Uncertainty and Statistics – Lecture 33
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- General overview.
- The connection between statistics, doubt, and rules of expected value
- The nature of the prohibition of doubt: entering a state of doubt versus denying a claim of duress
- Rabbi Shimon Shkop and the dispute between Maimonides and Rashba about Torah-level doubt
- The Ran in Kiddushin: orlah outside the Land of Israel, a law given to Moses at Sinai, and its doubtful case being permitted
- The Ran’s proof and its rejection: why a special permission for doubt is needed according to Maimonides
- Asham talui as proof that Torah-level doubt is treated stringently by Torah law, and the discussion of an established prohibition
- The speaker’s answer to the asham talui difficulty: guilt-offerings are not necessarily brought for a sin
- The unusual novelty regarding orlah outside the Land of Israel: “even someone who knows… may present it as doubtful to his fellow and feed him”
- Rabbi Elchanan Wasserman: a cognitive prohibition versus an object-status prohibition
- Expanding to the list of doubtful cases treated leniently, and a radical implication for mamzer status
- A note on publication strategy and concealment, and Rabbi Kook’s article on preparing the remedy before the blow
- Limitations on converts: positions of authority, priesthood, and social status as an explanation for changes in reality
- Interim conclusion and continuation of the series
Summary
General overview.
The text places the halakhic rules of doubt within a framework of expected harm and benefit, and sharpens the dispute over whether stringency in Torah-level doubt stems from a prohibition on entering a state of doubt, or only from denying a later claim of duress if the prohibition in fact materialized. It presents Rabbi Shimon Shkop as linking these two understandings to the dispute between Maimonides and Rashba over whether the rule that Torah-level doubt is treated stringently is itself Torah law or merely a rabbinic stringency, and expands this through the Ran in Kiddushin regarding orlah outside the Land of Israel and a law given to Moses at Sinai that permits doubtful cases. Later, an interpretation is proposed in the name of Rabbi Elchanan Wasserman, according to which in some cases the prohibition is “cognitive” rather than an “object-status” prohibition, and from this follow sharp implications regarding “do not place a stumbling block” and cases like mamzer status, opening the possibility of seeing some lineage prohibitions as partly a product of social status. Near the end, anecdotes are brought about publishing Torah articles and hiding problems out of concern for desecration of God’s name, along with a proposal for intellectual preventive treatment associated with Rabbi Kook.
The connection between statistics, doubt, and rules of expected value
The speaker plans to finish a series on statistics and doubt, and places its second part in the issue of doubtful cases. He argues that the rules that Torah-level doubt is treated stringently, rabbinic-level doubt leniently, and the treatment of majority all rest on considerations of expected harm or expected cost.
The nature of the prohibition of doubt: entering a state of doubt versus denying a claim of duress
The speaker presents two possibilities for understanding the duty to be stringent in doubtful cases: either there is an independent prohibition against entering a doubtful situation, or there is simply no ability to claim duress if, after the fact, it turns out that a Torah prohibition was indeed violated. He illustrates this with “possibly pork, possibly not pork,” and distinguishes between a case where the risk materialized and one where it turns out that the piece was kosher.
Rabbi Shimon Shkop and the dispute between Maimonides and Rashba about Torah-level doubt
Rabbi Shimon Shkop is presented as arguing that the dispute between these two understandings of the stringency of doubt parallels the dispute between Maimonides and Rashba on whether the rule that Torah-level doubt is treated stringently is itself Torah law, as Rashba holds, or whether by Torah law doubt is treated leniently and only rabbinically treated stringently, as Maimonides holds. The speaker notes that most medieval authorities (Rishonim) follow Rashba and seeks to clarify further what the dispute really means.
The Ran in Kiddushin: orlah outside the Land of Israel, a law given to Moses at Sinai, and its doubtful case being permitted
The speaker cites the Ran on the Rif in Kiddushin, who quotes the Talmudic text: “Orlah outside the Land of Israel is a law given to Moses at Sinai,” together with Rabbi Zeira’s question how “doubtful orlah in Syria is permitted” if this is a Torah-level law, and Rav Asi’s answer: “Say that this is how it was stated: its doubtful case is permitted and its certain case is prohibited.” He explains that the law given to Moses at Sinai contains two components: the prohibition of orlah outside the Land of Israel, and permission to treat its doubtful case leniently; and without the second component one would indeed have had reason to be stringent, but the leniency is part of the law itself.
The Ran’s proof and its rejection: why a special permission for doubt is needed according to Maimonides
The speaker presents that the Ran raises the possibility of learning from here that the rule that Torah-level doubt is treated stringently is itself Torah law, because “the law had to permit the doubtful case,” and presents this as a difficulty against Maimonides, according to whom Torah-level doubt is treated leniently by Torah law. He quotes the Ran’s answer, “but from this there is no proof,” and explains that the Ran argues that the law given to Moses at Sinai concerning doubtful orlah comes to permit a broader and more exceptional kind of doubt than ordinary doubt, including situations in which in other areas one follows the majority or “an individual against the many,” and even cases that are “close to certainty,” and even “creating the doubtful situation ab initio is also permitted,” so there is no decisive proof from here against Maimonides.
Asham talui as proof that Torah-level doubt is treated stringently by Torah law, and the discussion of an established prohibition
The speaker cites the Ran’s claim that “the truth of the matter” is that Torah-level doubt is prohibited by Torah law, and presents his main proof from the provisional guilt-offering: if Torah-level doubt were permitted by Torah law and only prohibited rabbinically, it is unclear why one brings an offering for eating a doubtful prohibition. He presents an attempt to reject this by distinguishing between one piece and one of two pieces, and between cases with an established prohibition, and brings the Ran’s answer that according to views that require a provisional guilt-offering even for one piece, the difficulty still stands.
The speaker’s answer to the asham talui difficulty: guilt-offerings are not necessarily brought for a sin
The speaker argues that the Ran’s difficulty against Maimonides is not difficult, because “all guilt-offerings” are not brought specifically for a sin, but for certain situations even without a transgression. He gives examples: the guilt-offering of a designated maidservant, where “according to Jewish law no prohibition is violated at all” and yet a guilt-offering is still brought, and the guilt-offering for misuse involving vows, where the guilt-offering is not brought for the prohibition of “he shall not profane his word,” for which one is lashed, but for the misuse itself. He adds in the name of the students of Rabbenu Yonah that one who eats without a blessing brings a guilt-offering even though blessings over enjoyment are rabbinic, and concludes that this is how one can also understand the provisional guilt-offering according to Maimonides: even if in a doubtful case one may be lenient and there is no prohibition, one still becomes liable for a provisional guilt-offering.
The unusual novelty regarding orlah outside the Land of Israel: “even someone who knows… may present it as doubtful to his fellow and feed him”
The speaker sharpens the wording of the Ran: “Even someone who knows about the fruits that they are orlah may present them as doubtful to his fellow and feed him,” and presents this as a huge novelty, according to which even someone who knows with certainty that this is orlah outside the Land of Israel may feed it to another person who does not know, without violating “do not place a stumbling block.” He contrasts this with pork, and argues that one cannot say that one may certainly feed definite pork to another person just because, from the eater’s perspective, it is “doubtful,” because that would destroy the meaning of “do not place a stumbling block,” and he cites the case of “the two sides of the river” in Avodah Zarah 15, where one still violates “do not place a stumbling block” even when the Nazirite sins intentionally.
Rabbi Elchanan Wasserman: a cognitive prohibition versus an object-status prohibition
The speaker cites in the name of Rabbi Hershel Schachter an article attributed to Rabbi Elchanan Wasserman that explains the Ran as meaning that orlah outside the Land of Israel is not an “object-status prohibition” but a prohibition on the person at the cognitive level: the prohibition is to eat fruit when you know that it is orlah. He argues that according to this, if the person is unaware, there is no prohibition at all, not merely an exemption from blame, and compares this to an idea cited in the name of Rabbi Yitzchak Hutner in Pachad Yitzchak, where the commandment to love the convert depends on knowing that he is a convert and on loving him “because of the fact that he is a convert.”
Expanding to the list of doubtful cases treated leniently, and a radical implication for mamzer status
The speaker presents a list of contexts in which “their doubtful cases are treated leniently,” such as doubtful mourning, doubtful firstborn status, doubtful tithe, doubtful impurity in the public domain, doubtful mamzer status, and doubtful orlah outside the Land of Israel, and attributes to Rabbi Elchanan the claim that what they share is that they are cognitive prohibitions when there is a special source permitting the doubtful case. He demonstrates an apparently extreme consequence regarding mamzer status: one could arrange a marriage between a certain female mamzer and a person who does not know, and even “take your secret to the grave,” and presents this as a difficulty with that expansion, because such a solution is not found in halakhic practice; he adds that in doubtful mamzer status “there is no special source” in the same sense, but rather “the Merciful One said a certain mamzer, not a doubtful mamzer,” and therefore its status is different.
