Uncertainty and Statistics – Lesson 29
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
- The law of large numbers, environment, and probabilities
- Incitement of an individual versus incitement of a ציבור
- The status of incitement in Jewish law: “do not place a stumbling block,” assisting, and “two sides of the river”
- The words of the master and the words of the student, and agency for a transgression
- Responsibility for the result versus the offense of “taking a risk”
- A dispute among later authorities: Rabbi Akiva Eiger versus the Sma
- Intent as part of the definition of incitement
- Sanhedrin 29: “We do not argue in defense of an inciter” and the primordial serpent
- Tosafot: the serpent who was not commanded, and the inciter who was commanded
- Yad Ramah: a novel idea of a prohibition of incitement throughout the Torah
- The implication for “there is no agent for a transgression” and Yad Ramah’s qualification
- Conceptual summary: Jewish law versus the probability model
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Summary
General overview
The text connects the concept of incitement to the law of large numbers: changing the environment in which a person or group operates changes the probabilities of individuals’ choices without eliminating free choice, and at the level of a large community the effect becomes almost deterministic. From this a halakhic difficulty emerges: if the person being incited has free choice, then seemingly incitement should have no criminal status. But the discussions about agency for a transgression, “when the words of the master and the words of the student conflict, whose words should one obey,” and the discussion of an inciter—especially one who incites to idolatry—sharpen the possibility that part of the claim is not about the result but about the very changing of the probabilistic “topography.” The text presents disputes about how to understand the exemption of the sender and the inciter, brings the discussion of “we do not argue in defense of an inciter” from Sanhedrin 29, and cites Tosafot and Yad Ramah, who raise a new possibility of a prohibition of incitement beyond idolatry as well, and it concludes with the principled connection between the halakhic distinctions and the probability model of the law of large numbers.
The law of large numbers, environment, and probabilities
The text defines influence on a collective as changing the environment within which the collective acts, so that the chances of choice of each individual change, even though each individual still retains free choice. The text argues that this makes it possible to understand how one can influence collective behavior without denying free choice to each individual, because the change works through a change in the circumstances and probabilistic weights. The text presents this model as the basis for understanding the concept of incitement, in which the inciter changes the inner circumstantial environment of the person being incited and increases the likelihood that he will commit a transgression.
Incitement of an individual versus incitement of a community
The text argues that in the case of inciting an individual there is no certainty that a transgression will occur, and therefore it is hard to frame the act of incitement as criminal when “when the words of the master and the words of the student conflict, whose words should one obey,” and the person being incited is supposed to obey the Holy One, blessed be He. The text says that in the incitement of a community, the effect of changing the probabilities becomes almost deterministic, because across many cases a rare outcome becomes almost certain. The text gives an example from a ruling of Rabbi Mordechai Eliyahu about checking a weapon on the Sabbath with a flashlight versus inserting a finger into the chamber, and explains that a negligible risk for one individual becomes an almost certain outcome when the same instruction is given to thousands of officers.
The status of incitement in Jewish law: “do not place a stumbling block,” assisting, and “two sides of the river”
The text raises a doubt whether incitement falls under the category of “do not place a stumbling block,” because there the issue is assistance that clearly leads to a transgression, whereas in inciting an individual there is no certainty that a transgression will occur. The text states that this cannot be defined as “two sides of the river,” because the person being incited can commit the transgression even without the inciter, and therefore there is no necessary dependence on the inciter. The text adds that there is doubt even regarding the rabbinic prohibition of “assisting,” since the person being incited can transgress even without the inciter and the responsibility remains his.
The words of the master and the words of the student, and agency for a transgression
The text presents the principle “there is no agent for a transgression” as resting on “when the words of the master and the words of the student conflict, whose words should one obey,” according to which the agent is responsible for the transgression and the sender is exempt. The text distinguishes between two questions: one cannot exempt the agent from responsibility, but there is still room to ask whether the sender can be considered guilty. The text suggests the possibility that the sender’s exemption applies only with respect to attributing the transgression that was actually carried out, but one could still hold him liable for the very attempt to cause the transgression—that is, for the act of incitement itself.
Responsibility for the result versus the offense of “taking a risk”
The text proposes a conceptual framework in which the claim is not necessarily about the transgression that ultimately occurred, but about the very act of changing the probabilities, or “taking the risk” that would lead to a transgression. The text illustrates this through a halakhic doubt concerning a piece of meat that is not known whether it is pork or beef, and distinguishes between a prohibition that stems from the possibility that one ate pork and a prohibition that stems from taking the risk itself. The text applies this distinction to incitement and agency for a transgression, and argues that there would have been room to view incitement itself as a separate offense from the result.
A dispute among later authorities: Rabbi Akiva Eiger versus the Sma
The text describes a common explanation that emphasizes the agent’s free choice as the basis for his liability, and presents it as the explanation attributed to Rabbi Akiva Eiger, in which “when the words of the master and the words of the student conflict” is a rationale for obligating the agent. The text presents the Sma as an alternative explanation in which the sender himself claims that he never imagined that the agent would listen to him, and therefore he is not considered an inciter, and this claim exempts the sender as well. The text discusses the real-world plausibility of this claim and gives an example in the context of Yigal Amir, where a person can claim that he meant something on the theoretical level but never imagined that someone would actually act on it.
Intent as part of the definition of incitement
The text argues that in incitement, intent is an essential part of the definition of the offense, and not merely an external condition of guilt, because incitement means speech directed toward causing a transgression. The text illustrates that a statement made in a closed room without intent that anyone hear it is not “incitement” even if someone happened to hear it and act on it, because the intention to motivate is missing. The text compares this to halakhic situations in which intent or purpose defines the act itself, such as prayer, where without understanding the words there is no full “speech,” and certain categories of labor where a change of purpose creates a different act.
Sanhedrin 29: “We do not argue in defense of an inciter” and the primordial serpent
The text cites the Talmud in Sanhedrin 29 on “we do not argue in defense of an inciter” and explains that it refers to an inciter to idolatry, against the background of the verse “You shall not pity him, nor shall you conceal him.” The text quotes the exposition from Rabbi Shmuel bar Nachmani in the name of Rabbi Yonatan, who learns this from the primordial serpent: the serpent had arguments in its defense but did not make them, and the Holy One, blessed be He, did not make them for it. The text notes that the serpent’s possible claim is “when the words of the master and the words of the student conflict, whose words should one obey,” and highlights the difficulty: the serpent did not incite to idolatry but to violate the commandment regarding the Tree of Knowledge, so the sugya appears to concern incitement to other transgressions as well.
Tosafot: the serpent who was not commanded, and the inciter who was commanded
The text cites Tosafot, who distinguish between the serpent, who was not commanded not to incite, and an inciter, who was commanded not to incite, and explain that the serpent was punished “because a stumbling came about through it.” The text explains that according to Tosafot, where there is no explicit command, there is an argument for exemption by virtue of “when the words of the master and the words of the student conflict,” but for an inciter who was commanded, this argument does not help, because the transgression is the act of incitement itself. The text raises the possibility that according to this reading, the claim against an inciter to idolatry is about the incitement itself and not about the result, whereas in the model of the serpent the focus may be responsibility for the stumbling that was caused.
Yad Ramah: a novel idea of a prohibition of incitement throughout the Torah
The text cites Yad Ramah, who interprets the serpent as one who incited “to rebel against the Omnipresent,” and concludes that the serpent could have argued “when the words of the master and the words of the student conflict,” but did not argue, and therefore no argument was made on its behalf. Yad Ramah raises the difficulty that the scriptural inciter is liable even if the person incited did not actually worship idols, and brings proof from the Mishnah/sugya about an inciter who says it to two people and they become his witnesses and bring him to religious court and stone him, even though the transgression was not committed on his word. The text presents Yad Ramah’s conclusion, which appears there “explicitly”: “For an inciter in the rest of the entire Torah, aside from idolatry, he is not exempt except where he makes the claim; but if he does not make the claim, we do not make it for him,” and describes this as a tremendous innovation relative to the accepted conception that incitement exists only in relation to idolatry.
The implication for “there is no agent for a transgression” and Yad Ramah’s qualification
The text cites from Yad Ramah a far-reaching conclusion according to which even in the general rule “there is no agent for a transgression,” the sender’s exemption depends on the sender’s claiming “when the words of the master and the words of the student conflict,” and if he does not claim it, the sender may be liable. The text quotes that Yad Ramah himself concludes with a difficulty from the rest of the Talmud, because in many sugyot the answer “because he did not claim it” is not offered, and therefore he writes “this requires further analysis.” The text notes that Yad Ramah’s difficulty is directed at the extension to agency for a transgression, while the possibility of a broader prohibition of incitement may remain even if the innovation regarding agency is not accepted.
Conceptual summary: Jewish law versus the probability model
The text returns and connects the halakhic discussion to the conception illustrated by the law of large numbers: even in the case of an individual, changing the probabilistic “weights” is a real change within the space of choice, and among the many it manifests as an almost certain result. The text suggests that according to Yad Ramah, Jewish law itself recognizes this as an offense, because the inciter “changed the topography” of the person being incited and increased the chances of transgression. The text concludes with an announcement that there will not be a lecture Thursday evening because it is the eve of Sukkot, and that they will resume after Sukkot, with “May you be sealed for good” and “Happy New Year.”
