and Shulamit Almog, Hakibbutz Hameuchad, 1996, chapter six. For a classification of fictions, see the discussion I opened on the forum Atzor Kan Hoshvim here: http://www.bhol.co.il/forums/topic.asp?topic_id=2066979&forum_id=1364
[5] Specifically regarding mamzer status, there is a rule that a doubtful mamzer is not a mamzer, so perhaps such a move has some justification. But rabbinically, “They imposed a higher standard with respect to lineage.” (“they imposed a special stringency in matters of lineage”), and they were stringent even in the case of a doubtful mamzer.
Discussion
The entire article is founded on your view that ideas are entities, and therefore the ideas of halakha (mamzerut, sukkah, ordination, credibility) have objective truth in them, which the rabbi or sage merely uncovers and is unable to alter. Thus, only a partition is a partition, and it won’t help to treat something that isn’t a partition as a partition. Likewise, the mamzeret is a mamzeret, and it won’t help at all to ignore the mother’s testimony. And so on.
It seems to me that Hazal understood that the entire Torah comes to shape human consciousness (as they said: “to refine human beings”). It teaches him how to regard things, and what to believe.
A person who has been properly educated in the ways of the Torah truly does not believe the mother’s testimony. He is sure that she is lying or mistaken.
Yes, he has become accustomed to seeing lavud as closed, and he genuinely feels sheltered by the partition of “the edge of the roof descends and closes.”
When Rabbi So-and-so “instituted” such-and-such for Israel (whether a leniency or a prohibition), this means that he found a way to bring about a certain consciousness using the tools of Torah. In “their agency,” for example, you solved only the problem of appointment (implicitly), but what do we do with the problem that agency does not continue after death? And that an agent appoints another agent (if you say that from the time of the death of the last ordained judges the non-ordained judges were “appointed,” and they appoint other non-ordained judges after them)? And agency in matters of words?
But the correct interpretation is that Hazal succeeded in developing the consciousness of agency that exists with a real agent, and thereby they truly became agents. In other words, the problem that existed with their judgments because of their “non-expert” status truly disappeared. The judgment that emerged from their mouths was the judgment of a person sent by one who was ordained.
The principle in all this is that all the Torah’s commandments and their laws are based on “human consciousness,” and their goal is “to correct beliefs.” Not as you are accustomed to explain, that the Holy One, blessed be He, has desires regarding certain things that are foreign to us, and that we are obligated to satisfy His desire (for various reasons). Rather, the foundation is that the Torah instructs us to change (to change our power of perception and thought and our power of evaluation) and to align us with divine truth.
By the way, regarding mamzerut,
I don’t think R. Moshe employed a halakhic fiction.
The spirit of halakha is to minimize the creation of mamzerim as much as possible.
There is no point in making someone a mamzer specifically.
And insofar as we can use halakhic formalities to prevent mamzerim, we do so.
Rabbi Ra’am HaKohen likes to tell of a certain thief who broke into his sukkah, and to this day he still doesn’t understand how the thief did it. After all, the sukkah had four walls and everything was lavud according to halakha….
One of the students answered him that it was an ignorant thief.
Apropos sukkot and nonsense, isn’t there an explicit Gemara (Sukkah 11b): “This is the rule: anything that contracts impurity, etc. What is the reason? Reish Lakish said: The verse says, ‘And a mist went up from the earth’—just as mist is something that does not contract impurity and grows from the ground, so too a sukkah must be something that does not contract impurity and grows from the ground.”
And seriously, to strengthen your point, one should note the Gemara in Sukkah that says explicitly that virtual walls have to be tangible: “If it was higher than twenty cubits and one built in it a platform ten handbreadths high that had the minimum size of a valid sukkah, Abaye thought to say: let the partition rise upward. Rava said to him: we require perceptible partitions, and they are absent.” And indeed, we say “let the partition rise upward” only when there are perceptible partitions: “The Sages taught: If one planted four poles and put skhakh over them, R. Yaakov validates it and the Sages invalidate it… they disagree only in the middle, but on the edge of the roof all agree it is valid”—and that is because of the poles, of course.