A note on publication strategy and concealment, and Rabbi Kook’s article on preparing the remedy before the blow
The speaker says that he sent an article to Techumin about limitations on the status of the convert, and they returned it out of concern for desecration of God’s name. He describes his own view that it is impossible to keep information secret, and therefore it is better to use “preventive treatment” by presenting the question and its answer in advance. He says the article was eventually published in Asif, and describes disputes over not accepting articles signed by women, including a story about Noa Lau and a suggestion that Rabbi Benny Lau should sign instead. A participant quotes an idea from Rabbi Kook praising Maimonides for preparing the remedy before the blow and readying Judaism for scientific crises that remove man from the center, and the speaker agrees that this is the same tactical principle.
Limitations on converts: positions of authority, priesthood, and social status as an explanation for changes in reality
The speaker presents two laws concerning a convert: “we do not appoint him to positions of authority,” and a female convert “cannot marry a priest,” and describes the first as troubling in light of the obligation to love the convert and be careful with his honor. He describes a dispute among halakhic decisors regarding a rosh yeshiva, mentions the Chatam Sofer on authority that passes by inheritance, Moshe Feinstein who is lenient regarding a convert serving as rosh yeshiva, and Shemaya and Avtalyon as converts who headed a yeshiva, and emphasizes that the status of convert continues even to descendants. He proposes as a halakhic-social explanation that the prohibition on appointing a convert to authority stems from concern that people in a society that disdains converts will not listen to him, and therefore in a proper society in which the convert is respected, “there is no problem at all appointing them to positions of authority,” and he presents this as a practical halakhic claim with evidence. He further suggests, as a hypothesis, that the prohibition on a female convert marrying a priest may also be connected to social status and to protecting “and you shall sanctify him,” and links this to the possibility that some lineage prohibitions, including mamzer status and lineage defects not resulting from the person’s own transgression, are connected to society’s attitude toward them and therefore tend toward a “cognitive” structure, while adding the reservation that this is a major novelty and not something he rules on in practice.
Interim conclusion and continuation of the series
The speaker states that he will not finish the series today and notes that another lecture is needed, among other things on “double doubt.” He ends with a short discussion of “a mamzer who is a Torah scholar takes precedence over an ignorant High Priest” as a principle of honor that does not change “marriage prohibitions,” and wishes everyone “Shabbat shalom, good news.”
Full Transcript
[Rabbi Michael Abraham] Okay, my plan is to finish this series on statistics and doubt today. We’re now in the second part of the series, which deals with doubtful cases. We saw that the whole issue of doubt is really connected to the statistical issue through considerations of expected value or utility. And I argued that the rules of doubt—Torah-level doubt is treated stringently, rabbinic-level doubt leniently, as opposed to majority—are really considerations of expected harm or expected cost or something like that. Along the way, later, I also discussed the question of the nature of the prohibition in a doubtful case, which is related to this too: is the prohibition on the very act of entering a doubtful situation, or is the prohibition only the concern that you may end up violating the Torah prohibition itself? Right—possibly pork, possibly not pork. So one could say that the obligation to be stringent in such a case is simply because there is a prohibition on entering a situation where you are in doubt. It doesn’t matter at all what the truth turns out to be, whether in fact there is pork there or not; the very fact that you are in a state of doubt means you are forbidden to take the risk, and therefore one must be stringent in doubtful cases. Another possibility is to say no: if you take the risk, later you won’t be able to excuse yourself by saying you acted under duress—but that’s only if you actually ate pork. If it turns out that this piece was not pork but kosher meat, then you took a risk and got away with it. In other words, the risk did not materialize. So there is really no prohibition on entering the doubtful situation itself; rather, it just removes your claim of duress. The fact that they warned you means you won’t later be able to say you were under duress. We saw that Rabbi Shimon Shkop wants to argue that the dispute between these two sides, these two possibilities for understanding the duty to be stringent in doubtful cases, is apparently the dispute between Maimonides and Rashba on the question whether Torah-level doubt is treated stringently, as Rashba holds, or whether by Torah law it is treated leniently and only rabbinically treated stringently, as Maimonides holds. Okay, we won’t go into that again; we already discussed it. I just want to take this dispute between Maimonides and Rashba—most of the medieval authorities (Rishonim) go with Rashba—and try to see a bit more what exactly it really means. So there is a Ran on the Rif in Kiddushin, let me share it for a moment. Right, he says as follows: We have the reading in the Talmudic text in Kiddushin: Rav Asi said in the name of Rabbi Yochanan, “Orlah outside the Land of Israel is a law given to Moses at Sinai.” Meaning, orlah is one of the commandments dependent on the land, right—the fruit of the first three years is forbidden to eat and forbidden to derive benefit from. What happens outside the Land of Israel? Presumably that should be permitted; these are commandments dependent on the land, just as we don’t separate terumot and tithes outside the Land of Israel. But no: orlah outside the Land of Israel is also prohibited, and this is a law given to Moses at Sinai, so says the Talmudic text. In other words, it’s not like the rest of the land-dependent laws; this law also applies outside the Land of Israel. Commandments dependent on the land are not commandments dependent on the Land of Israel specifically, but commandments dependent on the soil. So commandments dependent on the soil mostly apply only in the Land of Israel, but orlah does not—but that is from a law given to Moses at Sinai; it is not the Torah’s own prohibition of orlah. Rabbi Zeira said to Rav Asi: But didn’t we learn, doubtful orlah in the Land of Israel is prohibited, in Syria it is permitted? That is, if outside the Land of Israel it is indeed a law, how can we be lenient in its doubtful case? What exactly is Rabbi Zeira asking Rav Asi? If you tell me that orlah outside the Land of Israel is a law given to Moses at Sinai, that means it is a Torah-level prohibition, so how can it be that doubtful orlah in Syria is permitted? “Syria” here means outside the Land of Israel generally. In the Land of Israel doubtful orlah is prohibited because Torah-level doubt is treated stringently, but outside the Land of Israel too it should have been prohibited, because Torah-level doubt is treated stringently; outside the Land of Israel too it is Torah-level, since it is a law given to Moses at Sinai. By the way, from Maimonides in several places it seems that a law given to Moses at Sinai is not Torah law, but the accepted view is that a law given to Moses at Sinai is Torah law. He was silent in astonishment for about an hour—Rav Asi paused for a moment, he didn’t know what to answer. Then he said to him: Say that this is how it was stated—its doubtful case is permitted and its certain case is prohibited. What does that mean? What’s the point of that? That this itself is the content of the law. The law given to Moses at Sinai said not only that orlah outside the Land of Israel is prohibited, but the law given to Moses at Sinai also said that doubtful orlah outside the Land of Israel is permitted. So true, without that second law I would have been stringent even with orlah outside the Land of Israel, because it is a Torah-level prohibition by virtue of the first law given to Moses at Sinai. There is a law given to Moses at Sinai regarding orlah outside the Land of Israel that contains two components. One component is the very fact that there is an orlah prohibition even outside the Land of Israel. The second component is that the doubtful case of that prohibition, which was introduced by the first component, is treated leniently. Even though it is a prohibition that is a law given to Moses at Sinai, a Torah-level prohibition, its doubtful case is treated leniently. Why? Because that is what the law given to Moses at Sinai established. And it is indeed true that without that law given to Moses at Sinai we would have gone stringently. And that is what Rav Asi answers. And some learned from here, says the Ran, that what we say—that Torah-level doubt is treated stringently—is itself Torah law and not rabbinic. Because here we say that the law had to permit the doubtful case. You remember that in this dispute between Maimonides and Rashba, Rashba himself basically comments against Maimonides from the Talmudic text in Kiddushin regarding mamzer status; we discussed that. The Talmudic text there says that a doubtful mamzer is not a mamzer. Rashba says: you see from this that a special derivation was needed to allow leniency in the doubtful mamzer case, implying that everywhere there is no special derivation, any doubtful prohibition must be treated stringently. So you see that Torah-level doubt being treated stringently is a Torah-level rule. A Torah-level rule—against Maimonides. That is Rashba’s difficulty, and we discussed that Maimonides brings that Talmudic text regarding mamzer as a source for his own view. Not only is it not a difficulty; it’s a source. Here the Ran raises a very similar difficulty. There is a law given to Moses at Sinai that tells me that doubtful orlah outside the Land of Israel is permitted. Why do we need that law given to Moses at Sinai? Apparently because without it the doubtful case would have had to be prohibited. Why? Because Torah-level doubt is treated stringently by Torah law. And that is a difficulty against Maimonides. Because according to Maimonides there was really no need for the second part of the law given to Moses at Sinai regarding orlah. The first part says there is orlah outside the Land of Israel and that it is prohibited. The second part, saying that its doubtful case is permitted, is redundant. Every Torah-level doubt is permitted by Torah law. Okay? So from here the Ran raises a difficulty against Maimonides. And to this the Ran answers: but from this there is no proof. Meaning, the Ran himself really agrees with Rashba that Torah-level doubt is treated stringently, but he says: if you want to bring proof for our position from this law concerning doubtful orlah outside the Land of Israel, there is no proof here. Even though that is the correct conclusion in the Ran’s view, the proof is not a proof. Why not? Because here it was necessary to permit anything in which any doubt at all arose in the world, even though elsewhere it would not be enough to permit it, for that is why we say that with every opinion that is lenient in the Land of Israel, the law follows it outside the Land of Israel, even an individual against the many, because every doubtful case is permitted, even something close to certainty, and even creating the doubtful situation ab initio is also permitted, whereas with other prohibitions one certainly violates “do not place a stumbling block.” He says the difficulty against Maimonides was: why do I need a law given to Moses at Sinai to permit doubtful orlah outside the Land of Israel? According to Maimonides every Torah-level prohibition