Doubt and Statistics – Lecture 16

[Rabbi Michael Abraham] Good. We’re in the series on doubt and statistics. Last time, after we dealt with the difference between probabilistic evidence and direct evidence, or circumstantial evidence and direct evidence, I moved on to discuss the law of fixed presence. The law of fixed presence is basically a qualification on the law of following the majority in Jewish law. We saw the Talmud in Ketubot, which brings the source for this law, deals with the source for this law, and with several examples of it. The first example the Talmud brings is a situation where—well, first let’s begin with separation. The situation of separation is when we find a piece in the street, and it’s clear to us that it came from one of the stores in the city, and most of the stores in the city are kosher or non-kosher or whatever the case may be, so we follow the majority of the stores in the city, and the rule is: whatever separates is assumed to have come from the majority. Meaning, a piece that separated probably separated from the majority group of stores. What happens if the piece did not separate, and it’s still in the store? I went into a store, bought a piece of meat, went home, and suddenly remembered that I don’t remember which store it was, which store I bought it in. Now certainly there are nine kosher stores and one non-kosher store, but I don’t know which of the stores I was in. In that situation this is called fixed presence, and it means that the status of the piece is the status of balanced doubt. We treat it as though it were fifty-fifty, even though there are nine kosher stores and one non-kosher one here. Same thing, yes, someone who touched something within a mixture—there are nine frogs and one creeping creature—if one of them separated and I touched it, then I’m pure, because a frog does not impart impurity and a creeping creature does. If they did not separate but are in their place, then I’m in doubtful impurity. If it’s in the public domain, doubtful impurity is pure; if it’s in the private domain, doubtful impurity is impure. A third case the Talmud brings there—and this is really the source for the law of fixed presence—is: “and he rose against him and lay in wait for him.” The verse is written as a condition for punishing a murderer: it says “and he rose against him and lay in wait for him,” and then if he killed him, he is punished. What does “and he rose against him and lay in wait for him” mean? The Talmud explains: for example, one who throws a stone into a group. Someone goes in and throws a stone into—I don’t know—a room, a place, that has non-Jews and Jews in it. And if there are—if in that room there is a majority of non-Jews, then in principle I am exempt, because when I threw the stone I didn’t know whom the stone would hit.

[Speaker B] Can you hear if you’re speaking? Wait a second.