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Full Transcript
[Rabbi Michael Abraham] Okay, last time we talked about—yes—following the law of large numbers, I spoke a bit about the concept of incitement. And I said that it can be understood through the phenomenon I described—Maimonides and the Raavad and the whole phenomenon I described—as influence on a collective by changing the environment within which the collective operates. The moment you change the environment, the chances of each individual within the collective change, even though each individual can still choose freely. But the overall picture of the whole set of individuals will probably change in line with the change in circumstances. And that’s the way one can influence the behavior of a collective without denying free choice to each of the individuals. And I said that in fact this description also underlies the discussion of the concept of incitement. When I incite someone to commit a transgression, on the face of it it seems that in the end he has free choice, and if he decided to do what he did, the responsibility is on him. Right—when the words of the master and the words of the student conflict, whose words should one obey? We’ll get into that in a moment. And therefore, basically, incitement shouldn’t have any—there shouldn’t be any criminal significance to it. I can do whatever I want in the way of incitement, and in the end the person has free choice and he decides. On the other hand, obviously the fact that he has free choice doesn’t mean that my incitement did nothing. Because my incitement—if I’m a talented inciter at least—succeeds in changing the environment in which that person operates, and therefore in increasing the chance that that particular person will commit a transgression. True, he has free choice, but it will still be harder for him to choose otherwise. And if I’m talking about incitement of a ציבור, then here it’s already almost a deterministic result. I gave examples of this—yes, the ruling of Rabbi Mordechai Eliyahu regarding checking a weapon, unloading a weapon with a flashlight on the Sabbath, on Friday night, where he says that in principle the chance that if you don’t check with a flashlight but instead insert your finger into the chamber, some sort of disaster will happen—someone will be killed or injured—is negligible. So clearly that consideration in itself does not justify turning on a flashlight on the Sabbath eve. But if that instruction is given to an entire ציבור, to thousands of officers in the army who receive the same instruction, then a chance of one in a thousand or one in ten thousand or I don’t know exactly what, that something will happen, suddenly becomes some kind of almost deterministic result. That is, if I change the probabilistic weights, yes, the chances that such a thing will happen in any given case, then in ten thousand cases I can already assume that one case, two, three, I don’t know how many, will happen almost certainly. And therefore when I’m talking about large groups, the incitement—or in that case the halakhic ruling—has an almost deterministic effect, even though, as I said in the past, perhaps because each individual has free choice and each individual has chances this way and that. But the law of large numbers says that at the collective level I essentially created these results with my own hands. That’s more or less where we stopped last time. I want to get into the issue of incitement in Jewish law a bit, because on the face of it, it seems that in Jewish law incitement has no status. Meaning, someone who incites another person to commit a transgression—the Jewish law does not see that as something halakhically wrong. Isn’t that “do not place a stumbling block”? What?
[Speaker B] Isn’t that “do not place a stumbling block”? It’s not clear to me.
[Rabbi Michael Abraham] It’s not clear to me. Because in the end, “do not place a stumbling block” is talking about a situation where the person in front of me is going to commit a transgression, okay? And I assist him, even deliberately, and that assistance will clearly lead to a transgression. But in the case of incitement—right now I’m talking about inciting an individual—in the case of inciting an individual there’s no certainty here at all that a transgression will happen. First of all, when the words of the master and the words of the student conflict, whose words should one obey? So in principle, so what if I incite him? He is still expected—or supposed—to obey the Holy One, blessed be He, and not commit the transgression. The fact that I changed a bit the weights within which he acts—the circumstances within which he acts—fine, I changed them. He still has free choice, he has responsibility for what he does, and therefore it’s very hard to see what I’m doing as a transgression. Certainly you can’t say that this is “two sides of the river,” or that this is a Torah-level “do not place a stumbling block.” You can’t say that without my incitement he would not have been able to commit the transgression. On the contrary, he can commit the transgression himself entirely without any connection to my incitement. My incitement is only trying to cause him to actually do it, but it’s not that without me he couldn’t do it. So “two sides of the river” certainly doesn’t apply here. But even without “two sides of the river,” according to most medieval authorities (Rishonim) there is a prohibition of assisting, even if it’s not a prohibition of “do not place a stumbling block.” I very much doubt whether there is even a rabbinic prohibition of assisting here. As I said, because he has free choice and he can do it without my helping him, so to speak, in this matter. I incited him—so what? He has free choice. So from the simple halakhic perspective, it seems that incitement has no status as a transgression; the inciter is not seen as a criminal. I said that an inciter to idolatry is probably somewhat different—we’ll see that in a moment. What did God want from the serpent?
[Speaker C] What? I can’t hear. What did God want from the serpent?
[Rabbi Michael Abraham] We’ll get to the serpent—that’s exactly the sugya. We’ll get to that in just a moment.
[Speaker B] And when I incite myself, then there’s also no transgression, right?
[Rabbi Michael Abraham] What does it mean to incite yourself? The transgression is when you do the transgression—then you have a transgression. Either way: if you don’t do the transgression, then what’s the problem? If you do commit the transgression, then the transgression you committed is your transgression—not the fact that you incited yourself to commit a transgression. The logical basis for this principle, which does not see incitement as a problematic act, is the reasoning of “when the words of the master and the words of the student conflict, whose words should one obey?” This reasoning comes up mainly in connection with agency for a transgression. The Talmud says in several places that there is no agent for a transgression. Why? Because when the words of the master and the words of the student conflict, whose words should one obey? When I send someone to commit a transgression—send someone to murder, or I don’t know what, to steal, or whatever, to give false testimony—then in such a case the one who committed the transgression is responsible for it, he is the criminal, and the one who sent him is exempt. The Talmud explains why—again, there are several explanations, sources in the Talmud—but as an explanation, the reasoning that appears is one: when the words of the master and the words of the student conflict, whose words should one obey? Meaning, they confront the agent and say to him: what does the agent say? He incited me—what do you want from me? Blame him. And they say to the agent: what do you mean, he incited you? You have free choice. In the end, so what if he incited you? You still should have obeyed the Holy One, blessed be He, and not the inciter. And if you decided not to obey the Holy One, blessed be He, but rather the inciter, that was your decision, and you are responsible for it. So don’t try to hang it on the inciter’s guilt—obviously you are responsible for what you did. But we still have to understand.
[Speaker B] Fine, but that’s not really incitement, Rabbi. The sender didn’t incite the agent; the agent is, as it were, carrying out an order. That’s not incitement.
[Rabbi Michael Abraham] First of all, first of all, there is an element of incitement here. Yes, he incites him—why not? So what if he’s an agent? He’s still inciting him. But in another moment—I haven’t gotten to incitement yet. For now I’m talking about agency for a transgression.
[Speaker B] Incitement we’ll see in a moment. But in incitement the agent does the—no, in agency for a transgression the agent commits the transgression for the sender, whereas in incitement the person commits the transgression for himself.
[Rabbi Michael Abraham] So what if he’s doing it for the sender?
[Speaker B] What difference does that make?
[Rabbi Michael Abraham] He incited you to murder, now you go murder—so what, you murdered for me? Bottom line, you murdered.
[Speaker B] Yes, in incitement bottom line you murdered, not for the sender.
[Rabbi Michael Abraham] In agency for a transgression too. What’s the difference? Agency for a transgression—what do you mean? So what if you murdered for me? Bottom line, you murdered. When the words of the master and the words of the student conflict, whose words should one obey? What, if it’s for me then it’s permitted? So the Holy One, blessed be He, doesn’t forbid murder?
[Speaker B] No, it’s forbidden, but I’m not—it’s words.