Regarding agency, is there room to view the fixing of the festivals based on the calendar as a fiction of “sanctifying the months for generations,” meaning that Rabbi Hillel and his court did not really sanctify the months until the renewal of ordination, but that this is a formal fiction, since the calendar by itself would not tolerate intercalating months in order to avoid “Lo ADU Rosh”?
To Rabbi M.A.—greetings,
Did not Rambam explain regarding the sign given by a prophet that this is not absolute verification, but rather just as the Torah said that we should believe two witnesses, so too the Torah said that we should believe a prophet who gives a sign and the sign comes to pass. We thus learn that even after full testimony there is no absolute verification of reality; rather, the Torah established laws of evidence, and on them we rely. All the more so in the case of R. Moshe Feinstein, where she has no credibility at all—whether as one witness, or as a relative, or as a woman—and all is well with Israel. Has the ‘rush toward truth’ led you to disqualify Jews through mamzerut? Relax!
With blessings, S.Z. Lewinger
S.Z.L., I’ve relaxed.
As for your point itself, I do not see the connection to what I wrote. Are two witnesses a fiction? It is obvious that clarification based on two witnesses is not absolute, but the Torah said that this suffices. Who disputes that? Would we have thought otherwise without Rambam? But what does this have to do with my point?!
As for your remark, my point was directed precisely against that very approach. The decision whether someone is a mamzer or not has nothing to do with the desire to increase or reduce the number of mamzerim. The question is what the truth is. I was arguing precisely against halakhic rulings motivated by goals and agenda (blessed though they may be) rather than by the search for truth.
Interesting and amusing as usual. Thank you.
When I read the reference to a mamzer, I tried to understand why one cannot relate to the idea of mamzerut like the sukkah case—that is, as halakhic formalism.
True, there is a factual aspect, but there was also a factual aspect in sukkah until we defined it as a formal commandment-based one. Why not say that mamzerut too involves meeting the conditions of halakhic formalism beyond the factual reality required?
After all, unlike a snake, a mamzer (according to the halakhic definitions) is not recognizable outside the world of halakha.
*like the sukkah case = like that of the sukkah.
The story of the sukkah was brought above in the first comment.
Aharon. Your link sends to a book in which I did not see an article with the title you gave.
As for your claim, I am not at all sure about the connection you made. In certain contexts, halakha indeed creates reality. But in sukkah and Shabbat, partitions are required, and the concept of mamzer is defined as the offspring of forbidden intercourse with one of the forbidden sexual relations. So the fictions here ostensibly miss the Torah’s own goal. Where there is a concept whose basis is halakhic, I am prepared to accept halakhic definitions that constitute it. Each matter on its own merits.
On second thought, it actually seems to me to be the opposite connection. Precisely a view that sees the ideas behind the concepts leaves more room to argue that the idea exists even without a physical manifestation of the concept or the object.
See my reply to Aharon above.
Beyond that, your words are basically the gist of R. G. Nadel’s claim. I am doubtful about this matter (as a sweeping principle. Of course there are places where it is entirely reasonable). For example, “the edge of the roof descends and closes” really does not seem to me to shape consciousness or be based on consciousness.
Moshe, see my response to S.Z.L. below. I oppose shaping halakhot in order to achieve goals. It is dishonest. If there is a mamzer, then he is a mamzer. The desire to reduce mamzerim is very nice, but it has nothing to do with halakhic decisions.
Yonatan, many thanks. The analogy from sukkah to mist is very nice for our purposes.
As for Hillel’s court, that is certainly possible.
