Doubt and Probability—in Halakha, Jewish Thought, and in General—Lecture 17
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- Probabilistic rules and rules of conduct in situations of doubt
- A present majority: stores and a religious court as an a priori rationale
- A presumption established by three occurrences as induction and Occam’s razor
- Occam’s razor: a rule of conduct or a clarifying rule
- The three-year presumption in land and the comparison to an ox with forewarning
- Evidence versus habituation in an ox with forewarning and the implications for presumptions of three occurrences
- The dispute between Rabbi Yehuda and Rabbi Meir regarding an ox with forewarning: three days versus three times
- The Tur, Orach Chayim section 114: “who causes the wind to blow,” ninety times, and the dispute between Maharam and Rabbeinu Peretz
- A methodological accounting: using an opinion not accepted in Jewish law and a 180-degree reversal in the yeshiva-style understanding
- Conclusion and a practical takeaway for independent thinking
Summary
General Overview
The text presents halakhic rules that operate in situations of doubt and distinguishes between rules that seem probabilistic and formal rules of conduct, with the main candidate for a probabilistic rule being the rule of majority. It clarifies the distinction between a present majority and a non-present majority through examples of stores and a religious court, and argues that a present majority rests on an a priori rationale with no possibility of constructing an empirical sample. It then develops the idea of a presumption established by three occurrences as an induction based on Occam’s razor, but raises a dispute among later authorities as to whether, in the case of an ox with forewarning, we are dealing with an accumulation of evidence or with habituation that creates a new status. Later it discusses the Tur on “who causes the wind to blow and the rain to fall” and the dispute between Maharam of Rothenburg and Rabbeinu Peretz, and argues that the common yeshiva understanding reverses them by 180 degrees because of a mistaken calculation regarding Rabbi Meir and Rabbi Yehuda, ending with the methodological conclusion not to rely on authorities without thinking and calculating for yourself.
Probabilistic rules and rules of conduct in situations of doubt
The text assumes that there are rules that appear probabilistic and rules whose purpose is to instruct us what to do in a situation of doubt without necessarily clarifying what is true. It presents the rule of majority as the natural candidate for a probabilistic rule, and distinguishes between a present majority and a non-present majority. It explains that a non-present majority is a generalization based on a sample from which one creates a general law, whereas a present majority is not a generalization from a sample but an a priori assumption that has no empirical basis and no way to be tested experimentally.
A present majority: stores and a religious court as an a priori rationale
The text illustrates a present majority with ten stores, nine selling kosher meat and one selling non-kosher meat, and explains that the assumption that there is a 90% chance the piece is kosher is a logical assumption that cannot be empirically verified. It compares this to a religious court and argues that there too we assume the majority is correct without any ability to receive independent feedback on whether the ruling was correct, so there is no way to build a sample of outcomes and derive a distribution from it. It presents this as an explanation of why, in a religious court, this is considered a present majority, contrary to the understanding attributed to Sefer HaChinukh, where it would seemingly have had to be a non-present majority.
A presumption established by three occurrences as induction and Occam’s razor
The text moves to presumptions established by three occurrences and brings halakhic uses such as menstrual patterns, an ox with forewarning, a mentally incompetent person with three signs of incompetence according to Rabbi Chaim’s explanation, and cases where a woman’s brothers died because of circumcision, her children died because of circumcision, or her husbands died, alongside the dispute between Rabbi and Rabban Shimon ben Gamliel over whether a presumption is established after two times or three. It presents the three-occurrence presumption as an inductive rule that prefers one general law explaining three cases over attributing each case to a different accidental cause. It links this to Occam’s razor and the choice of the simpler explanation, and applies this also to Rabbi Chaim’s explanation in tractate Chagigah regarding the three signs of a mentally incompetent person, as a preference for one explanation over separate alternative explanations.
Occam’s razor: a rule of conduct or a clarifying rule
The text raises a question about the status of Occam’s razor and brings an approach that sees it as a methodological rule of conduct that does not testify to truth but only to choosing a simple rule among explanations. It argues in articles on his website that this is incorrect, and presents Occam’s razor as a substantive clarifying rule, according to which the simpler option really is more correct in a probabilistic-substantive sense because of a fit between the structure of consciousness and reality. It offers possible explanations for this fit through evolution or through the hand of the Holy One, blessed be He, and emphasizes that a formal probabilistic justification for Occam’s razor is unavailable because there is no defined probabilistic calculation for comparing such scenarios.
The three-year presumption in land and the comparison to an ox with forewarning
The text lays out the presumption regarding land, in which the prior owner is considered the one in possession, and therefore after one or two years the plaintiff wins because the burden of proof is on the one seeking to extract property from another, and the current possessor must produce a deed. It explains that after three years the possessor is believed because after three years people throw away a deed and one can no longer demand “show your deed,” and at the same time the prior owner’s silence for three years without protest is considered cumulative evidence in favor of the possessor. It sharpens that the presumption here is an evidentiary presumption and not an act-of-acquisition presumption like locking, fencing, or breaching. It cites Rabbi Yochanan in the name of those who went up from Usha in Bava Batra, that the source for the three-year presumption is from the ox with forewarning: just as once it gored three gorings it left the status of an innocuous ox and stood in the status of an ox with forewarning, so too here, once you consumed produce for three years, it left the seller’s domain and stands in the buyer’s domain.
Evidence versus habituation in an ox with forewarning and the implications for presumptions of three occurrences
The text presents a discussion among later authorities whether the three gorings are evidence of a goring nature that existed from the outset, or whether they are a habit that produces goringness from that point onward. It illustrates a conceptual practical difference: if this is evidence of an innate nature, one might ask why the owner is not also held retroactively liable in full for the first three times, and notes a possible connection to the Talmudic issue of whether the forewarning is directed at the ox or at the owner. It argues that if an ox with forewarning is about habituation, then describing a presumption of three occurrences as induction does not fit, because in many cases, such as “her husbands died” or “her children died because of circumcision,” we are dealing with evidentiary clarification and not the creation of a trait through habit, while the Talmudic passages compare these cases to one another as though they are all one universal principle.
The dispute between Rabbi Yehuda and Rabbi Meir regarding an ox with forewarning: three days versus three times
The text brings the Mishnah in Bava Kamma 23b: Rabbi Yehuda defines an ox with forewarning as one about which testimony was given on three days, and Rabbi Meir defines it as one about which testimony was given three times. It presents the Talmudic reasoning of Rabbi Yehuda from the verses “yesterday, the day before, and the third day,” and the discussion whether liability begins with the third or fourth goring, and Rabbi Meir’s reasoning by a fortiori argument: if when its gorings are spaced out he is liable, then all the more so when they are close together. It notes that Maimonides rules like Rabbi Yehuda in Laws of Monetary Damages chapter 6, that if it gored one hundred times in one day it is still not considered an ox with forewarning.
The Tur, Orach Chayim section 114: “who causes the wind to blow,” ninety times, and the dispute between Maharam and Rabbeinu Peretz
The text brings the Jerusalem Talmud, according to which for thirty days one is presumed to mention what one is accustomed to mentioning, and therefore in a case of doubt one repeats the prayer; from then onward one is presumed to mention what one ought to mention. It brings Maharam of Rothenburg, who used to say on Shemini Atzeret “You are mighty” ninety times up to “who causes the wind to blow and the rain to fall,” corresponding to thirty days in which one says it three times each day, so that if he later became doubtful he would not need to repeat. It cites Maharam’s proof from the chapter “How the foot [causes damage]” regarding Rabbi Meir: if when its gorings are spaced out he is liable, then all the more so when they are close together. It also cites Rabbeinu Peretz, who wrote, “I have not seen the elder rabbis of France act this way,” and disagrees on the grounds that the case is not comparable to the proof, because in the case of the ox with forewarning the reason is that it has been established as one that gores, whereas with rain the matter depends on habituating one’s tongue. It adds that my father and master, the Rosh of blessed memory, leaned toward Maharam’s reasoning.
A methodological accounting: using an opinion not accepted in Jewish law and a 180-degree reversal in the yeshiva-style understanding
The text raises a difficulty: how can Maharam bring a proof from Rabbi Meir when Jewish law follows Rabbi Yehuda? It formulates a methodological principle that sometimes one brings a proof from an opinion not ruled in practice on the assumption that the dispute is not about that particular point. It uses the principle that we do not multiply disputes, and concludes that the common explanation in yeshivot of the dispute between Maharam and Rabbeinu Peretz as evidence versus habituation is the reverse of the correct accounting. It argues that according to Maharam of Rothenburg, the ox with forewarning comes out as evidence and not habituation, while according to Rabbeinu Peretz, the ox with forewarning comes out as habituation and not evidence, contrary to the accepted attribution, and emphasizes that this has practical legal ramifications and is not only a matter of abstract Talmudic analysis.
