Doubt and Probability—in Halakha, Thought, and in General—Lesson 33—Rabbi Michael Avraham
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Table of Contents
- The prisoners example and the gap between statistics and testimony
- Three explanatory channels: probability, legal utility, legal reasoning
- Migo, migo de-ha’aza, and the dispute over the “power of a claim”
- The lecturer’s explanation of the “power of a claim” through presumptive possession and burden of proof
- Trust, evidence, and the difference between modern law and Jewish law
- Maimonides, the custom of the two academies, and limiting judicial discretion
- David Enoch and the bus example as statistical evidence
- Methodology: strong intuition and avoiding conviction even without a justification
- Supportive midrash and creative midrash, and weak arguments as a support mechanism
- Pilpul and homiletics as completing the framework
Summary
General Overview
The text presents the legal difficulty of convicting on the basis of statistical evidence despite high probability, as opposed to the system’s willingness to convict on the basis of a single witness even when the probability is lower. It develops three kinds of explanations for differences in the laws of evidence: a probabilistic explanation, an explanation in terms of legal utility, and a third explanation of legal reasoning that cannot be justified probabilistically or consequentially and yet in practice is decisive. Through examples from Jewish law, especially from the laws of migo and the discussion of migo de-ha’aza, it argues that the legal system in practice also relies on this third kind of explanation but has trouble admitting it. This is illustrated through an article by David Enoch on statistical evidence and the bus example. It concludes with a comparison to the structure of supportive midrash versus creative midrash, and with the claim that strong intuition causes people to hold on to a conclusion even when the reasons they find for it are weak, along with a distinction between pilpul and homiletics.
The prisoners example and the gap between statistics and testimony
The text returns to the example of one hundred prisoners, in which ninety-nine kill a guard and one does not participate, and shows that probabilistically each prisoner has a ninety-nine percent chance of being a murderer, and yet in the legal world one does not convict in such a case. It presents an alternative case in which a witness testifies that a certain person murdered, with a five percent chance of error and therefore ninety-five percent accuracy, and yet in that case one does convict even though the chance is lower. It connects this to the distinction it brought from Maimonides between circumstantial evidence and witness testimony, and poses the question of why the system distinguishes between two kinds of evidence even when the probability appears similar or even better in the statistical case.
Three explanatory channels: probability, legal utility, legal reasoning
The text argues that there are three channels for explaining a legal rule that distinguishes between types of evidence: a probabilistic channel that explains acceptance or rejection based on probabilistic quality; a legal utility channel that explains rules by systemic consequences even without a probabilistic difference; and a third channel, legal reasoning. It illustrates legal utility through the principle of “the fruit of the poisonous tree,” where authentic evidence obtained illegally is excluded in order to prevent a situation in which “the sinner profits” and to encourage obedience to the law, so the exclusion does not stem from evidentiary weakness. It presents legal reasoning as a case where there is no probabilistic difference and no evident legal consequence, and yet there remains a normative sense that “it is not fitting” to convict on the basis of a certain kind of testimony, such as self-incrimination or a wife’s testimony against her husband. It emphasizes that such an explanation sounds like “hand-waving,” but argues that there are reasonings of this type that are actually decisive.
Migo, migo de-ha’aza, and the dispute over the “power of a claim”
The text explains the idea of migo as the claim of “why would I lie,” in which a person who makes a weak claim even though he could have made a stronger one receives reinforcement for his credibility. It presents migo de-ha’aza through the case of a borrower who says “I paid” instead of “there was no such thing,” and brings the Talmud’s reason that “a person does not brazenly deny his creditor to his face,” so the alternative claim of “there was no such thing” is not actually available because it is too brazen. Therefore the probabilistic migo of “why would I lie” collapses. It cites a dispute among medieval authorities (Rishonim), according to which migo de-ha’aza does not help to extract money but may exempt a person from an oath, and presents the explanation of later authorities (Acharonim), who distinguish between migo as proof of credibility and a formal migo of the “power of a claim” or “power of credibility,” in which the very possibility of prevailing with an alternative claim grants force also to the weaker claim. It describes the criticism of Rabbi Breisch, author of Helkat Yaakov, in his approbation to the book Mishpetei HaMigo, where he argues that “migo as power of a claim” is mere wordplay, “like electricity,” transferring force from one claim to another without real evidence, as opposed to the approach of yeshiva-style later authorities such as Rabbi Shimon Shkop, Rabbi Elchanan Wasserman, and Rabbi Shmuel Rozovsky, who accept the concept.
The lecturer’s explanation of the “power of a claim” through presumptive possession and burden of proof
The text proposes an explanation according to which the “power of a claim” rests on a conception of presumptive possession and burden of proof rather than on probability, and identifies this as an example of legal reasoning. It defines a person in presumptive possession as someone who can prevail in court without bringing evidence, because the existing state of affairs remains as it is if the other side does not bring proof justifying action by the religious court to extract money. It explains that in the case of migo de-ha’aza, even though the claim “I paid” admits the existence of the loan and thus seemingly shifts the burden to the defendant, the very fact that the defendant could have prevailed merely by making the claim “there was no such thing” shows that the power to prevail depends on him, and therefore he receives the status of one in presumptive possession. It acknowledges that there is no probabilistic reinforcement here of “why would I lie,” and no consequentialist-systemic argument, and presents this as legal reasoning that organizes the rules of procedure around the question “who is in presumptive possession” rather than around the question “whom do we believe.”
Trust, evidence, and the difference between modern law and Jewish law
The text emphasizes that in Jewish law the litigants’ own claims are not evidence, because a litigant is disqualified from giving testimony, and therefore the plaintiff’s and defendant’s words have no evidentiary weight and merely define for the religious court what is being requested of it. It argues that in modern law the litigants’ words do have evidentiary weight, and in practice judgments tend to be phrased around “I believe the plaintiff because…,” whereas in Jewish law the decision rests on formal evidence. It discusses hypothetical questions about a polygraph or psychological diagnosis, and rejects subjective “impression,” but agrees that any tool that proves something with certainty can serve as evidence “like witnesses.” It adds a distinction according to which migo does not prove the facts themselves but only that “I am not lying,” and therefore it is of no use where the concern is mistaken identification or imagination rather than lying, such as identifying a dead person in order to permit an agunah.
Maimonides, the custom of the two academies, and limiting judicial discretion
The text mentions Maimonides in chapter 20 and chapter 24 of the laws of the Sanhedrin, in the name of the Rif, regarding the custom of the two academies in Babylonia, according to which in monetary cases “the judge may do what seems right to him” and rule according to his impression of the truth even without the formal rules. It states that after the Jewish people were dispersed among the nations, the enactment changed and they stopped relying on the judge’s impression, and that in any case this was said mainly regarding monetary law and not criminal law. It responds to the claim that one could simply “decide otherwise” in later periods by saying that the central discussion remains whether this is legal policy or a principled distinction, and returns this to the framework of the three kinds of explanations.
David Enoch and the bus example as statistical evidence
The text presents an article by David Enoch of the Hebrew University on statistical evidence and brings the example of a city in which two bus companies operate, where 95% of the buses are blue and 5% are red, and an unidentified bus caused damage. It states that in the legal system they would not require the blue company to pay solely on the basis of the statistics, but if there were eyewitness testimony that the bus was blue with 95% reliability, they would accept it, even though in both cases we are dealing with the same probability. It argues that from this it follows that there is no probabilistic explanation for the gap, and therefore another explanation is needed, and it notes in advance that he does not agree with the explanation Enoch offers, even though he appreciates the brilliance of the article.
Methodology: strong intuition and avoiding conviction even without a justification
The text argues that the legal discussion begins from a strong basic assumption that “obviously” one does not convict on the basis of statistical evidence, and only afterward looks for an explanation, even when ordinary judges do not know how to justify it. It presents an alternative methodological possibility of giving up the intuition when no explanation is found, but states that this is not what happens in practice, and that there is “very great trust in intuition” even at the price of remaining with “this requires further analysis.” It compares this to dealing with paradoxes such as “Achilles and the tortoise,” in which a strong intuition leads one to assume there is a mistake in the proof even if one cannot find it. It concludes that if one rejects both a probabilistic explanation and a legal-utility explanation and still refuses to convict, then in practice one is relying on legal reasoning; but secular jurists tend to see this as “mysticism,” and therefore try with all their might to remain within the first two kinds of explanation.
Supportive midrash and creative midrash, and weak arguments as a support mechanism
The text compares the search for reasons that justify legal intuition to the Talmudic distinction between creative midrash and supportive midrash. It describes a tendency to accept a “limping midrash” when the Jewish law is already known, because the argument only “supports” an existing conclusion, and expresses a personal position that he does not accept a supportive midrash that does not hold water. He argues that this is also true in philosophy of law with regard to statistical evidence, where strong intuition causes people to accept strained reasons in order to preserve the conclusion, instead of admitting that the conclusion rests on an intuition that is itself an acceptable legal reasoning.
Pilpul and homiletics as completing the framework
The text concludes with a distinction made half-jokingly but presented seriously: pilpul is an excellent argument that leads to the wrong conclusion, and homiletics is a bad argument that leads to the right conclusion. It argues that with respect to the prohibition against convicting on the basis of probabilistic evidence, many people operate in a structure resembling “homiletics,” where the conclusion is held to be intuitively correct and the reasoning is built afterward even if it is weak. It concludes that if one refuses to recognize the third type of explanation, then the position one would be committed to is to give up the conclusion when the arguments fail; but since that is not what people do in practice, the implication is that even in the world of general law there is in fact reliance on legal reasoning.
Full Transcript
[Rabbi Michael Abraham] All right, we’re dealing with statistical evidence in law, and I’ll remind you again of the case we started the discussion with. It’s a situation where there are a hundred prisoners in the prison yard. Ninety-nine of them attack the guard and kill him, and one doesn’t participate in the celebration. Afterward they bring them before a judge, and in principle every one of them who appears before the judge has a ninety-nine percent chance of being the murderer, so apparently we should have convicted him. But it turns out that in the legal world, in a case like that, they don’t convict. On the other hand, if a witness comes and says that so-and-so murdered, then there is some chance that this witness didn’t see well or something like that, let’s say five percent, so then we have a ninety-five percent chance that so-and-so murdered, but a five percent chance that he didn’t. And in that case we do convict, even though the chance that the conviction is correct is lower than in the previous case. There’s a difference between the first kind of evidence and the second kind of evidence. I brought examples for this also from Maimonides, between circumstantial evidence and witnesses’ evidence, and the question is why there really is a difference.