I said that specifically regarding mamzerut one can indeed understand this, since a doubtful mamzer is not a mamzer. Especially if one understands, as R.A.W. does in the article (which I once mentioned in the past), that all laws whose doubt is treated leniently by Torah law (mamzer, mourner, firstborn, tithe, impurity in the public domain, orlah outside the Land) are laws that depend on consciousness and not on reality itself. According to this, when one does not know about the mamzerut, there is no mamzerut here. As I wrote, the example is brought only for illustration, although specifically with regard to mamzerut there is room to accept such a consideration.
I am trying to upload a link again:
file:///F:/מאמרים/נומינליסטי.pdf
That is precisely the point of the argument.
That is what we are discussing.
You write that the definition of a mamzer is one born from a forbidden sexual relation.
The second conception says that the definition of a mamzer is one who, according to the ruling of the Shulḥan Arukh and its commentators, is a mamzer.
If according to halakha he is not a mamzer, then both in the judgments of the earthly court and in the judgments of the heavenly court he is not a mamzer, as per the Yerushalmi’s idea: “God carries out my decision.” There is no problem at all—halakhic or spiritual—in marrying him.
This is the conception as I know it, without discussing whether it is correct.
(It seems to me not for nothing that the Haredi conception understands it this way, unlike you, because in its eyes the Oral Torah is something sublime and divine. Not as in your conception, that it is a development of sages that is binding because “we accepted it upon ourselves,” and may even include errors, at least in the perception of facts.)
I understand that this is the approach, and I even mentioned it. But I do not see how the Shulḥan Arukh and the decisors themselves ruled what they ruled. After all, before they ruled in a certain formal way, this conception did not exist—so by what authority did they innovate it? The Torah commanded regarding a mamzer and even defined him. Now decisors come along and do as they please in halakha. And after they did that, you renew that this itself is the halakha. And I ask: by what authority? The guarantor needs a guarantor. Again, I am not against interpretation, and I also think that renewed interpretation has binding force. I am speaking specifically about fictions.
Sales for halakhic purposes are Israeli-bluff in its full embodiment. What should determine things here is the test of the outcome—or the simple truth before one’s eyes. Even if a sale agreement was signed, in practice no sale was carried out and the fundamental state of affairs did not change. The mental state did not change either. The owner of the property/ḥametz/field still sees it as his, and the buyer does not see it as his.
You wrote:
“The Torah commanded regarding a mamzer and even defined him. Now decisors come along and do as they please in halakha. And after they did that, you renew that this itself is the halakha. And I ask: by what authority? The guarantor needs a guarantor.”
So in truth we really have two planes here: one concerning the laws of doubt, and one concerning fictions from the outset, like a “doorframe form.” But in my opinion there is a close connection between them.
With regard to the laws of doubt: if we come to discuss the question of mamzerut, and are lenient because of the laws of evidence (for example, disqualified witnesses), then the son comes and asks: but what if in truth she is a mamzeret?
So there are two answers:
There is your answer, which in my opinion is more mature, which says: the Torah was not given to ministering angels. We are instructed to act according to reason; the laws of evidence are guidelines. In a case where it is clear to us that the truth is otherwise, we will indeed bypass them, and if in any event we erred—good God will atone. This is an answer capable of containing human error.
The second answer (and to my taste the childish one) is that if we ruled according to halakha, and in reality she is a mamzeret, we did not err. Because if according to the decisors she is not—then she is not. She is not a mamzeret.
And if you ask how they innovated this—
The Haredi conception says that this itself is grounded in the scriptural decree, “According to the Torah that they instruct you… do not turn aside right or left,” and “It is not in heaven.” The Torah’s innovation in the authority of Hazal is that their ruling does not clarify but constitutes. (And if we have entered the paradox of intercalating the month—even nature will yield—as the Shakh wrote.)
And from here to fictions.
If we assume that Hazal have the power to constitute—then there is no problem with rulings like a doorframe form. Their ruling causes a partition to exist. Of course, at the base of their words stands reasoning, but in the final analysis it is their ruling that made the partition a partition.