Conclusion and a practical takeaway for independent thinking
The text concludes with the remark that the conclusion is not merely “don’t rely on later authorities,” but rather don’t rely on anyone without thinking. It presents the lesson that when one relies on an initial assumption or on an opinion not accepted in practical Jewish law, one has to complete the calculation and understand exactly on what point the opinion accepted in Jewish law disagrees. It stops before continuing to another discussion and ends with, “Thank you very much, may we hear good news.”
Full Transcript
[Rabbi Michael Abraham] We talked about rules, some of which are probabilistic rules, or seem probabilistic, and some of which are rules that come to instruct us what to do in a situation of doubt. Formal rules that do not necessarily clarify which of the possibilities is correct, but rather what to do in a situation where we have doubt between several possibilities. The natural candidate for a probabilistic rule is the rule of majority. We talked about a present majority and a non-present majority, about the differences between them. Why is it that in a religious court this is considered a present majority? According to Sefer HaChinukh, seemingly it should have been a non-present majority, and through that I used it to explain the difference between the two kinds of majority, where the claim was that a non-present majority—sorry—is a generalization based on a sample. Meaning, I have a number of cases that make up a sample, I assume it’s a representative sample, and therefore I generalize and create from them a general law. In a present majority, this is not a generalization from a sample. I don’t have a sample; I don’t even have any way to test my probabilistic assumption. Say there are ten stores, nine of them sell kosher meat and one sells non-kosher meat. I found a piece of meat. So the usual assumption is that there’s a 90% chance that this piece is kosher, because there are nine kosher stores and one non-kosher one. That is a completely a priori assumption; it has no empirical basis whatsoever. It’s basically an assumption that arises from our logic, not from observations. There is no way to run an experiment, determine the outcomes in certain cases, and make a generalization based on those cases. This whole story is an a priori rationale: if most of the stores are kosher, then presumably this piece came from the majority of kosher stores. And so that is basically the point of difference between a present majority and a non-present majority.
[Speaker B] If we checked a thousand cases of pieces that were lost, we’d have no way to clarify it.
[Rabbi Michael Abraham] Right, you have no way to check. It’s like what I said—that it’s like a religious court. You assume that the majority in the religious court is the correct one, but you actually have no way to check that in any case, since all you know about the case is what the court knew. There’s evidence this way, evidence that way, and the court ruled what it ruled. You have no independent feedback telling you whether the court was right or not, and so you have no way to determine the distribution within some sample of panels that you know. If you had the ability to do that, then you could generalize to all panels or all cases in the various religious courts, but you have no way to build that sample, and so there too it is basically the result of a logical assumption. A logical assumption, and that’s why it really is a present majority, just like the majority of stores. After that I moved on to the presumption of three times, and we talked about the various contexts in Jewish law in which we use a presumption established by three occurrences, such as menstrual patterns. If a woman experiences a pattern three times, we assume that this is a general rule. Or an ox with forewarning, which is perhaps the Torah basis for these matters: once it has gored three times, it is considered an ox with forewarning. We talked about a mentally incompetent person with three signs of mental incompetence and Rabbi Chaim’s explanation, about brothers who died because of circumcision, or her children died because of circumcision, or her husbands died—then the question is whether she may marry a fourth husband, and so on. So these are all kinds of cases where the Talmud assumes that there is a presumption of three times—again, there is the dispute between Rabbi and Rabban Shimon ben Gamliel whether it’s two times or three—but in principle the Talmud sees all these cases as expressions of the same rule. And this rule is basically a rule of induction, because induction is basically telling me: if you saw three cases, then of course you can always assume that each of those cases was just a case—“case” in the sense of something that is not part of a regularity but something accidental—and then you cannot generalize and establish a general law on the basis of those cases. If you see three bodies with mass falling to the earth, you could assume that the first body fell because it was made of plastic, and the second fell because it was square, and the third fell because it was transparent, and therefore you can’t conclude from here a general principle that all bodies with mass fall to the earth. So why do we nevertheless generalize? Exactly as in science, we generalize when we’ve seen three different kinds of bodies all falling to the earth. It’s reasonable to assume that it isn’t because of transparency, or plastic, or whatever specific property one of them has, because then I’d have to assume that there are three different independent properties here, each of which can cause falling to the earth—if the object is transparent, or made of plastic, or square. In contrast, the alternative theory is that every object with mass falls to the earth because there is a common denominator shared by all three, a property common to all three, and that common property is that they all have mass. And therefore the explanation that attributes falling to the earth to their having mass is simpler than the alternative explanation that says it’s either transparency or squareness or plastic. And because it’s simpler, we assume it is the correct one. So you see that scientific generalization is actually built on Occam’s razor, because what we’re really doing here is comparing two explanatory possibilities and choosing the simpler explanation. And the simpler explanation is that there is one general law that runs through the three cases we encountered. All three are expressions of the same general law, and that is simpler than saying that each of these cases happened accidentally. Meaning, this one happened because it was transparent, and that one because it was plastic, and that one because it was square. So therefore we prefer the simplest explanation. Same thing, as we saw with the signs of a mentally incompetent person—Rabbi Chaim in tractate Chagigah, yes, with the three signs of a mentally incompetent person, where each one individually could also have an alternative explanation. But if all three appear, then presumably the one explanation—that he is mentally incompetent—which runs through all three, is the simplest explanation, and therefore we adopt it. And really every presumption of three times is based on Occam’s razor—that is, on striving for the simpler explanation. I prefer the simple explanation over a complex explanation, and therefore I generalize. Because what is generalization? Generalization is attributing all the cases I have encountered to one general law of which they are all particular instances. Generalization is always a proposal of a simpler explanation, because if there is no general law, then each of the cases I saw is a special case in its own right, and I think it is simpler to see these three cases as particular instances of one general law.
[Speaker B] Why prefer the simple one? What? Why prefer the simple one?
[Rabbi Michael Abraham] That’s Occam’s razor. Occam’s razor says that the simpler explanation is probably the more correct one. Why, really? Excellent question. There are lots of questions about that; there’s an article on my website. I won’t get into it now in detail, but there really are many people who understand Occam’s razor—I spoke before about two kinds of rules, a probabilistic rule and a formal rule, a rule of conduct, as it’s called in the halakhic context—and they understand Occam’s razor as a rule of conduct, not as a clarifying rule. Because the fact that something seems simple to me doesn’t say anything about whether it’s true. That’s just how I’m built, so it seems simple to me; someone else is built differently, and it won’t seem simple to him. Rather, if I have two explanations and this one is simpler, then why should I use the more complex one? I use the simpler one because both explain the facts, so I choose the simpler one only because of a methodological principle, not because it is more correct. I showed in my articles that this is not true. Occam’s razor is not a methodological rule; it is a substantive rule. Meaning, what is simpler really is more correct. Now what does that mean? That can be discussed at length. It means that we are apparently built in some way that is suited to the nature of reality, meaning that what seems simpler to us is also, in some sense, more correct; there is a greater chance that it is also the right option. Meaning, what appears to us as simplicity is actually an indication of correctness. How did that happen? Some will attribute it to evolution, others will attribute it to the hand of the Holy One, blessed be He. Choose whichever explanation you prefer.
[Speaker B] Why isn’t it just a simple statistical rule that clarifies reality? What? I didn’t understand. Why isn’t it just a simple statistical rule that clarifies reality? Every time I see things around me falling, every time I let things go in the air they fall, so each one could have its own explanation, but how can it be that all the things, with all the characteristics, somehow specifically got tangled up around me and around my friend and everything… really, how can that be?
[Rabbi Michael Abraham] You’re asking about Occam’s razor. That’s not probability—what does it have to do with probability?
[Speaker B] No, but then that justifies Occam’s razor by way of probability.
[Rabbi Michael Abraham] Why? What probabilistic calculation can you present here?
[Speaker B] How can it be that by chance… yes, by chance, what’s the problem? Why not? No, but a million cases, where every—a million things I threw, each one with a different property, and specifically in all of them, with all of them, somehow my hands only caught things with those properties that fell.
[Rabbi Michael Abraham] Come and say that what you are claiming now is by virtue of Occam’s razor. You haven’t presented any probabilistic claim.
[Speaker B] No, I’m trying to justify Occam’s razor.
[Rabbi Michael Abraham] No, you’re not succeeding. In no way have you presented any probabilistic calculation here that justifies it. You just came back to Occam’s razor, that’s all.
[Speaker B] I’m saying, what is the probabilistic likelihood?