[Rabbi Michael Abraham] I don’t know whom the stone will hit, on the assumption that someone who kills a non-Jew is not liable to death, while someone who kills a Jew is liable to death. So if I throw a stone into a room that has nine non-Jews and one Jew, then basically you can’t say that I murdered—at the end, of course, the Jew was killed, because otherwise there’d be no discussion of capital punishment. But the question is what I knew, what the situation was when I threw the stone. If the situation was that I knew there were nine non-Jews there and one Jew, and I just threw the stone in, then you can’t say that there was an act of murder here. Rather, a murder occurred, even though in fact I didn’t do that act from the outset in that sense, and therefore I’m not liable to death. Now the Talmud says that such a thing is a situation of doubt. Even though there are nine non-Jews and one Jew, we basically treat it as though it were fifty percent that you would murder a Jew and fifty percent that you wouldn’t. And about that the Talmud says: if so, what practical difference does it make? Meaning, whether this is fixed presence or not fixed presence, whether it’s ninety percent or fifty percent, either way we don’t execute the murderer, because we also don’t execute on the basis of doubt. And the Talmud says: let’s talk about a case where there are nine Jews and one non-Jew. If there are nine Jews and one non-Jew and I threw the stone into that room, then I would be liable to death if we followed the majority, because the assumption is that when I threw the stone, the majority was Jews, so the assumption is that I basically threw a stone at a Jew—that is, at someone whose killing carries capital liability. And now that the law has been introduced that anything fixed is treated as half-and-half, meaning that in a situation where the things are fixed in their place we treat it as balanced doubt, then I’m not liable to death. In other words, here there is a lenient consequence of the law of fixed presence: they exempt me from death because of the law of fixed presence. That’s what the Talmud means when the concept of fixed presence basically describes a situation in which… the object I’m dealing with, or concerning which I’m in doubt, is in its place, yes, in the place of mixture, in that place where all the factors of the two kinds are found—the object is there. If the object left there for another place, and I’m only asking what its nature is—does it come from the majority group or from the minority group—then we follow the majority: whatever separates is assumed to have come from the majority. If it is in its place, and I’m in doubt—or the moment the doubt was born is when the object was still in its place—then in that situation I see it as balanced doubt, whether leniently or stringently. Meaning, both in a place where the doubt leads to stringency and in a place where the doubt leads to leniency, we view this as a situation of doubt, and that is the law of fixed presence. Now a few remarks before I move on. We have—I want first of all to examine a priori, before the question of the explanation, how to explain the law of fixed presence, which is basically our question—how can we understand the law of fixed presence? The question is whether it can even have an explanation. A priori, seemingly, there can be no explanation for this law. Why? Because apparently the probability—what difference does it make whether the object separated or didn’t separate? The probability is ninety percent. So statistically it’s clear that the two situations are equivalent. So how can one think of an explanation that distinguishes between separation and fixed presence? Statistically it’s the same thing. We already saw in the previous topic—and that’s why I moved to this topic immediately afterward—that there are other kinds of explanations. And maybe we’ll talk about those too. So the fact that there is no statistical difference—we already know that this does not mean there can’t be another kind of explanation. Moreover, there’s some tendency to think that if we have a source from a verse, “and he rose against him and lay in wait for him,” then we basically don’t need to look for an explanation, or maybe someone going further will say: there is no explanation. It’s a decree of Scripture. A decree of Scripture has no explanations. If there were an explanation, it would be reasoning, and then we wouldn’t need a verse to teach it to me. That isn’t true, and it can’t be true. We spoke about this once—that it’s common in yeshivot to say, maybe I even mentioned this in this series, I don’t remember anymore, that every verse teaches the opposite of what it says. Why? Yes, that’s the joke I always use about our matriarch Sarah. A young kollel fellow argues with his wife and she says to him, it’s written: “whatever Sarah says to you, heed her voice”—you have to obey Sarah, your wife; it says so in the Torah. So he says to her: ignoramus of the world, everything written in the Torah is a special instruction to Abraham—“whatever Sarah says to you, heed her voice.” If that were the general rule, there would be no need to tell our father Abraham to listen to Sarah. On the contrary, from the fact that Abraham was told to listen to Sarah, you see that one need not listen to women, and therefore there had to be a special novelty for Abraham that he should listen to Sarah. And so on. Every verse that teaches us something—really the principle derived from it is the opposite of what is written in it. That’s the sort of thing you’ll often hear from yeshiva boys. Which is, of course, nonsense. Why is it nonsense? Because the whole idea of the interpretive rule of binyan av in the Torah is that I have one example, and it serves as a paradigm from which I learn the general principle. That’s exactly what the rule of binyan av does. But it is true that there are places even in the Talmud where you really do see a mode of thinking like the one I mentioned before. The question is when we do it that way and when we do it another way—that’s an interesting question. I once wrote about it, but we won’t get into it here. In any case, it’s not true that whenever a verse says something it teaches us the opposite. That certainly is not true. But I’ll say more than that. Not only does it not teach the opposite. Once the verse says something, then of course it teaches us the idea written there. That’s obvious. But I ask: who says there’s an idea there? Who says that behind it there is some logic underlying the law? It’s a decree of Scripture. Again, in the plain yeshiva style, people are used to saying that a decree of Scripture is a law without a reason. Yes, it’s some law that we don’t understand, aren’t supposed to understand, can’t understand, maybe has no explanation. Right. So here I want to distinguish between two things. First of all, if we’re talking about a law written explicitly in the Torah. A law written explicitly in the Torah—there may perhaps be room to say that it is a law without a reason. Even though on that too Maimonides writes in the Guide, part 3—and many others, and that seems to me the simple logic as well—that even if we don’t understand, it’s still pretty clear that behind this law there is some reason, because otherwise why would the Holy One command us? Just because? He decided to torment us? Presumably He has some reason that leads to the command. Therefore even something written in the Torah—at most we don’t understand the reason, but it’s not reasonable to say that it has no reason. Why does that matter? What difference does it make whether there is one and we don’t understand it, or whether there isn’t? The practical difference is what happens in a place where I can understand some reason. Who knows—maybe it’s right, maybe not? Who knows whether I understood the Holy One correctly? So here I say: if the assumption is that there is a reason—if you say, I don’t even know whether there is a reason—then indeed it’s a bit of a shot in the dark. But if I say: the assumption is that there is a reason. I thought of a reason that sounds plausible to me. True, maybe it isn’t right, maybe I missed it, but now the burden of proof shifts to the one who casts doubt on my reason. I have some reason, that reason is plausible, so why assume it’s not the right reason? If there is a reason, and I thought of a logical one, then from my point of view that’s probably the reason. Maybe I’m wrong? Fine. But in order to say I’m wrong, you need to bring arguments; I don’t need to bring arguments to say I’m right. To show that the reasoning is logical? That’s obvious. And once I have logical reasoning, I need nothing beyond that to say that this is the reason for the law. Therefore we really do find in a number of places that the Sages proposed reasons even for laws explicitly defined as decrees of Scripture. A prominent example of this—one of the prominent examples—is the Meiri in Sanhedrin. The Talmud there says, in the chapter about the stubborn and rebellious son, that the law of the stubborn and rebellious son applies to a son and not to a daughter. It says “a stubborn and rebellious son,” and the Talmud expounds: a son and not a daughter. And about that the Talmud says—and the Jerusalem Talmud says it more explicitly, but it is written in the Babylonian Talmud too—that this is a decree of Scripture. So there are all kinds of works, say the Sefer Ha-Chinukh or commentators like that, who deal with the conceptual dimension and can offer various explanations for laws written in the Torah, but that doesn’t say very much because these aren’t really reasons or explanations that truly stand behind them halakhically. Just giving a flavor, I don’t know exactly what. But Meiri brings an explanation. He says: why a son and not a daughter? Because it is not the way of a daughter to rob people. Boys can usually reach that point, because we say that the stubborn son is judged based on his future end. Why? Because if he starts like this, in the end he’ll come to rob people. Meiri says—the reason, and not only Meiri, other medieval authorities say this too, and he cites it in the name of other medieval authorities—why did they exempt a daughter? Because a daughter presumably will not come to rob people. It is not her way to rob people. The difference between Meiri and other medieval authorities is that Meiri asks: wait, wait, wait—but the Talmud said this is a decree of Scripture. How can you find an explanation for it? The Chinukh never asks that, because the Chinukh doesn’t really mean it as an explanation. Fine, he gives you some sort of explanation to give you a flavor, but he doesn’t really mean that this is the reason behind what the Torah commanded. But here, with Meiri, from the fact that he raises the difficulty, you can see that he views this reason as a reason that really stands behind this law. That is why the Torah exempted a daughter. And then he asks: so why is it called a decree of Scripture? And the answer is that even a decree of Scripture has a reason. So why is it called a decree of Scripture? And in general, why do I need a biblical verse? If there is a reason, why do I need the verse? It’s logical reasoning. And that’s not true. Think about a case where there were no verse and no exposition, and I were learning the passage of the stubborn and rebellious son. Now I would say: you know, but daughters don’t generally rob people. So would we exempt daughters, with no verse? I’m using reasoning alone. You understand that it’s not at all clear we would exempt daughters. There are many other populations where you could say: well, here the chance that he will come to rob people is small. I don’t know, some glorious educational institution whose children all turn out magnificently. Fine? Now one of its graduates—we won’t apply the law of the stubborn and rebellious son to him, even if someone there steals a tartemar of meat and drinks a log of wine and so on, because he studies in that school and there is a presumption he’ll turn out fine. We wouldn’t do that, right? Even with daughters, even if the reason is perhaps a true reason, the question is whether a true distinction is enough to yield the halakhic conclusion. And the answer is: not always. “Shall we act merely because it seems so to us?” We have some distinction—who says it’s strong enough? Who says it’s clear enough? Therefore even when we have understanding, that does not mean we don’t need a verse. And once there is a verse, that doesn’t mean the understanding isn’t correct, because otherwise why write the verse? The verse says that this understanding is strong enough to build a law on, to really exempt daughters from the law of the stubborn and rebellious son. So that’s regarding—well, one could expand on this a lot. We once talked about expounding the reason of the verse. There too, many times, people commonly think that we do not expound the reason of the verse because we don’t know the right reason. The Rosh writes in Bava Metzia 94 that if the reason is clear, then yes, we do expound the reason of the verse. So it seems that the problem really is that we don’t know the reason. But I showed that, at least according to Maimonides and others, that’s not true. Meaning, even if we know the reason, we still do not expound the reason of the verse—for example, when the Torah itself writes it. “He shall not multiply wives for himself, lest his heart turn away,” regarding a king. The Torah itself wrote the reason for the law, and nevertheless we do not expound the reason of the verse. So it’s not because we don’t know the reason; the Torah itself stated it. So in short, even in the context of expounding the reason of the verse, it’s not true that decrees of Scripture have no reason. They do have a reason, and still we do not always expound the reason of the verse. Fine. In any case, what I want to say is that with expositions this is much stronger still. Think, for example, even about the exposition “a son and not a daughter.” Or the exposition “and the two men who have the dispute shall stand before the Lord,” which disqualifies women from testimony: men and not women. Or our exposition: “and he rose against him and lay in wait for him”—for example, one who throws a stone into a group. Now let’s try to put ourselves in the shoes of the expositor. The expositor sees a verse, and now interprets it in some way. Now you understand that it cannot be that he made that exposition without some understanding of why it really makes sense. I mean, it can’t be. “And he rose against him and lay in wait for him”—how did you get from that specifically to someone throwing a stone into a group? Maybe it’s talking about someone standing on one leg and shooting an air rifle? Or someone whose name starts with the letter gimel? Why—why did you suddenly shove in here this situation of someone throwing a stone into a group? Because you understood that someone throwing a stone into a group probably really does raise some reasoning for exemption. And that is what the Torah means when it says that liability exists only in a case of “and he rose against him and lay in wait for him,” and if that is not fulfilled, then he is exempt. And I understand the Torah, because it is imposing some kind of condition here for capital liability. So it tells me: only if “and he rose against him and lay in wait for him” is fulfilled is he liable to death; if that is not fulfilled, then not. Now I ask: but what is this condition? I could have interpreted it in a hundred ways. Obviously I choose the one that sounds most reasonable to me. So I say: apparently this is talking about the law of fixed presence, and the Torah introduced here the law of fixed presence. If there were no logic behind the distinction between separation and fixed presence, then why wouldn’t I distinguish between a majority of eighty percent and a majority of sixty percent? Only with a majority of eighty percent is he liable, not with sixty percent. What’s the problem? There are halakhic decisors who even distinguish between a significant minority and an insignificant minority. No—there are those who distinguish between fixed presence and majority, so that means that for the expositor or for the Talmud, yes, there was logic behind this, even though it comes out of an exposition. Because if there were no logic, we would not apply this exposition to this case. We would find some other distinction that had logic and assume that is what the Torah intended. If we say that this is what the Torah intended—because this is not hinted at in the plain meaning of the verses. If I could derive someone throwing a stone into a group from the words “and he rose against him and lay in wait for him,” I would understand. But you realize this has nothing to do with the words. It doesn’t come from the words. Those words do not describe someone throwing a stone into a room. Rather, I understand that the Torah is coming to exclude something, namely that this is not called intentional killing—he did not rise against him and lie in wait for him. Yes, he didn’t plan a killing here. What is it talking about? Maybe unintentional action? No—the Talmud says: someone throwing a stone into a group. Because the Talmud understands that in someone throwing a stone into a group there really is some problem with murderous intent. This is not an act of murder for which one is liable to death. Meaning, there is some logic here, and only by virtue of that logic do I apply this to the exposition of the verse. Only because there is logic behind the distinction between fixed presence and separation, only because of that can I say that the Torah came to exclude the law of fixed presence. If there were no logic, it would never occur to me to do that. Right. We already talked about “You shall fear the Lord your God”—to include Torah scholars. Why not include chairs? Because I say: “You shall fear the Lord your God” comes to include; “et” comes to include—that’s Rabbi Akiva’s assumption. Right, so “et” comes to include—what does it come to include? I search by reasoning for what is closest. How do I decide what to include? Reasoning. Meaning, behind the product of the exposition there must be reasoning. Behind what is written in the Torah there very likely is reasoning—I think sometimes we can even understand it, that’s what I said earlier. But when it comes to exposition, there must be reasoning behind it, because otherwise the expositor himself, the one who created the law, would not have created this law. After all, he created it—how did he know it? It didn’t come directly from the Holy One. How did he know it? Because he understood that this verse came to include or exclude or distinguish between two situations, and he understands that there really is logic in the distinction between these two situations—in our case, separation and fixed presence. So therefore, whether it’s “a son and not a daughter”—and the Torah came to exclude a daughter. Why? Maybe it came to exclude good children? I have some reasoning to distinguish between a son and a daughter, I understand that the Torah came to exclude, and so I say: okay, then apparently it came to exclude a daughter, because there is logic in distinguishing between a son and a daughter. If there were no logic, the exposition would not say that either. This is not true of something explicitly written in the Torah. What is explicitly written in the Torah is written; there’s no issue there. But with a law that comes out of exposition, then the expositor who created it clearly had some reasoning at the base of the creation, otherwise he could not have generated that reasoning. Therefore, to the best of my understanding and knowledge, with laws that emerge from expositions we do expound the reason of the verse. Everything written that we do not expound the reason of the verse refers to laws written in the Torah. But with laws that emerge from expositions, we certainly do expound the reason of the verse. The one who created the law relied on a reason. That’s how it was created. So it’s quite clear that there the reason will determine the boundaries of the law.