So we talked about this in recent lectures, and I tried to suggest various proposals that explain this difference. I’ll just remind you of one point that accompanied us in the previous discussion. I’m not going to go back to it now, but there’s one point that will also be important for today’s discussion. I said that in principle there are three channels open before us when we come to explain something like this. The most obvious channel is the probabilistic one. Meaning, if I’m trying to understand why evidence A is accepted and evidence B is not accepted, if I show that evidence A is simply probabilistically better, then of course I’ve explained it correctly. That’s the obvious explanation. But apparently that’s not what’s happening here.
The second kind of explanation is what you might call legal utility. Legal utility means legal rules that have legal logic in terms of the results, the legal order, and so on, even though there is no probabilistic difference between the two kinds of evidence. But there is legal logic in adopting one type of evidence and not adopting the other. I gave the example of the fruit of the poisonous tree. With the fruit of the poisonous tree, you obtain evidence in an illegal way, for example an illegal recording, and in many countries such evidence is not admissible. And the question is why. After all, in the end the recording is authentic. You really did record the person, and you have good evidence that he murdered, stole, or whatever it is that he did there. Why not use that evidence and convict him?
So they say there is a legal consideration here that says we don’t want to let a person benefit from the fruit of the poisonous tree. Meaning, he basically committed a criminal act, something against the law, and obtained evidence. If we accept that evidence and decide the case based on it, then the sinner comes out profiting, and we want to prevent people from sinning. Since that’s so, we won’t accept the evidence. Notice: not because the evidence is bad. The explanation is not a probabilistic explanation. This evidence is excellent evidence. There’s a recording here of the criminal admitting the crime. Rather, it’s a legal explanation. But a legal explanation is also logical. We want to try to prevent people from taking illegal actions, and that is perfectly fine. It’s a completely legitimate legal goal, and therefore that too is certainly another kind of explanation that can be accepted for legal principles.
I argued that there is also a third kind of explanation. I called it legal reasoning. Legal reasoning, as distinct from legal utility. The previous channel I spoke about was legal utility, meaning there is some utility the legal system wants, and therefore it disqualifies evidence even though there’s no probabilistic problem with it, like the fruit of the poisonous tree. What I’m talking about here is something third. Meaning, there is no probabilistic difference between the pieces of evidence, and there is also no visible legal utility in blocking evidence A and accepting evidence B, and nevertheless I have some line of reasoning that says evidence A is not fit to be accepted while evidence B is. What is it based on? Again, if I showed something consequentialist, meaning that if you accept evidence A then problems arise, then that would belong to the previous channel, the channel of legal utility. I’m talking about a situation where you can’t show such a result.
So what is it, then? I have some intuition, some line of reasoning, that says it is not fitting to convict on the basis of this testimony. For example, I don’t know, a person incriminating himself, or a wife incriminating her husband. Okay? In such a case there are legal systems that say: we don’t accept it. We don’t accept that, even though there is no probabilistic problem here. Probabilistically it’s good evidence. And also, at least in the simple sense, I don’t see any problematic legal result. All in all, you’ll accept the conviction and that’s it. What’s going to happen? Meaning, what legal problem, what legal consequence is expected to arise here? So what remains is what I called the third type, namely legal reasoning. We have some line of reasoning that says you don’t convict a person on the basis of his wife’s testimony or on the basis of his own testimony. Why? I don’t know exactly. I have some feeling that it is not fitting to do that.
Now this sounds like a kind of hand-waving. What do you mean, you can’t offer any explanation, so the fact that you have a feeling probably just means you’re built crookedly. Meaning, there’s some irrational way of thinking built into you. Why should we follow it? Why should we rely on it and make decisions based on it? So what I want to argue is that there are reasonings of this sort that I really can’t explain probabilistically, and also not in terms of legal consequences, and yet the feeling is that it is not fitting to do it. It is not fitting to do it, and therefore we won’t do it. That’s what I call legal reasoning.
I gave an example of this, at least in Jewish law, because in secular law it’s hard to find examples of this. Even when you disqualify a wife’s testimony against her husband, they usually find for it some legal explanation, some legal consequence. Meaning, you undermine family relations, there are social interests here that don’t want such things to happen. So that’s already a second-type explanation. It’s hard to find things of the third type in the legal world. Later on I’ll argue that there are such things, even though people don’t admit that there are. We’ll see that later. But in the halakhic context you really can find things like that.
For example, migo as the power of a claim. I think I brought this. When I say migo, it’s usually a situation where I make a weak claim but I could have made a stronger claim. So that situation serves as evidence that I’m telling the truth now. Because if I were lying, why would I choose a weaker lie? If I’m lying, I’ll choose whichever claim helps me the most, because in any event I’m not telling the truth. So I choose the most effective lie. If there’s a better claim, why didn’t I choose it? If I were a liar, I would obviously choose the best claim. So apparently I’m not lying, I’m telling the truth. So why did I choose the weaker claim? Because it’s the truth, simply. And I’m telling the truth, so I state the correct claim even at the price of its being weaker. Right? That’s called “why would I lie?” Why would I lie? If I wanted to lie, I would have lied better. That’s the simple logic of migo.
But there are situations where that logic doesn’t exist. For example, in migo de-ha’aza. Migo de-ha’aza: let’s say someone lent me money and I claim that I paid it back. Yes, I repaid the loan. Now let’s say that for the claim “I paid” I am not believed. Why am I not believed? Because after all I admitted that there was a loan, so if that’s the case, he becomes the one with presumptive possession, because it’s clear that there was a loan, and now I’m only claiming that I paid it back. So the burden of proof is on me. Because right now it’s clear there was a loan, and the question is whether I paid. This is not a discussion of whether there was ever a loan in the first place, in which case of course the burden of proof would be on him. Okay? So therefore, basically, I’m not believed when I say “I paid.”
But I have a migo. I could have said, “There was no such thing.” There was no loan at all. What do you mean, I don’t even know you. What do you want from me? That is certainly a better claim, right? The claim “I paid” basically admits that there was a loan here, and I admit there was a loan, I just claim that I repaid it. Whether I did or didn’t, there definitely was a loan. Clearly this is a weaker claim. By contrast, if I say, “There was no such thing, I don’t know you, there was no loan at all, what do you want from me? Get out of here,” then that is of course a much stronger claim. I reject him outright. I’m not even entering into argument with him at all, right?
So I really have a migo. I claimed “I paid,” and I should be believed by virtue of migo because I could have said “there was no such thing.” But the Talmud says that this is a bad migo. Why? Because there is brazenness here. Meaning, assuming I want to lie, the whole issue I’m dealing with is that people suspect maybe I’m lying. So I say, no, believe me, because I have a migo. If I wanted to lie, I would have made the better claim, I would have said “there was no such thing,” not “I paid.” So they tell me no: if you wanted to lie, you still would have said “I paid” and not “there was no such thing.” Why? Because to say “there was no such thing” is a very brazen thing to say. A person does not brazenly deny his creditor to his face. Meaning, the man lent you money, did you a favor, and now he comes to claim from you and you say “There was no such thing, I don’t know you, what do you want from me?” That’s insolence. A person is uncomfortable doing something like that. It’s easier for him to say “I paid.” Why? For several reasons. Or “I paid” could mean maybe I forgot or something, I thought I had repaid, so I’m not lying to him outright. Beyond that, this is from the first Rabbi Hiyya in tractate Bava Metzia, page 5; from there it also seems that when I say “I paid,” maybe what I mean is that I don’t have the money now, and when I do have the money I’ll really pay you. Meaning, therefore it’s more comfortable for me to say “I paid” than to say “there was no such thing.”
Either way, what migo de-ha’aza means is that the alternative claim really is better in terms of its legal outcome, but it is much less comfortable for me to make because it is a brazen claim. Okay? So it is much less comfortable for me to make it. If so, I can’t now say: look, believe me that when I say “I paid” I’m telling the truth, because if I wanted to lie, I had a better lie available, so why didn’t I choose it? That’s not an argument. You didn’t choose it because it’s brazen. You didn’t want to act brazenly toward someone who did you a favor. Therefore I do not have the argument of migo. What? That doesn’t apply today.
[Speaker B] What do you mean? Today people are freely rude, both in this and in that.
[Rabbi Michael Abraham] Gentlemen, still, I don’t think so. There are rude people, okay, there always were, but I think that for the average person, the reasonable assumption is that it’s less comfortable to be insolent to someone’s face than to get around the issue. That seems to me a reasonable assumption, not always.
[Speaker C] Right, but the moment you allow such a law of migo, then a person can also misuse the law.
[Rabbi Michael Abraham] Again, I’m not going to get into the whole topic of migo now. Of course a lot can be said here. The issue of migo is a very interesting logical issue. I wrote a booklet on it; it’s on my website, you can read it there, a pamphlet on migo, Kuntres HaMigo. There I also answer that question. In any event, for our purposes I’m only using migo as an example of legal reasoning.
So the later authorities say—meaning, among the medieval authorities there is a dispute about the law of migo de-ha’aza. There are medieval authorities who claim that although migo de-ha’aza does not help on the monetary level, it does help me exempt myself from an oath. Meaning, if there is one witness against me that I did not pay, or that there was a loan, or something like that, and I have a migo against that one witness—one witness obligates me to take an oath; two witnesses obligate me to pay money. If there is one witness against me, then I am obligated to take an oath. But if I have a migo, the migo will exempt me from the oath.
Now what happens if it is migo de-ha’aza? There are medieval authorities—there is a dispute among them—who claim that although migo de-ha’aza does not help regarding money, it does exempt from an oath. Now what is the logic? There is no migo here at all. The whole logic of migo collapses because the better alternative claim is indeed better, but it is brazen. So I’m uncomfortable making it. So I have no basis to say: look, if I wanted to lie, I would have made that claim. No. Even if I wanted to lie, it would still be preferable to make this claim because it is less brazen. So you can’t bring evidence in your favor from the power of migo. So why does it exempt from an oath?
So the later authorities explain that although in migo de-ha’aza there is not the idea of “why would I lie,” meaning the argument that if I wanted to lie then I would have chosen the better claim, nevertheless there is a migo here called the power of a claim or the power of credibility. What does that mean? It’s a formal rule saying that as long as I could have prevailed in court through an alternative claim, I will prevail in court also through the weaker claim that I am making now. Why? Because I could have prevailed through that other claim. Notice, this resembles the “why would I lie” logic of migo, but it isn’t the same thing. Because the “why would I lie” argument isn’t here. Here this is a formal claim. It says: could I have prevailed with that claim? The answer is yes, I could have. Right? If I had made it, I would have prevailed. It’s just that I’m uncomfortable making it because it’s brazen. But in principle, if I had made it, I would have prevailed. So they say that once I have the option of prevailing through an alternative claim, I can prevail also through the weaker claim. It doesn’t matter even if the alternative claim is brazen. The very fact that I have a possibility of prevailing enables me to prevail with the weaker claim. That’s why it’s called a migo of the power of a claim. The power of the weaker claim receives reinforcement from the very fact that I have an alternative of a better claim. The power is transferred from the stronger claim to the weaker claim, or power of credibility, or power of a claim—various different expressions among the later authorities. But the idea is the same kind of idea.