[Rabbi Michael Abraham] There is no probabilistic likelihood. You can’t make a calculation of probabilistic likelihood. Do the calculation for me. What is the probabilistic likelihood that this one fell because it was transparent, and that one fell because it was square, and that one fell because it was plastic? How can you make such a calculation? There is no such calculation.
[Speaker B] And only those were there—everyone who came to me was like that.
[Rabbi Michael Abraham] Yes, what’s the problem?
[Speaker B] Call it non-probabilistic, but it’s something that is obviously simple.
[Rabbi Michael Abraham] Okay, so that’s Occam’s razor.
[Speaker B] That’s Occam’s razor. It’s not because I’m built in a way that makes it simple or not simple. It can’t be that a million things with a million different properties specifically fell around me, chose me out of all the characteristics.
[Rabbi Michael Abraham] Because that’s less simple. So you’re coming back to the same thing in different words. You’re simply claiming that that explanation is less simple, and therefore less plausible.
[Speaker B] Okay, that’s Occam’s razor. It could be that my explanation is very complicated and complex and requires seven hundred formulas, while the other explanations are simple one by one. But that all of them happened to me—that’s not logical that it should happen specifically to me.
[Rabbi Michael Abraham] True, that would require a lot of formulas in a
[Speaker B] different way, but it’s still one explanation. Fine, but it can be amazingly complex and complicated.
[Rabbi Michael Abraham] But one explanation is by definition simpler than three different explanations. It seems as though
[Speaker B] it makes sense, that it’s not just random.
[Rabbi Michael Abraham] Okay, I completely agree. I really do, as I said before, think that Occam’s razor is not a methodological rule, not a rule of conduct; it is a clarifying rule. Clearly. Anyway, then, presumptions established by three occurrences are basically the halakhic way of performing induction. After we see something happen three times, we assume there is a general law behind these phenomena. And therefore the presumption of three times is the halakhic way of performing induction. Okay, that is more or less where we finished last time, in the previous lecture. And now I want to move on to a point that will actually shed additional light on this whole matter of a presumption of three times. When I talk about a presumption of three times as induction, then as I said before, I am basically saying that these three times are three pieces of evidence for the existence of one general law. Say a person goes out at night and sleeps in a cemetery, and so on—the examples from tractate Chagigah—then I say that these are basically three pieces of evidence that he is mentally incompetent. But in the end, once I understand that he is mentally incompetent, that general principle—this person is mentally incompetent—explains the three cases. Okay? So basically the assumption of a presumption of three times as I described it is that these are three cases that are particular expressions of one general law. Okay? That is basically the conception I presented, and therefore this is induction. Okay? But the later authorities discuss the question whether this really is the meaning of a presumption of three times. I think I mentioned this in passing in one of the previous lectures, and here I want to expand on it a bit more. I’ll start perhaps with the presumption of an ox with forewarning. Right? We know that with an ox with forewarning, from the Talmud itself we learn that after three times the ox becomes an ox with forewarning. “Yesterday, the day before, and the third day”—so that’s three times. So this is basically the only case where we have a derivation from a verse that after three times the status of the ox is established. Now, the Talmud in Bava Batra, in the chapter Chazkat HaBatim, says—brings from the ox with forewarning a proof or comparison to the presumption regarding land. Right? The presumption regarding land is basically the following situation: a person is holding land, someone else comes and claims against him, “This land is mine,” and suppose the claimant was the prior owner, known as the prior owner. So he was in fact the owner until some point in time, that is known, and now I’m sitting on the land. So that owner says to me, “Listen, get off the land. This land is mine.” And I say, “What do you mean? I bought it from you.” Right? So the Talmud says—the Mishnah already says, and afterward the Talmud says—that if the prior owner comes and claims it after a year or two, then he wins the case. Because the burden of proof is on the one who seeks to extract property from another; meaning, if you bought it, produce a deed. Show the deed that you bought it. Because you are in fact coming to take it away from the prior owner. With land, the status of the prior owner determines who is considered in possession, unlike movable property. With movable property, physical possession determines who is considered in possession. With land, the timeline determines it. Meaning, if you were the prior owner—because possession doesn’t really work, the land always stays in the same place—therefore the one who was the last clearly known owner is the one considered in possession in a dispute over ownership of land. Therefore the burden of proof is placed on the one sitting on the land, because he is the one trying to extract the land from the prior owner. But, say the Mishnah and the Talmud, if it is already after three years, then I am believed. Why am I believed? There are various explanations, and medieval authorities and later authorities discuss this at length. I’ll put it simply for now, even though there are disputes about it: after three years I already throw away the deed, and so there is no longer any claim against me of “show the deed.” Fine, so there is no claim of “show the deed,” but still the one in possession is the prior owner. So how am I taking it from him? Fine, so there’s no claim, there’s no flaw against me from not having a deed. But where is the proof? It’s not enough that there’s no flaw against me. I need to bring proof against the prior owner. The proof comes from the fact that he didn’t protest. The fact is, for three years he was silent and did not protest. I consumed produce from the land, I cultivated it, took the produce, ate it, and the fellow was silent. And after three years he suddenly comes to claim it. Then basically—again, there are disputes about this, but this is the simple view—these three years constitute proof in my favor, I as the possessor, the one possessing the land. Because the first year when you didn’t protest while I gathered the produce, that is one piece of evidence. The second year when you didn’t protest, that is a second piece of evidence. The third year when you didn’t protest, that is a third piece of evidence—assuming produce is gathered once a year. Otherwise it could vary. But there is still a problem: okay, but where is the deed if you bought it? “Show your deed,” right? Show me your deed. So on that, after three years, the Talmud says that a person discards the deed; he may lose the deed after three years, and therefore there is no claim against him of “show your deed,” right? That is the simple conception of the three-year land presumption. I’ll just note parenthetically that what we usually talk about in “money, deed, and possession,” right, regarding land—that is “possession” in a different sense. Money, deed, and possession are three ways to acquire land. You can acquire it with money, you can acquire it with a deed, and you can acquire it with possession. The possession referred to there is locking, fencing, or breaching. Meaning, when he acted as an owner on the land, that is an effective act of acquisition. By means of such an act he can acquire rights in the land, he can buy the land. Here we are talking about the laws of evidence, not the laws of acquisition. The question is what evidence can you bring that the land is yours? So if you sat on the land for three years, you can claim that the land is yours, and that is called the three-year presumption or the presumption regarding land. And this presumption is not a presumption of acquisition. It is not the way I acquire the land. I bought the land with a deed in the past, or with money or with a deed, it doesn’t matter. That was the act of acquisition. The presumption here is an evidentiary presumption. Meaning, by force of this presumption I claim against you that this land is mine, that I bought it. And this is not the “locking, fencing, and breaching” possession. So that is the presumption regarding land. So the Talmud says in the third chapter of Bava Batra: Rabbi Yochanan said, “I heard from those who traveled from Usha, who would say: From where do we know the three-year presumption? Right? From where do we know that a presumption is created after three years? From the ox with forewarning. Just as with an ox with forewarning, once it gored three gorings, it left the status of an innocuous ox and stood in the status of an ox with forewarning, so too here, once you consumed produce for three years, it left the seller’s domain and stands in the buyer’s domain.” Right? Just as with an ox with forewarning, after three times that it gores, it leaves the status of an innocuous ox and receives the status of a goring ox, an ox with forewarning, so too with the land presumption: after three times that I gathered produce and he did not protest, the land left his possession—he was the prior owner—and passed into my possession. On its face this comparison seems very strange. I won’t continue; the continuation is less important for our purposes, but why compare them at all? What is the connection? So the simple view is that just as in the case of the ox with forewarning there are essentially three pieces of evidence that it is forewarned—the goring. The first goring is one piece of evidence, the second goring is a second piece of evidence, the third goring is a third piece of evidence. Once I have three pieces of evidence that it is forewarned, I place upon it the presumption of forewarning, remove it from the presumption of innocuousness, and put it into the presumption of forewarning. The same thing with the three-year land presumption. I have three pieces of evidence that the land is mine. The first year that you gathered produce and he did not protest, the second year you gathered produce and he did not protest, the third year. Once there are three pieces of evidence, the land becomes mine, okay? I am now considered in possession of the land. Now, this already enters into a dispute among medieval and later authorities again—the question whether these three pieces of evidence really create my status as possessor of the land, or whether they constitute evidence that I bought the land. These are different formulations, but I won’t get into all those disputes right now. So that is the comparison made in the Talmud. And again, what do we see here? That the repetition of this event three times is evidence that there is some general law that explains the three cases I saw. In the ox with forewarning there is a general law that it is a goring ox, and if it gored three times, each of those gorings is explained by the fact that we are dealing with a goring ox—that is the general law. And here too, each of the times that the person—I gathered produce and the man, the prior owner, did not protest—you could say that one time he didn’t protest because he forgot, a second time because he didn’t notice, a third time because he had lost everything, he had a cold, whatever—various reasons. But I have one explanation that says no: all three times he didn’t protest because he really sold the land; it isn’t his land. After three such pieces of evidence, I prefer to see these pieces of evidence as expressions of one general law that explains all three. Okay, and therefore that is the basis for the comparison between the ox with forewarning and the land presumption. Now up to here, both in the previous lecture and up to this point in this lecture, I assumed that a presumption of three times is basically three small pieces of evidence whose accumulation together creates one large piece of evidence. An ox that gored once is a little bit of evidence that it is forewarned, but it is weak evidence; it isn’t enough. If I have three such little pieces of evidence, that is already significant evidence. Now I am ready to declare it an ox with forewarning. Same thing with the person who does not protest when I gather produce from his land, when he was the prior owner. The fact that he doesn’t protest once is weak evidence. Three such weak pieces of evidence come together and create strong evidence. And now basically I can claim that I bought the land and that the land is mine. The common denominator between the two—both in the ox with forewarning and in the land presumption—is that I view these three cases as cases that indicate the existence of a general law that explains these three cases. These are particular cases of a general law. But the later authorities discuss the question whether, in fact, in the case of the ox with forewarning we are dealing with an accumulation of evidence, as I’ve described it until now. Right? Is this evidence, or habituation? That’s usually how they put it. What does that mean? One way to understand it is that an ox with forewarning that gored three times—those are three small pieces of evidence that it is a goring ox, and the three small pieces of evidence come together or create strong evidence, and then I assume it is a goring ox. A second possibility says no: this is not evidence that it is a goring ox. Rather, after it gored three times, it became a goring ox. Meaning, those three gorings got it used to goring, and from now on it is habituated to be a goring ox. Think, for example, about one of the practical differences. Again, all these things can be discussed at length; I’m only saying this to sharpen the ideas. Think, for example, according to the first conception: the three gorings are basically evidence that we are dealing with an ox with a goring nature. So in fact this ox was a goring ox from birth, right? We just didn’t know it until it gored three times, and then its goring nature became clear to us. It was really a goring ox from the start. So in principle I would expect that after it has gored three times, I would go back also to the earlier cases and say to the owner: now pay full damages, not half damages. After all, he paid half damages as for an innocuous ox for the first three times. From the fourth time onward he pays full damages because it turned out that the ox is a goring ox. But if it turned out that the ox is a goring ox, then he should also pay for the first three times, because it was always a goring ox. I just didn’t know it. But he didn’t know! What?