in doubt is permitted. So what is special about orlah that outside the Land of Israel you need a law given to Moses at Sinai to permit it? So he says that’s not difficult. True, without the law given to Moses at Sinai we would permit it, but we would permit it just as we permit any other doubtful prohibition according to Maimonides. If Torah-level doubt is permitted by Torah law, then regarding doubtful orlah outside the Land of Israel too we would treat it like every other case. For example, what if it were an individual against the many? Where there is an individual against the many, the law follows the many. We don’t say: well, since it’s an individual against the many, it’s a doubt, and doubt is treated leniently. No. Here too Maimonides would agree that we follow the many. Why? Because individual against the many means the law follows the many; that is like majority and not like an evenly balanced doubt. By contrast, in doubtful orlah, if there is a dispute among halakhic decisors, say, regarding orlah, and most hold it is prohibited while the minority says it is permitted, then in principle under the regular laws of doubt we would have had to prohibit it, because the law follows the majority. But because the law given to Moses at Sinai said that doubtful orlah outside the Land of Israel is permitted, here we permit it, because even a case of individual against the many is called a case of doubt, and the law regarding doubtful orlah outside the Land of Israel was stated even for such situations. So there you have it—why a special law regarding doubtful orlah outside the Land of Israel is needed even according to Maimonides, who holds that doubtful prohibition is treated leniently, every doubtful prohibition is treated leniently. So why is a special law needed in doubtful orlah to permit leniency? Because there the leniency is more unusual than in ordinary doubtful prohibitions. Even in a place where in a regular doubtful prohibition we would not go leniently but rather stringently, here we go leniently. So he gives two examples of this: a doubtful case that is not sufficient to permit elsewhere, such as an individual against the many; and the second example: even presenting it as doubtful to one another is permitted. What does “even presenting it as doubtful to one another is permitted” mean? It seems to me what he means is that if I have doubtful orlah, I can give it to someone else to eat and I have not violated “do not place a stumbling block,” unlike every other prohibition where if I have a doubtful prohibition I cannot give it to someone else and cause him to stumble. Now, in a regular doubtful prohibition this is not true, because according to Maimonides Torah-level doubt is treated leniently, so if I give someone something to eat that is doubtfully prohibited, clearly I have not violated “do not place a stumbling block.” Why would I violate “do not place a stumbling block”? After all, the person who ate it did not violate a prohibition, so I who caused him to eat it did not violate “do not place a stumbling block.” Therefore the Ran is not talking about giving someone doubtful orlah; the Ran is talking about giving someone certain orlah. That is, I take something that is definitely orlah outside the Land of Israel—I know it is orlah—and I give it to someone who does not know. Is that permitted? On the face of it, no. What do you mean? Orlah outside the Land of Israel is a Torah-level prohibition, a law given to Moses at Sinai, so I caused someone to violate a certain Torah-level prohibition, and therefore I violated “do not place a stumbling block.” And the Ran says no. Why not? Why am I allowed to feed another person definite orlah? That is what the law given to Moses at Sinai innovated. The law given to Moses at Sinai innovated that I am permitted to feed the other person even definite orlah. Why? Because that person, who is eating the definite orlah, is in doubt about it; he does not know that it is orlah. I know it is orlah, he does not know. Since he is in doubt, and the law is that doubtful orlah outside the Land of Israel is permitted, he in fact did not violate a prohibition. Consequently I, who caused him to do it, did not cause him to violate a prohibition, and therefore I too did not violate a prohibition. What happens if I give someone pork to eat? Then obviously I violated “do not place a stumbling block.” The fact that doubtful pork is treated leniently—because according to Maimonides doubtful prohibition is treated leniently—what happens with doubtful pork? That too is treated leniently. So what’s the problem? I gave someone something to eat and he doesn’t know whether it’s pork or not, so from his perspective he is permitted to be lenient; so why should I violate “do not place a stumbling block” if I cause him to eat that thing? There is clearly something here that is unique specifically to orlah. The Ran does not mean to say that this is true of every doubtful prohibition; he means specifically orlah. What is special about this? So we’ll get to that in a moment. However, the plain truth of the matter, says the Ran, is that Torah-level doubt is prohibited by Torah law. So he says: the difficulty from doubtful orlah outside the Land of Israel is not a difficulty. It may be that the law that doubtful orlah outside the Land of Israel is permitted comes to teach me novelties beyond ordinary doubtful prohibition. But true, the difficulty is not a difficulty—yet the conclusion of Rashba, says the Ran, I agree with: Torah-level doubt is treated stringently as a Torah-level rule, not like Maimonides who says it is a rabbinic rule. So what is his proof? The proof from doubtful orlah is not a proof, so what is his proof? He says as follows: because if you do not say this, what about the provisional guilt-offering? After all, if someone violates a prohibition for which intentional violation incurs karet and unintentional violation requires a sin-offering, and now he is in doubt whether this prohibition was present or not, in a case where he is in doubt and he ate the prohibited thing or committed the act, he brings a provisional guilt-offering for that. A provisional guilt-offering is brought for doubtful prohibitions. The Ran asks: if Torah-level doubt is really not prohibited by Torah law—by Torah law it is permitted, and only the rabbis prohibited it—then why, if I ate something that is doubtfully prohibited, do I bring a provisional guilt-offering? I didn’t violate any prohibition, so what am I bringing it for? That, he says, is already a difficulty with no answer, and therefore he says Maimonides is not right; rather, Torah-level doubt is treated stringently by Torah law and not by rabbinic law. And if you say that the case there is different because there was an established prohibition—what is he saying here? Many later authorities (Acharonim) discuss this—maybe there is such a rule that a provisional guilt-offering is brought only if I ate a doubtful prohibition where there was an established prohibition. What does that mean? As I mentioned once, the distinction between a doubt involving one piece and a doubt involving one of two pieces. Suppose I have a piece of meat in front of me and I don’t know whether it is pork or kosher meat. That is a doubt involving one piece. Torah-level doubt is treated stringently, but this is called a doubt involving one piece. For that, one does not bring a provisional guilt-offering. Even if I ate that doubtful piece—okay, pork doesn’t involve karet, so let’s say it was something that did involve karet—you still don’t bring a provisional guilt-offering for that. When do you bring a provisional guilt-offering? If I have two pieces before me, one of pork and one kosher, and I don’t know which is which. I picked one and ate it. Now I don’t know whether I ate the kosher one or the pork one. For that one brings a provisional guilt-offering. This is called an established prohibition, or a fixed prohibition, or one piece out of two pieces. Right? So he says maybe this difficulty from the provisional guilt-offering, the difficulty against Maimonides from the provisional guilt-offering, is also not difficult. Why? Because all that Maimonides says—that Torah-level doubt is treated leniently—is only in a doubt involving one piece, and for that indeed one does not bring a provisional guilt-offering. But in a doubt involving one of two pieces, there too Maimonides would agree that by Torah law one must be stringent, and consequently if he violated it he brings a provisional guilt-offering, because that is the only case for which one brings a provisional guilt-offering. The Ran says: but that can’t be either, because what can be said according to the one who does not require that? Because there is an opinion in the Talmudic text that even for a doubt involving one piece one brings a provisional guilt-offering, not only for one of two pieces. And at least according to that opinion it will be difficult against Maimonides. Because according to Maimonides, at least in such a situation, one may be lenient with Torah-level doubt. So how can one bring a provisional guilt-offering? Right, and the anonymous Mishnah does hold that you need one of two pieces, and that is the law, but still there is a dispute about it. And therefore it is difficult for him against Maimonides, and his conclusion is that Torah-level doubt being treated stringently is a Torah-level rule, not a rabbinic rule as Maimonides says. Otherwise we could not explain how one brings a provisional guilt-offering. In parentheses, I’ll just say that this difficulty against Maimonides is not difficult, because—and I wrote a long article about this—all guilt-offerings, and what characterizes all guilt-offerings, can be shown one by one, guilt-offering after guilt-offering, I showed this in the article, for all guilt-offerings. Guilt-offerings are not brought for a sin. You bring a guilt-offering even without having committed a sin. There are certain situations that, if you end up in them, you need to bring a guilt-offering. Not just a provisional guilt-offering, but guilt-offerings in general. Even if there is no sin at all. For example, the guilt-offering of a designated maidservant. The guilt-offering of a designated maidservant—someone who has relations with a designated maidservant, a Canaanite maidservant who is married to a Hebrew slave. In such a case there is a form of betrothal. What happens if someone has relations with her? According to Jewish law he violates no prohibition at all, even though she is a married woman, the wife of a Hebrew slave, but one who has relations with her violates no prohibition whatsoever. But he brings the guilt-offering of the designated maidservant. What do we see from here? That in order to incur a guilt-offering, you do not need to have violated a prohibition. Guilt-offerings are incurred for certain situations even if no prohibition is involved. Another example is the guilt-offering for misuse involving vows, misuse involving konamot. If someone vowed to prohibit himself from deriving benefit from a loaf of bread—“this loaf is forbidden to me as a vow”—and then he ate that loaf. The Talmudic text says that he brings a guilt-offering. A guilt-offering because he committed misuse with this vow; it has a kind of sanctity that he misused, and he needs to bring a guilt-offering just as one brings a guilt-offering for misuse. So here too you bring a guilt-offering. Now this has no source in the ordinary prohibition; the prohibition of violating the vow is “he shall not profane his word,” and for that prohibition one is lashed—it’s unrelated. So for what is the guilt-offering brought? The guilt-offering is not brought for the prohibition; for the prohibition there is lashes. The guilt-offering is brought for the very fact that you committed misuse with the vow. Not because there is a prohibition. There is a prohibition, but it is the prohibition of “he shall not profane his word,” and for that one is lashed. The guilt-offering does not come for a prohibition. And so on. If you