[Rabbi Michael Abraham] In the end, on the face of it, the principle of incitement exists here too. We’ll see the connection to incitement in a moment—the Talmud itself makes that connection—but right now I’m talking about an agent for a transgression. So in the case of an agent for a transgression, the Talmud says: when the words of the master and the words of the student conflict, whose words should one obey? The responsibility is on the agent. But here we have to pay close attention: what does it mean that the responsibility is on the agent? Because there are really two questions here. First, can I exempt the agent from responsibility? The answer is no. When the words of the master and the words of the student conflict, whose words should one obey? Second, can I blame the sender? To blame the sender—what relevance does “when the words of the master and the words of the student conflict” have? “When the words of the master and the words of the student conflict, whose words should one obey?” is a rationale for obligating the agent, not for exempting the sender. Of course, if I’m talking about the transgression that was ultimately committed, one could say that responsibility for a transgression falls only on one person—the one who in the end decided to do it is the responsible party. Once he is the responsible party, the sender is exempt. So I don’t need an explanation for why the sender is exempt. It’s enough that I have an explanation for why the agent is liable. “When the words of the master and the words of the student conflict, whose words should one obey?” says that the agent is certainly liable. Once the agent is responsible, that’s it—the responsibility is on him, and I don’t impose it on the sender. But all that is only if I assume that my claim against the sender is a claim about the transgression that was ultimately committed. You are responsible for the transgression that was ultimately committed because you incited. But there was room to understand it differently—or because you sent him, yes—but there was room to understand it differently. The claim against you is for the very fact that you tried to cause it. No—this itself is considered a transgression. Not that the transgression—let’s say I incited someone to murder or I sent an agent to murder. Now the agent murdered. Responsibility for the act of murder, we concluded, is on the agent, because when the words of the master and the words of the student conflict, whose words should one obey? So the sender does not bear responsibility for the murder. All true. But there was still room to say that the sender bears responsibility not for the murder but for the incitement. The incitement itself is a transgression—not that the incitement is merely a rationale for saying that responsibility for the transgression that happens in the end falls on the inciter. Rather one could say: no, the incitement itself is a kind of transgression. As was written here earlier, when you incited or sent an agent for a transgression, you essentially changed the topographical map within which the agent operates. Now, true, in the end the agent has free choice, and if he chose, the responsibility is on him. But one could say: fine, but there is still responsibility on the sender for the fact that he changed the topographical map, that he changed the probabilities. It’s not responsibility for the murder that happened in the end; it’s responsibility for changing the topographical map. It may be that this itself is a problematic act. Well, it’s a problematic act because of course with some probability it causes a murder eventually to happen, but it can still be defined as a transgression in its own right. Something like this is what we may get to later regarding the laws of doubt. There is a discussion whether, when they prohibit something to me because of halakhic doubt—say there is a piece of meat here and I don’t know whether it is pork or beef. So I am in doubt. Now what is the prohibition on eating this piece? One could say that the prohibition on eating it is the prohibition of eating pork. There is a chance that this is eating pork; you can’t ignore fifty percent. There is a fifty percent chance this is pork, so stay away. But one could say no, the prohibition is on taking the risk itself. The very fact that I eat something that has a fifty percent chance of being pork—that taking of the risk is itself the prohibition. The practical difference is: what if it turned out in the end that it was beef and not pork? So if the claim against me is, you ate pork—no I didn’t, I ate beef. But if the claim against me is, how could you take such a risk? Fifty percent is a Torah-level transgression—that claim remains even if it turns out in the end that it was beef. Something like this—we’ll get to it when we discuss doubts later—but something like this is what I want to say about incitement or agency for a transgression. The question is: what do I want, what do I want to blame the sender for, excuse me. Do I want to blame him for the transgression that happened in the end, or do I blame him for the very act of incitement? Maybe that itself is a transgression. And on the conceptual level maybe this is somewhat connected to what Elihav said earlier: “when the words of the master and the words of the student conflict, whose words should one obey?” means that the agent is liable and therefore the sender is exempt—from what? From the transgression the agent committed. But there can still be a discussion about what to do with the incitement itself or sending the agent—whether that itself is a transgression. Not that it imposes on me responsibility for what the agent did, but whether it itself is a transgression. So here one might perhaps say that this is the difference between an inciter and a sender. With a sender, the whole discussion is about to whom to attribute the transgression that was ultimately committed. Is a person’s agent like himself even regarding transgressions? Is the transgression that happened in the end considered a transgression that I, the sender, committed, or do we not say that a person’s agent is like himself regarding a transgression? And that is what is said in “there is no agent for a transgression”—that we do not say a person’s agent is like himself. Because there the whole discussion is whether you are responsible for the transgression that happened in the end. But in the sugya of incitement, the discussion is completely different. The discussion is—or could be completely different. It is not necessarily a discussion of whether you are responsible for what happened in the end. Rather, it could be that the very fact that you incited is itself a problematic act, itself a transgression. Independently of the question of responsibility for what happened in the end—and perhaps even if nothing happened in the end, you still incited. Okay? And therefore—and by the way, what I said earlier to Eliav—if I really make that distinction between an agent for a transgression and an inciter, then clearly I can still go back to the sender and say: true, there is no agent for a transgression, but “there is no agent for a transgression” is only on the level of whether the sender is responsible for the transgression that occurred. The answer is no, because there is no agent for a transgression. That does not mean I cannot blame the sender under the law of an inciter, which is an entirely different sugya. The sugya of agency for a transgression does not deal with this issue; it does not talk about the sugya of incitement. It only deals with the question of who is responsible for the transgression that occurred. That’s a different discussion. And therefore what I said is that Eliav may be right, but I am also right in what I answered him. Okay? Meaning, one can come to the sender with claims as an inciter even though Eliav is right that the discussion of agency for a transgression and the discussion of an inciter are different discussions. Because the discussion of agency for a transgression is a discussion of responsibility for the transgression that occurred. The discussion of an inciter, at least, can be interpreted as a discussion of the very act of incitement, independent of the question whether you are responsible for the transgression that happened in the end. It can also be interpreted otherwise, but it can also be interpreted this way, and then there would be some sort of difference here. So actually, regarding “there is no agent for a transgression,” as I said, the Talmud says there is the reasoning of “when the words of the master and the words of the student conflict, whose words should one obey,” therefore the responsibility is on the agent and the sender is exempt. But in explaining the principle—why the agent is liable and the sender is exempt—the later authorities (Acharonim) disagreed. There are later authorities who want to argue—and this is the standard explanation—that basically the responsibility is on the agent; he has free choice and he should have obeyed the master, the Holy One, blessed be He, and not the student, the person who sent him, and therefore the responsibility is on him. That is the accepted explanation: when the words of the master and the words of the student conflict, whose words should one obey? I said that according to this explanation one can still accuse the sender as an inciter. Now the Sma comes and wants to say: no, the explanation is different. “When the words of the master and the words of the student conflict, whose words should one obey?”—that reasoning means that the one who makes this claim is the sender. And the sender basically says: what do you want from me? I never imagined that the agent would really listen to me and do it, because it was obvious to me that he would listen to the Holy One, blessed be He. Now you understand that if that is how one understands the reasoning of “when the words of the master and the words of the student conflict, whose words should one obey,” then this is reasoning that also exempts the sender, not only obligates the agent. The reasoning that obligates the agent is Rabbi Akiva Eiger’s reasoning: when the words of the master and the words of the student conflict, whose words should one obey? You have free choice; you should have obeyed the Holy One, blessed be He, and not the sender. But there is also the reasoning of the Sma. The Sma’s reasoning is reasoning that exempts the sender. Rabbi Akiva Eiger’s reasoning does not exempt the sender—not necessarily—but the Sma’s reasoning exempts the sender because the sender basically claims: leave aside the fact that I’m not responsible for the act that happened in the end—that’s obvious—I claim that I’m not even considered an inciter at all. You can’t come to me with claims even about the very act of incitement. Not only can’t you impose on me responsibility for what happened, you also can’t come to me with claims of incitement, because this is not an act of incitement. An act of incitement is an act I do in order to cause someone else to do something. But I was just joking, right? It was clear to me that it wouldn’t do anything, because when the words of the master and the words of the student conflict, whose words should one obey? It was obvious to me that he would not listen to me. So you can’t come to me with claims. It’s not only the statement that he is responsible; it’s the statement that I am not responsible. That’s how the Sma explains it. Now this is—but since…
[Speaker D] That’s complete feigned innocence. What? I didn’t understand. That’s complete feigned innocence, like I thought the whole world—
[Rabbi Michael Abraham] —were righteous, all of them, truly.
[Speaker D] What kind of claim is that?
[Rabbi Michael Abraham] Wait, let’s talk about a transgression.
[Speaker D] I thought he wouldn’t listen to me because everyone is righteous, they’ll listen to the master and they aren’t incited—we’re all being incited all the time, all the time.
[Rabbi Michael Abraham] You’re also presenting it a bit naïvely, because in the end what do you mean everyone is righteous? I send someone to murder. You understand that in the end I can claim: I never imagined he would really do it. Murder is a severe transgression. Okay, that’s why I say it depends on the kind of transgression. Your thought also took things too far. There are certain transgressions in which it is quite plausible to hear from the inciter or the sender the claim: listen, I never imagined he would actually do it. Okay? You know, around Yigal Amir there were often claims like that. Even someone who said that Rabin had the law of a pursuer—basically some people said, what do you mean? We meant it in principle, yes, but I never imagined someone would really do it. Now, I can hear such a claim. It is still an extreme act. It is definitely possible that someone will say—even though he seemingly incited the other person—listen, I didn’t think he would really listen to me. Then why did you incite him? I don’t know, I was just venting my frustration over Rabin’s actions. Okay, that’s not the point right now. But I never imagined he would actually do it. That’s one point. Beyond that I want to say: the Sma’s argument and Rabbi Akiva Eiger’s argument are not all that different from one another. There is a dependence between them. It may be that the person did not really assess that the other would not listen to him. But what he is claiming is: I have the right to claim that he would not listen to me. It’s not that this was really my assessment of reality, but rather that since he has free choice, and since the responsibility is on him and he decided to commit the transgression and not obey the Holy One, blessed be He, then I have the right to say that what I did is not a transgression—I did not incite him. What does “I didn’t think he’d listen to me” mean? Not in the sense that this really was my assessment of reality—that he would not listen to me—but in the sense that if he did it, the responsibility is on him, so what do you want from me? And then this exempts me too, not only obligates him. That’s what the Sma wants to say. That is already very close to Rabbi Akiva Eiger, but he still wants to expand it so as to exempt the sender too, and not only to obligate the agent. And then it already sounds more plausible in reality, although it is less likely that this is what the Sma meant. But this reasoning is already more acceptable in terms of real life. It’s not that I’m saying I truly didn’t think he would listen to me—that this was really my assessment of reality. Rather, my claim is that once he decided through his free choice, then even if he listened to me, that’s his problem. I’m not responsible for the fact that he decides to listen to me.