[Speaker B] You can’t—they don’t regard him that way because he really couldn’t have known.
[Rabbi Michael Abraham] Okay, and that’s why I said this can be discussed; I’m not getting into it, I just want to sharpen the point. Right, that’s an interesting remark, it needs discussion. Not so simple at all. But it’s a point that comes up here—that it may be true that the ox is a goring ox, but I couldn’t have known that until there were three gorings. After all, they obligate me to pay, not the ox. So because of that, I don’t—Or perhaps it’s a matter of forewarning the person. Seemingly this would depend on that, and there is a dispute in the Talmud whether the forewarning is directed at the ox or at the owner. But never mind, I’m not getting into that now. In contrast, if I understand that these three gorings habituate the ox to become a goring ox—they are not evidence that it has a goring nature, but rather as a result of having gored three times it got used to it and became a goring ox—now, if that’s so, then clearly he pays full damages only from the fourth goring onward. Because during the first three times it really was not a goring ox. According to the first conception, it was a goring ox from the start; I just didn’t know it. According to this conception, during the first three gorings it was not a goring ox at all; only from the fourth goring onward is it a goring ox. So there the question doesn’t arise of why we pay only on the fourth goring and do not go back and obligate full damages for the first three as well.
[Speaker B] Wait, wait, Rabbi, the Rabbi isn’t claiming that an ox has free choice, right? We haven’t gotten there yet. Okay, so there was something in nature here that was already determined from the Big Bang, and it gored once and suppose it developed…
[Rabbi Michael Abraham] No, it wasn’t in its nature, because who says it would happen to get habituated to goring?
[Speaker B] No, this is determinism, but the Rabbi isn’t claiming that this is something bound up with human choice. It was already determined in reality.
[Rabbi Michael Abraham] Doesn’t matter. There are random things here.
[Speaker B] Not random in reality—what does random mean?
[Rabbi Michael Abraham] Right, so now you’re going back to philosophy, so there is pseudo-randomness. I talked about this; I’m not getting into it here. The claim is that it is as if it’s pseudo-random. It’s not really random, you’re right, there is no randomness in reality itself, but from the standpoint of Jewish law it is viewed as random. We talked about this when we discussed a doubtful inevitable consequence, in this series. Right? I think at the beginning of this series I talked about it, that in a doubtful inevitable consequence you see there a kind of pseudo-randomness. Anyway, for our purposes, the later authorities discuss the question whether the three gorings in an ox with forewarning are evidence that it is a goring ox, one with a goring nature, or whether they habituate it to be a goring ox and it becomes one. Now understand that if the conception is the second conception, then everything I said before about the presumption of three times is not correct. Everything I said before about a presumption of three times—I basically said I have three examples and I create from them a generalization to a general law that explains those three examples; these three examples are basically a representative sample, and from what happened in those three examples I determine a general law that speaks about all cases. Okay? But if an ox that gored three times is not three demonstrations of some goring nature—no, it wasn’t a goring ox at all—but rather after three times it got used to it and became a goring ox, then what does that have to do with anything? What—did the woman whose husbands died three times, yes, where the spring causes it or whatever, or her fate causes it—after three times she became a killer of husbands? There it is pretty clear that this is an indication that she has some sort of problem that kills her spouses. Okay? Or with menstrual patterns, I don’t know—well, menstrual patterns maybe, I don’t know, the whole thing is somewhat mystical there, so maybe there one could talk about habituation, I don’t know. But if her husbands died, or her children died because of circumcision, that is not habituation. There it is clearly evidence. So in short, this discussion among the later authorities whether an ox with forewarning is evidence or habituation actually raises a much broader question regarding presumptions of three occurrences, because in many of the cases of a presumption of three occurrences it is pretty clear that this is evidence. And if we reach the conclusion that in the case of the ox with forewarning it is habituation, then it is not clear what the source for the whole presumption of three occurrences is, since we learn it from the ox with forewarning. Now the later authorities who discuss this matter, at least the ones I know, assume that the answer is one and the same. The implication is that if a presumption of three occurrences is habituation, then in all places it is habituation, and if it is evidence, then in all places it is evidence. And truthfully they’re pretty right, because the Talmud compares the cases to one another. We just saw one example of a presumption of three occurrences where seemingly it is evidence, not habituation, and they compare it to the ox with forewarning.
[Speaker B] Which means that in the ox with forewarning too it’s not habituation.
[Rabbi Michael Abraham] Okay, that’s what I’m saying. The same thing with the signs of a mentally incompetent person, where there too they compare it to the ox with forewarning, and in general the Talmud in Yevamot that we discussed—62 I think, maybe 64, I don’t remember—the Talmud there, which compares presumptions of three occurrences in different cases to one another, assumes that apparently this is a universal principle, that all presumptions of three occurrences are built the same way. Now someone who says that the presumption of three occurrences in the ox with forewarning is habituation—that’s a problem, because there are places where the presumption of three occurrences is pretty clearly evidence. And as I said before, the Talmudic passages compare the cases to one another. So therefore this creates a lot of problems.
[Speaker B] But with an ox that doesn’t make sense, Rabbi. Again, it depends, suppose.
[Rabbi Michael Abraham] If in between the two gorings it saw an ox and didn’t gore it, then it lost its status as established for goring. Or really, the status was never established—not that it lost it. After it already became an established goring ox, then it needs three times that it does not gore in order to return to the presumption of a harmless ox. But if in the middle of the three times that it gored, an ox appeared before it and it didn’t gore it, then it won’t become an established goring ox. Fine, I’m not going into those things right now, but there are lots of details in the Talmud. Maybe we’ll see some of that later.
Okay, so the Talmud in Bava Kamma 23 says as follows: “What is a harmless ox, and what is an established goring ox? An established goring ox is one about which testimony was given for three days, and a harmless ox is one that reverts for three days”—these are the words of Rabbi Yehuda. Rabbi Meir says: “An established goring ox is one about which testimony was given three times, and a harmless ox is one that children can touch and handle and it does not gore.” I’m talking right now about the way there, not the way back. Yes, the Mishnah discusses how it becomes an established goring ox, and once it is one, how it can return to being harmless. Let’s talk right now only about the way there—how it becomes an established goring ox.