want, the students of Rabbenu Yonah, for example, say in Berakhot that one who eats without a blessing brings a guilt-offering. Blessings over enjoyment are rabbinic law. So how can someone who ate without a blessing bring a guilt-offering? “Whoever benefits from this world without a blessing is as if he committed misuse,” the Talmudic text says. And therefore one must bring a guilt-offering for misuse even though there is no Torah prohibition here, only a rabbinic prohibition. And so on—you can see this with all types of guilt-offerings. My claim is that this is exactly what Maimonides would say regarding the provisional guilt-offering. A provisional guilt-offering is one of the guilt-offerings—what? True, by Torah law in a doubtful case you can be lenient, and therefore if you were lenient and ate a piece that was doubtful, you did not violate any prohibition, because it is permitted. And still you have to bring a provisional guilt-offering. There is no prohibition. The Ran asks: how can that be? If you bring a guilt-offering then clearly there is a prohibition, and here is the proof that doubt is prohibited by Torah law. Maimonides would answer him: not true. A provisional guilt-offering, like all the other kinds of guilt-offerings, does not require a sin in order to become liable. Therefore, although in a doubtful case I may be lenient, and if I was lenient I did not violate any prohibition, still if I was lenient I am liable to bring a provisional guilt-offering, even though there is no prohibition. So the claim that there must be a prohibition here because otherwise one would not incur a guilt-offering is incorrect. He also mentions there the possibility of distinguishing between one piece and two pieces, if there is no one-piece case. There are different versions of Maimonides in the laws of impurity, impurity from a corpse—I don’t remember exactly—there Maimonides speaks about Torah-level doubt being treated leniently, and Torah-level doubt being treated stringently rabbinically, but by Torah law it is lenient. And there are those who emend the version in Maimonides and say that this is only where there is no established prohibition. Where there is an established prohibition—meaning one of two pieces—then the obligation to be stringent is by Torah law. They say this in order to resolve this difficulty of the Ran from the provisional guilt-offering. Shema’ata discusses this in Shema’ata 1 and elsewhere. And then they emend Maimonides’ text in a way that is simply utterly self-contradictory. Within that very law itself you can see that Maimonides is talking about all types of doubtful cases; none of these emendations has any root or branch. And they are also unnecessary, as I said just now, because the Ran’s difficulty can be resolved even without that. There does not need to be a prohibition in order to incur a guilt-offering, whether provisional or any guilt-offering at all. Therefore the existence of a provisional guilt-offering does not prove that there is a prohibition on doubtful situations. Fine. And what is important for our purposes is the passage I noted earlier, “even presenting it as doubtful to one another.” What I said earlier actually appears explicitly in the Ran later in his words there on the next page of the Ran, where he says as follows: Orlah applies outside the Land of Israel, and its doubtful case is permitted. Its doubtful case is permitted, because that is how the law was stated. The law given to Moses at Sinai said both that it is prohibited outside the Land of Israel and that its doubtful case is permitted. Now look at his comment. “Even someone who knows about the fruits that they are orlah may present them as doubtful to his fellow and feed him. Doubtful kilayim is like doubtful orlah.” Here the Ran says explicitly what I said above: what? That doubtful orlah outside the Land of Israel being permitted means not only that if I don’t know whether something is orlah or not orlah I can be lenient—that, according to Maimonides, is true in all prohibitions—but the Ran claims that in orlah there is a special law: even if there are fruits that you know with certainty are orlah, you can take those fruits and feed them to someone else who does not know about those fruits and thinks they are kosher—you can feed him and have not violated “do not place a stumbling block.” Now here this is a subtle point, as I said before; this is the “even presenting it as doubtful to one another” that appears in the earlier passage of the Ran, and here he writes it explicitly. Now let’s just try to sharpen the novelty here, because this is a tremendous novelty. He really wants to claim that not only do I not have to be stringent and refrain from eating fruits about which I have a doubt whether they are orlah or not outside the Land of Israel—in the Land of Israel yes, outside the Land of Israel if I have a doubt regarding the fruits, then—let me put it this way: say I have another law according to Maimonides. Doubtful pork is also treated leniently, right? By Torah law. Rabbinically one must be stringent; by Torah law doubtful pork is treated leniently. Would Maimonides rule that if I take an actual piece of pork, definite pork, and give it to someone to eat, and that person doesn’t know that it is a piece of pork—he thinks it is kosher meat—and therefore he is basically in a state of doubt, and after all according to Maimonides doubtful prohibition is permitted, so if doubtful prohibition is permitted, then I who caused him to do it, I who gave him that piece of pork to eat, did not violate a prohibition because I did not cause him to violate a prohibition? Notice, I am talking about a piece that is definitely pork, not doubtful. I know—this is a piece of pork that I know with certainty. The eater doesn’t know. When I gave it to someone to eat, he didn’t
[Speaker B] know, so he is in doubt. If he is in doubt, he is allowed to be lenient. If he is allowed to be lenient, then
[Rabbi Michael Abraham] I didn’t cause
[Speaker B] him to violate a prohibition, so I didn’t violate “do not place a stumbling block.” There’s no such thing. It’s unthinkable. That wipes out the whole idea of there even being a possibility of violating “do not place a stumbling block.” You hear? It cancels the whole possibility of violating the prohibition of “do not place a stumbling block,” because if the blind person is always in doubt, and even Torah-level doubt is treated leniently, then this prohibition no longer exists.
[Rabbi Michael Abraham] That’s exactly right, because “do not place a stumbling block” exists even in a situation where I cause the other person to stumble and he does so intentionally. The Talmudic text in Avodah Zarah, page 15, says there: what happens when we are standing on two sides of a river—two sides of the river—and the Nazirite is standing on the other side and asks me to bring him a cup of wine. A Nazirite is forbidden to drink wine. He asks me to pass him a cup of wine. Now I give him the cup of wine and he drinks it. We’re talking about a Nazirite who knows he is a Nazirite and knows that a Nazirite is forbidden to drink wine, and still I have violated “do not place a stumbling block.” Now he wasn’t blind about the matter, but I violate “do not place a stumbling block” as long as this is two sides of the river—that is, as long as he could not have taken the cup of wine and committed the prohibition without me. If that is the case, then I violated “do not place a stumbling block.” If it is one side of the river, meaning he can take the cup of wine himself and doesn’t need me for it, then there is no Torah prohibition, and there is a dispute among the medieval authorities (Rishonim) whether there is a rabbinic prohibition, the prohibition of assisting. But there is no prohibition of “do not place a stumbling block.” However, if we are on two sides of the river, then I am causing him to stumble even though he is acting intentionally. So this “do not place a stumbling block” certainly exists. But it is true that if he is acting unintentionally, then according to the suggestion I raised here—which is not correct—but if it were correct, then there would be no case at all in which I cause an unintentional sinner to stumble. Because the moment he is unintentional, then he has not really been caused to stumble, so there is no problem. But clearly that is not true. If there is a piece of meat that is pork, and I know it is pork, I am forbidden to give it to someone else even though he does not know, and ostensibly he is in doubt and could eat it. Why? Because I am not in doubt. I caused him to take in definite pork, and therefore the fact that he did not violate a prohibition may be true, but I am responsible for the fact that definite pork entered him. There are those who would formulate it by saying that in a certain sense I am the one who violated the prohibition of pork. Not him. Because from his doubtful perspective he may have been allowed to be lenient, but I violated the prohibition of pork, and therefore it is forbidden. Or in other words, to put it a bit more mildly: he ate pork, definite pork, therefore he violated a prohibition; he just is not blameworthy because he was in a state of doubt, so he is not guilty of it, but he did violate the prohibition. And once I caused him to violate a prohibition, I violated “do not place a stumbling block.” One can formulate this a bit differently. People think that “do not place a stumbling block” is an interpersonal prohibition. I am basically causing my fellow to violate a prohibition, so I caused him something bad. That’s interpersonal; I acted wrongly toward him. But perhaps not. The prohibition of “do not place a stumbling block” is not interpersonal. Therefore here, for example, when he ate it while in doubt, he did not violate a prohibition, so I did not cause him anything bad. But I did cause a Jew to eat pork. The Holy One, blessed be He, does not want Jews eating pork. Once I caused that, I violated a prohibition—not between man and his fellow, but between man and God. And therefore even if he doesn’t know about it, I do know that it is pork, so I violated “do not place a stumbling block.” These are slightly different formulations, but choose whichever one you like. In any case, it is clear that in ordinary prohibitions, if I know that this thing is definitely prohibited, and I give it to someone else who does not know, I have violated the prohibition of “do not place a stumbling block.” That is obvious. The Ran claims that in doubtful orlah outside the Land of Israel this is exceptional. Here, if I know with certainty that these fruits are orlah—not that I’m in doubt, I know with certainty—I may take those fruits and feed them to someone else who does not know, and he thinks the fruits are kosher. Why? Because he is in doubt; because he is in doubt he did not violate a prohibition, and consequently I too did not cause him to violate one. So why don’t I say the same thing with pork? What is the difference between doubtful orlah outside the Land of Israel and pork? On that point the Ran wants to claim only that doubtful orlah outside the Land of Israel is more lenient than doubtful pork, even according to Maimonides. According to Maimonides, doubtful pork too is treated leniently, but with doubtful orlah you still need a law given to Moses at Sinai, because it introduces a greater novelty. What is that novelty? That I am permitted even to feed someone else definite orlah, which does not exist with pork even according to Maimonides. And then the question really arises: why? What is the difference between doubtful orlah outside the Land of Israel and pork according to Maimonides, when in both cases their doubtful case is treated leniently, and nevertheless in one of them, definite pork, I am forbidden to feed the other person even though he is in doubt, whereas in orlah outside the Land of Israel, if I am certain about it—even if I am certain about it—if the other person does not know, I am allowed to feed it to him. What is the difference between them?