[Speaker D] But if the claim is specifically that he wouldn’t listen to me, then there can be lots of reasons why he wouldn’t listen to me. Maybe I’m not so smart, maybe my advice is foolish, maybe my proposal is hard to carry out—any number of problems. And among them also “when the words of the master and the words of the student conflict.”
[Rabbi Michael Abraham] It’s not just one of the arguments. The difference between this and all the other suggestions is that this argument—which in my view is not weak at all—this argument exists in all cases of agency for a transgression. The other arguments you mention are not essential. Sometimes it will be this, sometimes that, sometimes none of them. But “there is no agent for a transgression”—“when the words of the master and the words of the student conflict, whose words should one obey?”—exists essentially in every case of agency for a transgression. It is always there. Therefore it’s not just one among many other arguments; it is the one essential argument that always appears in every situation of agency for a transgression. If it was complicated, if it was difficult, if I have no charisma, if I’m not very smart—that depends on who I am, on the circumstances. Sometimes that’s true and sometimes it’s not true; it isn’t essential. If, by the way, there really is a situation where I am an idiot, and I also know I’m an idiot, and he doesn’t value me either, and it was clear to me that he wouldn’t listen to me, then here perhaps even without the innovations regarding “there is no agent for a transgression,” the court would decide on its own logic that there is no agency for a transgression here. Because the court would say: listen, in such a case it is clear that he didn’t listen to you. Therefore this is not the general law of “there is no agent for a transgression”; here it is truly an assessment that he didn’t do it as your agent, so there is no agency here at all. There would be room for that reasoning, but all that is local reasoning if the circumstances really are such circumstances. But “when the words of the master and the words of the student conflict, whose words should one obey?” applies to all circumstances, to every case of agency for a transgression. Therefore this reasoning is understood not as accidental or one among many.
[Speaker B] Why should that even be an argument for exemption? You didn’t imagine that the agent would listen to you or do what you told him? Fine—but bottom line he did listen to you and he did what you told him, so you’re guilty too, even if you didn’t think of it.
[Rabbi Michael Abraham] The act of incitement is an act where, beyond the question whether commandments require intent or whether transgressions require intent—here, in the act of incitement, intent is an essential part of the transgression. Incitement is not just moving your lips. Incitement is moving your lips or speaking intentionally in order to cause the commission of a transgression. Therefore here, in various places in Jewish law, you see things like this, where intent is part of the definition of the transgression, independent of the question whether commandments require intent or not. Sometimes, for example, in prayer, okay? In prayer too, even according to the one who says commandments do not require intent, if you don’t direct yourself to the words, it is not considered that you said the prayer at all. It’s just moving your lips; it’s not speech. By definition, speech is speech behind which there is cognition, behind which there is some kind of intention. Not the intention to fulfill an obligation, but the intention that you mean the words you are saying. So this is not connected to the law of whether commandments require intent or not. And here too, regarding the transgression of incitement, one can argue that in the transgression of incitement, intent is not some side condition because criminal intent is needed in order to accuse someone of a transgression. Rather, here incitement in its literal meaning—that is, the concept of incitement—is always something done in order to cause a transgression. That’s what incitement means. If I was just speaking into the air—I was in a room by myself, and I said, wow, maybe someone would do me a favor and murder Rabin—I shouted it out loud while alone in the room. It never occurred to me that anyone was listening, but there was someone outside who heard it and went and murdered Rabin—would it occur to anyone to accuse me of incitement? Of course not. Obviously I have to intend to move someone to action. Not because of criminal intent in transgressions, but because here it’s definitional, part of the definition of the transgression itself. Without that, there is no transgression. Okay? It’s not part of the definition of guilt. It’s part of the very definition of whether there was any transgression here at all. Usually, in transgressions, intent is only a requirement so that you be guilty of the transgression; the transgression was committed even without it, only perhaps you are not guilty if you lacked intent. But here, without intent, it’s not that you are not guilty—rather, no transgression occurred at all. There are many other examples in Jewish law, by the way. There are many—Sabbath labors, all sorts of things, doesn’t matter. In any case, sometimes the purpose of the act is part of the definition of the act itself. It’s not an exemption. The Maggid Mishneh writes regarding several things that there are certain labors where if you do them for a different purpose, then it’s labor not needed for its own purpose—it’s simply not that act. It’s a completely different act; you didn’t do anything, it’s not even prohibited rabbinically. Usually any labor, if you do it for a purpose different from the purpose it had in the Tabernacle, then it is labor not needed for its own purpose, and that is a rabbinic prohibition. It’s a dispute between Rabbi Shimon and Rabbi Yehuda, but the halakhic ruling is that it is a rabbinic prohibition. But there are labors in which the intent is part of the essence of the labor. If you don’t do it with the right intention, then you simply did not do that labor; it’s something else. So there are all sorts of examples in Jewish law. In any case, to return to our issue: the Talmud usually brings the principle of “when the words of the master and the words of the student conflict, whose words should one obey?” regarding agency for a transgression. And we saw the two possibilities for explaining this principle of “there is no agent for a transgression.” Now if I want to apply this to an inciter, then it depends—the question is what the claim against the inciter is. One could argue that the claim against the inciter is his responsibility for the transgression that happened in the end, just like in the case of agency for a transgression. If you incited someone to idolatry, then the claim against you is that you are responsible for the idolatry transgression that happened in the end. And then I would use “when the words of the master and the words of the student conflict, whose words should one obey?” exactly as I used it in “there is no agent for a transgression,” with the same meaning. If the claim against the inciter is not responsibility for the transgression that happened in the end, as I said earlier, but rather the very act of incitement, then here the reasoning of “when the words of the master and the words of the student conflict, whose words should one obey?” can arise—but only in the sense of the reasoning. In that sense, I am basically saying: I never intended that he should actually commit the transgression; I never imagined he would commit the transgression. It is not removing responsibility from me because he has free choice—that only puts the responsibility on him, but it doesn’t remove responsibility from me. But in order to remove responsibility from me for the act of incitement, it must be that I did not incite at all. Okay? So here there is room for discussion.
[Speaker B] Now the Talmud—Rabbi, when the agent acts unintentionally and doesn’t know that the act itself is a transgression, is the sender responsible for the transgression, or only for the incitement? Just logically, what would you say?
[Rabbi Michael Abraham] No, simply speaking, in agency for a transgression it’s clear that the discussion is about responsibility for the transgression itself. The question whether beyond that one can also come to him with claims about the incitement depends on whether there is any transgression of incitement in Jewish law at all.
[Speaker B] Yes correct, but I’m saying that in a case where the agent acts unintentionally, then again that reasoning no longer applies.
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[Rabbi Michael Abraham] Now the question still remains: in a case where the agent acts unintentionally, would the sender be liable, because here the reasoning of “the words of the master and the words of the student—which do we obey?” doesn’t apply, since the agent didn’t know there was a transgression here, so he didn’t think he had to listen to the master rather than the student. By the way, the question whether I knew that he didn’t know—that depends on the Sma. If I knew that he didn’t know, then I don’t have the Sma’s claim, that I didn’t think he would listen to me. If I knew that he didn’t know, then I can’t claim what the Sma says. Now, there are two opinions on this in the Talmud, and afterward in Tosafot in Bava Metzia 10. There’s discussion of it in the Talmud itself. Simply speaking, for most halakhic decisors, it seems to me that when the agent acts unintentionally, there is agency for a transgression. There is. This also comes up in misuse of consecrated property, because in misuse of consecrated property there is agency for a transgression. That’s one of the exceptional cases where there is agency for a transgression, in the Talmud at the beginning of chapter 2 of tractate Kiddushin. And in misuse of consecrated property, generally the misuse is done unintentionally. So from there there are all kinds of discussions: can we learn from there that when it’s unintentional, there is agency for a transgression? Because simply speaking, there it’s presented as an exception, that there’s a special verse that in misuse of consecrated property there is agency for a transgression. But in misuse of consecrated property you don’t need a verse, since the agent is acting unintentionally. So in all transgressions, if the agent acts unintentionally, there is agency for a transgression. From the fact that it’s presented as an exception, it implies that there’s no difference between intentional and unintentional; in principle there is no agency for a transgression. These are long discussions, and I’m not going into them here.
[Speaker B] Right, because there’s Maimonides regarding kilayim, that if one person clothes another in kilayim, when the other person is unintentional, then the one who dressed him is liable for the actual transgression and not only for incitement.