[Speaker D] Rabbi, sorry, Rabbi. Yes. What you’re saying, that behind an exposition there stands logic—that’s only with expositions from which laws emerge, not aggadic passages and things like that.

[Rabbi Michael Abraham] Midrash aggadah—I don’t call that exposition,

[Speaker D] Meaning, okay, fine, okay.

[Rabbi Michael Abraham] Yes. So the claim is basically that there must be some logical reasoning here, and that’s what… Is there a question? One second, I’m just going back to what I said before. Therefore not only is it possible that there be logical reasoning, as I said earlier, despite the fact that there is a verse and despite the fact that it’s a decree of Scripture—there can be reasoning. Now I’m saying more than that: there must be reasoning. Because if there were no reasoning, this law would not emerge, because the law is not written in the Torah—it is expounded. Why did the Sages decide to expound specifically to exclude fixed presence as opposed to separation, and not a majority of sixty percent versus a majority of eighty percent, or I don’t know what, something else? Clearly the Sages had some reasoning; you just need the verse because the reasoning alone may not be enough, so you want the verse to tell you, like the Meiri we saw—the verse tells me that this reasoning is strong enough, that you really can rule this way in Jewish law. You can make this distinction in actual practice. Otherwise I would say: okay, there is reasoning to distinguish, but how do you know? “Shall we act merely because it seems so to us?” But if there is a verse or an exposition, then the exposition tells me: okay, this reasoning is sound, you can rely on it, act on it in practice as well. So if that’s the case, there must be reasoning. Yes, someone wanted to ask before?

[Speaker E] Rabbi, if I remember correctly, sometimes there is a tradition regarding expositions—meaning, they expound something that…

[Rabbi Michael Abraham] What I said earlier is that the derashot are creative, not that the derashot grow organically. Maimonides says in a responsum that the derashot that grow organically are maybe three or four; in other words, there are almost no organically growing derashot. Most derashot are creative. More than that: even with organically growing derashot, in my view there still has to be logic. Not because of the concern for error, because we’ve already received the Jewish law, so there’s no problem from the standpoint of a mistake. But if a derashah has no logic in it at all, then it doesn’t support the Jewish law—what good does it do you? To support the Jewish law means: this law comes out of this verse. How does it come out? Let me show you how it comes out, because I’m now taking the verse, and it says such-and-such, and we need to include something. What should we include? We’ll probably include this thing, because it makes sense. Or exclude, or include—it doesn’t matter, okay? I need to persuade you with this derashah even when it comes only to support the law; otherwise I’m just playing games. Now if there’s no logic behind it and it’s not persuasive in any way, then it’s just nothing, it’s a game. Therefore, in my opinion, even regarding organically growing derashot, what I’m saying is true. But creative derashot are certainly like this, and according to Maimonides most derashot are creative, so it’s pretty clear that this is the case—most derashot are creative. So that means that there absolutely has to be reasoning; not only that it can be reasonable, but there must be reasoning.

Now I’ll tell you about something that happened to me, things that happened to me personally. I had a study partner, a good friend, and we studied together for many years until he decided that I’m a heretic. And every so often he would come to me with a proposed explanation for the law of fixedness. That was his hobby. Every once in a while he’d come up with some explanation for the law of fixedness, and it was always a statistical explanation—meaning, an explanation in the ordinary sense, yes, reasoning. So I told him: look, before you present the explanation, I have a question. Are you willing to drink poison based on this explanation? If you believe there’s a statistical difference, that means it doesn’t help only in Jewish law; it means that if you had a practical, physical dilemma too—medical, whatever—you would also say that fixedness is half-and-half, that it really is fifty-fifty. Right? That’s what this kind of explanation is supposed to give you.