[Speaker D] Because here it says explicitly that in the law given to Moses at Sinai it says that one may be lenient, no? In orlah.
[Rabbi Michael Abraham] Yes, but
[Speaker D] But that’s according to
[Rabbi Michael Abraham] Maimonides. According to Maimonides you can be lenient in every doubtful prohibition, including doubtful pork.
[Speaker D] But here what is stated is basically saying even more—it’s like an upgraded leniency, so to speak.
[Rabbi Michael Abraham] Yes, so in terms of the source question, you’re right; that’s also what the Ran says. The Ran is basically claiming that you cannot challenge Maimonides from doubtful orlah outside the Land of Israel, because it may be that the law given to Moses at Sinai permitting doubtful orlah outside the Land of Israel comes to say that here they permit more than in an ordinary doubtful prohibition. In what way, for example? In the possibility of feeding someone definite orlah, which with definite pork it is forbidden to do. But still, the substantive question remains exactly where it was. What’s the difference? If there really is a prohibition here, one should be careful about doubtful prohibition. So if I feed it to him, I basically caused him to eat a prohibition. So what is the difference in the reason of the verse? Right, what is the difference between orlah and—maybe
[Speaker D] also some utility consideration, like you said? What? Maybe fruit outside the Land of Israel is more common, maybe more widespread?
[Rabbi Michael Abraham] I don’t think so, no. Certainly not in general compared to all the other prohibitions of the Torah. I don’t see a reason for that. If there is a majority there, by the way, then the question is how we follow majority, and then it really is permitted. So there’s no problem; we’re talking when there is doubt, not when there is a majority.
[Speaker E] Is this an accepted ruling, or is it a novelty of the Ran?
[Rabbi Michael Abraham] A novelty of the Ran.
[Speaker E] So Maimonides doesn’t hold like him? You could say Maimonides wouldn’t agree with the Ran.
[Rabbi Michael Abraham] No problem at all, but I’m asking about the Ran.
[Speaker E] Okay, okay.
[Rabbi Michael Abraham] The Ran himself wants to explain Maimonides this way. Maimonides would hold that the law given to Moses at Sinai—that a doubt concerning orlah outside the Land of Israel is permitted—why is that needed? After all, doubtful pork is also permitted. It’s needed in order to say that one may definitely feed the other person actual orlah, which is not true with pork. Meaning, the Ran, when he explains Maimonides, contrasts doubtful orlah outside the Land of Israel with doubtful pork. Because with definite pork, even if the other person is in doubt, I’m forbidden to cause him to stumble. But with definite orlah, if the other person is in doubt, I’m allowed to feed it to him. And the question is: what’s the difference?
[Speaker E] But according to the Ran, from the moment the prohibition already applies to orlah—which is the novelty—it no longer applies, so no prohibition remains at all, even regarding feeding the other person.
[Rabbi Michael Abraham] I didn’t understand. With pork too there’s no prohibition at all.
[Speaker E] No, according to the Ran, a Torah-level doubt is treated stringently on the Torah level.
[Rabbi Michael Abraham] I’m talking within Maimonides’ view again. He’s explaining Maimonides’ view. He says that according to Maimonides, where doubtful orlah—doubtful prohibition—is treated leniently, why do I need a law given to Moses at Sinai that allows me to be lenient with doubtful orlah outside the Land of Israel? So he says: because with doubtful orlah outside the Land of Israel they’re more lenient than with an ordinary doubtful prohibition. All this is within Maimonides’ view. The Ran himself, of course, holds that it’s stringent, but all this he’s explaining within Maimonides’ view. Okay? Okay,
[Speaker E] Okay.
[Rabbi Michael Abraham] So actually, once I heard Rabbi Hershel Schachter—he was the head of Yeshiva University. He was once at the yeshiva in Yeruham, gave a lecture there, and there he brought an article by Rabbi Elchanan Wasserman, which since then I’ve looked for several times and by the way haven’t found. I don’t know. But he claims there’s an article by Rabbi Elchanan Wasserman with a very big novelty based on this Ran. And his claim is this: regarding the prohibition of orlah, when the law given to Moses at Sinai tells me that doubtful orlah outside the Land of Israel is permitted, what is it really telling me? It is really telling me that orlah outside the Land of Israel is not really an object of prohibition; rather, it’s on the person—you as a person have to be stringent and not eat orlah outside the Land of Israel. I’m not talking about doubt; I’m talking about certainty, yes? Orlah outside the Land of Israel in and of itself is not something problematic in itself. Human beings are required not to eat orlah outside the Land of Israel, as opposed to orlah in the Land, where the fruits themselves are an actual object of prohibition. Orlah fruits outside the Land of Israel are not an object of prohibition. So what is the prohibition then? Rabbi Elchanan says: it is a consciousness-based prohibition. What does that mean? There’s no prohibition in the fact that you ate fruit when the reality is that these fruits are orlah. The prohibition is eating fruit that you know is orlah. Again, pay attention: usually, the requirement that you know there is a prohibition here is only a requirement so that we can blame you for the prohibition. It does not define the fact that there was a prohibition here. If you ate pork and didn’t know it was pork, you violated the prohibition of pork. You didn’t know it was pork, so you’re not culpable, you’re exempt, you’re not guilty—but you did violate the prohibition of pork. Meaning, the lack of knowledge regarding pork is only a condition for my being able to charge you, if you want, in terms of punishment. But in orlah, in doubtful orlah, in orlah outside the Land of Israel, knowledge is a condition of the prohibition itself. And if you don’t know that this thing is orlah, then you didn’t violate any prohibition at all—not just that you’re not guilty. Since the prohibition is not eating orlah outside the Land of Israel—well, orlah outside the Land of Israel has no problem in itself. The prohibition is being aware that these fruits are orlah and eating them. That is the prohibition. If you’re not aware, it’s not that you’re exempt from punishment even though you violated a prohibition; rather, if you’re not aware, there is no prohibition at all.
It reminds me a bit of what we talked about years ago, that Rabbi Yitzchak Hutner in Pachad Yitzchak brought that some sage once asked him: why does Maimonides count the commandment to love the convert? After all, there is the commandment of loving one’s fellow—“Love your fellow as yourself”—and the convert is a Jew. So just as one must love every Jew, certainly one must also love converts. That should be included in the commandment of loving one’s fellow. So why do I need a separate commandment about loving the convert? And then he says this. Suppose I have some neighbor, I know a person and he’s a very nice man, and I like him very much. In truth he is a convert, but I don’t know that he’s a convert. I like him just because I like him. Have I fulfilled the commandment of loving the convert? Did I fulfill it unintentionally, because I didn’t know this person was a convert and in fact I loved a convert—so did I fulfill that commandment? He says no. Why? Because the commandment of loving the convert is a commandment to love a person whom I know is a convert because of the fact that he is a convert. The knowledge that he is a convert, and his conversion being the reason for the love—that is not merely a condition for receiving reward for the commandment; without it, I have not fulfilled the commandment at all. The knowledge here is definitional; it is part of the essential definition of the act of the commandment. I do not merely need to love a convert; I need to love someone whom I know is a convert. If I don’t know, then it’s not that I fulfilled the commandment of loving the convert only unintentionally, without knowing I was fulfilling it. Rather, if I don’t know, I simply have not fulfilled the commandment at all. That is exactly the same definition as what we’re discussing here. Meaning, the knowledge is an essential part of defining the commandment or the transgression; it is not merely a condition for punishment or liability or guilt.