[Rabbi Michael Abraham] Correct, but that isn’t incitement. That’s when you performed the act with your own hands. That’s Maimonides at the end of the laws of kilayim, in the second-to-last law, and there’s the same thing regarding corpse impurity and the same thing regarding a Nazirite. In three places in Maimonides. By a Nazirite there’s a verse saying otherwise, but Maimonides brings it, and these are three places where Maimonides introduces a very big novelty, and the Rosh is astonished by it, and the medieval authorities don’t understand where he got it from—that someone who clothes another person in kilayim receives lashes. Receiving lashes means he violated the transgression of kilayim. For “do not place a stumbling block,” you don’t get lashes. That means he violated the transgression of kilayim even though he himself didn’t wear kilayim at all; he dressed someone else in kilayim. How can you flog him for the transgression of kilayim? Clearly the kilayim transgression of the one wearing it is attributed to him, and for that he gets lashes. But all that is when the wearer is unintentional and the dresser is intentional. That doesn’t belong to the topic of agency for a transgression; here he is dressing him directly, like giving drink directly to a minor. In any case, let’s return to our topic. So the discussion about incitement—and this comes back, because this is really our topic—the discussion about incitement comes up in the Talmud in Sanhedrin 29. The Talmud says there: “We do not argue in defense of an inciter.” Inciter here means one who incites to idol worship, and we do not argue in defense of an inciter. Meaning, the religious court does not put forward arguments on his behalf to lessen his judgment and exempt him from punishment. The Talmud asks: what is different about an inciter? Why do we not argue for an inciter? Rabbi Hama bar Hanina said: I heard it in Rabbi Hiyya bar Abba’s lecture: an inciter is different, because the Merciful One said, “You shall not pity him, nor shall you conceal him.” Meaning, generally we do argue in defense of others who commit transgressions, but for an inciter we do not, because the Torah said, “You shall not pity him, nor shall you conceal him.” Rabbi Shmuel bar Nahman said in the name of Rabbi Yonatan: From where do we know that we do not argue in defense of an inciter? From the primordial serpent. Someone earlier raised the issue of the serpent, because Rabbi Simlai said: the serpent had many arguments it could have made, but did not make them. And why did the Holy One, blessed be He, not argue them for it? Because it did not argue them itself. So we see from there that we do not argue in defense of an inciter. “What could it have said?” the Talmud asks. What argument could that serpent have made? “The words of the master and the words of the student—which do we obey?” And one could have said that the serpent was not to blame, because Eve was responsible: “the words of the master and the words of the student—which do we obey?” and therefore the serpent really should have been exempt. The Talmud answers: but we do not argue in defense of an inciter, and therefore the serpent was punished; the Holy One, blessed be He, did not make that argument for it. But it implies that the Holy One, blessed be He, did not argue it for it—but if the serpent itself had made the argument, then it would have been accepted. We do not argue it for him because it is written, “You shall not pity him, nor shall you conceal him.” That’s how it sounds. There’s a lot to discuss here; this is a complicated Talmudic passage, and there’s a lot to discuss about it, a puzzling and difficult passage. In the simple reading, in the simple conception of Jewish law in general, there’s no such thing as an inciter in Jewish law. There is no inciter in Jewish law—only one who incites to idol worship. Because “if your brother, the son of your mother, entices you”—what the Torah writes is only about one who incites to idol worship. Only there is there a law of an inciter, and it says, “You shall not pity him, nor shall you conceal him,” and the medieval authorities write that this is a special stringency in idol worship, that there they also prohibited the transgression of incitement. But with other transgressions, no. Now, if you read the Talmud against that background, then the whole discussion here of “we do not argue in defense of an inciter” means we do not argue in defense of one who incites to idol worship, because that’s the only kind of inciter that exists. Other inciters don’t need defending; there are no such transgressions at all. When you argue for someone, that means there is a claim against him, he committed a transgression, and you advance an argument that can exempt him. But if there is no transgression at all in inciting to other transgressions, then there is nothing to discuss as to whether we argue for an inciter or not; the inciter is not a transgressor, he doesn’t stand trial at all. The question whether we argue or not—apparently the whole discussion here is only about one who incites to idol worship. And on that the Talmud says, if so, if that’s really the case, then it comes out like this: one who incites to any other transgression—there is no such transgression at all, you don’t need to argue for him, and it’s irrelevant; there is no such transgression. One who incites to idol worship—there is such a transgression, and still, if he himself argues “the words of the master and the words of the student—which do we obey?” we would exempt him, even in the case of one who incites to idol worship. But if he does not argue “the words of the master and the words of the student—which do we obey?” then we will not argue it for him. That’s it—that’s what comes out of the plain meaning of the Talmud. The big problem is: then why are you bringing me proof from the primordial serpent? The primordial serpent did not incite to idol worship. The primordial serpent incited them to violate a commandment that the Holy One, blessed be He, had given—not to eat from the Tree of Knowledge. So that’s not idol worship. Therefore apparently the Talmud here implies otherwise. It implies that the Talmud is dealing with all transgressions, not only idol worship. How does that fit with the conception in the medieval authorities that the transgression of incitement exists only when I incite to idol worship and not to other transgressions? It may be that the Talmud has to be read differently. The Talmud is speaking about all transgressions, and really for all transgressions “the words of the master and the words of the student—which do we obey?” can exempt you if you make the claim. But if you don’t make the claim, then we won’t exempt you. Okay? In idol worship it could be that even if you make the claim it still won’t help. There you are liable, and “the words of the master and the words of the student—which do we obey?” is irrelevant, because the Torah itself said that it is forbidden to incite. In other transgressions the Torah did not say that it is forbidden to incite, so I come to you with claims. So if you say, “the words of the master and the words of the student—which do we obey?” okay, then you’ll be exempt. But if you don’t say it, then maybe one can still come to you with claims: why did you incite? What exactly the transgression is there isn’t clear. Interesting question. If it’s learned from idol worship, then it will have the same parameters. If it is not learned from idol worship, then who says there is any transgression here at all? But maybe the Talmud can be read in that way too. Now—
[Speaker B] Rabbi, to answer the simple difficulty, it seems that the serpent’s incitement was considered for them like idol worship—as if the Tree of Knowledge, and the prohibition wasn’t just eating for the sake of eating, it was eating in order to reach a higher level of consciousness and knowledge.
[Rabbi Michael Abraham] What does that have to do with idol worship—reaching a higher level of consciousness? “And you shall be like God.” Why does that have to do with idol worship?
[Speaker B] Idol worship not in the sense of worshiping gods or something, but rather becoming again independent of the Holy One, blessed be He—sort of becoming—
[Rabbi Michael Abraham] Every transgression is like that.
[Speaker E] When you do—
[Rabbi Michael Abraham] Something you weren’t supposed to do, or not doing something and yet you do it—every transgression is not listening to the voice of the Holy One, blessed be He. So what’s special here?
[Speaker B] No, but here I’m saying that this transgression is not just not listening to the Holy One, blessed be He; it turns the person into something entirely different, it turns him into someone with higher consciousness and knowledge than he had before.
[Rabbi Michael Abraham] Fine, what does that have to do with idol worship? You’re telling me it’s a severe transgression.
[Speaker B] No, I’m saying there’s like a spark of idol worship in it.
[Rabbi Michael Abraham] I don’t see why. Why? What does that have to do with it? The fact that I become a being of awareness—what does that have to do with idol worship? I don’t see the point. Someone earlier started to make a comment?
[Speaker E] No, I said maybe in what he said, the phrase “and you shall be like God,” that gets closer to a kind of idol worship, doesn’t it?
[Rabbi Michael Abraham] What does “and you shall be like God, knowing good and evil” mean? It doesn’t mean that you’ll see yourselves as gods, but that in fact you’ll have some sort of quality that human beings aren’t supposed to have, only the Holy One, blessed be He. I don’t see why that would be idol worship.
[Speaker E] I wouldn’t say that, but since it’s a difficulty—because here we’re talking about incitement that is not about idol worship, right? So how can we still say that it is?
[Rabbi Michael Abraham] Tosafot there writes as follows: “The words of the master and the words of the student—and if you say, then every inciter could exempt himself with that argument.” What does that mean?
[Speaker E] What, Tosafot understands that we’re talking about something special—
[Speaker B] Not that there’s a prohibition of inciter?
[Rabbi Michael Abraham] Of what? Of all transgressions?