For example: you have two crates, each containing ten bottles. In one crate there is one bottle of poison and nine… wait… one bottle of poison and nine bottles of water. In the second bottle—no, wait—there are three bottles of poison and seven bottles of water, okay? Now from the first crate… from the second crate a bottle separated. Fine? I know it came out of the first crate, okay? So the chance is thirty percent that it’s poison, right? Now with the second crate, you now have two options. I have a gun to your head, and you have two options: either drink this bottle—thirty percent poison—or take a bottle from the second crate. In the second crate there is one bottle of poison, so the chance is ten percent, right? You take a bottle at random from the second crate. But that’s a case of fixedness. The law of fixedness means that you basically treat it as though there is fifty percent poison and fifty percent water here. So obviously it’s better to drink the bottle that separated; there it’s thirty percent, here it’s fifty percent. I told him: if you tell me that you would drink the… that you choose the second option, to choose a bottle from the second crate, I’m willing to listen to your explanation. If not, go look for another explanation. It seems to me that at that point his arguments usually came to an end, along with all the examples he brought, because it doesn’t work that way. In other words, he didn’t find… he couldn’t offer a probabilistic explanation, because probabilistically, what difference is there between fixed and separated? It’s exactly the same. And therefore the poison test is a good test. In other words, when you claim to have some probabilistic explanation, then let’s see you drink poison on the basis of that explanation.

A lot of times people also ask this about following the majority. In prohibitions we follow the majority when there’s a minority. With poison, would you also follow the majority? And that’s not a difficulty, because in prohibitions I follow the majority because it’s permitted; the Torah itself said that we follow the majority. With poison, it’s not a question of the Torah—I don’t want to take risks. It’s not because my fear of Heaven is defective, but because Jewish law itself says that one may rely on the majority. This is not reality; it’s a halakhic question. A halakhic question—the law itself says that one may rely on the majority. In our case, you are trying to offer me a statistical explanation for the law of fixedness. If you had told me, look, I go by the law of fixedness because that’s the Jewish law, I understand. But when you come to give me an explanation, you are basically saying no, this is also the logical or statistical state of affairs. And if that’s so, then let’s see, in the bottle experiment, which one would you drink?

In short, the situation sounds grim. On the one hand, as I said earlier, there has to be some explanation. On the other hand, there can’t be that sort of explanation, because there won’t be a probabilistic explanation here. You can already see that we’re in the same situation we were in in the discussion about statistical evidence. And the obvious way out—or the obvious ways out—are the same directions that came up there. What could it be? Either a legal-halakhic explanation, yes, or some kind of… as I said, in the sense that… when I say a legal explanation, I mean that there is legal logic in it, that I can show problematic consequences: if I permit this, then such-and-such will happen, like the fruit of the poisonous tree. Right, the evidence is good evidence, but I don’t rely on it—and it’s not a scriptural decree that I don’t rely on it; there’s an explanation for it. A logical one. You don’t rely on it so as not to encourage people in the future to break the law in order to obtain evidence. That’s what I called a legal explanation. It’s a very logical explanation, even though statistically the evidence is good evidence. It’s not that there is some statistical explanation here. The evidence is good evidence. The fact that I don’t rely on it has a logical explanation, even if it isn’t a statistical explanation—it’s a legal explanation.

I argued that there is also a third category. The third category is some kind of legal intuition. What does legal intuition mean? It means a situation where I can’t show you that this move has problematic implications on the legal level, and I also don’t have a statistical explanation. And still my intuition tells me that this is the right way to act or not the right way to act. As far as I’m concerned, that too is an acceptable justification. Okay? That is basically what I wanted to claim, and it’s also what we saw in the previous topic, the topic of statistical evidence. Here we are in a very similar situation. Probabilistically, apparently it’s the same thing. Why prefer… why is fixedness treated as half-and-half, while separation follows the statistics, follows the majority? And on the other hand, there has to be an explanation here, because this is not a law written in the Torah. This is a law that the Sages derived from the derashah of “and rises against him and lies in wait for him,” so they had some logic behind it—they didn’t derive it for no reason. But that logic is not statistical. What remains is one of the two other possibilities. And I also don’t see any legal explanation here. In other words, I don’t see the second type. Maybe there is one and I missed it, but I don’t see why such an explanation could exist here, a legal explanation like the fruit of the poisonous tree. And therefore this leads us in the third direction.

But the third direction also isn’t some magic word, and that’s an important point. The fact that I say, fine, legal intuition too—even when I can’t point to consequences and I can’t point to a statistical calculation or something like that, and still for me legal intuition is acceptable—that’s not a joker card. It’s not that every time I get stuck on something, it’s “legal intuition” and that’s it. We have to check whether we really do have such a legal intuition. It’s not just words. Throwing out the words “I have legal intuition,” and then everything is wonderful and there’s no need to explain anything—that’s not how it works. Legal intuition too needs to be explained. The fact that I have legal intuition—I need to verify that I really do have it. And again, the explanation won’t be statistical, and it also won’t be legal in the sense of consequences or outcomes. So there’s some additional kind of explanation here—explanations of these principles, and they are explanations even though they are neither of the first two types. But even with the third type, when I say legal intuition, I don’t mean tossing the words “legal intuition” into the air and escaping alive. Rather, you have to let the person in front of you—or yourself, if you’re talking to yourself—feel it out: do I really have such an intuition? Do I really think that in statistical evidence there is such a strong intuition? With the prisoners example there in the jail, where ninety-nine attacked and one didn’t, or the other examples we brought there, the blue and red buses, and so on. There is a lot of logic, at least intuitively, in not convicting on the basis of statistical evidence. It seems to me that there one can definitely be convinced that such an intuition exists, even though, once again, from the standpoint of outcomes, I said I wasn’t convinced. Those were Hanokh’s explanations—he proposed consequentialist legal explanations. Statistically, apparently it’s clear that one should use that evidence, so the explanation for why we don’t use it can only be an explanation of the third type. But there, there really is such an intuition. So that’s fine.

Does that exist here too? Because on the face of it, even when you ask people generally, there’s no intuition. What’s the difference between my taking the piece from the store and the piece having separated and me finding it in the street? I understand that there’s no statistical difference, but I’ll say more than that: there’s also no consequential explanation, no statistical explanation, and no intuition. It’s the same thing—what difference does it make? Here, unlike statistical evidence, the intuition here doesn’t really—mine at least doesn’t really—say that there’s a difference between the two situations. So what led the interpreter in the Talmud to derive this law from “and rises against him and lies in wait for him”? There still was some logic behind it that guided him. And the question is how to understand that.

Now maybe one more remark I nevertheless have to make. I forgot this last time before the… we’re now going to start with the explanations in just a moment. For now I’ve only laid out the framework, and we are basically looking for an explanation of the third type—in other words, an explanation that will show us what intuition lies behind the difference between fixedness and separation. Not legal outcomes and not calculations. That’s where we’ve gotten to so far. In a moment I’ll start on the explanations, but I just want to make one more comment.