So there’s a dispute among the tannaim. Yes—“one about which testimony was given for three days.” Rabbi Meir says: “one about which testimony was given three times.” So what’s the dispute? According to Rabbi Yehuda you need three days. According to Rabbi Meir, three times—three incidents. What does that mean? Even on the same day, three times. You don’t need three different days. So this is a tannaitic dispute: do you need three different days, or three times on the same day?
You can explain it like this, for example: if it gores three times on the same day, maybe that day it just got up on the wrong side of the bed. It went crazy that day. That doesn’t necessarily mean it has a naturally goring disposition. If it repeats over three different days, then that means it probably has a goring nature; it’s not some isolated case. Of course, you could also say that even if it happens on three consecutive days, maybe some psychosis hit it during those days. That possibility can always be raised. But okay, that could be one direction of explanation.
The Talmud there, when explaining the dispute, says this: What is Rabbi Yehuda’s reason, that he says you need three days? Abaye said: “Yesterday”—one; “from the day before”—two; “the third day back”—three; and “its owner did not guard it”—this brings us to the fourth goring. Yes, if it gored on previous days—three times—and “its owner did not guard it,” and then it gored a fourth time, then on the fourth time he pays full damages because it is an established goring ox. After it gored three times it becomes established, and then on the fourth goring, if it gores, the owner pays full damages like the owner of an established goring ox. So he learns it from the verse.
Rava said: “Yesterday, from the day before”—one; “the third day back”—two; “and its owner did not guard it”—now he is liable. Never mind the question whether liability begins on the third time or the fourth time. And what is Rabbi Meir’s reason? Fine—if Rabbi Yehuda has a source for three days, “yesterday, from the day before, and the third day back,” which is three days, then how does Rabbi Meir disagree with him? What does Rabbi Meir learn?
So the Talmud says: as it was taught, Rabbi Meir said: “If when the gorings are spaced apart he is liable, then if the gorings are close together all the more so.” What does that mean? The Torah said that if it gored over three days—day after day for three days—then it becomes established; all the more so if it gored three times on one day, it becomes established. What the Torah wanted to say is that even if this happens over three days, even then it becomes established. But if it gores three times on one day, then obviously it is established. Rabbi Yehuda holds that it’s specifically three days and not three times on one day. But Rabbi Meir says no: even three days—but if it’s in one day, then certainly. Meaning, according to Rabbi Meir there is some reasoning that closely packed gorings are a better indication of established status than widely spaced gorings. And Rabbi Yehuda does not accept that. He says no: widely spaced gorings are an indication of established status; closely packed gorings are not necessarily. No.
Okay, so that’s the tannaitic dispute.
Now the Tur in Orach Chayim, section 114—yeshiva circles are very fond of this Tur. The Jerusalem Talmud says: “One who prays and does not know whether he mentioned it or not.” Yes, this is about “He causes the wind to blow and the rain to fall.” Someone prayed and doesn’t remember whether he said “He causes the wind to blow” or “He causes the dew to fall.” He doesn’t know what he said before. “For thirty days, the presumption is that he mentions what he is accustomed to; from then on, he mentions what he is required to mention. Within thirty days, if he is in doubt whether he mentioned it or not, he must repeat the prayer, because presumably he did not mention it. And the same applies for thirty days after Passover: presumably he did mention it, and he must repeat.”
Okay, so what does the Jerusalem Talmud say? It says that if a person is in doubt whether he said “He causes the wind to blow and the rain to fall,” or whether he continued saying “He causes the dew to fall” out of inertia, then if this happens within the first thirty days after stopping “He causes the dew to fall”—yes, not the seventh of Cheshvan, this is Simchat Torah—then if it happens in those first thirty days, the presumption is that he says what he is accustomed to saying. Meaning, he probably made a mistake, because he is still used to “He causes the dew to fall,” which he had said before. After thirty days, the presumption is that he has already gotten used to it, and if you don’t remember, you can rely on the assumption that you said “He causes the wind to blow and the rain to fall.” That’s what the Jerusalem Talmud says.
And the Tur continues: “Maharam of Rothenburg used to say on Shemini Atzeret the blessing ‘You are mighty’ ninety times until ‘He causes the wind to blow and the rain to fall,’ corresponding to thirty days in which one says it three times each day. And then, if he was in doubt, he would not need to repeat.” Meaning, Maharam of Rothenburg had a trick. On Simchat Torah he would say “He causes the wind to blow and the rain to fall” ninety times in a row, and then that’s like three times a day for thirty days, which is ninety times. And the Jerusalem Talmud says that if you’ve already said it ninety times, then if you’re in doubt you can assume you said it correctly because you’ve already gotten used to it. So he wanted to avoid the uncertainties throughout those days, not only after thirty days. He wanted, already on the first day, not to be in doubt. So he says: let’s say all ninety times on Simchat Torah itself, and from then on whenever I’m in doubt I can assume I said it correctly, just as in the case where thirty days have passed, because over thirty days one mentions it ninety times.
There are all kinds of little quibbles here—yes, but in thirty days there are also Sabbaths, and on Sabbaths it’s not three prayers but four prayers. Okay, fine, those are little quibbles. In short, ninety is the fixed line here—it’s the ninety times that sets the rule. In any case, that’s what Maharam of Rothenburg claims.
Now look at his proof. “And his proof was from the chapter ‘How is the foot liable,’ where it says regarding the established goring ox: ‘If when the gorings are spaced apart he is liable, then if they are close together all the more so.’ Here too, since after thirty days if he is in doubt he need not repeat, then all the more so after ninety times in one day.” After all, what does Rabbi Meir tell us there? “If when the gorings are spaced apart he is liable, then if they are close together all the more so.” Meaning, if a presumption is formed by three gorings day after day, then all the more so it is formed by three gorings in one day. So Maharam of Rothenburg says: if the presumption that I say it correctly is formed after thirty days—ninety prayers spread over thirty days—then if I say it ninety times in one day, all the more so the presumption is formed. Exactly like the established goring ox. That is Maharam of Rothenburg’s proof.
“And Rabbi Peretz wrote: I have not seen the elder rabbis of France do this.” That’s just an interesting remark. The fact that you didn’t see them do this—maybe that’s because they didn’t think of the trick. Why is the fact that you didn’t see them do it proof that they did not accept Maharam of Rothenburg’s view? Maybe they didn’t do it because they didn’t think of the trick. It’s just a trick, after all. Meaning, the Jerusalem Talmud also didn’t do this; clearly it says it applies only after thirty days. That doesn’t mean Maharam of Rothenburg is difficult from the Jerusalem Talmud. The Jerusalem Talmud is talking about what happens in the normal course of events. If you use a trick and pray ninety times on the first day saying “He causes the wind to blow and the rain to fall,” then sure, the Jerusalem Talmud would also agree that the presumption is created immediately. So Rabbi Peretz’s claim—“we have not seen the elder rabbis of France,” meaning the Tosafists, do this—it’s not clear why he assumes they did not accept Maharam of Rothenburg. Maybe he simply knew that they had heard Maharam of Rothenburg’s trick and didn’t do it because they rejected it. Meaning, he simply knew that—that’s all. But from the mere fact that they didn’t do it, there is no proof.
Okay, in any case, that is Maharam of Rothenburg’s position. Rabbi Peretz disagrees with Maharam of Rothenburg. So he says the comparison is invalid. And then he says: why do I disagree with him? After all, he brought a proof from the established goring ox. He says: “The case is not comparable to the proof. For there, the reason is that it has been established as one that gores, and if it was established by three spaced incidents, all the more so by three close incidents. But with rain, which was instituted in the prayer, and the matter depends on habit of speech, we do not say so. And my master and father, the Rosh, inclined to Maharam’s reasoning.” Yes, the Rosh was a student of Maharam of Rothenburg, so that’s not such a huge surprise, but in any case the Rosh also held like Maharam of Rothenburg. But Rabbi Peretz does not accept it.
And their dispute begins with the question whether one can bring proof from the gorings of an established goring ox to this habit in saying “He causes the wind to blow and the rain to fall.” What is the disagreement? They have some dispute about whether one can bring proof from the established goring ox to “He causes the wind” or not. The Beit Yosef brings three approaches—or three possible explanations—for the dispute between Maharam of Rothenburg and Rabbi Peretz. I won’t go into all the explanations. I’ll tell you what they say in the yeshivot, though it’s not clear whether any of the Beit Yosef’s three explanations is actually this one. Maybe one of them is; it’s not clear. But in the yeshivot everyone is used to saying that the dispute is over whether the gorings of the established goring ox are habit or evidence—acclimation or proof.