[Speaker B] Yes, of all transgressions—not that there’s a prohibition of inciter, and therefore every inciter could exempt himself with that argument. That is—
[Rabbi Michael Abraham] It’s a bit strange according to the answer. And let’s see the answer for a moment: “And one can say that specifically the serpent, which was not commanded not to incite, and was punished only because a stumbling block came about through it.” There was no commandment not to incite. It’s only a logical idea: since a stumbling block came about through you, logic says: don’t incite. “But an inciter who was commanded not to incite—when he incites, he transgresses.” What is he really saying? About the serpent, the claim against it was about its responsibility for what happened in the end; they did not come to it with a claim as an inciter, but rather with the claim: you are responsible for the transgression that happened because of you. Right? That’s what Tosafot says. So there he can exempt himself with the argument “the words of the master and the words of the student—which do we obey?” I’m not responsible for what happened in the end; Adam and Eve had free choice. But “an inciter who was commanded not to incite”—what does that mean? It means an inciter whose transgression is the very act of incitement itself. We’re not talking about responsibility for the transgression that will happen at the end, but rather you were commanded not to incite. It’s not a matter of logic saying that if you incite then in the end a transgression will happen and you’ll be responsible for it; rather, you were commanded not to incite, so I don’t care what happens in the end. If you incited, then you transgressed that. In such a case there is no logic of “the words of the master and the words of the student—which do we obey?” All right? Now, that’s the straightforward meaning of what Tosafot says. I still haven’t answered the question whether this is talking about one who incites to idol worship or any inciter. Look: a commandment not to incite, we find only regarding idol worship. There is no commandment not to incite to other transgressions. The Torah’s commandment about incitement is only about idol worship. You can say that logically it makes sense not to incite to other transgressions too, but if Tosafot says he was commanded not to incite—who was commanded not to incite? Only in incitement to idol worship is there a commandment. So simply speaking, Tosafot is talking about incitement to idol worship. And what is he really asking? He’s really asking like this: from the Talmud here it comes out that one who incites to idol worship can in principle make the argument “the words of the master and the words of the student” and be exempt, because the whole discussion here is only about one who incites to idol worship. Because only he was commanded not to incite; the serpent was not commanded. But the inciter in idol worship was commanded not to incite, right? So there he can exempt himself with the argument “the words of the master and the words of the student—which do we obey?” Right, we won’t present it for him—that’s what the Talmud says—but if he makes it himself, then he will be exempt. Why? asks Tosafot. So this basically means: we never found anywhere that one who incites to idol worship can say “the words of the master and the words of the student” and be exempt—where did we ever find such a thing? That’s what comes out of the Talmud here. So Tosafot says: no, one who incites to idol worship—even if he says “the words of the master and the words of the student—which do we obey?”—it won’t help him. Why? Because he was commanded not to incite, so what do I care about the logic of “the words of the master and the words of the student”? And obviously Tosafot understood like Rabbi Akiva Eiger and not like the Sma. Because if he understood like the Sma, then even if I was commanded not to incite, if I thought the other person wouldn’t listen to me, then I didn’t incite. So it seems he understands like Rabbi Akiva Eiger, and that is of course the simple conception; the Sma is the exception here. But then it comes out like this: one who incites to idol worship, who was commanded not to incite—the incitement itself is a transgression there. In such a case it doesn’t help to say “the words of the master and the words of the student,” whether he says it or whether he doesn’t say it. With the serpent, which was not commanded not to incite—there, what is the problem? The problem is not the act of incitement itself, because there is no prohibition on the act of incitement itself. The problem is that you should have understood that once you incite, that puts responsibility on you for the transgression that happened in the end. Here it does make sense to be exempt with the argument “the words of the master and the words of the student—which do we obey?” Okay? But all that is only if you make the argument. I won’t make the argument for you. Why not, really? You know why? Very simple. Rather than on the act of incitement itself, right? Wait, actually no, that doesn’t come out right. The claim against him is the transgression that happened in the end, right? Now if so, then apparently the argument “the words of the master and the words of the student” should exempt him whether he says it or not. The responsibility really lies with the agent, not with the person who was incited, not with the inciter. He has free choice; the responsibility is on him. If I were coming to the serpent with the claim: wait, why did you incite?—about the act of incitement itself, not about responsibility in the end—then it depends. If he says “the words of the master and the words of the student” in the Sma’s sense, what is he really saying? “I didn’t think he would listen to me, so I didn’t really incite at all.” Then he would indeed be exempt. But if he doesn’t say it, why should we say it for him? According to Rabbi Akiva Eiger, clearly we would say it for him too—that’s the truth. It has nothing to do with whether he says it or not. But according to the Sma, only if he says “the words of the master and the words of the student” does it help him. How could I say for him that he had no intention? If the truth is that he intended, then he intended. If he didn’t intend, let him say he didn’t intend. He has to say that, not me. And according to Rabbi Akiva Eiger, where “the words of the master and the words of the student” means that in reality the responsibility is on the agent—then it doesn’t matter whether the sender says it or not. The truth is that the responsibility lies with the agent, because the agent didn’t listen to the Holy One, blessed be He. Therefore obviously I would also say this on behalf of the sender even if he doesn’t say it. But the Sma’s argument—the Sma’s argument has to come from the sender himself. If the sender himself doesn’t say “the words of the master and the words of the student,” then why assume that he didn’t intend, that he didn’t think the other person would listen to him? The simple logic is that he did think so. If he says he didn’t think that, fine, then I can’t come to him with claims. I’m not sure I believe him, but I can’t come to him with claims because maybe it’s true. To punish, after all, you need proof. So I can’t be certain, and therefore I won’t punish him. But all that is with the logic we’re talking about, and that is the Sma’s logic. And the Sma’s logic exempts you regarding the act of incitement itself, not regarding responsibility for the act. Why would that be relevant with the serpent? After all, the serpent was not commanded not to incite. Apparently Tosafot understands that even regarding the serpent, which was not commanded not to incite, the problem with it is the act of incitement itself, not responsibility for what happened in the end. And therefore there, if he argues it for himself, then he is exempt, because he really didn’t incite at all. He says: after all, I didn’t think they would listen to me; that’s not even called an act of incitement. But if he doesn’t say it, I won’t say it for him. Because why should I say for him that he didn’t intend? And Rabbi Akiva Eiger’s argument that “the words of the master and the words of the student” means the agent had free choice—that’s simply not a relevant argument here, because we are asking: why did you incite? not: are you responsible for what happened in the end? So Rabbi Akiva Eiger’s reasoning is simply not relevant here. That seems to be how Tosafot understands it—that the serpent too was being called to account for the act of incitement, not for responsibility for what happened in the end. And therefore there too, he needs to use “the words of the master and the words of the student” in the Sma’s sense. But that can serve him only if he himself says it. I can’t say for him that he didn’t mean to incite. He has to tell me he didn’t mean to incite, not me. Okay? So in the end, what comes out? It comes out that for one who incites to idol worship, who was commanded not to incite, there it won’t help him—that is, whether he says it or whether I say it, it won’t help. I won’t say it for him, but even if he says it, it won’t help, because he was commanded not to incite. And only with the serpent, which was not commanded—that can help him if he says it, but it won’t help when I say it for him—sorry, not that it won’t help, but I won’t say it for him. But if he says it, then fine, it can help. And all this is apparently only in idol worship. What about the other transgressions? Here there’s room to hesitate. It could be that the other transgressions are like the serpent, because after all there is no commandment concerning incitement in the other transgressions, only in idol worship, right? But this logic that “a stumbling block came about through you”—that logic exists in all transgressions. Just as the serpent should have thought about it, every normal person in every context of transgression should think about it. If you incite someone, then a stumbling block will come about through you. True, there is no commandment upon you, no Torah prohibition of incitement except in idol worship, but the claim that existed against the serpent exists against every person who incites someone to transgress, regardless of idol worship, right? And what will happen there? If he says for himself “the words of the master and the words of the student,” then he really will be exempt. But if he doesn’t say it, then we won’t say it for him. And then it comes out—if so—that there is a transgression of incitement in all transgressions, not only in one who incites to idol worship. In all transgressions. The only thing is that in all transgressions, if you say “the words of the master and the words of the student,” then indeed you will be exempt. But that’s only if you say it. If you don’t say it, then we will come to you with claims. That is apparently what should come out of Tosafot. It’s a bit difficult in the Talmud, because the Talmud implies that the reason we do not argue for an inciter is because of the severity of idol worship, because it says “You shall not pity him, nor shall you conceal him.” About whom is that said? It is said about one who incites to idol worship, who indeed was commanded not to incite. And about him it is said that we do not argue for him. If he argues for himself, fine, but we do not argue for him. Tosafot says that there, even if he himself argues it, it won’t help in the case of one who incites to idol worship. That’s difficult in the simple reading of the Talmud. Maybe Tosafot understands that in the conclusion of the Talmud they backed away from that. At first they really thought that way: “an inciter is different, because the Merciful One said, ‘You shall not pity him, nor shall you conceal him,’” and then Rabbi Shmuel bar Nahman changes it. And he claims that this is only in things like the primordial serpent, where there is no prohibition on incitement. Now look, there’s also the Yad Ramah on this passage. I’m bringing all these things because they’re very unfamiliar. Ask anybody whether there is a prohibition of incitement in Jewish law, and he’ll tell you of course not, only in idol worship. And suddenly we see it’s not so simple. In Tosafot, I would understand that there is a prohibition of incitement in other transgressions too, except that if you say “the words of the master,” we will exempt you, but if you don’t say it, then indeed you will have the prohibition of an inciter. What is that prohibition, after all, if you weren’t commanded? Is it a moral prohibition or a prohibition—I mean, you won’t get lashes, there’s no warning verse here, there’s no prohibition here, but still it’s a problem, it’s forbidden to incite. And “the words of the master and the words of the student” doesn’t really exempt you from the responsibility in the matter, unless you really didn’t mean to incite, if you say that.
[Speaker B] I thought—I thought the opposite, that in the simple sense there’s a transgression in incitement. You’re responsible for the transgression he ends up doing, so don’t incite—why are you getting yourself into trouble?
[Rabbi Michael Abraham] No, but it’s clear that there is no responsibility for the transgression that happened in the end, because “the words of the master and the words of the student—which do we obey?”