I once saw—there’s a book called Mishpetei HaMigo, which deals generally with the whole topic of migo. In his approbation to that book, Rabbi Breisch, the author of Helkat Yaakov—he was a rabbi in Switzerland—writes there that this thing called migo as power of a claim, which is well known, was not an invention of the book Mishpetei HaMigo, but in the yeshivot they use it a lot. He says he never understood this thing. What is migo as power of a claim? Is it like electricity, he says? You transfer power from this claim to that claim? What is this, an electrical circuit transmitting power from here to there? What are these word games? Bottom line, you have no evidence, because the argument that if I wanted to lie I would have lied with the better claim doesn’t exist here, so you have no evidence. And if you have no evidence, why do I care that you could have prevailed with that other claim? So what? Then make that claim and we’ll talk to you. You didn’t make it. You made the weaker claim. And I also know why you didn’t make it: because it’s brazen. So what do you want from me? Why should I care that one could prevail through the other claim? Why is that relevant? Therefore he says there is no such thing as migo as power of a claim; it’s nonsense.
But many later authorities say yes, there is. Rabbi Shimon Shkop, Rabbi Elchanan Wasserman expand on this at length, Rabbi Shmuel Rozovsky of course, all the yeshiva-style later authorities. And in fact it started earlier—I don’t remember, there is some book from the eighteenth century, I think, that was the first to raise this claim; I forgot the name of the book—but in our time in the yeshivot everyone uses it. So he doesn’t accept such a thing.
[Speaker D] So now basically what—
[Rabbi Michael Abraham] What stands behind this is that the force we give to migo de-ha’aza has no explanation. It’s not a probabilistic explanation, because the probabilistic argument is not here, right? I don’t have an argument that I’m really right when I said “I paid,” because if I wanted to lie I would have lied with the alternative claim. No, that argument isn’t there. So from the standpoint of the probability that I’m right, there is no argument here. In terms of legal consequence, also not. What legal consequence? What is there here—there is no legal consequence here. The question is whether I accept this claim or don’t accept this claim. True, Maimonides does introduce some legal consequence here, but I’m not going into that now. So he says: what remains? If there is no probabilistic explanation and no explanation in terms of legal consequence, then there is no explanation, so that’s it, then it’s simply not true.
So what do those who do accept the idea of migo as power of a claim say? Which is more or less the whole yeshiva world. What do they say? They claim that they accept it even though there is no probabilistic explanation and no explanation in terms of legal consequence. Why? Because there is some legal reasoning here. This is the third type of explanation I talked about, which says that such a migo should give you force. What’s the idea behind it?
So I explained it there in the Kuntres HaMigo, and Yossel Schreiber got angry about this explanation of mine. I argued the following. Really, the Kehillot Yaakov argued it in a certain formulation. The claim is this: we know that someone in presumptive possession has an advantage. Someone who holds the money and the other person sues him has an advantage, and his advantage is that the burden of proof is on the plaintiff. Okay? We are assuming that right now without entering into the question why. That itself could also perhaps be legal reasoning, but let’s leave that aside.
Now I say that assuming the one in presumptive possession has an advantage—meaning that one who sues a possessor bears the burden of proof—the claim is that if I could have prevailed with an alternative claim, then in fact I am the one in presumptive possession. Why? What does presumptive possession mean? Suppose you come and sue me for a hundred shekels. We go to a religious court and you sue me for a hundred shekels. Now I don’t need to say anything to you. You have to bring proof. If you don’t bring proof, I go home happy and cheerful without having opened my mouth. I don’t have to say anything. I can prevail without bringing any proof. Okay?
Now again, you won’t prevail without making a claim; they require you to make a claim. You have to say, what did he lie about, did you pay, explain why you think you don’t owe. In terms of procedural law you have to make a claim, but you certainly don’t need to bring any proof. And even without any proof you will prevail in the case. That is the meaning of presumptive possession. It means I basically do not need the court. The money is with me, and if nothing happens it will remain with me. The other side wants to cause the court to act, to extract the money from me and give it to him. So he needs to bring proof in order for there to be a reason for the court to act. You want the court to act? Give it a reason. I don’t want the court to act. The current situation is fine for me.
Now that itself—how would you justify it? How would you classify it? What type of explanation is it?
[Speaker C] Probabilistic?
[Rabbi Michael Abraham] Legal consequence? Or legal reasoning? Reasoning.
[Speaker D] Right, I think so too.
[Rabbi Michael Abraham] It’s not—
[Speaker D] There’s no legal consequence here—
[Rabbi Michael Abraham] There’s no probabilistic reasoning here. It just sounds reasonable to us that it’s not right to require the court to act if it has no reason to act. But it’s not because there is some probability that the possessor is more right. There is no such probability. Rabbi, one could also say that, right, the one who activates the—
[Speaker C] the court is the one who is trying to take from another, so the rule is “the one who seeks to extract from another bears the burden of proof”; he is the one activating the court. But one could also say that the fact that he activates the court also obligates the possessor to bring proof. Why necessarily does the possessor not bring proof? I don’t understand. Again. I agree and understand that in principle the one who activates the court is the one trying to extract. Okay. But I’m saying: why can’t we say that this action, which he initiates, also requires the possessor to bring evidence? Once he activates the court, then both sides should have to bring proof.
[Rabbi Michael Abraham] No, obviously. If the plaintiff brought proof, and it is enough to cause the court to act, then of course the defendant, in order to prevail, will now also have to bring proof. That’s obvious. I’m talking about what happens if the plaintiff did not bring proof. If the plaintiff didn’t bring proof, then he loses. But I, even without bringing proof, prevail. Do you understand? Okay? So I think the explanation of presumptive possession is itself a third-type explanation.
Now what happens in migo as power of a claim? What happens in migo as power of a claim is this. Let’s say we come to court and you sue me for a hundred-shekel loan. Now, I could have said “there was no such thing.” You don’t have witnesses that you lent me money. If you had witnesses, then I couldn’t say “there was no such thing,” because there are witnesses. But you don’t have witnesses that you lent me. So I have two options: either to say “I paid” or to say “there was no such thing.” I could have said either one.
Now true, to say “there was no such thing,” assuming it’s a lie, is uncomfortable. It’s brazenness, to lie to him to his face. Okay? But the possibility exists. I could have said “there was no such thing,” and then I would have prevailed in court without evidence. I would have prevailed in court through a claim alone. I would just have claimed “there was no such thing,” and I would have prevailed; I would not have needed to bring evidence for that. Okay? Someone who can prevail in court by a claim alone, without bringing evidence, is the one in presumptive possession. Right?
[Speaker B] So basically I’m the one in presumptive possession. Why? Because the fact is that even without bringing—
[Rabbi Michael Abraham] evidence I could have prevailed, by claim alone. Okay? That is what defines presumptive possession. The one in presumptive possession is the one who will prevail in court even without bringing evidence. So here, that is my situation. Now true, it was uncomfortable for me to say “there was no such thing,” because if it was a lie that’s brazen. Okay? But the very fact that I could have done it means that I am the one who has the power. Meaning, I am not dependent on the court. If I want, I can prevail, and it depends only on me. I only need to decide to say “there was no such thing.” That’s all. Therefore in such a case, I claim that someone who has a migo is basically in presumptive possession—migo de-ha’aza. He doesn’t have the reasoning of “why would I lie.” But the very fact that he could have prevailed with a claim alone basically turns him into the one in presumptive possession. It gives him the power of presumptive possession. And therefore the burden of proof shifts to the other side. That’s how migo de-ha’aza works.
But this really is an explanation that I think belongs to the third type. This is legal reasoning, because there really is no probabilistic logic here. It does not mean that I am actually right, because “why would I lie” is not here. Meaning, the ordinary logic of migo is not here. And I also have not shown any problematic legal consequence if I don’t prevail or something like that. There aren’t the second-type explanations either. But there is here what I call legal reasoning, some kind of legal logic that says: look, if the power is in his hands, then he is the one in presumptive possession. So from the standpoint of the laws of procedure, the other side is the one who has to bring proof.
[Speaker D] Rabbi, but even in the case of presumptive possession, the claim that “the one who seeks to extract from another bears the burden of proof” is also basically of the second type?
[Rabbi Michael Abraham] Legal utility?
[Speaker D] Because after all, it can’t be that every person just comes and stands—we talked about this—stands next to…
[Rabbi Michael Abraham] Right. That’s what I noted earlier: that right now I’m presenting the law that “the one who seeks to extract from another bears the burden of proof” as a third-type explanation, though one could argue about that. I talked about it in the past. I said there are other explanations for it too. But it doesn’t matter. As far as migo is concerned, that certainly isn’t true. Meaning, in migo, the fact that you let me prevail is not because otherwise anyone would—
[Speaker D] So there isn’t a situation—
[Rabbi Michael Abraham] where anyone could just jump in and sue me and prevail. So even if you say that in “the one who seeks to extract from another bears the burden of proof” this is second-type reasoning and not third-type, still it’s clear that migo de-ha’aza is third-type reasoning. Migo as power of a claim is third-type reasoning. Okay? Again, just an example. I’m not interested right now in getting into the whole topic of migo, but I think this is a good example of how in the halakhic and Torah world you really can find explanations of the third type.
[Speaker D] Rabbi, can’t one answer regarding migo de-ha’aza by arguing that in the end it still paints him in positive colors in terms of credibility or morality? Because “a person does not brazenly deny his creditor to his face” paints him in the colors of a certain kind of person. Suppose I had a migo that I could have—say I’m connected to some mafia, I don’t know—and I could have just eliminated the plaintiff entirely and made him disappear through some casual remark to some friends, and I didn’t do that. Then we’d say, wow, that’s not a migo. No, because that would be the migo of a corrupt person, and it doesn’t support his credibility. But with migo de-ha’aza, where “a person does not brazenly deny his creditor to his face,” that already paints him in colors that support the credibility of his claim. Why? Because when we say that this person does not brazenly deny his creditor, that means he is a moral person. He is not capable of standing opposite the lender and saying such a thing to him.
[Rabbi Michael Abraham] That means he isn’t lying!