We passed a little too serenely over this law that if one throws a stone into a group and there are gentiles there, they aren’t counted—only Jews count. So I want nevertheless to say something about that too. There is something outrageous about statements of this kind. A moral comment that isn’t really connected to this topic, to our discussion, but still, we ran into it. There is something outrageous about that statement. There is often criticism that Jewish law prefers Jewish lives over the lives of a gentile. Also Sabbath violation—it is permitted to save a Jewish life, but not to save the life of a gentile. Here, people know that less, but it is also true that killing a Jew incurs the death penalty and killing a gentile does not. Right, that comes out of “You shall not murder,” it comes out of “Whoever sheds the blood of man,” and therefore there is some moral discomfort here that requires discussion, requires explanation.

Now in principle, when I spoke about morality and Jewish law I elaborated on this point: Jewish law does not always have to fit morality. There are anti-moral laws, and they have certain aims—I called them religious aims—and sometimes the religious aim can damage moral values. There is a clash of values, and sometimes the moral value is harmed in favor of some religious value. But here, in our context of murdering a gentile, I still think one can explain things a bit more. Because the claim, the question, is how we view the distinction that Jewish law makes between killing a Jew and killing a gentile. Is it a stringency regarding killing a Jew, or is it a leniency regarding killing a gentile? You’ll ask, what’s the difference? It’s all relative; if this is a stringency, then that’s a leniency. No. I’m asking what the standard is, what the zero point is, what the basic relation is. If the basic relation is that murder does not require execution, then killing a gentile does not require execution. With respect to a Jew, I am more stringent. One can be more stringent. I do not disparage the life of a gentile; there is a Torah-level prohibition on killing a gentile. Anyone who kills a gentile is a serious criminal. But there is no death penalty for it. Why? Because really, on the moral level, a person who kills a human being does not deserve the death penalty. The Torah, however, says that if you killed a Jew, I am more stringent with you; you do incur the death penalty. That is easier to digest, because it doesn’t mean that we are disparaging the life of a gentile. It means that the Jew, who is in the end, let’s call it, a family member, belongs to my circle of identification, and I care more for him than for the gentile, which is legitimate. Okay?

For example, I would not kill a gentile in order to save a Jew, because that would be harming the life of a gentile. But saving a gentile as opposed to saving a Jew, or punishing someone who killed a gentile as opposed to punishing someone who killed a Jew—that’s not the same situation. Like, for example, returning lost property or lending at interest, which was mentioned here. Right? There too the medieval authorities explicitly write this. Regarding returning lost property, Maimonides writes explicitly in his commentary to the Mishnah in Bava Kamma that why are we not obligated to return it to a gentile? Because the gentiles also do not return lost objects. The accepted standard is that there is no—if you lost it, too bad, basically. You lost it, it’s gone. They don’t return lost property. So if I lose something, they won’t return it to me either, so why should I return it to them? There is no moral obligation to return lost property in a society where the accepted norm is not to return lost property; they wouldn’t return it to me either. There is some measure of reciprocity that is required behind moral principles. Moral principles are also based on reciprocity—I don’t know if only on reciprocity, but reciprocity is also required.

The same thing with interest: gentiles lend with interest, so why shouldn’t I lend to them with interest? They too, when they lend to me, will lend with interest. The fact that the Torah is more stringent and says that to a Jew, yes, return lost property, or to a Jew, do not lend with interest—that is a stringency regarding a Jew; it is not a leniency regarding a gentile. And as long as that stands at the universal standard, the moral problem here becomes much blunter, if it doesn’t disappear entirely. Because all I’m really saying is: it is a Torah-level prohibition, it is very serious to kill a gentile, all that is true. The death penalty really is an extreme response. I impose that on someone who kills a Jew because the Torah cares for its community, or for my community. I care about my children more than I care about my neighbor’s children. So what, does that mean I disparage my neighbor’s children? No. I have a greater obligation to those close to me, as long as I am not harming my neighbor’s children. I of course won’t take from them in order to feed my children—that is forbidden. But if I have food to give my children before my neighbor’s children, that seems entirely reasonable to me.

The same with my family, with my people—these are circles of closeness. It is permitted to show positive preference to circles of closeness, and in my opinion it is even desirable, not just permitted. Yes, there was once a bar mitzvah of my nephew; they had adopted very universalist positions. So I spoke there at the bar mitzvah precisely about this issue, about the disagreement I have with his parents, with my sister and her husband, about universalism. And I said that I think treating different circles of closeness differently is certainly not something improper, but in my view it is even something worthy, not just neutral. That is the proper way to act. Someone who worries about the entire world equally, in the end creates a worse world. Because if you worry about the whole world, no one will worry about anyone. If each person worries more about his close surroundings and less about distant surroundings, I think that in the end the world will function more properly and better. Even though it sounds a bit chauvinistic, you prefer those close to you—“the poor of your city come first,” right, you do prefer them. Why do the poor of your city come first? Does the poor person in my city deserve food more than the poor person in the other city? The assumption is that if they tell me, take care of your community, that’s a more effective demand; there is a greater chance it will actually be carried out. If they tell you to take care of the whole world, it won’t happen. Okay?

So the claim is that in all these laws that ostensibly discriminate between Jew and gentile, the great question is always whether you are harming the gentile or preferring the Jew. And that is not the same thing. There is some objective state that is the proper state. If you say to do something to a gentile below the proper state, that is not okay. If you say to do something to a Jew above the proper state, that is okay. Legitimate. It is some sort of contract within the Jewish community among its members. Therefore, many times, in my view these accusations are incorrect. In other words, we are not talking about people who really want us to execute murderers—most people do not support the death penalty for murderers. Okay? So why all of a sudden are they saying no, no, the fact that you don’t execute the murderer of a gentile means that you’re wrong? Why? I am doing exactly what you recommend. The question is why I execute the murderer of a Jew—because there I am more stringent. But it’s not that I have a bad attitude; it’s like the distinction between civil rights and human rights. Human rights belong to every person equally. A state may not violate the human rights even of someone who is not its resident or its citizen. But civil rights belong only to citizens. What’s the difference? Because human rights are the zero point. Violating human rights is illegitimate action, a negative action. That you may not discriminate against anyone. That’s like taking food from my neighbor’s children in order to give it to my children—that I may not do. Why? Because taking food from them is a negative act. But if I’m not taking from them, and I have food of my own, to whom should I give it? To my children or to my neighbor’s children? I’ll give it first to my children. Again, if the situation is at least equal, I’ll give it first to my children. Why? Because I am supposed to care more for them than for my neighbor’s children. That is not harming my neighbor’s children; it is simply not granting them a privilege. That is legitimate.

This parallels rights, yes. Civil rights are the rights that belong to someone who is a member of my family. Human rights are the rights that belong to everyone in the world. I may not violate another person’s human rights for the sake of my family members. But I may grant civil rights only to my family and not to other people. We are not obligated to provide education for the whole world even though there is a compulsory education law in the State of Israel. Compulsory education is a civil right, not a human right. The State of Israel is not obligated to provide education for the whole world. It would be good if it did, if it could do so, whatever. But that’s not a claim against it if it doesn’t do so. Because it is a civil right, not a human right. It is an obligation of a state to its citizens, not to every human being in the world.