[Speaker B] Yes, but that’s halakhic reasoning, the internal legal side of it, but in plain common sense there is a prohibition against inciting someone to commit a transgression.
[Rabbi Michael Abraham] No, that’s fine; that’s what Tosafot calls “because a stumbling block came about through him.” Of course the prohibition of inciting—in the rationale of the verse there is no verse—but conceptually it is because in the end a stumbling block happened. That’s obvious. But the claim against you is about the incitement, not about the stumbling block. The stumbling block is because of the agent or the person who was incited. But obviously you can’t detach the two—why do we demand of you not to incite? Because this incitement can bring about a stumbling block in the end. But still, the claim against you is about the act of incitement, not about what happened in the end. Okay? Look at the Yad Ramah: “And that which we said, from where do we know that we do not argue in defense of an inciter—from the serpent, who incited the woman to rebel against the Omnipresent and violate His word, and the Holy One, blessed be He, made it liable for this, even though it could have said, ‘The words of the master and the words of the student—which do we obey?’ And because of my words should they have abandoned the words of the Omnipresent?” That’s what the serpent should have argued. “And since it did not argue for itself, the Holy One, blessed be He, did not argue for it.” “And if you ask,” the Yad Ramah asks, “‘the reason is that it did not make this claim, but had it made this claim, would its claim really be a valid claim?’” Yes—that is how it sounds from the Talmud, that if the serpent had indeed said this, it really would have exempted it. The Yad Ramah says: “But regarding the inciter of the verse”—not the inciter of the primordial serpent, but the inciter of the biblical verse—“even though the one incited did not listen to him and no transgression was committed because of him, he is still liable, as we learned later: if he said it to two, and they are his witnesses, they bring him to court and stone him. All the more so where the one incited did listen to him, that he cannot claim ‘the words of the master and the words of the student—which do we obey?’” What is he saying? He brings a Talmudic passage later on, Sanhedrin 67. What happens if I incite someone and he doesn’t worship idols? He doesn’t do it. My incitement was ineffective. I am still liable—that’s what the Yad Ramah says. What’s his proof? Because if he says to two people, “Come, let us worship idols,” those two are the witnesses. They immediately seize him, take him to court, and execute him. When he says to them, “Come, let us worship idols,” the meaning is that they have not yet worshiped. He wanted to bring them to worship with him. And what are they supposed to do? Catch him on the spot, take him to court, testify that he wanted to worship idols, and they kill him as an inciter. So we see that the inciter is liable even if the one incited did not commit the transgression. Right—that’s what the Yad Ramah argues. So what? Why is that important for our matter? Because then what is the claim against him? Because—
[Speaker B] He incited, not that he’s responsible for the transgression.
[Rabbi Michael Abraham] Exactly. It’s not responsibility for the transgression that happened in the end. It’s for the incitement itself. And that doesn’t contradict what I told you before, Eliyahu. Of course the incitement is problematic because in the end a transgression could happen. But the claim is a claim about the fact that I incited. Therefore the claim exists even if in the end no transgression happened. So the claim is about the incitement itself, and therefore what?
[Speaker E] Therefore it won’t help if he says “the words of the master and the words of the student.”
[Rabbi Michael Abraham] So what does that even mean—how would “the words of the master and the words of the student” help? “The words of the master and the words of the student” is the logic that exempts me because it makes the person incited liable. Since the person incited had free choice, and if he chose to commit the transgression then the responsibility is his. So I exempt myself from responsibility for the transgression. But if the problem is the incitement itself—and that is what the Yad Ramah proved from 67—the problem is the incitement itself, then how is “the words of the master” relevant? Even if I say it, it won’t help me at all. And again, he obviously understands like Rabbi Akiva Eiger and not like the Yad Ramah—sorry, not like the Sma. If it were like the Sma, then I can explain what the problem is; that works perfectly. If he says “the words of the master and the words of the student,” then he is essentially saying: I didn’t mean to incite. So even if the claim is about the incitement, I am exempt. If I didn’t say that, then apparently I did mean to incite, and therefore I am liable. Okay? But the Yad Ramah apparently reads this like Rabbi Akiva Eiger. I said that almost everybody reads it that way, that “the words of the master and the words of the student” basically means the person incited had free choice. And if he did it, the responsibility is on him. That all works for responsibility for the transgression. But if they come with claims about the incitement itself, the incitement itself—what relevance does “the words of the master” have? That’s what the Yad Ramah claims. Therefore the Yad Ramah asks: why is that relevant in the biblical inciter? Yes—whether he said “the words of the master and the words of the student”? He says, the Talmud implies that if he had said it, it would have helped him. Why would it help him? The transgression is the incitement itself.
[Speaker B] Rabbi, what’s the law in a case where I incited someone who anyway was going to commit the transgression? Am I guilty for that too, if we say there is a transgression of incitement, or not?
[Rabbi Michael Abraham] Simply speaking, yes. Exactly what the Yad Ramah proved. Because it has nothing to do with your responsibility for the transgression that happened in the end; the incitement itself is the problem. You could claim that if you knew he was going to commit the transgression, then you could claim that really you did not mean to incite, because you knew he would do it anyway, it wouldn’t happen because of you. And then that’s somewhat like the Sma’s reasoning, only here maybe everybody would agree.
[Speaker B] No, no—I’m saying even according to Rabbi Akiva Eiger: if I know that this person is going to commit the transgression, and on the way I incited him, I claim I’m exempt because in fact I didn’t change his topography.
[Rabbi Michael Abraham] Yes, but according to Rabbi Akiva Eiger I’d be exempt even without that. There’s “the words of the master and the words of the student.” Ah, right.
[Speaker E] But doesn’t the Yad Ramah interpret that argument of “the words of the master and the words of the student” completely differently? He doesn’t read it completely differently—so he limits the story. No, but not in all transgressions and not in every case, because it’s a principle that works.
[Rabbi Michael Abraham] Were we speaking with him about all transgressions? First of all let’s talk about idol worship.
[Speaker E] Yes, so that means he understood that in the serpent story too it was talking about idol worship there as well?
[Rabbi Michael Abraham] Yes, at the moment I’m assuming that, because that’s the simple conception. It’s talking about incitement to idol worship. Why they compare it to the serpent—the same question the Talmud has, I don’t know. But it’s talking about incitement to idol worship, and then he says, “the biblical inciter”—yes, the biblical inciter is an inciter to idol worship. There cannot be a difference between whether he says it and whether we don’t say it for him. Neither helps. Why? Because the claim against him is about the incitement itself. Similar to Tosafot, yes? The claim against him is about the incitement itself. And if the claim is about the incitement itself, why is the logic of “the words of the master” relevant? Even if he says it, it shouldn’t help him. Of course in light of this we can go back and ask about the serpent too. Because with the serpent too, the claim against it was apparently a claim about incitement. So with the serpent too, why did they make a distinction between whether we argue it for him and whether he argues it himself? But that isn’t difficult according to what we saw in Tosafot. Why? Because with the serpent there is no commandment not to incite, as Tosafot said, right? So what is the claim against the serpent? A stumbling block. Not the incitement itself, but responsibility for what happened following the incitement, right? That’s the claim against the serpent because there is no commandment there not to incite. Regarding that, the reasoning of “the words of the master” does help. There is a stringency that we won’t argue it for him; only if he argues it for himself does it help, but the basic reasoning is relevant in the case of the serpent. In the biblical inciter, where the commandment is about the act of incitement itself and it makes no difference whether it happened in the end or not, there, says the Yad Ramah, why should it matter whether he said it or not? Even if he had said it, it should not have helped him. At the end of the day, he incited. So he answers like this: “An inciter to idol worship is different because it is more severe, and the Merciful One said, ‘You shall not pity him, nor shall you conceal him.’ Because here we are speaking of an ordinary inciter similar to the serpent, which is what we are discussing.” What is he saying? The inciter to idol worship is especially severe, and therefore the Holy One, blessed be He, said: “You shall not pity him, nor shall you conceal him.” And then what? So what? Why all of a sudden?
[Speaker F] Even if he says it, it doesn’t help him because they’re accusing him of incitement.