But if Hazal clarify the halakha, then we rely on them because their reasoning is correct, and it is on the correctness of the reasoning that we rely. Therefore we have more desire to understand the logic behind their words. And here we need the explanations you wrote in clarifying the logic of doorframe form, etc.
I would say that the problem with the sale agreement is not with the sale itself. One can arrange matters so that legally the ḥametz will be entirely the gentile’s.
The problem is that the sale circumvents the spirit of the law. We usually understand that the purpose of the commandment is to prevent a situation of ḥametz in the house.
Likewise regarding the permission to sell in the sabbatical year—the purpose of the commandment is that the land and the farmers rest, and that produce reaches the poor.
Likewise regarding the prosbul.
Likewise regarding the iska heter—the purpose of the commandment is the welfare of the poor.
Likewise regarding a wig.
These matters are connected to broad issues of the reasons for the commandments, but one who comes to observe the commandments with the intention of connecting to their inner meaning, simply and sincerely, feels that there is a kind of forgery here.
The difference lies in the feeling, in the motivation, and in the background from which a person comes to observe the commandment.
This is an additional dimension of the problematic nature of fictions.
By the way, an amusing anecdote from Islamic law (Akdamot 27, p. 81):
Among the problems that arise for Muslim women who want to work is the problem of seclusion. The Quran forbids being alone with a strange man unless he is a family member or someone who nursed in childhood from the same breasts from which the woman nursed. The idea apparently is: if they nursed from the same wet nurse, it is a sign and indication that they are close and familiar with one another.
What is the solution? If someone wants to be accepted as a secretary by a businessman, all that is requested is “that his mother nurse her, that her mother nurse him, that her sister nurse him, or that his sister nurse her, because the result of nursing is [their becoming] siblings by virtue of nursing”…
That is—nursing now—in adulthood…
Of course the ruling caused an uproar. But it is an example of the idea that a fiction can strip halakha of its original meaning and turn it into ridicule and mockery.
Tamir, well, you made your declaration and emerged unscathed. I assume nobody’s situation changed because of that declaration, which points to a fundamental lack of understanding of halakha.
Aharon, regarding the spirit of the law I agree. But here there is room for cost-benefit considerations. That is precisely the difference between the spirit of halakha and halakha.
Aharon, now the question remains: what is the boundary? Is whatever the sages decide valid? And if not—then that itself is proof that they do not have constitutive status.
Why is “the edge of the roof descends and closes” not based on consciousness?
I will try to explain: the halakha of “the edge of the roof descends and closes” is a way of looking at the space beneath the roof that gives the observer the feeling that the domain under the roof is truly separated from the space outside, by the virtual delimiting power of the edge of the roof. This enables the person sitting under the skhakh truly to feel that he is sitting in a sukkah, and causes someone transferring an object from under the roof to outside to feel that he is “carrying out” from one domain to another.
True, this is not natural for us, but the Torah teaches us that this is the correct way to perceive reality, and through habituation one can develop this “understanding.”
Sorry if I sounded declarative; I’d be glad to receive a response.
I qualified my remarks and said that it depends on where the person is coming from, from what motivation.
I will elaborate and be more precise—perhaps one should distinguish between observing halakha and serving God. Many people today feel that although they observed the halakha—
the value was lost.
If we take shemitta as an example—here is a quotation from R. Aharon Lichtenstein:
“First and foremost, the laws of shemitta constitute a halakhic corpus extending across several areas… In addition to the halakhic layer, the laws are embedded in a constellation of values that they shape and reflect. There is no need here to rummage about in the reasons for the commandments; the matter is plain to see. What remains for us today of this magnificent vision? Hardly anything! Formally, everything may be in order, but the Sabbath of the land we are not observing. We—the supporters of the permit and its opponents, the ordinary buyers as the price-watchers—not releasing but shirking.”
And indeed, initiatives are arising today to establish a modern shemitta, in which high-tech workers will enter kollelim during the shemitta year, and set aside from their profits for the poor.