And therefore he says that doubtful orlah outside the Land of Israel is permitted. What does this law teach? This law teaches that in orlah, the prohibition is not a prohibition in the object, but a prohibition of awareness. To eat something while being aware that it is orlah—that is what is forbidden. If you ate definite orlah but were not aware that it was orlah, you did not violate any prohibition. Not that you are not guilty—you violated no prohibition at all. There is no problem whatsoever. Therefore, for example, even if you could clarify it—you suspect whether it is orlah or not orlah, and you could find out—don’t find out. You don’t need to. If you don’t know that it’s orlah, nothing happened. And the knowledge here is not some principle that comes to exempt you; the knowledge defines the prohibited act. Without the knowledge, it isn’t defined as a prohibition at all. Therefore he says that if I give someone else fruits that are definitely orlah—fruits that are definitely orlah—and that other person doesn’t know these fruits are orlah, then he can eat them. Why? With pork it isn’t like that. Because with pork, if he didn’t know, he still ate pork. That is a prohibition; he just didn’t know, so he isn’t guilty. But he did violate a prohibition. So I’m forbidden to cause him to stumble in that prohibition. But with definite orlah, when I give someone else orlah outside the Land of Israel—when I give someone else this definite orlah to eat—if he doesn’t know that it is orlah, then he simply didn’t violate any prohibition at all. So in what sense did I cause him to stumble? It’s not that he’s exempt from punishment; rather, he did not violate any prohibition in the first place. There is no prohibition if he is not aware. Automatically, I also did not cause him to stumble in a prohibition. And his claim is that this is the novelty of the law given to Moses at Sinai. When that law said that doubtful orlah outside the Land of Israel is permitted, what it really said is that the prohibition of orlah—even definite orlah—is a prohibition of awareness, not a prohibition of the object itself. That is what it said. Consequently one can be lenient, and consequently one may feed definite orlah outside the Land of Israel to someone who does not know it.
With pork, for example, Maimonides says that its doubtful case is permitted. But that’s not because there is some special law that its doubtful case is permitted; rather, like any doubtful prohibition, its doubtful case is permitted. But that does not mean that if you ate that pork and didn’t know, in a case of doubt, you did not violate a prohibition. You violated a prohibition; you ate pork, only you’re not guilty. Okay? You’re not guilty, but you did violate a prohibition. Maimonides agrees to that too. All he means when he says that a Torah-level doubt is treated leniently is only that you don’t have to worry, you don’t have to be stringent. But clearly, if in fact the reality is that you ate pork, then you violated the prohibition of eating pork. You just did it under compulsion, or unintentionally, or whatever—but you violated that prohibition. With orlah outside the Land of Israel, no. If you ate orlah outside the Land of Israel and didn’t know it was orlah, you didn’t violate any prohibition whatsoever. It’s not just that you’re not guilty; not only are you not guilty, there isn’t any prohibition here at all. That’s his claim. Is the distinction clear?
Now Rabbi Elchanan wants to argue on the basis of this Ran that we just read—Rabbi Elchanan wants to argue that there is a whole list of doubts, a whole list of Torah-level doubts, where the rule is lenient. Independently of Maimonides—even according to Rashba and the Ran. For example, doubtful mourning. Doubtful mourning is treated leniently, even in the Torah-level part of mourning. Doubtful mourning is treated leniently; that’s the rule. Doubtful firstborn is treated leniently, doubtful tithe, doubtful orlah outside the Land of Israel, doubtful impurity in the public domain, and so on, doubtful mamzer status, which we saw. There are quite a few halakhic prohibitions or halakhic contexts in which there is such a rule, that in cases of doubt they are treated leniently on the Torah level. There is some special source that teaches that in those doubtful cases we are lenient.
[Speaker C] But is what they also have in common that they are consciousness-based prohibitions?
[Rabbi Michael Abraham] Rabbi Elchanan Wasserman says, in light of what one sees in the Ran here—the Ran is talking about doubtful orlah—but Rabbi Elchanan Wasserman says this is really what would apply in all these prohibitions. Not all prohibitions; all the prohibitions where there is a source permitting doubtful cases. Say according to Maimonides, in all prohibitions one can be lenient in cases of doubt. But in ordinary prohibitions there is no source telling you to be lenient in doubt; the rule simply is that a Torah-level doubt is treated leniently. But there is a particular list of prohibitions where there is a special source telling you that you may be lenient in a doubtful situation. In those places Maimonides would say there is an even greater leniency than the ordinary rule that a Torah-level doubt is treated leniently. There the leniency is of the Ran’s type regarding orlah outside the Land of Israel.
[Speaker D] Right, regarding “the blind,” regarding putting a stumbling block before the blind.
[Rabbi Michael Abraham] It’s a consciousness-based prohibition, and the implication is that if you caused someone to stumble in that prohibition, if he didn’t know then nothing happened, because it’s a consciousness-based prohibition. Now understand that this novelty is enormous. For example, I’ll give you… and really it’s a difficulty, not just an example—but seemingly this is what ought to follow from this principle.
We know that the problem of mamzer status, for example, is a very severe problem. A very severe problem because the mamzer cannot marry. He has no one to marry. At best he can marry a female mamzer, but then the child also comes out a mamzer, and in short you don’t get out of the mamzer status. There is one possibility: a female convert and to free her—an extremely complicated story. There were stories about this with Rabbi Aharon Kotler, who found some… he had a student in Lakewood, and at some stage it became known that this student was a mamzer. He came crying to Rabbi Aharon Kotler: what will I do? I can’t get married. He found some community of freed slaves in the Jews of India, some freed maidservant like that who lived in Jerusalem, an Indian woman. And he told him: marry her. Marry her, and the children will come out as fully kosher Jews. That is the only possibility for mamzerim to stop the chain of mamzerut—to save their children from this chain of mamzer status.
Now the question is: why exactly is mamzer status such a severe problem? I have a very simple solution. Suppose I have a woman who is definitely a mamzer, and I know for certain that she is a mamzer, okay? I take my best friend and say to him: listen, there’s this amazing woman, top of the top, I really strongly recommend her to you. I make the match between them, dance at the wedding, everybody enjoys, they’re happy and live happily ever after. The person violated no prohibition whatsoever. Why? Because doubtful mamzer status is one of that same list regarding which it is said that a Torah-level doubt is treated leniently according to all views. And if Rabbi Elchanan is right, then regarding doubtful mamzer status the same principle would apply that the Ran says about doubtful orlah outside the Land of Israel. Namely, that even if she is definitely a mamzer, and I match her with someone who doesn’t know she is a mamzer—or match him with someone who doesn’t know he is a mamzer—he has violated no prohibition; he can marry her. So what—why not? But their children will continue to be mamzerim. True. There is this point that the children might continue to be mamzerim—although if I don’t reveal it, then no. Because I won’t reveal it to anyone, no one will know that the children are mamzerim, I’ll take my secret to the grave, and the children will have the status of kosher Jews, and nobody will violate any prohibition, and all is redeemed, everything is fine.
[Speaker D] The question is whether they will merely be presumed kosher, or whether in fact they are not mamzerim.
[Rabbi Michael Abraham] I don’t know.
[Speaker D] First of all, if they are fully presumed kosher, non-mamzerim, does that mean they really aren’t mamzerim?
[Rabbi Michael Abraham] Then people will be able to marry them too, no one will recoil from it, no one violates any prohibition. So maybe on some abstract level they are mamzerim, on some theoretical level. So what? It doesn’t interest anyone. And then really the question is why we…
[Speaker D] So this is supposedly a solution? A supposed solution?
[Rabbi Michael Abraham] Yes. Seemingly, according to Rabbi Elchanan Wasserman, according to how he explains that in all prohibitions whose doubtful cases are treated leniently this novelty of the Ran really exists, then in practice there is a simple solution to the problem of mamzerut. Yet nowhere throughout the generations do we find this. Sages struggled greatly with this issue of mamzerut and tried to solve it in all sorts of ways, and here you have a very simple way to do it, and no one uses it. I said this is some conclusion that emerges from Rabbi Elchanan Wasserman’s words, but really it is also a sort of difficulty on him. If this were correct, I would expect all the halakhic decisors to use it and not go around in circles trying to find some convoluted solution.
Okay, so first of all this is not a conclusive proof. They didn’t think of it. Rabbi Elchanan Wasserman discovered this idea. They didn’t think of it, and therefore they didn’t know there was such a solution. Here he reveals that there is, and fair enough, maybe one can go with it.
[Speaker D] Even though it still isn’t a solution that touches the essence, as you say. Right.