Why? Because Maharam of Rothenburg, who brought a proof from the established goring ox—after all, in “He causes the wind to blow and the rain to fall” it is obvious that this is not evidence that I have the nature of someone who says “He causes the wind to blow and the rain to fall,” right? There it’s obvious that this is a matter of habituation and not evidence. After I’ve said it enough times, I become used to saying it. There it’s clearly about habituation, not evidence. So why are you bringing proof from the established goring ox? Apparently you understand that there too it is habituation and not evidence. Otherwise what is the proof from the established goring ox to “He causes the wind to blow and the rain to fall”?
And Rabbi Peretz disagrees with him precisely on that. He basically argues that in the established goring ox it is evidence and not habituation, and therefore don’t bring me proof from there to matters of habituation like “He causes the wind to blow and the rain to fall.” With evidence, closely packed instances are stronger; but with habituation, maybe not. From evidence, you can’t bring a proof here. Okay, that is the accepted explanation among later authorities of this dispute, this dispute among the medieval authorities (Rishonim), between Rabbi Peretz and Maharam of Rothenburg.
Now you have to understand that if indeed Maharam of Rothenburg—and that is, simply speaking, how Jewish law is ruled in practice; the Rosh holds this way, the Tur holds this way, meaning this is generally how the law is ruled—so if Maharam of Rothenburg really brings proof from the established goring ox to “He causes the wind to blow and the rain to fall,” then that basically means he understood that the established goring ox is habituation, because otherwise there is no proof to bring. And Rabbi Peretz disagrees with him on that very point. But Maharam of Rothenburg said that the established goring ox is habituation, and therefore proof can be brought from there to “He causes the wind to blow and the rain to fall,” which is also habituation. According to Rabbi Peretz, “He causes the wind to blow and the rain to fall” is certainly habituation, but the established goring ox is evidence, and therefore don’t bring me proofs—don’t compare the established goring ox to the question of “He causes the wind.”
Now if that is really so, then according to Maharam of Rothenburg—and simply speaking that is the law—it turns out that the presumption of three times in the established goring ox is habituation and not evidence. Which is very strange. Very strange, because as I said earlier, the Talmud compares it. What will you say about the three-year presumption of ownership of land, where the Talmud says “is this comparable?” and makes comparisons there? In the three-year presumption of land, it’s not habituation; it’s evidence that I bought the land. Three small pieces of evidence create evidence that there is some general principle explaining all three. So what are you bringing me proofs from the established goring ox to a presumption formed by three times? Maharam of Rothenburg is difficult. His position is difficult if indeed this is habituation and not evidence. And simply speaking, logically too, it seems pretty clear that the established goring ox is evidence, not habituation.
In any case, that’s how this is understood—that’s how the later authorities usually explain the dispute between Maharam of Rothenburg and Rabbi Peretz. The big problem is that, if you remember, who was it who said: “If when the gorings are spaced apart he is liable, then if they are close together all the more so”? That was Rabbi Meir, right? You see? “What is Rabbi Meir’s reason?” Rabbi Meir, who says that three gorings on one day also create the presumption of established status—“as it was taught, Rabbi Meir said: ‘If when the gorings are spaced apart he is liable, then if they are close together all the more so.’” But the law was ruled like Rabbi Yehuda, not like Rabbi Meir. And Rabbi Yehuda disagrees with him precisely about this. So why are you bringing me proofs from Rabbi Meir when discussing a practical legal issue? Rabbi Meir is an opinion not ruled according to in practice. We rule in accordance with Rabbi Yehuda.
Look here, for example, in Maimonides, Laws of Monetary Damages, chapter 6: “What is an established goring ox? Any one about which testimony was given for three days. But if it gored on one day, or bit, or crouched, or kicked, or butted—even a hundred times—it is not an established goring ox.” So whom does he rule like? Like Rabbi Yehuda, right? That three times on one day does not establish it; only three different days do. So, Maharam of Rothenburg, why are you bringing me a proof from Rabbi Meir? Rabbi Meir is not the practical law. And this itself is exactly the point on which Rabbi Yehuda disagrees with Rabbi Meir. Rabbi Yehuda says no: three times on one day does not create a presumption. So you’re bringing me proofs from Rabbi Meir, who is not the law?
I’ll ask you an even harder question. Rabbi Peretz, who disagrees with Maharam of Rothenburg—what does he say? Don’t compare the established goring ox to “He causes the wind.” Why? Because the established goring ox is evidence, and “He causes the wind” is habituation. Why do you need to get to that? Just tell him that you don’t accept his proof because he relies on Rabbi Meir, and we rule according to Rabbi Yehuda. Meaning, Rabbi Peretz too understands that Rabbi Meir’s view is the relevant one for the discussion, and therefore he bothers to explain that you can’t bring a proof from Rabbi Meir because there it is evidence and not habituation. But if one could bring a proof from Rabbi Meir, then he would agree with Maharam of Rothenburg. Why? Rabbi Meir is not the practical law. In practice we rule like Rabbi Yehuda. And Rabbi Yehuda says exactly this: that three gorings on one day do not create a presumption. So how can saying all ninety repetitions of “He causes the wind to blow and the rain to fall” in one day be an all-the-more-so case that creates a presumption?
[Speaker C] Maybe Rabbi Yehuda has a special textual derivation unique to the established goring ox? I didn’t understand. Maybe Rabbi Yehuda has a special derivation unique to the established goring ox?
[Rabbi Michael Abraham] What do you mean, a special derivation unique to the established goring ox?
[Speaker C] After all, there isn’t a general rule in presumptions that it has to be on specific days. It’s a special rule he learns specifically for the established goring ox. A scriptural decree or something specific.
[Rabbi Michael Abraham] But then why doesn’t Maharam learn from there? I don’t understand.
[Speaker C] But not the issue of the days. In the laws of presumption there is no rule of days—that it specifically has to be on different days.
[Rabbi Michael Abraham] That’s what you’re saying. I rule like Rabbi Meir—that the logic says like Rabbi Meir, that three times on one day is certainly enough. Specifically in the established goring ox, Rabbi Yehuda disagrees with him. But if I’m asking generally about a three-time presumption, then according to everyone it’s like Rabbi Meir. Okay, in a moment I’ll talk about that. I’ll say something along those lines. But first, a general remark.
[Speaker B] Maybe the dispute between Rabbi Yehuda and Rabbi Meir is not about the textual derivation?
[Rabbi Michael Abraham] Right, only that’s… that’s basically what he said. I want to make a general methodological comment. Many times we find halakhic authorities or later authorities bringing proof from a position not ruled according to in practice, or from an initial assumption in the Talmud that was rejected. This happens a lot. And the question always comes up: wait a second, how are you bringing a proof—wasn’t it rejected? Or… yes, there is another opinion, and you’re bringing a proof from a view not ruled according to in practice, from an initial assumption? So the answer in these cases is always that the one bringing the proof—or at least the one bringing it—assumes that the reason that initial assumption was rejected, or the reason the second person disagrees with the first who holds that reasoning, is not because of that reasoning itself. It’s because of something else. But as far as this reasoning goes, it is accepted. And therefore I can bring proof even from someone not ruled according to in practice.
Maybe I’ll put it even more strongly. Let’s say… let’s say… let’s return to our case. I bring a proof from Rabbi Meir that saying “He causes the wind” ninety times in one day creates a presumption. But the law is ruled like Rabbi Yehuda, so why are you bringing me proof from Rabbi Meir? So I say: in Rabbi Meir we definitely see this—is that agreed? That’s clear. Now, you don’t know what exactly Rabbi Yehuda disagrees about. Maybe he disagrees about this, maybe he disagrees about something else. So uncertainty cannot override certainty. In Rabbi Meir’s view, this is certainly true. With Rabbi Yehuda, you don’t know whether it is true. So uncertainty cannot override certainty.
And therefore, in practice, this means that almost always I can bring proof from a view not ruled according to in practice. That’s almost absurd. But if you adopt that logic, then it basically means that whenever I have clear proof from an opinion not ruled according to in practice, as long as there is at least a possible way to interpret the opinion that is ruled according to as agreeing—even if there is another possibility too, but there is at least this possibility—then uncertainty cannot override certainty, and I can bring proof from the opinion not ruled according to. We do this a lot in Jewish law. And apparently that is also the move here.
Meaning, if Rabbi Peretz and Maharam of Rothenburg understand that there is a proof from the established goring ox to saying “He causes the wind,” and after all they bring their proof from Rabbi Meir, that basically means that they both agree that Rabbi Yehuda does not disagree with Rabbi Meir on this point. Because if he did disagree with him on this point, then Maharam of Rothenburg could not have brought a proof, since it’s from Rabbi Meir and Rabbi Yehuda—who is the practical law—disagrees with him precisely here. And Rabbi Peretz too should have argued against Maharam: why are you bringing me proofs from Rabbi Meir? Rabbi Yehuda disagrees with him. Meaning, Rabbi Peretz too thinks that Rabbi Yehuda does not disagree with Rabbi Meir on this point. That is not the point of dispute.