[Speaker D] He also would have acted brazenly—I didn’t say it proves it, but he—
[Rabbi Michael Abraham] He also would have acted brazenly toward his creditor if he didn’t have another alternative. But if he has another alternative, then he prefers not to act brazenly. That doesn’t mean he is moral.
[Speaker D] That’s already our interpretation.
[Rabbi Michael Abraham] Fine, but that interpretation is enough for me to show that there is no evidence from migo.
[Speaker D] No, I mean that if someone argues against the migo and says this is migo de-ha’aza, I say to him: the very fact that you’re making the claim that “a person does not brazenly deny his creditor to his face” already paints him in positive colors, and the migo itself supports him.
[Rabbi Michael Abraham] No, I claim not. The fact that I can raise an argument against the migo is enough to knock it down. The fact that there is a possibility that this migo is really a migo is not evidence. Evidence is not that there is a possibility that it’s evidence. Evidence has to be decisive. Now, if I say the person is a liar, and he also would brazenly deny his creditor to his face, he has no issue with brazenly denying his creditor—well, not no issue, but it doesn’t stop him. The only thing is that he has an alternative way to lie without brazenly denying his creditor, so he chooses the more moderate lie. But that doesn’t mean that if he didn’t have an alternative lie, he wouldn’t also lie to his face.
[Speaker D] I’m trying to strengthen the migo even in the case of migo de-ha’aza.
[Rabbi Michael Abraham] I understand, but you’re not managing to strengthen it, because it’s enough that there is an argument against it. The fact that there is also another interpretation is not enough. Because evidence cannot stand on the fact that there is a way to interpret it as evidence. Evidence has to be something absolute.
[Speaker D] Why not? There is nothing absolute. We also said it’s ninety-five percent.
[Rabbi Michael Abraham] I didn’t say one hundred percent. Again.
[Speaker D] Fine, so here too it’s not one hundred percent.
[Rabbi Michael Abraham] If he has a migo, that supports his credibility.
[Speaker D] You say to him, it’s brazenness. That itself also supports his credibility. Both things support credibility.
[Rabbi Michael Abraham] No, but that doesn’t support it! When I talk about something being absolute, I don’t mean one hundred percent. A migo, even not a migo of brazenness, is not one hundred percent. Exactly. Right, I’m not talking about one hundred percent at all—that’s not the point. The point is that you can’t say, “Look, I have evidence because maybe it’s true.” That’s not evidence. And basically what you’re suggesting is evidence of that kind. You’re really saying, “I have evidence because maybe he’s the kind of person who doesn’t lie to his creditor.” I’m saying maybe yes and maybe no, because it could be that he does lie… wait, because it could be that he lies to his creditor; it’s just that here he doesn’t lie because here he has an alternative way to win even without that. That’s all. But if he didn’t have an alternative, he would also lie to his creditor. So the moment I have one way to interpret it and another way to interpret it, it’s no longer evidence.
[Speaker D] But every migo is something that supports his credibility, unless we say it’s argumentative strength and that’s something…
[Rabbi Michael Abraham] No, no. A migo of brazenness doesn’t have that support—that’s exactly the point. A migo of brazenness doesn’t support.
[Speaker D] But the Rabbi is saying that argumentative strength still exists.
[Rabbi Michael Abraham] Argumentative strength exists.
[Speaker D] Right, so maybe that’s because in the end there is still some support for his credibility. It isn’t full, it isn’t absolute, but it does indicate credibility.
[Rabbi Michael Abraham] That’s just wordplay! Then you’re going back and saying “why would I lie,” not “argumentative strength.” When you say “why would I lie” exists here, not argumentative strength. The evidence that’s in the migo—but I’m saying that’s not true. Because maybe-evidence is not evidence. It’s like if I say maybe I saw you murder someone. Maybe? Fine, there’s at least a seventy percent chance he murdered, right? So should we convict him? No—what do you mean, maybe I saw? Maybe I saw is not evidence.
[Speaker D] Right, because we set up a committee, the committee examines the credibility of his claim, he says he has a migo and that itself… supports the credibility of the claim he did make, because he could have made a different claim. They say, no, he could have made a different claim, but then he would have been brazen, and why doesn’t he want to be brazen? So that itself also gives some support to his credibility. So the committee says overall he’s
[Rabbi Michael Abraham] sounding credible—his claim. There’s no support in that. There’s no support in that, because I have another interpretation for why he didn’t say it to the person: because he has an alternative way to win with a softer lie. But if he didn’t have that alternative, then he would also lie to creditors.
[Speaker D] So I’ll ask again: if, let’s say, the migo were just some other migo, not a migo of brazenness—the migo that he could have taken him out with a hired killer. He could have murdered him through a hired killer. So I say, listen, he has a claim because he could have taken him out; there’s credibility to the claim. He has no proof for his claim, but he has a migo because he could have
[Rabbi Michael Abraham] taken him out with a hired killer. My friend, you’re assuming something incorrect. You said this earlier too—it’s not true. He has credibility if he can murder him, yes? Not true.
[Speaker D] In Jewish law, still—
[Rabbi Michael Abraham] Again, you want to say that such a migo… no, in Jewish law… he has credibility. From the standpoint of probabilistic reasoning, yes. There’s the case of “he bent down and whispered,” the topic in the third chapter of Chazkat… the chapter Chazkat HaBatim, in the discussion of “he bent down and whispered.” The claim there is: someone forged a document and then admitted it, pulled out the document and sued the other person, and afterward admitted that the document was forged. But he says, “Look, I had a migo because I could have not admitted that the document was forged.” We do not apply the migo because that migo is built on a transgression. So here too, same thing: a migo built on the fact that you could have murdered is not a migo.
[Speaker D] Ah, that’s what I was expressing—
[Rabbi Michael Abraham] But not because you’re not believed—you are believed—but we won’t accept it, for example because of the legal consequences. Why?
[Speaker D] But I’m claiming it’s not because of legal consequences, but because your credibility—if your option was to forge or to murder—that doesn’t present, it doesn’t strengthen anything.
[Rabbi Michael Abraham] So what? But you’d win the money—what do you mean? I could have murdered you and won the money. So why didn’t I do it?
[Speaker D] Because in the end we say, the reason you made this claim is that you didn’t want to be a hired killer. That’s not much support for your credibility.
[Rabbi Michael Abraham] Fine, thank you very much. So we’ve come back to a migo of brazenness. It’s exactly like a migo of brazenness. You didn’t murder because murder is a severe transgression, and you prefer to lie without murdering. That’s exactly what I’m saying about a migo of brazenness.
[Speaker E] Okay, but I have—sorry—I have another question. I don’t really understand the situation. I understand that you use the argument of migo when the plaintiff does bring evidence, and here I have a situation where I need to deal with the fact that there certainly was a loan, because the plaintiff brought evidence for that. Now the person comes and says, despite the fact that you gave me a loan, I say I repaid it, and then they use a migo to create credibility. If he has no evidence, then he doesn’t need to say anything at all—we’re in a stalemate and the burden of proof is on the one seeking to extract money. Good question, but notice the situation. Wait, but I just want to go one step further, and then the whole issue of presumption of the claim doesn’t exist at all—meaning, the fact that I could have denied everything cannot give me any advantage. Why? Because what the court or the religious court is doing here is saying: there is evidence that there was a loan. A person comes and says, right, there was a loan, but I repaid it. So I say, he comes and says, and I want you to believe me; psychologically too this is at work—trust me, because if I had wanted to lie, I could have taken a better claim. But the moment there is evidence on one side that there was a loan, and I couldn’t make the better claim, then from the standpoint of credibility law I’ve lost credibility about the repayment; that’s the end of it. You have no alternative, and therefore I don’t believe you.
[Rabbi Michael Abraham] So the question is a good question, and the answer is this. When you… think again about the situation. Someone comes and claims money from me. Okay? Now the burden of proof is actually on me. Right?
[Speaker E] The burden of proof is on the plaintiff.
[Rabbi Michael Abraham] No, no, pay attention—that’s exactly the point. This is where you’re missing it. Because if he claims against me, what you’re asking is really: why do I need a migo at all? After all, he brought no proof. Right? The answer is that if I say—after all, I always have to make some claim. I can’t just say, “I’m in possession, that’s it.” The religious court always asks me: yes, you’re in possession, but what? What are you claiming against what he said? He says you borrowed from him. What do you say? You have to explain to the religious court why you think you’re exempt. So I claimed that I repaid. Therefore I’m exempt. What happened now? The moment I said I repaid, I admitted that there was a loan. Right? Right. So that basically means that now I stop being the one in possession. Because I was the one in possession as long as… so I basically admitted that there was a loan, and now the discussion starts from the stage where it is known that there was a loan, and the whole question is whether I repaid or not. You understand that now I have become the one seeking to extract.
[Speaker E] Right, but here you have a problem.
[Rabbi Michael Abraham] Wait, exactly—and now I want to claim: yes, I’m the one seeking to extract, but I want to be believed by virtue of the migo. Because the one seeking to extract has to bring evidence.
[Speaker E] Here, I brought evidence—I have a migo. I agree, I agree with that, but you don’t have the migo, because you can’t be brazen, because you can’t, you can’t say to this person—wait, you can’t say to this person. I understand, but that’s not true.
[Rabbi Michael Abraham] Ezra, that’s not true.
[Speaker E] What do you mean? The migo doesn’t exist. The migo doesn’t exist.
[Rabbi Michael Abraham] No, wait, not true. The migo of brazenness—where we tell him, “to lie”—doesn’t exist. The evidence doesn’t exist. But that is exactly the claim of the later authorities (Acharonim): even though the evidence does not exist, it turns me into the one in possession. Now once it has turned me into the one in possession, the burden of proof shifts back to the plaintiff, because I am the one in possession. After all, the whole game here is a game of who counts as being in possession.
[Speaker E] I’m sorry, I don’t think I’m using the word “evidence” here. I’m using the phrase: the religious court sits there and says, wait, whom do I believe? One person says, I gave a loan; the second person comes and he has no evidence, right? Because I’m claiming that if he had evidence then we wouldn’t even be dealing with the migo. But now suppose he says, I gave a loan—his testimony. I now need to know whether I believe the lender. That’s not testimony of the matter, that’s a claim.
[Rabbi Michael Abraham] What? That’s not testimony, it’s a claim.
[Speaker E] In today’s legal system that’s also testimony.
[Rabbi Michael Abraham] Fine, but in a religious court it is not testimony. Litigants do not testify.