[Rabbi Michael Abraham] I don’t know what is called the essence. They’re allowed to marry, nobody will suffer, nobody will violate any prohibition—so in practice everything is fine. Up in heaven in some genealogical record it will say he’s a mamzer—I don’t know what that means, if there even is such a thing. Of course, according to Rabbi Elchanan Wasserman, it also won’t be written anywhere in heaven that he’s a mamzer. Why? Because the prohibition of mamzer is a consciousness-based prohibition, and therefore if you don’t know, there is no such thing as a mamzer. It’s not that if you don’t know, you’re not guilty. As you remember from what I said about doubtful orlah outside the Land of Israel: if you marry someone who is in truth definitely a mamzer but you don’t know it, you have not violated a prohibition. Not that he really is a mamzer and you’re simply not guilty. No—you did not violate anything. So even the theoretical problem here really becomes non-existent. Not only do you come out not guilty, but you come out as someone who did not violate any prohibition at all—not because of lack of guilt, but because of absence of prohibition. In law today there is acquittal for lack of evidence and acquittal for lack of guilt. I’m now proposing a third acquittal: acquittal for lack of offense. There was no offense at all. Not that you’re not guilty of the offense—there was no offense. Because if it’s a consciousness-based offense, then if the consciousness is missing, there is no offense. That is not an argument for exemption. This is of course an enormous novelty, and seemingly that’s what comes out of Elchanan Wasserman.
I’ll say parenthetically: I said in the previous lecture that regarding a mamzer there really is no source that tells me to be lenient with doubtful mamzer status. The Talmud says, “The Merciful One said: a definite mamzer, and not a doubtful mamzer.” Since it says “mamzer,” from this I understand that apparently this means only a definite mamzer and not a doubtful one. It’s not that there is some extra word in the verse or some special source from which I learn this. It is some principle that basically is just the ordinary principle that a Torah-level doubt is treated leniently. It turns out that mamzer does not really belong to the list of prohibitions Rabbi Elchanan Wasserman is talking about, because regarding it there is no source. It is the ordinary rule of a Torah-level doubt treated leniently according to Maimonides. And here it may be that specifically for mamzerut this really would not work; I don’t know.
I’ll maybe tell you one more thing. I once wrote…
[Speaker F] Rabbi, can I suggest something?
[Rabbi Michael Abraham] What? I can’t hear.
[Speaker F] I wanted to suggest that maybe this whole list of leniencies that the Talmud mentions is there to say that even the Sages—contrary to Maimonides’ view—even the Sages did not make decrees in these Torah-level cases, meaning they left the permission in place there.
[Rabbi Michael Abraham] What? So that is learned from a law given to Moses at Sinai? Or from a verse? A law given to Moses at Sinai or a verse can’t teach me a rabbinic law. They were stated before the Rabbis had even prohibited this.
[Speaker F] I forgot that it’s anchored in textual derivation, yes.
[Rabbi Michael Abraham] I’ll maybe say something else in this context. There is…
[Speaker E] Sorry, Rabbi, sorry, about the… how can one say about all these prohibitions, all these Torah-level cases whose doubtful cases are permitted, that this is a consciousness-based prohibition? You mentioned in the list tithe. Why not say that it’s in the object? The problem is in the object. What? Animal tithe.
[Rabbi Michael Abraham] Yes, yes.
[Speaker E] So you could say, as I’d want to say about mamzer—you already answered that maybe with mamzer the problem is not consciousness-based but in the object, in the mamzer himself. With animal tithe it’s in the animal itself, not consciousness-based but in the object.
[Rabbi Michael Abraham] Elchanan Wasserman wants to argue that in the whole list where we have a source for being lenient in doubt, the problem is a consciousness-based problem. You may disagree with him, but that is his claim. I once wrote an article on the status of the convert. There are things people don’t so much like talking about in Jewish law—limitations on the status of the convert. What do I mean? Basically there are two unique prohibitions concerning a convert. First, one does not appoint him to positions of authority, meaning one does not give him public roles, roles that carry public authority. King, whatever, even charity administrator or even water distributor, the Talmud says—you don’t appoint a convert to such a role that carries authority over the public. And the second prohibition concerning a convert is that he cannot marry a kohen. A female convert cannot marry a kohen.
Now this prohibition—at least the first prohibition, the second I don’t know, that’s a matter of lineage—but the first prohibition, that one does not appoint him to authority, seems a bit problematic, a bit disturbing or embarrassing, okay? After all, they tell me converts are worthy of all praise, one must not shame them, we appreciate the step they took in joining voluntarily—“Who has ever given to Me, that I should repay him?”—they joined the Jewish people and the obligation of the commandments voluntarily. And of course we have to give them exceptionally good treatment, love them and not hurt them and all these things. There are special prohibitions regarding converts beyond the prohibitions that apply toward any Jew. Along with that, Jewish law says that one must not appoint them, must not give them any public role. They cannot be judges, cannot be king, cannot be charity officers, cannot hold any public office. Of course minister, Knesset member, and so on—a convert is forbidden to be such a person. This is explicit Talmudic law and is ruled by all the decisors. Regarding rosh yeshiva, there is a dispute among the decisors. There is a famous Chatam Sofer who argues that with a rosh yeshiva—and Moshe Feinstein writes this as well—and the Chatam Sofer says that positions of authority pass by inheritance in Jewish law. If someone is the city rabbi, then his son is basically entitled to receive the position after he dies. Positions of authority pass by inheritance, as though nepotism is not merely permitted but actually obligatory in Jewish law, okay? The Chatam Sofer argues that for a rosh yeshiva, no. Why? Because a rosh yeshiva is really based not on authority but on ability—whoever is suitable. Therefore there is no point in passing it by inheritance. Moshe Feinstein, I think, mentions this Chatam Sofer, and he argues that regarding a convert too, appointing him rosh yeshiva is permitted. And he mentions Shemaya and Avtalyon, who were converts and of course were heads of yeshivot.
And one should remember that convert status passes by inheritance to his descendants too. This status of convert applies also to the child of converts and the grandchild of converts and so on. So in practice you’re harming that family forever through all generations: they are forbidden to hold public office. It doesn’t fit so well with the attitude that Jewish law requires of us—beyond the moral question, the humanism, or lack of humanism, in it—but it also doesn’t fit with the attitude that Jewish law expects, or that Torah and Jewish law expect us to have toward converts. How can it be that there is such blatant discrimination against converts?
So I wrote an article explaining why in my opinion today this is not correct—a change in circumstances and so on—why it is not correct. I’ll explain in a moment. And I sent this article to Tehumin. So in Tehumin they sent the article back to me and said: listen, the article is perfectly fine, we agree with what you wrote, it sounds convincing, everything is good—we are not willing to publish it because it would reveal to the public that there really is a problematic attitude in Jewish law toward converts. It would be a desecration of God’s name. Which of course is true, that the halakhic attitude toward converts is problematic—but it’s forbidden to reveal this to the public because that would create a desecration of God’s name. And I said to them: look, I mean, this is the note and its cancellation attached. Meaning, I ask the question: how can there be such an attitude toward converts? But I answer: it’s not true, there’s no problem, I solve the problem. They said yes, but there are people who will read the question and not get to the answer, and there will be a desecration of God’s name. I told them that in my opinion this is a tactical mistake. A tactical mistake because in our generation you can’t keep information secret; every bit of information comes out eventually. You cannot keep information secret. If it doesn’t come out from here, it will come out from somewhere else. One day someone will discover this attitude of Jewish law toward converts, and then there will be a crisis in public discourse, in the media, they’ll accuse Jewish law and Jews committed to Jewish law of discrimination in their attitude toward converts. Then of course everyone will come to me and say okay, give us an answer, and we’ll publish the answer, and everyone will say yes, we’ve heard those excuses before, they’re just excuses, we’re not buying it. I told them: instead, be honest. Put the question on the table and offer an answer before everyone attacks you, because then it looks like some apologetic excuse. Explain it from the outset. And by the way, I had evidence for this; it wasn’t just some apologetic excuse. I showed evidence for what I wrote there. Then you say: okay, there’s a problem, but there isn’t really a problem, and I’ll explain to you why there isn’t a problem. Then when the question would otherwise arise, it won’t arise. It makes much more sense to do preventive treatment than to give medicine after the disease. They weren’t convinced, and the article wasn’t published.
In the end it was published in Asif. But in Asif it was published while I still published there, until they annoyed me and I sent them an article that I wrote with one of my students, a doctoral student from Bar-Ilan, and they didn’t accept the article because a woman’s name was also signed on it. In Tehumin! Not some Vizhnitz Hasidic bulletin. In Tehumin, a modern Religious Zionist journal. It’s simply inconceivable. I ended up fighting with them over that too. Not Tehumin, sorry—Asif. Asif. It’s a journal of the hesder yeshivot. Meaning, it’s not something Haredi. They were unwilling to accept it. They explained to me: no, we’re actually in favor, but there are conservatives who won’t publish with us if we do that. I immediately withdrew not only that article but also another article they had invited from me. I told them: I’m not publishing with you anymore. And then I found out, by the way, that in the end all the Torah journals, all the Torah journals, do not accept articles by women, including Tehumin. In Tehumin the policy changed—existed, then went back—and there were struggles there too. Noa Lau once wrote about it, the wife of Rabbi Benny Lau. She had an adventure there with Tehumin; in the end they somehow compromised by having Rabbi Benny sign together with her, so that a woman would not be the sole signatory on the article in Tehumin, again. I’m not talking about Haredi journals. It’s just bizarre. I wasn’t aware of this issue.