This is a feeling that is widespread today among religious people. Is it not understandable?
I would be very glad if the rabbi would elaborate and correct me.
Sorry, I thought the claim about making a declaration and not understanding halakha was directed at me.
Thank you to the rabbi for the article.
We just missed “A word fitly spoken, how good it is,” (after we spent our yeshiva time in the sukkah in idle chatter—the neighbors can testify to that, since they heard our conversation very well, and we in turn can testify clearly about them. Are not all Israel worthy to sit in one sukkah?)
Some insights about specific fictions:
A. Among your remarks you wrote that “one can find logic in these laws… if there is any hole at all in the partition, one cannot say there is no partition here”…
Indeed, in a temporary dwelling you are certainly right.
But from the law of “you shall dwell as you normally dwell,” I do not think a person is willing to establish his residence comfortably under four poles on a roof and conduct his affairs behind imaginary walls…
In studying the laws of sukkah, one is accompanied by the feeling that the sukkah wavers between a temporary dwelling and “you shall dwell as you normally dwell.” Not too low and not too high, able to withstand an ordinary land wind but no more, stars should be visible through the roof, but too much sunlight also invalidates it.
It seems to me that our Sages recognized the difficulty of definition and multiplied illustrations in order to complete the picture, for that sukkah
which is tattered in its measurements (which according to one opinion is supposed to illustrate a kind of Clouds of Glory),
and it is not impossible that they were lenient with it—and that is the point. In other words, the many and intangible laws match the definition of the sukkah itself, and certainly help render it valid.
B. The crushing analogy between lavud in covering wine seems to stem from the fact that nowadays snakes are not common—but there are those who are stringent not to leave any drink uncovered at night because they are concerned about an evil spirit (the primeval serpent…).
And if so, against an evil spirit the laws of lavud and the like are “fit to combine” against it, and surely it is more expert in them than the common snake.
A healthy winter.
The Minḥat Yitzḥak understands the prohibition of leaving liquids uncovered as a concern for actual danger, and therefore the conclusion is called for that a partition of lavud is ineffective.
But if we say, like those who say, that the concern for snakes is not common nowadays but the prohibition remains because it was something enacted by count—then seemingly one could save the drink by means of a halakhic and not a factual partition, because the concern too is halakhic and not factual.
Through habituation one can develop a consciousness for anything. That empties your thesis of content. Beyond that, in “the edge of the roof descends and closes” there are requirements concerning the vertical dimension of the roof edge (that it be straight and of a certain measure), which are not perceptible to the one standing beneath it.
Aharon, I wrote that to Tamir, not to you. To you I wrote that your words are actually understandable. Look again.
It would be better to write your remarks as a response to the original message; otherwise the context is unclear. Note that you need to add a response at the beginning of the thread you are referring to, and it will appear at the end.
Danny, hello.
A. This is a difficulty unrelated to my remarks. But note that the poles are on a roof, so you are not really connected to the street around you. In my remarks I mentioned that there are two types of requirements in sukkah, exactly as you wrote.
B. Nice idea. Lavud would help in a place where there is no real concern, but only a practice because the law remained even though its reason lapsed. However, it seems to me that here this is not correct, because uncovering is a danger and not a law, and in that respect it is similar to kitniyot (which lapses on its own when the concern lapses). See post 2 on kitniyot.
A very nice idea, and Danny already raised it in the message above you. See there my response.
To Michi, I didn’t find a place to respond above.
Of course one can develop many kinds of consciousness,
but my thesis is based on the important principle that the Torah is what guides us in developing forms of consciousness appropriate to divine truth.
We are not simply seeking to adopt new conceptions according to whatever comes into our heads.
What I tried to do in my previous message was only to show how the halakha given to Moses at Sinai, “the edge of the roof descends and closes,” shapes our consciousness,
in response to your question what connection there is between “the edge of the roof descends and closes” and consciousness.