[Speaker B] If Rabbi Meir… after all, Rabbi Meir gives a logical argument—an a fortiori. If Rabbi Yehuda thought that wasn’t right, he should have said the logic, not hung everything on a verse. After all, the verse can be interpreted away. What—you can’t interpret it as he thought about Rabbi Meir’s idea or some other idea? They weren’t really arguing over verses, they were arguing over logic. If you think that logic is wrong, say so. Why are you presenting verses? I don’t understand.
[Rabbi Michael Abraham] Rabbi Yehuda…
[Speaker C] I’ll add something.
[Speaker B] Rabbi Yehuda doesn’t need to bring… Rabbi Yehuda is kind of saying: I have a verse, it’s some strange scriptural decree.
[Rabbi Michael Abraham] No, no, that’s… that’s… that’s a mistake—maybe you don’t remember the flow of the Talmud. When Rabbi Yehuda says that it needs to gore three times on three different days, the Talmud asks: how do you know? “Yesterday, the day before, and the third day back”—a verse.
[Speaker B] Okay. So far there’s nothing there.
[Rabbi Michael Abraham] Rabbi Yehuda said what he said. Now Rabbi Meir comes and argues against him. He says: “If when the gorings are spaced apart he is liable, then if they are close together all the more so.” Meaning, Rabbi Meir needs to explain why that verse is not against him. So he says: that verse is not against me; that verse comes to say that… even over three days there is a presumption, but also with three times in one day.
[Speaker B] What brought him to that interpretation, to that logic? The logic. Rabbi Yehuda—if Rabbi Yehuda had opposite logic, he could have said it.
[Rabbi Michael Abraham] Wait, one second. Now if you were asking now… but the Talmud doesn’t get to that stage. Rabbi Yehuda spoke first. So when Rabbi Yehuda speaks first, he says: where do you get the three gorings over three days? It says “yesterday, the day before, and the third day back,” and that’s it. Only then does Rabbi Meir say: yes, it says three days, you’re right, but I have a logical argument that it also works with three times in one day. So if we were to go back to Rabbi Yehuda, he really wouldn’t answer from a verse; he would answer from logic. Because Rabbi Meir also works with the verse—that’s not the issue. Their dispute is a dispute in reasoning. But the Talmud never went back to Rabbi Yehuda.
[Speaker B] And that’s also proof that he doesn’t have another line of reasoning.
[Rabbi Michael Abraham] Right.
[Speaker C] It may be that here it’s different from the classic case, because even if we accept the assumption that Rabbi Yehuda probably disagrees with Rabbi Meir in logic and not only because of a scriptural decree, still this is a special rule in the established goring ox, because we know that there is no general rule of presumption that it has to be over three days. No presumption generally requires three days.
[Rabbi Michael Abraham] So perforce this is a specific rule in the established goring ox. Wait. Obviously there are special rules in different presumptions; you can’t completely compare them. For example, with “He causes the wind” you don’t do it three times, you do thirty days. Yes, obviously. Fine. Not three times. So clearly each case has its own specifics. It’s hard to draw an exact comparison from one context to another. So you can say that it doesn’t matter to me that elsewhere, in other cases, for a presumption it makes no difference whether it’s over three different days or on the same day. With the established goring ox he thinks it does matter. But still, the core idea exists in both places.
[Speaker C] Yes, but not necessarily. Here “uncertainty cannot override certainty” doesn’t necessarily apply, because we simply know that this rule of three days is not generally valid.
[Rabbi Michael Abraham] We’ll get to that in a moment. That I agree with. But I’m saying I would not infer from here that this is a unique rule in the established goring ox. Not necessarily, at least.
[Speaker C] Then why are the three days only here?
[Rabbi Michael Abraham] Because in the established goring ox there is something specific, but that doesn’t…
[Speaker C] Something specific.
[Rabbi Michael Abraham] No, but still, “if when the gorings are spaced apart he is liable, then if they are close together all the more so”—that logic itself Rabbi Yehuda does not accept.
[Speaker C] Right, yes, agreed. That’s it.
[Rabbi Michael Abraham] So I’ll say it about all presumptions.
[Speaker C] No, maybe it’s technical with the ox; maybe for spaced gorings here the Torah was particular.
[Rabbi Michael Abraham] It could be. Correct, it could be. We’ll see in a moment. It could be, but it’s not necessary. Look—now if we do the accounting, let’s do it for a second, and you’ll see that the dispute between Rabbi Peretz and Maharam of Rothenburg is simply the opposite of what all the later authorities say. A hundred and eighty degrees the other way. Meaning, Maharam of Rothenburg argues that this is evidence, and Rabbi Peretz argues that this is habituation—the complete reverse of what the later authorities say.
And in order to do the accounting, I need two principles. One principle is to remember that we rule according to Rabbi Yehuda and not according to Rabbi Meir. And the second principle is that we do not multiply disputes. Meaning, if we find a dispute between medieval authorities (Rishonim), or between tannaim in this case, on one point, there is no reason to assume they also disagree on another point. Right? Meaning, if they disagree on one point, then probably on all the other points they agree—unless you bring me clear proof otherwise. But the simple assumption is that if I found one point on which they disagree, then on the other points they probably agree. Okay? Those are my two assumptions.
Now in light of those two assumptions, let’s do the accounting. I’ll start with Maharam of Rothenburg, okay? Maharam of Rothenburg basically brings proof from the established goring ox to “He causes the wind,” and he says that just as there closeness is stronger than spacing, so too with “He causes the wind.” Now let’s analyze this backward. I’m now analyzing how Maharam learned it. Without entering into why it is so. I’ll prove to you how he learned. Why he learned this way—that’s another question. But let me prove to you how he learned.
If he brought this proof, then obviously in his view Rabbi Yehuda also agrees with this principle, right? Otherwise you can’t bring proof from Rabbi Meir when Rabbi Yehuda—the one ruled according to in practice—disagrees with him precisely on this point. If he brings a proof from Rabbi Meir, it means that apparently Rabbi Yehuda agrees with Rabbi Meir on this point. Rabbi Yehuda also agrees that “if when the gorings are spaced apart he is liable, then if they are close together all the more so.” Okay? That’s clear. And therefore he says I can bring proof from Rabbi Meir, from the established goring ox to “He causes the wind,” because in both cases… because in habituation, closeness works better than spacing. In habituation.
So then what does Rabbi Yehuda disagree with Rabbi Meir about? If both Rabbi Yehuda and Rabbi Meir agree that in habituation closeness works better than spacing—that three close repetitions create habit more effectively than three spaced repetitions—then why does Rabbi Yehuda, in the established goring ox, not accept that three gorings in one day create the presumption? Because he holds that it is evidence. Because he holds that the established goring ox is evidence and not habituation. Meaning, if it were a matter of habituation, Rabbi Yehuda too would agree that “if when the gorings are spaced apart he is liable, then if they are close together all the more so.” He argues that in the established goring ox this is not habituation, it is evidence. But if you ask me now regarding “He causes the wind,” which is indeed a question of habituation, then there it really is true that closeness is all the more effective—and Rabbi Yehuda would agree with that too. All he disagrees about is only in the established goring ox, because in his view the established goring ox is evidence and not habituation. And with evidence, it is not true that three close occurrences are better evidence than three spaced ones. On the contrary—there’s a lot of logic in that too. If it happens three times on the same day, maybe it’s a fit. Who says there is any general rule here? But in habituation, maybe three times on one day really is more intensive and accustoms him more strongly. There’s even logic to that.
But leaving the logic aside—that’s already the question of why Maharam of Rothenburg learned this way. But first of all, do you see that I’ve now proved to you how Maharam of Rothenburg learned the sugya? It’s just one plus one. Meaning, if he brings proof from Rabbi Meir, then according to Rabbi Meir the established goring ox is habituation, right? Because then there is a proof to “He causes the wind.” And Rabbi Meir said that in habituation closeness works better than spacing. So therefore with “He causes the wind” closeness works better than spacing. But you’re bringing proof from Rabbi Meir—what about Rabbi Yehuda? We have to say that Maharam of Rothenburg understood that Rabbi Yehuda also agrees with that: in habituation closeness works better than spacing, and therefore according to Rabbi Yehuda, with “He causes the wind,” ninety times in one day is also excellent. So why not with the established goring ox? Because the established goring ox is not habituation. Meaning, according to Maharam of Rothenburg it comes out that the established goring ox is evidence and not habituation. I remind you that the later authorities say Maharam of Rothenburg understood the established goring ox to be habituation, and therefore one can bring proof from it to “He causes the wind.” Mistake. A mistake in the accounting. According to Maharam of Rothenburg, it comes out that the established goring ox is evidence, not habituation. Exactly the opposite.