So in that sense, the moral criticisms of distinctions between Jew and gentile—I’m not sure some of them are all that persuasive. Because sometimes it is a preference for the Jew and not a harm to the gentile. Okay. Up to this point, I just felt that I had passed too easily over this matter of saying that killing a gentile is no problem and killing a Jew is forbidden. It isn’t like that. Both are Torah-level prohibitions, both are serious, and regarding a Jew there is a more severe punishment. Correct. I don’t see a moral problem in that.

Okay, so let’s return to our line of discussion. We came to the conclusion that there must be some explanation for the law of fixedness. One more note before I get to the explanations, one more datum. Most halakhic decisors agree that the law of fixedness exists only with a majority that is present before us, not with a majority that is not present before us. Right? Remember the distinction? We discussed it at length. A majority present before us is like the stores, a majority where all the information is before us and the item about which I am uncertain is part of that same group regarding which I have full information—so that is a majority present before us. Like the piece of meat in the stores: I have all the information about the pieces of meat in the city. I’m not making any generalization, I’m not making any general scientific hypothesis. This is a situation that is not even a natural state but an incidental state, a random state. In this city there are nine kosher stores and one non-kosher one. There could be another city where the distribution is different. It’s contingent. And how do I know that this is only contingent? I simply know, because I have direct knowledge. Not the result of a generalization. Okay? I have direct knowledge of the full set of pieces of meat, and now one of them came out. Now I ask: in light of the information in my hands about all the pieces of meat, what is the status of this piece? That is a majority present before us.

A majority not present before us is a majority that basically deals with the nature of the world. So how do I know something about the nature of the world? I haven’t seen all the cases in the world. It is always, as in science, done by generalization from a sample. I look at a sample and assume it is representative. There is some distribution in that sample, like most women give birth after nine months and not after seven months—nine and not seven. So since among a hundred women who gave birth I saw that most gave birth after nine and not after seven, I generalize and say: all women in the world are distributed in such a way that the majority are nine and the minority are seven. Okay? I assume my sample was a representative sample. Now a woman comes before me, and I ask whether her birth was at nine or at seven. You know that this has practical implications for illegitimacy: she got divorced and married someone else—whose child is this? The first husband’s? The second’s? It doesn’t matter. But the question arises whether she gave birth at nine months or seven months.

In this case it depends. If this woman is one of the hundred women regarding whom I have information, yes? Let’s say I have information on a hundred women, direct information, I simply saw, okay? And I wrote it down, I made statistics, and it came out ninety-ten. Now a woman who gave birth comes before me, and I ask myself—there is a halakhic implication—I ask myself whether she gave birth at nine or at seven. If she is one of those hundred women I know and reviewed—and again, I don’t have a named list, otherwise I could just look and see, but regarding them the information is already in my possession and I have already summarized it and it divides seventy-thirty percent, okay? Seventy percent give birth at nine, thirty percent at seven. And now one of the hundred women from my sample comes before me. I don’t remember whether she was from the majority or the minority. I ask myself, what is her status? What kind of majority is that? It is a majority present before us. Why? Because I have a hundred women before me, one of them separated, and I ask whether she separated from the majority or from the minority.

“Most women give birth at nine” generally is not that situation. Rather, it deals with a situation where another woman comes before me. Not that woman. Another woman comes before me, not one of the hundred on whom I based the statistics. That was a sample. Now I assume regarding her too that there is a seventy percent chance she gave birth at nine, thirty percent that she gave birth at seven. On what basis do I do that? She isn’t one of the hundred women I know. Because I assume those hundred women are a sample, and I generalize from that sample and now say that the distribution in all births of all women in the world is probably seventy-thirty. Consequently, this woman who comes before me also probably gave birth at nine with seventy percent probability and at seven with thirty percent probability. That is a majority not present before us.

It has two characteristics that are connected to each other. One characteristic is that it is a majority connected to the nature of the world. It is not an incidental majority like the stores. It is the nature of the world that women give birth after nine months. There is something in their physiology that apparently causes them to give birth at nine and not at seven. And the second characteristic, connected to that, is that this majority is learned by generalization from a sample. Why is that connected to the first characteristic? If I’m claiming something about the nature of the world, how can I know it? I haven’t seen all the cases in the world. It is always a generalization from a sample, right? That’s how science works. By contrast, an incidental majority—say, the majority of stores in a city—is not a generalization from a sample. There is no sample and I cannot derive it as a result of generalization. I simply know the stores of the city. I have direct information about the stores in the city and I know that it divides nine-one, seven-three, whatever the division is. Okay? So there it comes from direct information because it’s contingent information, not essential information, not something connected to the nature of the world. Information connected to the nature of the world is the result of generalization.

We saw the implication of this for a majority in a court. Why is a majority in a court a majority present before us and not not present before us? That was the question of the medieval authorities and later authorities, and I explained it in light of this distinction. Why am I returning to the distinction between a majority present before us and not present before us? We have a certain clue in the law of fixedness. An overwhelming majority of commentators, medieval authorities and later authorities, understand that the law of fixedness was stated only regarding a majority present before us. In a majority not present before us there is no law of fixedness. Meaning, for example, in the stores it is a majority present before us. If I go to the store itself, and the piece did not separate but rather I go to the store itself and take a piece, that is called fixed. So that is a case of a majority present before us, and we make a distinction between fixed and separated. In the case of most women who give birth at nine, let’s say the woman about whom I’m uncertain is at home, in her own place. Would there be a law of fixedness here? No. Why? Because the majority with which I am dealing is a majority not present before us.

Now this makes a lot of sense to me in understanding the law of fixedness, but even if I don’t understand the law of fixedness, it is still pretty clear that it speaks only about a majority present before us and not about a majority not present before us. Because with a majority present before us, place has significance. The fact that it is fixed in its place has significance. What is “place”? The place is that very place where the mixture is located. If the piece about which I am uncertain is inside the mixture, then it is in its place. If it separated, then it is not in its place. But with a majority not present before us there is no mixture. There isn’t some specific place where the mixture is located. It’s among all the women in the world; there is some distribution of seventy-thirty. So there is no particular place where the woman can be found and then I can say she is in her place or not in her place, separated or not separated. It’s irrelevant. She can be in her house, but her house is not the place of the mixture; it is her place. What do I care about her place?

Therefore, the simple view is that with a majority not present before us there is no difference between fixed and separated. You always follow the majority. Only with a majority present before us—if it is fixed, it is like half-and-half; if it is separated, then you follow the majority. There are some later authorities who wanted to dispute this. To me that is absurd. In other words, I think that cannot be correct, and it is also the view of the majority of commentators, as I said earlier. So this is a certain clue that says the law of fixedness exists only with a majority present before us.

Now I’ll bring you two explanations that I found in my search regarding the law of fixedness. There is Rabbi Gordin from Alon Shevut, from Yeshivat Har Etzion; he has an article on the law of fixedness, and he wants to propose the following explanation. He basically claims that in the case of the stores, if the piece separated, then we are looking for the identity of the piece that separated. By contrast, when I approach a piece inside the store, I am not really asking about the identity of the piece; I am asking about the identity of the store that I entered. And from that, of course, it will be clear what the piece is. With the piece, I am really asking about the identity of the piece. The distribution of the stores helps me clarify that question, but the question is not about the store but about the piece.