Regarding the vertical edge of the roof, that is a good argument.
But apparently it is enough that from the outside the thing be perceived as the beginning of a partition,
in order to allow a consciousness of “descending and closing,” even for the time when I am standing “inside.”
Rabbi, isn’t there a mistake in this sentence?: “At most, the chance of healing will now be a bit higher, but still small enough to ignore.”
After all, we are dealing with the additional month in which, in principle (without the intercalation), the hymen would not heal, so it should say: “At most, the chance of healing will now be a bit lower, but still large enough to take into account,” unless I missed something.
Indeed, you are completely right.
(The above sentence is an explanation for the threshold being exactly 3 years and not 3 years and a month.)
A. The rabbi’s explanation regarding poles on a roof is sufficient, but the same law is found in “he planted four poles in the ground and put skhakh over them: R. Yehuda validates…”
B. Another point for consideration: in a situation where we use 2 fictions simultaneously,
for illustration: let the partition rise upward + a bent wall.
The Tur and the Ran disagreed—in the case of invalid skhakh three handbreadths wide next to a wall that does not touch the skhakh (see R. Akiva Eiger’s responsum, which explained the reason of the Ran, because we do not use two halakhot given to Moses at Sinai simultaneously)—and when regarding sukkah these fictions serve as abstractions for the law, why should we not use several of them at once?
C. Regarding the actual story of Rabbi Moshe Feinstein at the wedding canopy, in my humble impression it seems not so credible. In Igrot Moshe (EH III) he discusses a woman who married her husband’s brother in civil court and they had a daughter, and when the daughter reached marriageable age the mother claimed that she had conceived her through illicit relations with a gentile, and there he engages in endless responsa to reject the mother’s words—not by the quick draw of “a woman has no credibility” as told here.
Best regards.
To Danny, this response should have been written above. In the future it would be better to insert it in its place.
Regarding planting them in the ground, the tanna’im disagree, and according to the Sages there is no issue. In any case, I already wrote to you that this is unrelated to my point. Your difficulty is difficult in any event, even without my remarks.
The dispute among the rishonim that you cited is well known, but why do you see a connection between it and my point? As is known, R. Akiva Eiger’s words were already challenged from several places, and as I recall, the later authorities explain that the disqualification with two halakhot applies only where one depends on the other, not where the sukkah merely needs two halakhot in general. And the straightforward meaning is that one does not say “a halakha for a fiction”; that is, lavud joins two real sides, like a wall and skhakh, and not a wall created by “let the partition rise upward” to skhakh. So this only means that the dependent halakha was never said in a situation where it depends on another halakha, and therefore there is no difficulty even for my view. Similar to the principle that one does not derive an a fortiori argument from a halakha given to Moses at Sinai.
With a woman who lived a married life with her husband’s brother, the presumption is toward prohibition. By contrast, in the wedding story the presumption is toward permission.
With blessings, S.Z. Lewinger
A lack of understanding of the concept of “the edge of the roof” is what we see here.
And let him return to his Talmud…
If the intention is me, I’d be glad if you would elaborate.
Very nice
With God’s help, 14 Marḥeshvan 5778
There are situations in which a halakhic concept is interpreted in a ‘nominalist’ way, and there are situations in which that same concept itself is interpreted in a ‘realist’ way. Thus, for example, Rambam distinguishes between the category of ‘terefah’ in a human being and ‘terefah’ in an animal: in a human being, if doctors determine that the person can live more than twelve months, he will not be considered a ‘terefah’ even though according to talmudic law his condition is defined as a terefah; by contrast, regarding terefot in animals, Rambam holds that one follows the definitions in the Gemara and not the doctors’ determination.
In an article by Rabbi Yaakov Ariel in HaMa’ayan, in a discussion of absorption in stainless-steel utensils, he brought the explanation of the gaon Rabbi Yosef Rozin (the Rogatchover), that in a person, his being in a state of ‘a terefah that cannot live’ is the reason for the law exempting one who kills him and the like, and in a person whose death is near anyway there is an essential reason to be lenient regarding the law of one who kills him.