[Speaker E] What do you mean, it counts for nothing? Nothing? A person comes and says I lent him money, the other one comes and says—
[Rabbi Michael Abraham] It doesn’t interest anyone at all. The litigants come to the religious court to make claims. Their claims have no evidentiary weight whatsoever. No weight at all. A litigant is disqualified from testimony. Their claims have no evidentiary weight. The role of the religious court, the role of the litigant, is to tell the religious court what he wants from them. When I say that I lent you money, I’m basically saying: judges, please give me money. It’s a request to the religious court. It is not testimony.
[Speaker E] Does the religious court—does the religious court also have to rule whether I believe the lender? No? The religious court won’t deal at all with the reliability of the lender?
[Rabbi Michael Abraham] Absolutely not. It’s of no interest whatsoever. There is no such discussion in Jewish law.
[Speaker E] The only question—
[Rabbi Michael Abraham] is whether he brought evidence. There is no weight at all to the credibility of—
[Speaker E] That’s a difficult thing to say. Because a person comes and says I lent him such-and-such an amount of money, so a situation is created where if I believe him, then I’m already in a situation where there is some evidence here. But okay, I understand that you don’t… that’s why I’m saying it’s difficult. Because in practice this migo creates a situation where the religious court now has to know whom it believes—whether the lender or the borrower.
[Speaker B] No, no, absolutely not. By the way, by the way, this needs a simple explanation. Ezra, sorry—in the religious court in Israel there is no reference to credibility at all. Unequivocally. Nobody is believed. No one is deemed reliable in the religious court.
[Rabbi Michael Abraham] There is a very clear division of roles in the religious court. There are litigants, and there are witnesses, and there are judges. And each one has a different role, by the way, and you must not mix them. A witness does not become a judge, and a judge does not become a witness, and a litigant is disqualified from testimony and from judging. Each role has to stand separately. What is the role of each? The judges’ role is of course to rule. The litigant has no role of testimony at all; he simply does not function as a witness. What he says has zero evidentiary weight.
[Speaker E] And what about the borrower—is he also a judge?
[Rabbi Michael Abraham] Wait, wait, wait. The borrower and the lender both. What they say has zero weight. No one cares whether they are telling the truth or not. Because even if they are telling the truth, a litigant is disqualified from testifying. So it doesn’t matter. The function of claims in the religious court is not to serve as testimony about what happened, but to say what I am asking of the religious court. When the plaintiff comes, he says: I ask the religious court to take money out of him and give it to me. They ask you, why do you want that? Because I lent it to him. Fine, we understand—that’s what you want. Now the borrower, the borrower now says: I ask the religious court not to take the money out of me. Why? Because I repaid, or because there never was such a thing, and therefore I ask that they not. Now the religious court says: okay, I understand what both of you want from me. That’s it, now go home. You no longer matter. I understand what I am now supposed to deliberate about. You have defined for me what I am supposed to deliberate about. Now the witnesses will come, and they will provide the evidentiary weight. What the litigant says has no evidentiary weight whatsoever. None.
[Speaker E] Both litigants now have no witnesses, right? Yes. No witnesses. Right. So what is the migo? The migo says: since he could have claimed that nothing ever happened, therefore I believe him in the claim that he repaid. There’s no other evidence here.
[Rabbi Michael Abraham] Belief—it’s trust. It’s the same thing, the same thing as when two witnesses come and say that there really was a loan—then we believe the lender who says there was a loan. But the trust in the lender is because the lender brought evidence, not because he said something. But the feeling of trust was in the witnesses.
[Speaker D] But Ezra, I left that aside—the feeling of trust was in the witnesses, not in the litigants, according to the Rabbi.
[Rabbi Michael Abraham] The witnesses say that the lender is right, so the religious court says, okay, accepted—we do not believe the lender; rather, we have accepted the lender’s claim. Why? Because there is evidence. Now the migo—wait, one second—the migo is also evidence. So the migo counts as evidence supporting my claim. The fact that I created that evidence by speaking—that doesn’t matter. Now evidence has been created for the religious court, and that evidence proves that what I am saying is what should be accepted.
[Speaker E] So I think that really does not define migo correctly. Migo comes to grant trust in the defendant’s words. Nothing else. You’re using a term. What is the definition of migo? Since I could have claimed that nothing ever happened, I am believed in the claim that I repaid. But still, I’m in a situation where I’m standing against him word against word. Ezra, migo is not evidence. Migo is a tool of credibility. Okay, wait a second, I’ll explain again.
[Rabbi Michael Abraham] You’re not listening to what I’m—
[Speaker E] I understood, I understood the explanation, I… No, you didn’t understand. I understood, I just can’t accept it.
[Rabbi Michael Abraham] No, in my opinion you didn’t understand. I’ll explain. When I bring two witnesses, the witnesses say I’m right, correct? Correct. Let’s say I say that I lent you money and you say that I didn’t lend you money. Now I bring two witnesses that I lent you money. What will the religious court say? We accept the plaintiff’s claim. Why? Because the witnesses proved that he is right. Okay. So of course in the end the religious court rules which claim was accepted. But that is not because what I said has evidentiary weight; rather, there were witnesses who constitute evidence that what I said is the accepted thing, the correct thing. That’s regarding witnesses. I claim that migo functions in exactly the same way. What do I mean? Evidentially. I claim “I repaid”; I have a migo that I could have said there never was such a thing. So the religious court says, wait—the religious court says—the very fact that I claimed “I repaid,” that has no weight at all. No one cares. Rather, evidence has been created here, not through witnesses but through an inference from the things he said. Doesn’t matter. But evidence has been created here that what he said is true. From my perspective that evidence is like two witnesses coming and testifying. It’s not because you made a claim. What you claimed interests no one. Rather, the fact that you made that claim created evidence here because of the reasoning the religious court does. That evidence is what causes the religious court to accept your words.
[Speaker E] Rabbi, I understood the claim. I just think—okay, it could be that I’m simply not sufficiently expert in the matter—but until today I lived with the understanding that migo is something that gives me the tool for the religious court, which is uncertain between two sides that have no witnesses, and gives me the tool to believe the one who claims “I repaid.” A psychological tool, not an evidentiary one. A psychological tool. What do you mean, psychological?
[Rabbi Michael Abraham] It’s evidence. It’s evidence built on psychological reasoning, but it is evidence in every respect.
[Speaker E] But still you came back to saying that because of the migo I believed the claim that he repaid.
[Rabbi Michael Abraham] Just as because of witnesses I believe him—what’s the difference? Migo functions as evidence.
[Speaker E] Okay, so you see the psychological factor as evidence. That’s basically what you’re saying.
[Rabbi Michael Abraham] Yes, of course. The claim by itself without the migo is worth nothing. Obviously. It has no evidentiary weight whatsoever. Rather what happened? A migo was created here, and that migo functions as external evidence, as though two witnesses came. Only in this case the testimony is just psychological reasoning. It doesn’t matter, but the religious court has an indication independent of you that you are telling the truth. That indication functions like two witnesses.
[Speaker G] Okay, that’s new to me, but fine, we’re learning.
[Rabbi Michael Abraham] No, but… all of that is with an ordinary migo. But with a migo of brazenness, this whole calculation, this whole story, never even starts—it’s irrelevant. Why? Because in a migo of brazenness it’s built like this: I claim money from you. You borrowed money from me, bring me back one hundred shekels. Now, what’s the current situation? The current situation is that you—I’m claiming against you, Ezra, right? So you are the one in possession, correct? The burden of proof is on me. The money is with you; I want you to pay me. Now, if you had said “there never was such a thing,” the story would be over, right? Because the one in possession said “there never was such a thing,” I brought no evidence, the money stays with you. Right. However, you claimed “it was repaid.” What happened now? Two things happened. First of all, the moment you said “it was repaid,” you admitted that there was a loan. The moment you admitted there was a loan, you stop being the one in possession; now I am the one in possession. Because we already know that I lent it. Now the discussion is only whether you repaid. So the starting point is already different, because we already know there was a loan, so basically the money is mine. Now prove that you repaid in order to show—so that we will nevertheless exempt you—the burden of proof shifts to you. Right. Now if you had brought an ordinary migo, what would have happened? The migo would serve as evidence—the very evidence you needed to bring, the migo would be that evidence. However, when what you have at your disposal is a migo of brazenness, not an ordinary migo, then the evidentiary dimension does not exist, because in a migo of brazenness there is no “why would I lie.” But what I claim is that the migo of brazenness still works. Why does it work? Because it restores and turns you into the one in possession. Even though you admitted there was a loan and seemingly turned me into the one in possession, once you have a migo of brazenness, you have not let go of possession status from your own hands. Why? Because you could have won by claim alone—you could have said “there never was such a thing” and won. Someone who can win by a claim, without bringing evidence, is the one in possession. The one in possession is the one for whom everything depends on him—if he decides, he will win the case. He doesn’t need to bring evidence. That’s called being in possession. So the whole plane, the whole discussion here, doesn’t speak at all about the question of whom we believe. We don’t believe anybody. That’s not the question. The question, once we don’t believe anybody, is: where will the money stay? With the one in possession. The entire discussion is only about the question of who is in possession. It is not at all a discussion about whom we believe. That’s not of interest.
[Speaker F] Okay.
[Speaker D] Rabbi, Rabbi, suppose in the future they invent a lie detector that is one hundred percent accurate, really, proven everywhere in the world to be one hundred percent accurate. They attach it to the plaintiff or the defendant, doesn’t matter, and it says one hundred percent that he is unequivocally telling the truth. What would Jewish law say about that? Given this separation the Rabbi is making between evidence and relating to the credibility of the plaintiff or the defendant.
[Rabbi Michael Abraham] That’s evidence—what do you mean?
[Speaker D] But the evidence only proves that he is telling the truth. The Rabbi referred to it as evidence. Okay. Then later another method is found—not a lie detector. We bring psychologists who are able to assess this person’s psyche even before he testifies. They simply put him through a procedure before he comes to testify, an evaluation, and they prove that this person is incapable—he has some psychological disorder, he is incapable of lying—and then he comes to testify. Is that also evidence? Even though all the evidence says, basically, is that he is believed. Now why shouldn’t the three judges sitting there listen to him, look him in the eyes, see his tone of voice and body language, and become convinced that in light of his background…
[Rabbi Michael Abraham] That’s not evidence, that’s an impression. An impression is not evidence; an impression is subjective. And in psychology? You’re saying in the hypothetical situation that the psychologist knows with scientific certainty, so then it is not subjective.
[Speaker D] And if the judges themselves acquire that technique, acquire it on their own?
[Rabbi Michael Abraham] Then fine, then there’s no problem.
[Speaker D] So they would be able to listen to the plaintiff.
[Rabbi Michael Abraham] Right, but not because he made a claim, but because they have an analytical psychological tool to know whether he is right.