Now the claim is this. If the piece separated, then what do I need to clarify? I basically need to clarify what the collective of stores in this city looks like. Right? Because I basically have to decide: this piece came out of some store in this city. Now I ask myself, what does the collective of stores in this city look like? So I say: regarding that question, I follow the majority. As a general matter, I want to determine the identity of the collective. If it is a collective made up of nine kosher stores and one non-kosher one, then for me it is a collective of kosher stores. This is more similar to nullification by majority than to following the majority. And once the collective is one of kosher stores, then the ruling about the piece before me follows automatically—that this piece too is kosher. Fine?

Now if I took the piece from the store itself and I don’t remember from which store, then the discussion is not about the character of all the stores in the city. The discussion is about that specific store; I just don’t know the nature of that specific store. That is what he argues. In other words—I’ll comment on this—but that is what he argues. And because of that, if I’m not asking what the character of the collective is, but rather what the character of this store is, then that store is either kosher or non-kosher. There are two possibilities. So it is like half-and-half.

Meaning, if I am speaking about a collective that contains nine kosher stores and one non-kosher one, and I ask what the character of the collective is, then I say, fine, the majority determines the character of the collective. So for me, the stores of this city are kosher stores. And consequently I assume that the piece that separated from them is also a kosher piece. Because I want to check what the character of the collective is, and the majority determines the character. Like in democracy—we talked about this, right?—that the majority basically determines what the public wants. Remember what I said about democratic majority? There the majority determines not what is true. The majority determines what the public wants. And what the majority wants is a measure for determining what the public wants. So here too, this is more similar to nullification by majority or to the law that “most of it is as all of it,” rather than to following the majority, and that is essentially his claim.

By contrast, if I take the piece from inside the store, then I’m not asking a question about the totality of the stores in the city—they do not interest me. What interests me is this store itself. I am uncertain whether it is a kosher store or a non-kosher store. And because of that, if the question is only about one store, then I have two possibilities, either it is kosher or it is not kosher, and from my standpoint that is like half-and-half.

Now it is pretty clear that this is not a statistical statement, right? He is not claiming that statistically the probability really is half. This is a legal explanation, let’s call it that. But not a legal explanation of the second kind; rather of the third kind. He is not showing that there is some problematic consequence here because of which I need to ignore the statistical difference—or, the other way around, to create a difference, to ignore the lack of a statistical difference between fixed and separated. Okay? He is only trying to offer some sort of definition that will give us an understanding of why, in the legal world, there is room to treat this differently. Because it depends on the question my inquiry is looking for: the character of the totality of stores in the city, or the character of one specific store.

And still it is a bit difficult with the… by the way, he also explains on that basis why a court is a case of a majority present before us, but that doesn’t matter right now; we left that there. But I’m saying the claim is still problematic. In other words, maybe, look, I’ll read you a passage that I copied from him into a column of mine. Not here. “In light of the explanation we are now proposing, regarding a majority present before us, we will say that the statistical survey is not a factual clarification. The statistical survey that there are nine kosher stores and one non-kosher one is not a factual clarification, but an instrument intended to determine the character of the place. If most voters in a certain city voted for the red party, then the city is a red city, and therefore the residents who live in that city are red, even though not all of them are. To ask what the character of the city is—that is it.” And he indeed uses this example too, of democratic majority, because it really is a good example of this mode of thinking.

“According to what we have said, reliance on the majority in a case where it is present before us is in the form of guidance and not in the form of factual clarification.” The Torah does not tell me to decide according to the majority present before us even when the piece separated. His claim is this—look: even when the piece separated from the stores, I decide according to the majority. But even there the decision is not because of statistical clarification, but because of the way I check what the status of the totality of stores in the city is. You go by the majority, so if most are kosher, then the stores of the city are kosher stores. It’s a red city; in that sense it’s a kosher city. Consequently, the piece is kosher. Meaning, his claim is that with a majority present before us we are not engaged in statistical clarification at all. He is not saying that there is no statistical decision here; he is only claiming that the halakhic rule is not because of the statistical decision, but because of the determination of the city’s character.

Now there is some logic to this, because in fact “incline after the majority” in a court is where this law of following the majority is learned from, and from that same verse they also learned nullification by majority and apparently also “most of it is as all of it,” at least according to quite a few later authorities. Also the law that “most of it is as all of it.” Meaning, there is some common foundation to all these laws. And indeed, in a court this truly is not a case of a piece that separated, where I can do statistics on it. We already discussed that. In a court, where we follow the majority, it is not statistics. Rather, there is some principle that says what the court said. If two judges said this and one judge… one judge said that, then the court said this. Because what the majority says is what the court says. Therefore, a majority present before us is learned from majority in a court, from “incline after the majority.” Because there the novel point is that when you have several possibilities and you ask yourself what the character of some collective is, the majority gives the answer. It is not a statistical calculation; it is a halakhic rule, a legal principle. The legal principle says that the majority determines the collective.

And therefore his claim is that in such a place there is room to distinguish between a majority present before us and a majority not present before us—sorry, between fixed and separated. Because with separated, I ask the question what the character of the city is, whether it is a red city or not a red city, and that will project onto the piece in my hand. When I enter the store and choose a piece, I ask myself what the character of the particular store I entered is, not what the character of the totality of stores is. And since there are only two sides there—and again, this is not statistics—there are two sides there, either the store is kosher or the store is not kosher. So if so, from our perspective we treat it as half-and-half, because even in the case of separated we are not going by statistics. Consequently, in fixed cases too we are not going by statistics. Statistics do not determine it; rather, the type of question I am asking determines it, and the answer is not the result of a statistical calculation.

Now add to this what I said when I spoke about majority in a court and the distinction between a majority present before us and not present before us, and then I also applied it to statistical evidence. So let me remind you that what I said there was that in the case of the stores, it really is not a statistical majority in the simple sense. It truly isn’t. There is no distribution there. There is no way to determine that really the chance that this piece is non-kosher is ten percent, because there is no way to conduct an experiment, choose a sample, and make a generalization on the basis of the sample. How would we do that experiment? It is an a priori reasoning. And therefore I said that a court too is a majority present before us. It is an a priori reasoning; it is not statistics. There is no statistical calculation there. Of course, if someone forced me to bet, I would bet on nine against one. But that would not be the result of a statistical calculation; it would be the result of a priori reasoning.

Remember that die, that cube, that I said I have to bet what the chance is that it will land on five? If I know it’s a fair die, I bet on the basis of information. I have information that the die is fair; I have a distribution, and that distribution is that the probability of landing on any face is equal. So the probability that it will land on five is one-sixth. What happens if they bring me a die about which I know absolutely nothing? I don’t know whether it’s fair, unfair, how the weights are distributed among the different faces—I have no information. And now they tell me: you have to bet. What is the probability it will land on five? I would still bet on one-sixth. If you ask a statistician, he’ll tell you that you’re just guessing. There is no statistical basis for this, because there is no distribution here. You can’t assign probabilities if you have no distribution. This is a decision based on ignorance. The previous decision is based on knowledge; this one is based on lack of knowledge, lack of information. Okay? So you can call it statistics, but that’s just a label. It isn’t really statistics. There is no distribution here, no real basis, no empirical basis, for the probability I am assigning—one-sixth. But because of my ignorance, I have no way to prefer one outcome over the others, so I would still bet on one-sixth. I have nothing else to do. I don’t know, so it’s one-sixth. There is a difference between a situation where I know it is one-sixth and a situation where I know nothing, and therefore by default I will say one-sixth.