By contrast, in the law of terefot in animals there is no essential connection between the short life expectancy of the animal and the prohibition against eating it. The Torah determined that in such-and-such situations the animal is forbidden. The definitions of terefah are a ‘sign’ and not the cause of the prohibition, and therefore what determines the matter are the categories in the Talmud and not the life expectancy of the animal, which has grown longer.
Likewise regarding Shabbat and sukkah: even with full walls, no one establishes his private domain in a place of 4x4x10 handbreadths, and no one lives in a house of 7x7x10 handbreadths. The definitions are purely halakhic, and the law of lavud fits excellently into this reality, which is entirely a halakhic creation.
All the more so in the law of mamzer, in which itself there is no reason at all to prohibit him, and the Torah prohibited him only as a penalty or deterrent to his parents—so long as there is no evidence at the level of certainty required for capital law, there is no essential reason to prohibit him.
With blessings, S.Z. Lewinger
Regarding a mamzer, it is possible that the reason for the prohibition is that no trace should remain of the grave forbidden act. From that perspective too one may say that where there is no unequivocal evidence not dependent on the judge’s impression—then there is no clear trace of the forbidden act. According to this reasoning, reality too agrees with the permission.
Is the basis of the justification for the fiction of “their agency” similar to the basis of the law of “one may act to a person’s benefit in his absence”? It seems to me that it is almost the same basis. Do you agree?
Not exactly. In the law of “their agency” there are three problems: 1. There was no appointment. 2. The principal has already died. 3. This is an appointment to commit a prohibition (a judge who is not ordained may not judge). By contrast, in the law of “one may act to a person’s benefit in his absence,” only the appointment is missing.
Beyond that, in the law of “their agency” this is not the appointment of a specific person as the agent of another specific person, but a public appointment to judge on behalf of all the sages or all the public. In the law of “one may act to a person’s benefit in his absence,” it is an appointment for a private individual.
And the proof of this is that the law of “their agency” has limitations (only common matters and those involving financial loss), whereas “one may act to a person’s benefit in his absence” does not. We see that in “their agency” it is not simply that if the principal is agreeable, then from our standpoint there is an implicit appointment. The Torah or the collective of sages established this appointment, and therefore also limited it.
How does the rabbi explain that a doorframe form serves as a partition even regarding separation in kilayim, when the roots get mixed together (somewhat like ‘forbidden matter falling into a vessel’)?
Even in a place where there is actual mixing, the fiction is what determines the halakha. It is like a partition in a synagogue between women and men that is based on “let the partition rise upward” or lavud.
Thank you very much for the article!!!
Regarding the opening story:
There is an excellent and interesting article called “The Search for Truth versus Halakhic Formalism”: http://www.kotar.co.il/KotarApp/Viewer.aspx?nBookID=37395495
I’m unable to upload it (maybe later), so I sent a link. In any case, it opens with the story in slightly different form:
“They tell that when the Prussian army entered Strasbourg in 1870, its soldiers encountered, among other things, a system of iron wires surrounding the city. In accordance with their needs, they dismantled those wires. The city’s rabbis then approached the Prussian commandant and explained to him that they had hung those wires in order to symbolize a kind of wall around the place, and thereby, according to the Torah of Israel, the place would become a single domain and carrying on Shabbat would be permitted (‘eruv ḥatzeirot’). According to the story, for whose truth I cannot vouch, the German commander replied that if the Jews are capable of looking at a wire and thinking it is a wall, then surely they can look at the air and think it is a wire.”
The article also deals with the essence of halakha versus formalism.
So if we’re opening with a story, then in Haredi folklore there’s such a story going around:
A young kollel fellow in his ‘first year’ wanted to impress his father-in-law with his erudition, and built a sukkah according to all the halakhic ‘tricks,’ so that there was almost no sukkah there at all, although what there was was kosher in the most meticulous way.