Okay, back to our matter. So what exactly is my claim? My claim is this: why can’t a convert be appointed to positions of authority? He can’t be appointed to positions of authority because he won’t succeed in functioning. Why? Because in the past, the attitude people had toward converts was very problematic; they looked down on them. They told them: you’re converts, you have no pedigree. They had a low social status. If such a person receives a role that carries authority, people will laugh at him; they won’t obey him. He won’t be able to fulfill his role. And the essence of this rule, which says that one does not appoint converts to positions of authority, is a rule that speaks about a situation in which society is not morally repaired. It does not give proper treatment to converts. Once society is not repaired, that’s not okay. But what can I do? I still want officeholders to be able to function. If you put a convert there, appoint the convert to this authority, people won’t listen to him. Therefore you can’t appoint a convert to authority. From here I understand that if there is a society that is morally repaired and gives proper treatment to converts, like to every other Jew, gives respectful treatment to a convert according to who he is just like to any other Jew, does not discriminate against converts, does not treat converts badly just because they are converts, then there is no problem at all in appointing them to positions of authority, because they will be able to function and everything is fine. And the prohibition against appointing a convert to authority is not a prohibition in the object. It’s not that in this case the object is the person because it’s a human being. There is no defect in the person himself that disqualifies him from authority. It is simply a principle that follows from the fact that he won’t be able to function. So if there is a situation in which he can function, what problem is there? Certainly you should appoint him. You can and should. It is part of the obligation to treat converts as you treat every other Jew, and even more than that.
Now, I had several proofs for this. It’s not some apologetic sermon just so that we should come out looking good, that Jewish law should look good. Rather, I had several—I have decisive proofs on this point, that this is the root of the prohibition. Therefore I think, returning to my argument with Tehumin, that the better policy should have been: put the question honestly on the table and offer an explanation, which in this case is also a good explanation and not apologetic at all, because I have proofs for it. Consequently, when the problem would otherwise arise, you already have the note and its cancellation attached, because it won’t arise at all. If instead you keep your cards hidden, then when problems begin to emerge and everyone fights and vilifies Jewish law and so on, you pull out your crushing argument, and everyone says okay, excuses, excuses, apologetics. You’re just coming to save Jewish law, but really Jewish law is a system with discrimination. Okay? It seems to me that as policy, that’s less good.
But I said all that as a preface because I don’t want to get to the next part already, because I won’t have time. So I’ll move to the point that interests me in this context. There is another limitation on converts, besides the limitation regarding serving in authority; there is also the limitation regarding marrying a kohen. A female convert cannot marry a kohen. Now why not? Fine, there are disputes among the medieval authorities (Rishonim), whether it’s under the category of prostitute or for some other reason, there are various possibilities for how exactly to interpret this issue. What I wanted to suggest there—and this really is only a suggestion, and for this I have no proofs—but it is a suggestion. And my suggestion was that maybe the prohibition of a female convert marrying a kohen can also be permitted in the same way that I permit appointing a convert to positions of authority. That prohibition too changes. Why? Because basically a kohen is forbidden to marry a female convert because of her low social status. We want to preserve the respectful status of the kohen—“and you shall sanctify him”; there is an obligation to honor the kohen. To preserve the respectful attitude toward the kohen, he does not marry a female convert, and he also does not marry a divorced woman, and he does not marry all sorts of women who in that society had some kind of low status, diminished status. But the fact that they had low status only means that that society was morally flawed. It does not mean that things really ought to be that way. But since society functions that way, I still want to preserve the status of the kohen, and therefore I forbid him to marry a female convert.
What happens when society is a morally repaired society? When society is a morally repaired society, then maybe there really is no problem with a kohen marrying a female convert. And here it really is a greater novelty, because a kohen and a female convert already has scriptural sources; this isn’t some novelty appearing in the Talmud where the source for appointing to authority is unclear. But why am I bringing this in this context? Because I wanted to argue that prohibitions like mamzer status or conversion status, all these prohibitions of lineage, might all really be a question of social status. The whole problem of marrying a mamzer is because his social status is low. And therefore, for example, therefore Rabbi Elchanan Wasserman says that it is a consciousness-based prohibition. What does that mean? If you know he’s a mamzer, don’t marry him. And if you don’t know? What do I care that the truth is he’s a mamzer? There’s no problem with a mamzer in himself; the problem is only the social attitude toward him. So that can create a problem if people know he’s a mamzer, but if they don’t know he’s a mamzer, what’s the problem? Therefore the principle I mentioned earlier, of consciousness-based prohibitions—and assuming it is correct, and assuming it can also be applied to mamzer, and on that too I noted that I’m not sure—then maybe it can be used. And of course there is a further assumption: not only about mamzer but about all prohibitions of lineage, at least those prohibitions of lineage that do not stem from the person’s own wrongdoing. A convert is not an offender, and a mamzer is not an offender either; maybe his parents were offenders. There are crushed-testicle cases, all sorts of lineage defects whose basis is not a transgression. In such a situation, it could be that the entire problem is only the social attitude toward such a person. And if society is a morally repaired society, and the social attitude toward a person of that sort is proper, equal, respectful as it should be, then maybe these prohibitions no longer exist. Because the prohibition—here I’m only proposing an explanation for this principle that we are dealing with a consciousness-based prohibition. Why indeed is this prohibition defined as a consciousness-based prohibition? Because the truth is that there is no problem in the thing itself; the whole problem is only our attitude toward it. So automatically, it is only if we know. If we don’t know, what’s the problem?
No, blemishes that disqualify kohanim from Temple service are a different passage, because these are not questions of lineage. These are questions of lineage, not questions of disqualifications for service. Regarding disqualifications for service, maybe this is also true, but that would already be taking one more step. I’m talking about lineage, because with lineage, regarding mamzer at least, we have Rabbi Elchanan Wasserman and the Ran and what I brought earlier: it is a consciousness-based prohibition. And now I’m suggesting an explanation for why it is a consciousness-based prohibition. It’s a consciousness-based prohibition precisely because the whole matter is how society relates to such a person. And if society relates to him differently, then maybe there really is no prohibition—even if I know he is such a person, it will not be prohibited for me to marry him. So of course, all these are very big novelties. I would not say them as practical Jewish law, but it is something worth thinking about, I don’t know. If others also join in, maybe one could really even rule this in practice. I’m not sure.
Okay, I thought I was finishing the series today, but apparently we’ll need the next lecture too. I still have the topic of double doubt; there too there are some interesting points. So we’ll have one more lecture in this series, and only then we’ll finish—unless there are more surprises.
[Speaker D] Can one say that really, in the matter of the convert, the issue itself is society, not the specific person? Just as with orlah, the issue itself is not in the fruit—in orlah outside the Land of Israel the issue is not in the fruit but in the person himself.
[Rabbi Michael Abraham] When I know that this fruit is orlah.
[Speaker D] Yes, so likewise we’re talking about something imposed on society and not… yes.
[Rabbi Michael Abraham] Again, I’m not—regarding a convert, by the way, I do say this as practical Jewish law. In my opinion this is practical Jewish law, with a convert in positions of authority.
[Speaker D] Yes, regarding
[Rabbi Michael Abraham] A female convert and a kohen—I’m in doubt, I’m not sure, although there perhaps even more so one could say it. And to say it about mamzerim—that’s already really going very far. Okay, that’s it. If there are comments or questions?
[Speaker D] Thank you very much.
[Speaker E] What the Talmud says, that a mamzer who is a Torah scholar is preferable to an ignorant high priest—but they won’t replace him, they won’t remove him from his status as a mamzer.
[Rabbi Michael Abraham] That wasn’t said about marriage prohibitions. Right. Rather, one should honor him because he is a Torah scholar even though he is a mamzer. Yes.
[Speaker F] Rabbi, regarding what you said about the tactic, which belongs to issues of lineage—the way Tehumin related to your article—there is an article by Rabbi Kook, I don’t know if you know it, in which he praises Maimonides for having cast into Judaism the statement that man is not the center of the world. What happened was that after science developed and the astronomical structure became more truly revealed, it was hard for believing society—Christians, Jews, Muslims—to accept it, because it basically removed man from the center. And Rabbi Kook praises Maimonides; he says he prevented for us, he prepared the remedy before the blow—
[Rabbi Michael Abraham] And not—
[Speaker F] and saved us from some sort of crisis.
[Rabbi Michael Abraham] It’s exactly the same principle, right. If I had known Rabbi Kook, maybe that would have convinced them. With them, if there’s backing from Rabbi Kook, that certainly carries a lot of weight. Okay. The article has already been published, so for me it’s lost. Lost for them. Okay. Fine, have a peaceful Sabbath, good news. Goodbye.