[Speaker D] But one that proves he is telling the truth.
[Rabbi Michael Abraham] Right, so what? Then it’s evidence like witnesses.
[Speaker D] So we’ve arrived at the same thing, this separation—
[Rabbi Michael Abraham] between evidence and credibility. No, no, we have not arrived at the same thing.
[Speaker B] Because that thing is evidence—
[Rabbi Michael Abraham] exactly like witnesses.
[Speaker B] Why is it so important that there be trustworthiness?
[Speaker E] That’s Ezra’s question. What do you mean? The whole legal system today is built on whom the court believes. Absolutely not, absolutely not, guys, forgive me. Every judgment begins and ends with the words “I believe the plaintiff because…,” and then you can say because he brought this or that evidence.
[Rabbi Michael Abraham] In Jewish law it
[Speaker B] does not work that way.
[Speaker E] No, I understand, I understand, but don’t tell me that in today’s legal system they don’t work with credibility.
[Rabbi Michael Abraham] No, of course. In today’s legal system the litigant has evidentiary weight. In that respect Jewish law differs categorically from modern law. It differs. From the standpoint of Jewish law, what the litigant says has no weight whatsoever.
[Speaker B] And every testimony and every document and “by the testimony of two witnesses shall a matter be established”—that’s only to clothe the matter in evidence. I don’t know how far this goes, but for example I sit here in the religious court in Beitar, and it really is like that: nobody believes anybody. There is no issue of trust, only evidence.
[Speaker E] The evidence in today’s legal system is the key to your coming and saying: since you brought these two testimonies, therefore I believe your claim. That’s how a judgment today is built.
[Speaker B] No, we’re talking about the halakhic / of Jewish law framework, not civil court.
[Speaker E] I said, I said that regarding the halakhic one, I understood.
[Rabbi Michael Abraham] Even in Jewish law I’m willing to accept such a sentence, Ezra. That’s not what our previous discussion was about. After the evidence is brought, I can say that I believe the person—that’s true—but that’s not what matters. The money is ruled based on the evidence.
[Speaker F] Fine, I understand that, but it’s hard for me.
[Rabbi Michael Abraham] But there is a difference, by the way—there is a very interesting difference between migo as evidence and evidence from witnesses or presumption or something like that. And that has implications. Why? The difference is—one second—the difference is that migo does not prove that this is the truth; rather, it proves that I am not lying. And that is not the same thing. For example, if I bring you the presumption that a person does not repay before the due date. So that is evidence that I did not repay; it is evidence about the facts themselves. Migo only says that I am not lying. Where would the difference be? In a case of error. If I now see, say, that I come to permit an agunah, and I saw
[Speaker B] her husband dead.
[Rabbi Michael Abraham] Okay? Now I want to identify the husband in order to permit her to remarry. So I say, her husband died. They ask, how do you know? I say, because I saw the features of the face—there are some rules in Jewish law about how I identify the person who died. Okay? Now here our concern is not only whether I’m lying or not, but also that I may simply have imagined that this was the husband. It could be that it wasn’t the husband—not because I lied, but because I didn’t identify correctly. It’s hard to identify people with certainty. In such a situation migo won’t help. Because what does the migo say? The migo says that if I wanted to lie, I would have lied better. My problem with you is not that you want to lie—that’s not what I suspect. I suspect that you simply made a mistake. So migo, this type of evidence called migo, will not help in such a situation. Evidence on the merits itself—like witnesses, presumption, and so on—will help even in such a case. If you bring two witnesses that the person who died really was her husband, then of course we would accept that.
[Speaker B] Yes, and the whole idea that “the mouth that forbade is the mouth that permitted” is also kind of the same thing.
[Rabbi Michael Abraham] “The mouth that forbade is the mouth that permitted” is simply a strong type of migo.
[Speaker D] In any case, this determination comes out strangely—that it’s as though this is some law given to Moses at Sinai, when plain common sense does understand that the current legal system is correct in relating to the credibility of statements. Maybe it’s not a matter of legal policy, but certainly they do take it into account. To come and say Jewish law says no—you have to close your eyes and not relate to that—that’s outrageous.
[Rabbi Michael Abraham] I said in the first lecture—well, two lectures ago or something like that—when I brought Maimonides in chapter 20 and chapter 24 of the Laws of the Sanhedrin, I said that Maimonides himself there brings that the source is actually the Rif, who says that the custom of the two academies in Babylonia was that by strict law in monetary cases, specifically in monetary matters, a judge may do what seems right to him. Meaning, if he gets the impression that this is the truth, then let him do what he thinks. You are not bound by procedural law and rules of evidence and all sorts of formal things of that type. Those formal matters exist only where the judge has no independent position about what is right here. But after the Jewish people were dispersed among the nations, the enactment of the two academies was that we no longer do this. Meaning, from that period—from the tenth century or something like that and onward—we operate according to formal rules of evidence, and then the judge’s personal impression ceases to have weight. But also—wait a second—but also in the original situation, where the judge’s impression did have weight, that was specifically in monetary law. Meaning, this is not an essential matter, okay? In criminal law, for example, it was never like that. In the legal system.
[Speaker D] That’s legal policy. But you see that Maimonides says there is reference to credibility—meaning, it is possible to go by that—and the fact that they decided in the tenth century, they decided. Today in the twenty-first century you can decide differently.
[Rabbi Michael Abraham] I don’t understand. It could be,
[Speaker D] Monetary law is significant. What the Rabbi is saying now is that Maimonides says they do relate to the credibility of the sides, and if the judge is unequivocally impressed that he is simply telling the truth, then he should give that weight? Yes, in the tenth century. So I’m saying that if someone decided in the middle of the tenth century to stop that—
[Rabbi Michael Abraham] Fine, okay, no problem. Don’t follow what Maimonides says—I don’t care. But everything Maimonides says is only about monetary law. Fine, and that’s also significant.
[Speaker D] You could say that in principle, in monetary law, that is correct; in criminal law, because there is legal policy, we don’t want to give that—
[Rabbi Michael Abraham] The question is whether that is legal policy or not. I claim it isn’t. Fine, so that just returns us to the same question. Therefore you gain nothing here; taking monetary law as the exception gets you nowhere. Okay, let’s move on because this really was only an example I brought to explain the third type of explanation. Okay, so now why did I give all this introduction? Because in the general legal context—not the halakhic / of Jewish law one—there is a very clear tendency to assume that there are only the first two kinds of explanation. The third kind does not exist; it’s some mystical, religious sort of explanation, I don’t know exactly what—it doesn’t exist. Meaning, either give me legal utility or give me some probabilistic consideration—there is no third possibility. And therefore every time you reject those two possibilities, then there’s nothing left, so it requires further analysis. Okay, that’s the assumption. Now I’ll try to show this through continuing the discussion of statistical evidence, probabilistic evidence. I want now to start following an article by David Enoch. He lectures in philosophy and law at the Hebrew University. I once had some debate with him about morality and God; he’s a brilliant guy. And he has an article dealing with this subject of statistical evidence. By the way, I don’t agree with what he writes there in the article, but the article is brilliant. Really, extremely impressive. In any event, I want to follow that article a bit, and remember my introduction about the three modes of explanation, because I think it’s going to come up here very strongly. So he begins with a slightly different example—not the prisoners in the prison yard, but another example. In a certain city there are two bus companies operating: one blue company and one red company—blue buses and red buses. Okay. Now most of the buses in the city are blue—say ninety-five percent. Okay, and five percent of the buses are red. Now a bus caused some damage. We don’t know which bus it was; we know it was a bus. Okay. Can we obligate the blue company to pay the damage because of a statistical consideration—that ninety-five percent of the buses are theirs? The answer is no. Meaning, in the legal system they would not accept this kind of claim; they would not obligate the blue company to pay even though there is a ninety-five percent chance that they really are the liable party. But if I have eyewitness testimony that the damaging bus was blue,
[Speaker D] still—
[Rabbi Michael Abraham] the eyewitness testimony has some degree of unreliability, say ninety-five percent for the sake of discussion, just like in the earlier example—in such a case we would accept the testimony. Even though in both cases it’s ninety-five percent. This is very similar to the prisoners example, right? But this is the example he uses, and once again the question is why. If both are ninety-five percent, that means there is no probabilistic explanation. What remains? One of the other two. Okay, but there is no probabilistic explanation. So what is there? That is basically the case with which he begins the discussion. Now I want to make a very important methodological point. Suppose I ruled out the probabilistic explanation because here it’s ninety-five percent on both sides—there’s no difference probabilistically. And I also ruled out the possibility that there is some legal consequence here. I came and said: I don’t find any legal consequence, there isn’t one, I don’t see any difference in terms of legal consequences. What do I do in such a case? Or alternatively, why look for an explanation at all? Why not say: what do you mean? Yes, I would hold the blue company liable—what’s the problem? There’s ninety-five percent. Meaning, the whole discussion—and this is a very important point in my view—the whole discussion starts from the assumption that of course we do not hold the blue company liable. That’s obvious. Now all that remains is to look for the explanation. You’ll say: why? After all, if you have no explanation—even if there’s no probabilistic explanation—it’s ninety-five percent and ninety-five percent. If ninety-five percent is enough, then if you have an intuition not to hold the blue company liable, apparently you were mistaken—give it up. Because ninety-five percent is enough to convict. I’m making a methodological point about the discussion. The methodology of the discussion is this: it is completely obvious to all jurists, judges, and legal scholars that we do not convict. First of all. Now if you ask the scholars or the judges why they do not convict, they will have no answer. No one will have an answer. Because the answers are very sophisticated. Meaning, even the answers that exist and that one can argue over are very sophisticated answers. Meaning, if you take the average judge and ask him, wait, why don’t you convict? He won’t know what to tell you. He’ll tell you because we don’t convict based on statistical evidence. But why not? It’s ninety-five percent. How is that different from an eyewitness who is also only ninety-five percent? He won’t know what to tell you, but we don’t convict on the basis of statistical evidence. So he won’t convict. Even though there is no probabilistic explanation and he also can’t give you any other explanation. And basically we ignore the seemingly obvious possibility that if there’s no explanation, then give up your intuition. You have an intuition that we don’t convict? You were mistaken; apparently something is distorted in your intuition. Here, I showed you that there’s no logic to it, so convict. No, that doesn’t happen. Meaning, the assumption is that we do not convict. And now all that remains is for clever scholars to sit over the matter and find us an explanation. But it is obvious that we do not convict. Which is a very interesting point. Because that basically means that we have a great deal of trust in our intuition. We have some intuition that says we do not convict in such a case. We have a great deal of trust in our intuition first of all. Afterward you can look for all kinds of explanations. If I find an explanation, great; and if I don’t find an explanation, then I’ll remain with a question, but I still won’t convict. Meaning, there is a great deal of trust here in intuition. And what I want to argue is—I’m jumping ahead a bit—but what I basically want to argue is that if I reject the probabilistic explanation, and I’ve already rejected it, and if I also reject the legal-consequence explanation—there is no legal consequence—but still I do not convict, even though I have neither of those two types of explanation, then why not? Clearly it is because you have a legal intuition. It’s just that someone who doesn’t inhabit a kind of religious, mystical mode of thought is not willing to admit that he acts on the basis of legal intuitions. He looks for explanations of the first two types—either legal consequence or probabilistic explanation—because everything else is mysticism. Law doesn’t deal with mysticism. If there’s logic, we’ll work that way; if there’s no logic, we won’t work that way. But still, as a matter of fact, it is a fact that we do not convict on the basis of probabilistic evidence. And all those who do not convict cannot explain why. They cannot explain why. But they still do not convict.