[Rabbi Michael Abraham] They’re accusing him of incitement, so then it has nothing to do with whether it’s more severe or less severe and whether they said “You shall not pity him, nor shall you conceal him.” It’s simply because, as he said above, since the accusation is about the incitement itself, then what is this—then there is no “the words of the master and the words of the student,” not because of the severity of incitement to idol worship, but because in idol worship there is a commandment. Meaning, the claim against you is about the incitement itself and not responsibility for the act. He probably means that that is why there is a commandment in idol worship. Since idol worship is so severe, therefore the Torah prohibits even inciting to idol worship, not only responsibility for the act that happened at the end. Consequently, you will be liable whether you say it or not; the logic of “the words of the master” simply does not apply. But “an ordinary inciter”—who is an ordinary inciter? Unlike Tosafot, here it is already completely clear: “an ordinary inciter” means one who incites regarding all the other transgressions that are not idol worship. Unlike Tosafot, here it is explicit. “An ordinary inciter” means an inciter regarding all the other transgressions. It is similar to the serpent. Why? Because there there is no explicit Torah prohibition against inciting. So what is the whole problem? Only responsibility for what happened as a result of the incitement, right? And there there really is a dependency between—meaning, there the reasoning of “the words of the master and the words of the student” can exempt, right? Therefore the Talmud says that with an ordinary inciter, this is like the serpent, and since it is like the serpent, there in principle you are liable—there is a prohibition of inciter in all transgressions, that is what is written here in the Yad Ramah. Not only in idol worship. In Tosafot you could read it that way; in the Yad Ramah it is explicit. There is a prohibition of inciter for all transgressions. The only thing is that the logic of “the words of the master” can help, because in one who incites regarding all transgressions the claim is not about the incitement but about responsibility for what happened. “And we hear from this,” says the Yad Ramah, “that with an inciter in the entire Torah apart from idol worship, he is exempt only where he makes the claim. But if he does not make the claim, we do not make it for him.” Here he already writes explicitly what also emerges from his earlier words. A tremendous novelty: that there is a prohibition of incitement throughout the Torah, not only with regard to idol worship. But there he is exempt when he makes the claim. If he says “the words of the master and the words of the student,” then he will be exempt. If he does not say it, then he really will be liable.
[Speaker G] Wait, but if he understands like Rabbi Akiva Eiger, then why if he doesn’t say it is he liable?
[Rabbi Michael Abraham] Excellent question. Who said he understands like Rabbi Akiva Eiger?
[Speaker E] Yes, one could say that he holds that for the act of incitement itself, in all the transgressions of the Torah, there is a prohibition of incitement. Now if he says it in transgressions other than idol worship, then he exempts himself, and that’s it.
[Rabbi Michael Abraham] No, but there is no prohibition on the incitement itself because there is no commandment about it.
[Speaker E] No, but according to what he says—
[Rabbi Michael Abraham] According to what he says, that the inciter to idol worship is especially severe, and with an ordinary inciter—
[Speaker E] Similar to the serpent—
[Rabbi Michael Abraham] And therefore the Torah commanded about it. What did it command? Not to incite. Meaning, therefore there is there a prohibition on the act of incitement itself because of the severity of idol worship. In the other transgressions, which are not severe enough, there the prohibition is not on the act of incitement itself; only if you cause a transgression because a stumbling block came about, then it is nonetheless considered an act. It’s problematic. That seems to be what the Ramah means. Consequently, then indeed “the words of the master and the words of the student,” in Rabbi Akiva’s sense, according to Rabbi Akiva that really is an exempting claim.
[Speaker E] Apparently he brings “an inciter in the whole Torah” together with all the rest of the Torah. He says, “an inciter in the whole Torah apart from idol worship”—
[Rabbi Michael Abraham] So—
[Speaker E] He relates that to the same problematic point, the act of incitement itself.
[Rabbi Michael Abraham] No, no: “An inciter to idol worship is different because it is severe, and the Merciful One said, ‘You shall not pity him, nor shall you conceal him.’” So that is the only inciter explicitly written.
[Speaker E] But not only because it is written; because he doesn’t relate to the fact that it is written—he doesn’t emphasize that. He emphasizes the severity of idol worship in itself.
[Rabbi Michael Abraham] So what are you saying? That the inciter to idol worship that is written is a warning about incitement throughout the whole Torah, not just idol worship? And “you shall not pity him, nor shall you conceal him” speaks only about the inciter of idol worship? But that is written in the same passage, about the inciter who appears there; about him it says “you shall not pity him, nor shall you conceal him.” So if you say that it speaks about the whole Torah, then apparently “you shall not pity him, nor shall you conceal him” also speaks about the whole Torah. I hear what you’re saying; maybe one could understand it that way, but it’s a strained way to read the Torah. In any case, for our purposes what emerges here from the Yad Ramah is that in the whole Torah there is a transgression of incitement. And basically in Tosafot too one could have understood that, as I explained before, but here it is written explicitly. And that is a tremendous novelty. People don’t know this Yad Ramah, and it is a tremendous novelty, because usually the accepted view is that there is no transgression of incitement except regarding idol worship. And this brings us back to everything I said earlier—that’s why I brought this passage. Why indeed is there a transgression of incitement? Because I understand that incitement—shifting the weights, yes, incitement with a tet—shifting the weights in a way that increases the chances that the person incited will commit a transgression, that really is a transgression. Even though he has free choice, because in the end you still did something that increased the chances of transgression. Of course, if you do this to a collective—we spoke about the condemned city—there it is almost as if you brought about the result with your own hands; there it is almost deterministic. But even the transgression of inciting a single individual, according to the Yad Ramah, contains a prohibition because you moved the weights inside the person, you changed the topography within which the person acts. “And we hear from this,” says the Yad Ramah—now an even more far-reaching conclusion—“that what we hold generally, that there is no agency for a transgression, applies specifically where the sender claims: ‘the words of the master and the words of the student—which do we obey?’ But where he does not make that claim, he is liable.” Wow. That’s an explosive novelty. Now we’ve left the inciter and gone back to agency for a transgression. He says: if so, in agency for a transgression—is there a commandment not to send someone to do a transgression? No. In agency for a transgression, the whole claim is against the sender: you are responsible for what the agent did, right? There is no commandment there. So that is similar to the serpent, right? If so, then it should come out there too that the logic of “the words of the master and the words of the student” really works—but only if you said it, not if we say it for you. That is a huge novelty. But I want to call your attention to this: according to the Yad Ramah—or rather, according to the Sma—it makes sense. The Sma’s logic really exists only if you yourself make the claim. For me to tell you, without your making the claim, that you didn’t intend to incite—that sounds very strange. So here it could be that he is now really saying like the Sma. Then one can understand what he says. If you make the claim, then I will accept that you did not mean for him to commit the transgression—or at least I cannot punish you, because I do not know for certain that you meant it. I’m not sure I believe you, but in order to punish you I have to be sure that no, and I’m not sure. So now he is drawing one novel conclusion on top of another novel conclusion. First of all, he concluded that there is an inciter in all the transgressions of the Torah. Second, he concluded that just as in an inciter for all the transgressions of the Torah, so too in the law of agency for a transgression, the rule of “the words of the master and the words of the student” works only if the defendant himself raises it and claims it, but I do not raise it on his behalf. That is a tremendous novelty.
[Speaker E] So it seems more that if it’s the sender, he needs to claim it for himself—that regarding the act of incitement itself, he has to justify himself.
[Rabbi Michael Abraham] Correct, correct—that’s the Sma’s reasoning. Even though there’s no commandment about it, the claim against him is still about the act of incitement itself. Because the claim about the transgression itself certainly doesn’t exist, because of “the words of the master and the words of the student” in Rabbi Akiva Eiger’s sense. But there is still a claim against you about the incitement itself. And regarding the incitement itself, if you make the Sma’s version of “the words of the master,” then fine. But if you don’t make that claim, then Rabbi Akiva Eiger’s “the words of the master and the words of the student” does not exempt you, and the Sma’s “the words of the master and the words of the student” doesn’t exempt you either, because you didn’t say it. And the Yad Ramah concludes—just so we don’t leave it there: “And this is difficult for me, because in several places where the Talmud asks, why—and there is no agency for a transgression?—it does not answer: here what are we dealing with? A case where he did not make the claim. For in general, whether so or so, the sender is not liable. And this requires further analysis.” In the simple reading of the Talmudic passages, it seems that I am not right, says the Yad Ramah. Why? Because in many places the Talmud asks why the sender is liable, since there is no agency for a transgression, and it has a difficulty and resolves it in some way. But what is the difficulty? It could be that the case is where the sender did not make the claim. If the sender made the claim, that’s true—but if he did not make the claim, then there’s no problem; indeed there is agency for a transgression. Why does the Talmud never offer that answer? Apparently because it’s not correct. So he says it requires further analysis. In the logic of the passage here, that’s what comes out, but from the rest of the Talmud it doesn’t seem to work that way. Therefore I don’t know whether in the end there is such a Yad Ramah view or not—that’s an interesting question. But he is speaking there about no agency for a transgression, and not about an inciter. The rule that with an inciter there is a prohibition in every case of incitement to any transgression—that may remain even in the conclusion, and there the difficulty doesn’t apply. The difficulty is only about agency. Okay, this was just an opportunity to get acquainted with a topic that people usually don’t know. For our purposes, we see the significance of incitement as the law of large numbers also with regard to the individual person. I said in the previous lecture that the law of large numbers operates because there is some change even in the individual person. The change in the individual person is a change in probabilities. He still has free choice and can act against it, but there is a change in the probabilities of the topographical framework. In large numbers we’ll see it appear in practice. Okay? And if it is as the Yad Ramah says, then it seems that Jewish law really also recognizes such a thing as a transgression. Okay, we’ll stop here. Does anyone want to comment or ask? I think only next week—Thursday evening—that’s already the eve of Sukkot, so we won’t have a lecture then. All right? Meaning, we return after Sukkot. Okay, so may we all be inscribed and sealed for good, a good year to all of us. With God’s help we’ll see each other after Sukkot. A good year.
[Speaker F] Thank you very much. See you. Thank you very much.