So again, that’s not… I don’t know if I would drink poison on that basis. I don’t know. Good question. I don’t know. But yes, as far as betting goes, I would bet on it in the same way if I had to bet. And on the other hand, it’s not statistics. It really isn’t statistics. With a majority present before us, even the decision in the case of separation, where we decide ninety percent, is not statistics. So consequently, in fixedness too, where we decide it is half-and-half, it isn’t so hard to understand why that doesn’t fit statistics, because in separation too it’s not statistics. The whole question is how we decide this halakhically. So in separation we decide because we are deciding the character of the totality of stores. And in fixedness we decide because we want to determine the character of the store. And of course one can ask: but even the determination of the character of the store can be decided on the basis of the group of stores. Think of this store as though it separated out from the group of stores. How did it separate? I approached it, and that is what sets it apart. My approach to the store, my arrival at the store, is basically what…

If so, then I can once again ask what the character of the totality of stores in the city is, and from that decide about this store concerning which I am uncertain. So this explanation is not smooth. It manages to blur the distinction between fixed and separated in a kind of legal thought, yes, with the assumption that a majority present before us is not statistics. And if it is not statistics, then it depends on the type of question I am asking. But still, I am not completely sure that I buy this intuition of the distinction between fixed and separated, because I can formulate everything he formulates regarding the case of separation also regarding the case of fixedness. I can say that the piece did not separate, but the store separated. And I ask what the nature of the store is. I have ten stores here, nine kosher stores and one non-kosher one, so for me the stores in this city are kosher. Now I look at a store that separated out from the stores of the city, so I should say it is kosher. I could formulate the same logic that he finds in separation also about fixedness. So I was not convinced that there is really reasoning here.

I’ll just complete the picture: what happens with a majority not present before us? Why is there no distinction at all between fixed and separated in a majority not present before us? Because there it is statistics. And statistically there is no difference between fixed and separated. In a majority not present before us, we learn the distribution from the sample and decide regarding the case before us on the basis of the distribution we arrived at. That is a statistical problem. If you decide the question with statistical tools, then indeed there is no room to distinguish between fixed and separated. Because the statistics will be the same in both cases. It doesn’t matter whether the woman is in her house or whether the woman is in the street. That is not interesting. Ultimately, when you ask a statistical question, use statistical tools to answer it. And in statistical tools there is no difference between fixed and separated.

His claim is that in the case of a majority present before us, the tools we use, both in separation and in fixedness, are not statistical tools. It is a decision by way of halakhic determination that is set according to the type of question you are asking. If so, there can already be a difference between fixed and separated, because the kind of question you ask in separation and in fixedness is a different kind of question. So even though there is no statistical difference, one can still understand that there would be a halakhic difference. That is basically his claim. There is something there, but I do not feel that it is enough to persuade me that there really is an intuition here that distinguishes between the two.

Okay, that is the first explanation. I’ll propose a second explanation from Moshe Koppel, who made headlines yesterday—the founder and president of the Kohelet Forum, and he is also a friend of mine. And after that I may also propose a formulation of my own. And again, as we saw in the discussion about statistical evidence, here too I think the three formulations are not completely different. They grasp the problem from different angles, but all three together, I think, will indeed give us some sort of intuition for distinguishing between fixed and separated. Up to here. Any comments or questions?

[Speaker D] Could you just repeat what you explained about killing a gentile—that you’re saying it’s not a leniency toward the gentile, but rather that it’s a privilege for our people, and that this follows the distinction you made between human rights and civil rights? Because life would seemingly belong more to human rights, something universal.

[Rabbi Michael Abraham] Therefore, in my view, the prohibition against killing a gentile would not be overridden by the prohibition against killing a Jew. If someone were to tell me now: kill one person, either a Jew or a gentile—I don’t think I’m allowed to kill the gentile in order to save a Jew. If they tell me, kill one of them, I don’t know—that’s an interesting question in itself. But if they tell me—it’s like if I have food, and the question is whether to give it to my son or to give it to the neighbor’s son. You have to understand that both of them, say, are in danger of starvation; both my son and the neighbor’s son are in mortal danger. Even so, I think we’d agree that I would give the food to my son before giving it to the neighbor’s son. The value of life is a matter of human rights, not civil rights. True. But the question is: is my saving of life a matter of civil rights or human rights? The question isn’t what the value of life is, but rather that my obligation to save obviously comes first with regard to my relatives, or to my fellow citizens, over other people. Therefore.

[Speaker D] Yes, yes, I completely understand that, but I meant more the punishment, that only the—

[Rabbi Michael Abraham] Exactly. Now, what I’m saying is that I want to make the same claim regarding the prohibition of murder. About the prohibition of murder, you could say that maybe it’s the same in both cases, and one would not override the other. Maybe yes, maybe no. But the punishment, if I’ve already committed the murder, that’s something else. That’s already a decision by society to impose a sanction on someone who committed an offense. That can certainly reflect a different attitude toward an offense against one of my citizens as opposed to an offense against another person. If I were telling him, prefer killing a gentile over killing a Jew, then I understand the question. But if you’re asking me what punishment you give him—the gentiles themselves don’t impose the death penalty for homicide, right? They put people in prison, they treat it severely, but they don’t impose the death penalty for killing a person. So why should I impose the death penalty for killing one of their people? They themselves don’t make that demand. For killing a Jew I’m stricter, and for killing a gentile I apply the standard accepted in the world. Okay? Thank you.

[Speaker C] If I can ask, how—maybe the Rabbi said this—but how do we know that the Jewish law in the case where someone entered a non-kosher store, that I follow the rule of fixed status, every fixed case—how do we know that’s the Jewish law in this case?

[Rabbi Michael Abraham] What do you mean, how do we know? I didn’t understand. It’s the law of fixed status.

[Speaker C] It’s a case of the law of fixed status, like it’s the—

[Rabbi Michael Abraham] Who brings that?

[Speaker C] Rava brings it. Okay. But he doesn’t—okay, fine.

[Rabbi Michael Abraham] In the previous lecture I brought those examples from the Talmudic text in tractate Ketubot. Anyone else?

[Speaker F] Rabbi, tomorrow the lecture is earlier, right, we saw?

[Rabbi Michael Abraham] Yes, tomorrow at 8:15. This week it’s both not at the usual time and also a different hour, because the other lecturer can’t, and I can’t at nine, so I’m doing it at 8:15. And this refresher lecture is one week me, one week Rabbi Algazi, so that’s why it’s once every two weeks.

[Speaker B] It worked out well for us, because next week is also Shavuot.

[Rabbi Michael Abraham] Yes, okay. Fine, the week after that I assume Rabbi Algazi will give it, so it’ll be another two weeks until me, I assume. Okay. Fine, Sabbath peace, goodbye.