[Speaker D] But the intuition here is very strong.
[Rabbi Michael Abraham] Okay, but I’ve shown you that your intuition is flawed. Because in fact you find neither of the two kinds of explanation—there aren’t any. Neither one of the two kinds of explanation exists. So apparently your intuition is flawed.
[Speaker D] What do you mean, a flawed intuition? “Do not murder” is an intuition.
[Rabbi Michael Abraham] No, no, no. “Do not murder” is something else. You have no evidence there that there is justification for murder. Here I’m saying you do have evidence. It’s not just out of nowhere. I don’t understand—if you have an intuition in a vacuum, then act on your intuition. But here I am showing you arguments against your intuition. Your intuition is misleading you. So why do you continue to cling to it? It reminds me a bit—once on the website, in a few columns, I wrote about paradoxes. And paradoxes are often structured in such a way that I prove some claim to you, but intuitively it is clear to me that the claim is wrong. Achilles and the tortoise, right? It is clear to me that Achilles catches the tortoise. But by some logical argument it seems to me that Achilles never catches the tortoise. Now what do I do in such a case? Seemingly he showed me by a logical argument that my intuition is mistaken. Indeed, Achilles does not catch the tortoise. Fine, but there is a terribly strong intuition that he does catch it. What do I do? I basically say: look, apparently there was some mistake in his proof. I’m not smart enough to find the mistake, but I assume there was some mistake there. Why? Because I have a great deal of trust in my intuition. Think about every proof by contradiction when someone proved something to you. The whole concept of proof by contradiction collapses in such a situation. So I’m saying that I don’t have a good answer as to when I give up the conclusion, because sometimes I do give up the conclusion when there is a good argument against it. But sometimes, when I have a very strong intuition, then despite the fact that there is an excellent logical argument against that conclusion and I have found no mistake in that argument, I will still remain with that conclusion, because I have extremely strong trust in my intuition. And here that is exactly what is happening. The jurists do not convict based on probabilistic evidence. None of them knows how to explain why—neither a probabilistic explanation nor a legal-consequence explanation. But they still do not convict. Meaning that basically they still have trust—what?
[Speaker B] From their point of view, it isn’t evidence.
[Rabbi Michael Abraham] Yes, fine, but I’m saying why not?
[Speaker B] At ninety-five percent,
[Rabbi Michael Abraham] at ninety-five percent you agree that it is evidence.
[Speaker B] At ninety-five percent, when there is evidence that a person saw, yes, there is something there to lean on. Whereas when there is only a ninety-five percent probability, my thinking is: maybe I’m hitting precisely the five percent.
[Rabbi Michael Abraham] Fine—at ninety-five percent, what difference does it make where it comes from? You have a ninety-five percent chance that you’re right.
[Speaker B] But you—we both understand and agree about this, right—that if there is ninety-five percent evidence from a person, yes, it is somehow stronger—but it is stronger.
[Rabbi Michael Abraham] No, why? No, this is ninety-five percent and this is ninety-five percent. There are the explanations I gave in the previous lectures; I’m not going back over them, because that’s where I explained it. But I’m going back now, and I want to show that those same legal scholars who don’t know how to explain why they don’t convict, still don’t convict. Meaning, in effect, they would never admit this, but what they’re really saying is: I have a legal intuition that in a case like this you don’t convict, and therefore I don’t convict. Ah, I showed you that there’s no probabilistic problem here and there are no problematic legal consequences here, everything is fine, but the legal intuition I have is good enough for me not to convict. But you’ll never hear that sentence from a legal scholar or a judge. You’ll hear that in the religious context, like migo by force of an argument. There you’ll hear: I have some intuition that this is not the right way to proceed even though there’s no statistical or consequential justification or anything like that. In the religious context you’ll hear intuitions like that; in the legal context, no. And later we’ll see—I’ll show you—that Enoch really insists, after he gave up on the statistical-probabilistic direction, on finding an explanation of the second kind. If there isn’t an explanation of the second kind, then this principle has to be thrown out. So he…
[Speaker B] Found one?
[Rabbi Michael Abraham] He found an explanation of the second kind, and in my opinion the explanation is wrong. Interesting. Now we’re going back. All this is just an introduction; we’ll see it. But I’m saying: where does all this leave us if his explanation is wrong? Now I’m backing him into a corner and saying: okay, so what do you do now? I showed you that your explanation is wrong—suppose I had convinced him. What would he do? You don’t have a probabilistic explanation, you don’t have an explanation in terms of legal consequences—he looked, he found an explanation in terms of legal consequences. Now you don’t have an explanation in terms of legal consequences, so what’s left? So in principle he should have said: okay, then in that case you also have to convict on the basis of probabilistic evidence. But people don’t do that. Nobody does that. You find terribly strained explanations, as long as they let your intuition sit comfortably. It’s a bit reminiscent of the concept of—I’m not going into the article itself now, we’ll do that next time—I just want to complete this introduction, this framework, because in my eyes the framework is more important than the discussion itself. It’s like the difference we know from the Talmudic world between a creative midrash and a supportive midrash. A creative midrash is a midrash that creates a new Jewish law that wasn’t known to us until now. A supportive midrash is a midrash where the Jewish law was already known—I received it by tradition—and I find a midrash that supports it, meaning it manages to anchor it in a verse by means of some midrashic reading. That’s a supportive midrash. Now often it’s accepted—you can already see this among the medieval authorities (Rishonim)—that you have a limping midrash, right? You have a midrash that limps, that doesn’t really hold water. So what do you say? You say: no, it’s a supportive midrash. Today we encountered an example like that. Abraham, do you remember from the morning class today?
[Speaker B] Yes, yes, I was just thinking about the morning class. We found exactly that kind of example.
[Rabbi Michael Abraham] What does that mean? Basically the claim is that since I know the Jewish law is correct, then even if the midrash doesn’t really hold water, it’s not such a problem because I know the Jewish law is correct. If the midrash is creative, then if it’s… shaky, right, if it doesn’t hold water, then I can’t rely on the Jewish law produced from it. But if I know the Jewish law already, then even a crooked midrash is fine. Even a dubious midrash is fine. Okay? There’s some feeling that if you trust the result, then even if the argument supporting it is weak, it’s okay, because I know the result is correct. If I know the result is correct, then I’ll also accept a weak argument supporting it. Okay? Now, I for one don’t accept that. There’s no point in making a supportive midrash if it’s crooked. If it’s crooked, then don’t make it. You already have the Jewish law, you received it by tradition. You already know it’s correct. So why make this support? You make this support in order to support it with a verse, to strengthen it, whatever the reason may be. But if you offer me a crooked midrash, then you haven’t strengthened it and you haven’t supported it with a verse. So why do it? Therefore I don’t accept that a supportive midrash can be looser than a creative midrash. I don’t think so. A midrash needs to hold water, whether it’s creative or supportive. But there’s a human tendency like that. Meaning, if I know the result is correct, then even if the argument I found is crooked in order to sustain it, it’s okay, because after all I trust that the result is correct. That’s what’s happening here. What’s happening here—you’ll see this—is that we have a very strong intuition that you do not convict on the basis of probabilistic evidence. Now the arguments brought in support of this are crooked arguments, arguments that don’t really hold water. But since the intuition is so strong and I’m not going to give it up under any circumstances—I will not convict on the basis of probabilistic evidence—then even a crooked argument is fine with me, because it’s a supportive midrash and not a creative midrash. In fact, I’m not refraining from conviction because of the reason; I’m refraining because I have a legal intuition not to convict on the basis of probabilistic evidence. So admit it. Say that legal intuition is also an acceptable explanation. There’s a third type of explanation.
[Speaker B] But in Jewish law that doesn’t quite work.
[Rabbi Michael Abraham] What do you mean?
[Speaker B] Because we all agree about a number of laws where, for example, there’s supposedly a midrash on them, whether creative or supportive and so on, and overall it limps. Like the Rabbi once spoke about… if it limps then we didn’t understand. Bicycles on the Sabbath—well, the Rabbi brought…
[Rabbi Michael Abraham] Bicycles on the Sabbath isn’t a midrash. Bicycles on the Sabbath is just wrong.
[Speaker B] Well, but the one who ruled that, right, he brought it to…
[Rabbi Michael Abraham] No, he says it’s because one might repair it; he decreed a prohibition on his own authority.
[Speaker B] And that’s not a limping supportive midrash?
[Rabbi Michael Abraham] It’s not a midrash.
[Speaker B] So what is it?
[Rabbi Michael Abraham] He didn’t prove it from a verse. It’s a decree. He makes a decree not to ride bicycles lest one come to repair them. That’s rabbinic, not Torah-level.
[Speaker B] Of course, yes, but here we’re talking about an implication, a kind of midrash.
[Rabbi Michael Abraham] No, that’s a different discussion.
[Speaker B] That’s why I asked why you call it a midrash. What? That’s why I asked why you call it a midrash.