After the meal, the two lay down to sleep, and while they were dreaming pleasant dreams, a nimble thief passed by, stretched out his hand, and took the precious silver candlesticks. In the morning—disaster. The father-in-law blames the son-in-law for building such a strange and unsafe sukkah. And the son-in-law replies: the sukkah was closed on all its sides according to halakha, so what can I do if the thief doesn’t know how to learn?!
As for the matter itself.
In the middle of the article, the rabbi mentions the story about R. Moshe Feinstein, who did not accept the woman’s testimony regarding her son’s mamzer status, and proceeded with the marriage as usual. The rabbi expresses reservations about such an approach.
It seems to me that there is a guiding line here, one that the rabbi consistently maintains, in a way different from the consensus.
I am copying from that same article:
Relying on the basic definitions of Prof. Yohanan Silman in the philosophy of halakha, between nominalism and realism, Prof. Daniel Schwartz tries to explain the disputes of the Sages (= the Pharisees) versus the Sadducees and the priests of the Yahad sect (= Qumran). He distinguishes between the halakha of Hazal, which was based on the nominalist conception, according to which the law creates reality, and the command of God creates the halakhic prohibition—and the “realist” conception, based on natural essences, which the law and the commandment merely uncover,
command us regarding, and warn us against.
This conception is attributed to priestly circles in the Second Temple period, from which both the Sadducees and the members of the Yahad sect emerged (known as the “Judean Desert sect”). In the words of D. Schwartz, the Sadducean priests and other priestly circles held “that the pig is impure in a real, natural way, and God in His great kindness informed His people of this fact so that they could guard themselves from it. The role of the interpreters of the Torah, the emissaries of God… is also to reveal which animals are pigs. And if the interpreters err and decide that a certain animal is not a pig, and is therefore permitted to be eaten, but in truth—by nature—this animal really is a pig… then one who eats that animal becomes impure. The fact that he did not intend to commit a transgression is irrelevant here, because we are not dealing with sin and punishment, but with avoiding impurity…
By contrast, the nominalist approach holds that holiness and obligation with respect to it are created by speech, by naming, because the Holy One, blessed be He, called it impure; and if an authorized court decides that a certain animal is not a pig, and therefore is not impure, one who eats it has not done a bad or forbidden act. According to this approach, we are dealing with law, its fulfillment and its violation, and not with proper adjustment to nature.” End quote.
Without getting into the historical claims, it seems to me that the rabbi consistently sees in halakha the essence hidden behind it. Examples:
In the rabbi’s opinion, if the mesader kiddushin suspects that the bride is a mamzeret, he should not marry her off.
In the rabbi’s opinion, if the judge does not use the law of “conspiring witnesses” according to the theoretical considerations unless he believes the refuting witnesses more—Column 91.
In the rabbi’s opinion, a prohibition that got mixed into a majority is not a permission ab initio, and a spiritually sensitive person may be strict with himself (a question here on the site: “The law of one who is strict with himself and does not eat what was nullified in the majority”).
And of course, in the rabbi’s opinion, a minor girl of three whose hymen was finished, and the court intercalated the month, her virginity does not return (physically).
By contrast, the Torah consensus thinks otherwise. The mashgichim in the yeshivot love to wave around the Shakh on the return of virginity, and infer from it that halakha and Torah affect the physical world—how much more so Torah study, prayer, and mitzvot actually affect our lives and the whole world, etc. etc.
That is, the opposing position is that halakha creates reality, and not reality halakha. In light of this it is understandable why in all the above examples the Haredi approach (from which I come) is different, as people noted in the comments to the articles I mentioned. The Haredi public, in all the examples I brought, would accept the opposite position, and it seems to me there is a thread connecting them all.
What do you think?
Thank you very much again for the article!!!