Now if we do the accounting with Rabbi Peretz, then again the calculation flips the picture. How did the later authorities understand it? That according to Rabbi Peretz the established goring ox is evidence and not habituation, and therefore you can’t bring proof from the established goring ox to “He causes the wind,” right? Let me prove to you that according to Rabbi Peretz, the established goring ox is specifically habituation and not evidence. Why? Because Rabbi Peretz does not say against Maharam of Rothenburg: why are you bringing me proof from Rabbi Meir, when Rabbi Yehuda says otherwise? Meaning, Rabbi Peretz also agrees that there is no dispute between Rabbi Meir and Rabbi Yehuda on this point. In short, he says to Maharam of Rothenburg: you are wrong even according to Rabbi Meir. Not only is Rabbi Yehuda not with you—even according to Rabbi Meir you are wrong. Meaning, both Rabbi Meir and Rabbi Yehuda agree that in questions of habituation, closeness does not work better than spacing.
So what is their dispute? Whether the established goring ox is evidence or habituation. But now it flips from Maharam of Rothenburg. According to Rabbi Peretz it comes out that Rabbi Meir holds that the established goring ox is evidence, and with evidence closeness works better. And Rabbi Yehuda holds that the established goring ox is habituation, and in habituation closeness does not work better. Rabbi Meir too agrees that in habituation closeness does not work better—he only argues that in the established goring ox it is evidence and not habituation, that’s all. So what comes out? That according to practical law, since we rule like Rabbi Yehuda, the established goring ox is habituation and not evidence according to Rabbi Peretz.
In short, the later authorities are wrong by 180 degrees. You say that according to Maharam of Rothenburg the established goring ox is habituation, and according to Rabbi Peretz it is evidence. But the truth is that according to Maharam of Rothenburg it is evidence, and according to Rabbi Peretz it is habituation.
[Speaker B] I didn’t understand Rabbi Meir according to Rabbi Peretz.
[Rabbi Michael Abraham] What? Rabbi Peretz claims there is no proof even according to Rabbi Meir. Because otherwise he would say: you’re right according to Rabbi Meir, but the law is like Rabbi Yehuda. He doesn’t say that. He says no—even according to Rabbi Meir your proof isn’t good. Why? Because he claims that both Rabbi Meir and Rabbi Yehuda agree that… Rabbi Peretz doesn’t… that Maharam of Rothenburg is wrong. Meaning, in questions of habituation closeness does not work better. Right? They both agree to that. So why does Rabbi Meir say that closeness in the established goring ox works better? Because he argues that in the established goring ox this is not habituation—
[Speaker B] It’s evidence.
[Rabbi Michael Abraham] And Rabbi Yehuda argues that it is habituation.
[Speaker B] Why is closeness better in evidence?
[Rabbi Michael Abraham] Leave me alone about the reasoning for now—I’m doing the accounting. This is the accounting; it’s a necessary accounting. Afterward we can think about the reasoning. But notice that when we do the accounting carefully, all those lectures that always hang this dispute on Rabbi Peretz and Maharam of Rothenburg simply reverse the correct picture by 180 degrees.
And if we rule like Maharam of Rothenburg, there is a major practical implication. Because if we rule like Maharam of Rothenburg, then according to the later authorities it should come out that in practice we rule that the established goring ox is habituation. Because Maharam of Rothenburg brought proof from the established goring ox, right? But according to what I’m saying—not at all. We rule that the established goring ox is evidence, not habituation. Because Maharam of Rothenburg holds it is evidence, not habituation. That’s a major practical implication; this is not just conceptual analysis.
Now this is just an interesting lesson, which basically tells us that when we… it is true that one can bring proofs from a position that is not the practical law, but you have to carry the accounting through to the end. You have to understand what exactly the position that is the practical law disagrees about. And when you do the accounting all the way through, you discover that the picture is actually the reverse of what the later authorities understand.
Now I still have a little time, so there’s one more point I want to get to. There is a Maimonides…
[Speaker B] So the conclusion is not to rely on the later authorities? I didn’t understand. So the general conclusion, the induction one can make here, is not to rely on the later authorities?
[Rabbi Michael Abraham] No, it’s simple—not to rely on anyone. Not just on the later authorities, and not on the medieval authorities either. Don’t rely on anyone; you have to think.
[Speaker C] In general it’s hard to accept that this whole thing with Maharam of Rothenburg is really tied to logic.
[Rabbi Michael Abraham] But clearly it is logic; otherwise where does it come from?
[Speaker C] No—that it’s connected to presumption. It’s not connected to presumption.
[Rabbi Michael Abraham] But they discuss it there opposite the presumption of the established goring ox.
[Speaker C] We’re talking about ninety prayers, not three times. This is…
[Rabbi Michael Abraham] No, that’s what’s amazing—he brought proof from the established goring ox.
[Speaker C] Yes, on the point of close versus spaced incidents, but it’s not really connected to presumption, because here we’re talking about ninety prayers. Ninety prayers is not a number in presumptions.
[Rabbi Michael Abraham] There is a connection. It’s three times of the prayer-unit. You have to take the unit of three, and each unit is really thirty prayers, because in his view those are the three relevant units for becoming accustomed. Fine, okay—but still, what is the connection between ninety and presumption?
[Speaker C] There’s no connection between ninety and presumption.
[Rabbi Michael Abraham] There is a connection—it’s three times of a unit. What is the unit?
[Speaker C] Thirty prayers.
[Rabbi Michael Abraham] Because you derive from it but leave it in its own setting. Meaning, obviously after three times you don’t become accustomed—that’s simple. Obviously after three times you don’t get used to it. He says: fine, I need three—not three times, but three larger units. What are the larger units? Three times a month. That sounded to him like the relevant “three times” here. But it’s still three times; the idea is still the idea of three times. So the… well, I’m already…
[Speaker B] What is the root of the dispute between Rabbi Yehuda and Rabbi Meir? It comes out that the dispute is whether the established goring ox is habituation or evidence.
[Rabbi Michael Abraham] Here, if you want, look at the chart here—I summarized it. It’s just a column from my website. So look: the dispute according to Maharam—you see, Maharam holds that according to everyone, habituation works better with closeness. Right? Because the proof he brings from Rabbi Meir is certainly accepted by Rabbi Yehuda as well; otherwise he couldn’t bring that proof. So he agrees that according to all views, habituation works better with closeness. So what is the dispute? The dispute is that according to Rabbi Meir, the established goring ox is habituation, and according to Rabbi Yehuda, the established goring ox is evidence.
Now Rabbi Peretz holds that according to everyone, habituation does not work better with closeness. Because the fact is that he doesn’t reject it by saying that the law is like Rabbi Yehuda. So he claims that even according to Rabbi Meir it is not true. So what is the dispute between Rabbi Meir and Rabbi Yehuda? The opposite: according to Rabbi Meir, the established goring ox is evidence, and according to Rabbi Yehuda, the established goring ox is habituation. Simply the reverse of what the later authorities say. If we try…
[Speaker B] If we try to understand, Rabbi, what really… okay, let’s take Maharam’s view, and the dispute between Rabbi Yehuda and Rabbi Meir is habituation or evidence—about what? How did they get there? If we were sitting in front of them and this one told me habituation and that one told me evidence, surely we wouldn’t just let it pass. We’d ask them: explain, how do you know? You’re an investigator of such things.
[Rabbi Michael Abraham] No, well, okay. If we were dealing with this sugya itself, we’d have to think about that question, but that’s not my topic right now. I’m trying to show only, first, the two possibilities of habituation versus evidence; and second—and this is just in parentheses, long parentheses—how careful one has to be with these kinds of calculations, especially when you rely on an initial assumption or on a view not ruled according to in practice.
As for the reasoning underlying the matter—why Maharam of Rothenburg learned this way, and why Rabbi Meir learned this way, and Rabbi Yehuda that way—fine. About Rabbi Yehuda it’s simple. Meaning, what I said—that with evidence, why does closeness specifically not work, whereas in habituation closeness does work? Why? Because if it’s three times on one day, then it’s weaker evidence, because maybe there was something special about that day. What is called “variety in evidence” in philosophy of science: when you want proof from three examples, the examples should differ from one another.
[Speaker B] Fine—how does he know it’s not evidence?
[Rabbi Michael Abraham] From logic—I don’t know. Okay, I see I won’t make it to the next section, so we’ll continue next time. Okay, so I’ll stop here. Any comments or questions?
[Speaker B] Okay, fine, so thank you.
[Rabbi Michael Abraham] Thank you very much. May we hear good news.