[Rabbi Michael Abraham] You’ve got some… no, I’m not calling it a midrash, I’m comparing it to an upholding midrash or a supportive midrash. Just as a supportive midrash raises an argument to support a law I already know in advance is correct—since I know it’s correct, the argument can also be somewhat weak, that’s okay—so I’m saying here too, in these philosophical arguments, people allow themselves to raise weak arguments because their intuition tells them the conclusion is correct. It’s similar to a supportive midrash. I didn’t say it is a midrash, but the logic is similar to a supportive midrash. By the way, this connects—and here I’ll finish—but it connects to a distinction I’ve mentioned here several times, half as a joke but also seriously: the difference between pilpul and derush. Pilpul is an excellent argument that leads to a wrong conclusion, and derush is a lousy argument that leads to a correct conclusion. Right? They give you some completely idiotic homily and in the end everyone is supposed to be humble and righteous and keep the commandments and everything is fine and everyone says well done, well done, mazal tov, mazal tov. All your reasoning, your whole homily, was stupid. But fine—who’s going to argue that a person should be humble and righteous and keep the commandments? The conclusion is correct, so why should I care that the homily is crooked? Okay? In pilpul the conclusion isn’t correct, but the argument looks valid, it looks like a good argument. So there at least there’s some kind of puzzle. If the conclusion isn’t correct, then point to what in the argument is defective, where the bug is in the argument. Okay? So in pilpul I see value; in derush it’s just a waste of time. But basically what we’re doing here is a kind of derush. You take a problematic argument in order to support a correct conclusion. And how do you know it’s correct? Intuitively. You just know it’s correct. Okay? And I say, whichever way you look at it, if you don’t accept the possibility of a third type of explanation, as I suggest, then what you should have done is give up the conclusion. Because your argument is shaky; that means you have no probabilistic explanation, you have no explanation in terms of legal consequences, so apparently your intuition here isn’t correct—it misled you. And I say that if you don’t do that, then although you won’t admit it, the truth is that you too are relying on a legal intuition, just like the religious people do, the benighted ones. Okay, we’ll stop here and continue next time.
[Speaker D] Rabbi, Rabbi, I listened to the previous class, most of which I hadn’t been at, and Rabbi, maybe I understood incorrectly, that the Rabbi said here that in this prisoner case, if say ninety-nine escaped and I picked him completely at random…
[Rabbi Michael Abraham] No, the opposite—they didn’t escape.
[Speaker D] Suppose they escaped and one remained. So I picked him.
[Rabbi Michael Abraham] But—
[Speaker D] Suppose I did pick him, suppose I did. If the Rabbi said here I didn’t pick him and therefore I don’t—but if theoretically, if I understood correctly, the Rabbi said that yes, if I had picked him randomly in some way, then maybe we would convict him. And that doesn’t seem logical to me. It doesn’t seem plausible, and again the intuition…
[Rabbi Michael Abraham] I think I explained there why not. I agree that in the end, there too, no. But in order to sharpen the point, I said—for I said there that I was discussing whether this was a probabilistic explanation or one of the other kinds of explanation. And I said that it could be a probabilistic explanation. But it really isn’t true that the chance is ninety-nine percent that he is a murderer. But wait—if I picked a prisoner at random out of a hundred, then there the chance really is ninety-nine percent that he is a murderer.
[Speaker D] And then—
[Rabbi Michael Abraham] There you need to look for one of the other explanations, not the probabilistic ones.
[Speaker B] There too the intuition will come in that you don’t convict.
[Rabbi Michael Abraham] The same intuition—we’re talking about that. That was probabilistic. Fine.
[Speaker D] If instead of the… okay.
[Speaker H] Rabbi, I don’t want to get into it again, this isn’t the time, but what you’re saying—that you refuse to accept a supportive midrash when it limps—you also see in Hazal. For example, I’m thinking of passages in tractate Kiddushin regarding various kal va-homer arguments about canopy-effecting completion, where there are very weak a fortiori arguments that aren’t logical, wanting to bring in acquisition by intercourse regarding movable property, or I don’t remember exactly what. So they also use interpretive tools, but in a way that limps.
[Rabbi Michael Abraham] I’m saying that if you come to the conclusion that it limps, then one of two things is true: either they really do use a limping argument when it’s only supportive, which I’m not inclined to accept, or I simply didn’t understand why that midrash is correct, and that’s why it looks limping to me. It just requires analysis—I don’t know, I didn’t understand. By the way, in many cases I think I actually can understand. Even what looks limping at first glance, I think on further looks you can understand the logic in it. But not always—sometimes—but I attribute it to the fact that I don’t understand, not to the idea that people did something limping. I don’t see the value in making a limping midrash. It doesn’t sound plausible to me.
[Speaker D] But you do see this in Hazal many times—the feeling is that what drives them is the intuition and not the midrash, which they found very easily.
[Rabbi Michael Abraham] Yes, but no—when you’re talking about an asmachta, that’s something else. An asmachta is something that is supportive.
[Speaker D] They don’t write, they don’t say openly that it’s an asmachta. And after all we’ve talked several times about this, about “and your brother shall live with you” of Rabbi Akiva, and it’s very weak—if he had been convinced that those two walking in the desert should both have had to… then he wouldn’t have learned from “and your brother shall live with you” that your life takes precedence. You could read it another way: “and your brother shall live with you”—he comes before you.
[Rabbi Michael Abraham] When intuition takes part in the interpretation of a verse, so what? That’s fine. He’s still…
[Speaker D] No, no—the intuition without any connection to the verse. There’s an intuition that stands on its own. It’s obvious there that Rabbi Akiva is independently convinced that it makes no sense for both of them to die.
[Rabbi Michael Abraham] Correct, and after the reasoning is correct, then he also interprets the verse that way.
[Speaker D] Yes, and in such a way that you could very easily have learned it differently.
[Rabbi Michael Abraham] So then it’s not the verse. No, you can’t learn it differently, because the intuition says that this is what is correct. If your intuition had been different, then yes indeed.
[Speaker D] No, if he had approached it as a Bible commentator, unrelated to the case itself, and we had told him…
[Rabbi Michael Abraham] But why separate the interpretation? You’re making an incorrect separation here. Intuition too is part of interpretive considerations.
[Speaker D] But it’s not interpretive intuition; it’s an a priori moral, value-based intuition that has nothing at all to do with the verse.
[Rabbi Michael Abraham] He can still interpret the verse by means of that intuition.
[Speaker D] How is that connected? How are you mixing things together? You’re really biased. A biased person has some legal intuition, approaches the verse, and interprets it.
[Rabbi Michael Abraham] I’m not biased. I think it’s correct; that’s not bias.
[Speaker D] But why are you clinging to the verse? The verse could just as well—fifty-fifty—be learned as “and your brother shall live with you,” your life takes precedence.
[Rabbi Michael Abraham] I’m not clinging to the verse. I’m using the verse because in my eyes that’s what it says, because my intuition says so.
[Speaker D] Again, “and your brother shall live with you”—you can read it as your life takes precedence over your fellow’s life, or you can say your fellow’s life takes precedence over yours. “And your brother shall live with you”—it’s worth your living if you live together with your fellow. You can go this way and you can go that way. Suppose so, suppose so. I think you can’t. In my opinion you can’t read it that way. But never mind. I think you can, but suppose so. Then it still wouldn’t have been legitimate for Rabbi Akiva—clearly Rabbi Akiva knew that the verse could be read that way, but he believed in the intuition independently; even without a verse he would have said it.
[Rabbi Michael Abraham] And therefore he thinks that’s how the verse should be read, because of the intuition.
[Speaker D] Because of the intuition, which is not… so it comes out that he stands on the intuition and in effect uses the verse as a supportive midrash.
[Rabbi Michael Abraham] He isn’t relying on the intuition, but that intuition tells him that this is what is written in the verse. So now I’ll ask you: is this a Torah-level law—does it have a verse—or is it only a law derived from intuition? Rabbi Akiva would say no, it’s a Torah-level law; it’s written in the verse. How do I know it’s written in the verse? My intuition tells me that this is the interpretation of the verse.
[Speaker D] Right, and I claim all the verses are like that and all the derashot are like that, because “an eye for an eye” and “a leg for a leg”—that’s obvious,
[Rabbi Michael Abraham] And Hazal say that it means monetary payment; it’s obvious that it means monetary payment. But that’s not connected to what we’re talking about here. Why not? Because here we’re talking about an interpretation that is not plausible for the verse.
[Speaker D] What do you mean, not plausible? If you’re more convinced by… not plausible? It doesn’t fit into the verse. There’s no such thing as “it doesn’t fit,”
[Rabbi Michael Abraham] You can get to the moon—let’s shove every intuition into every verse.
[Speaker D] “An eye for an eye” as monetary payment does not fit into the verse. So Hazal do that.
[Rabbi Michael Abraham] Because that’s a derash.
[Speaker D] What do you mean, that’s a derash?
[Rabbi Michael Abraham] It’s not the plain meaning of the verse; it’s a derash.
[Speaker D] Yes, but the Torah explicitly says the opposite. It tells you, read my lips: don’t make derashot, do an eye for an eye.
[Rabbi Michael Abraham] Right. No, it doesn’t tell you not to make derashot. It doesn’t tell you not to make derashot. The plain meaning is “an eye for an eye,” one hundred percent; that’s obvious, that’s true. And the derash says monetary payment for an eye. So here you have the plain meaning saying one thing and the derash saying another.
[Speaker D] Yes, but this separation… you couldn’t have read it differently. If the real intuition had been that it was very moral to cut off legs and hands and eyes, then it would never have occurred to us to make these derashot.
[Rabbi Michael Abraham] Not necessarily at all.
[Speaker D] There’s a gezerah shavah of “under” and “under.”
[Rabbi Michael Abraham] And that gezerah shavah too—
[Speaker D] —involves judgment.
[Rabbi Michael Abraham] Of course it involves judgment. The judgment determines what to do with the gezerah shavah, exactly as we said earlier.
[Speaker D] Yes, but Hazal could have found a hundred other ways to resolve the gezerah shavah, and they would have had to be plausible.
[Rabbi Michael Abraham] And that is exactly the point.
[Speaker D] And because they were so opposed to the plain meaning of “an eye for an eye,” they said that obviously this is what it means.
[Rabbi Michael Abraham] Again, the tone of what you said at the end ruins everything. Up to that point I agreed. This tone that says they’re basically doing whatever they want—that’s not true. You haven’t shown that it’s true. They say: if I have several possibilities for interpreting, and my intuition goes in the direction of possibility C, then I interpret according to possibility C. Perfectly fine—what’s the problem with that?
[Speaker D] All I’m trying to say is that the abstraction of what you said—as if it canceled… in principle I agree with the Rabbi that I too recoil from detached little vorts and things like that, but it still has cultural significance when you’re not just saying it should be this way or that way; when a person relies on verses and derashot, that means I’m not acting in a vacuum, I’m part of a cultural discourse.
[Rabbi Michael Abraham] I reject the cultural significance.
[Speaker D] I think everything is culture. Everything, really from A to Z, everything that has value is culture.
[Rabbi Michael Abraham] I think this also is not the first time we’ve argued about it.
[Speaker D] Okay, thank you very much.
[Rabbi Michael Abraham] Goodbye, Sabbath peace.
[Speaker F] Okay.