Topics in Halakhic Thought – Lesson 23

Table of Contents

• Jewish law as mediation between facts and norms
• The two-stage decision model and what it lacks
• A three-stage process: risk graph, value threshold, and then norm
• Speed limits, the law, and the claim made in the name of Avnei Nevenzel
• Handing over territory, saving life, and the authority of halakhic decisors
• Gaps between value systems and conflict between law and Jewish law
• Additional claims about traffic: theft, normal behavior, and risk to others
• Critique of “rule by experts” and the illustrative examples
• Abortion, the definition of a “human being,” and the moment of death
• The philosophical roots: the naturalistic fallacy and the sorites paradox

Summary

General Overview

The text presents a view according to which Jewish law is neither “facts” nor “norms,” but rather the link between them—the hyphen that determines which norm applies to which circumstances. From this it argues that the accepted decision-making model, in which experts determine the facts and halakhic decisors apply the norms, is partial and misleading, because between those two there is a necessary stage: setting a value threshold that translates a continuum of data into a binary conclusion such as “dangerous / not dangerous” or “illness / not illness.” The speaker applies this three-stage model to examples from traffic, security, psychiatry, abortion, and the moment of death, and argues that relying on “experts” for normative determinations is a misuse of professional authority that blurs the distinction between what is and what ought to be, and misses the problem of continuity illustrated by the sorites paradox.

Jewish law as mediation between facts and norms

Jewish law attaches a binding norm to a factual situation, and therefore it is always a link between “what is” and “what must be done.” A change in circumstances is not a change in Jewish law, but rather a different application of the same norms to different factual situations. Torah is defined as the hyphen itself—that is, as a function that takes facts as input and produces norms as output—not as the collection of facts or norms in themselves.

The two-stage decision model and what it lacks

The conventional picture describes two stages: clarifying the facts through evidence, experts, and testimony, and then a halakhic ruling that applies the norms to the facts that were established. When experts disagree, the judge is authorized to choose which opinion to accept in order to decide the case, even though he is not a professional expert, because any binding decision also requires determining what will count as fact for purposes of the law. The speaker argues that this picture is incomplete, and that failure to understand what is missing leads to mistakes in judging authority and in drawing conclusions.

A three-stage process: risk graph, value threshold, and then norm

An expert can provide continuous data, such as a distribution of risks, but cannot professionally answer a binary question like “is this dangerous,” because that determination depends on defining a threshold. After the expert provides a graph linking speed to percentage of risk, someone still has to decide what percentage of risk will count as “dangerous,” and only then can that be translated into a speed above which driving is forbidden. Setting the threshold is a normative determination made by a “value-decider,” and the prohibition itself is an additional normative stage, so only the first stage is factual-professional, while the next two stages are value-laden.

Speed limits, the law, and the claim made in the name of Avnei Nevenzel

A claim is presented in the name of Avnei Nevenzel that there is a religious obligation to drive according to the legal speed limit, and that exceeding it is a halakhic transgression by virtue of guarding one’s life. The speaker argues that this assumption is mistaken, because the legal threshold is not determined by experts but by the legislature after a value decision about what will count as dangerous, and therefore there is no necessity for the halakhic threshold to coincide with the legal one. A halakhic decisor could, in principle, establish a halakhic threshold that is stricter or more lenient than the legal threshold, and tying it to the legal threshold is a possible halakhic decision, but not a conclusion compelled by expert data. He further argues that such a linkage could have been binding had it been established by the Sanhedrin as a legislative institution, but an individual rabbi cannot present it as a binding determination when it is really just the choice of a threshold.

Handing over territory, saving life, and the authority of halakhic decisors

In a ruling by three rabbis, it was determined that handing over territory to the Palestinians involves saving life and is therefore forbidden, and many saw this as exceeding their authority because it is a factual-security determination. The speaker argues that this claim is mistaken, because even in security matters the experts can at most provide a complex “risk map,” whereas the question of when the risk crosses the threshold of saving life is a value judgment, not a professional one. Therefore, the determination that “this is saving life” is understood as a normative threshold decision within the mandate of halakhic decisors, and not as a professional determination entrusted to generals or statesmen.

Gaps between value systems and conflict between law and Jewish law

It is argued that there is no necessary reason for the moral threshold, the legal threshold, and the halakhic threshold to coincide, because each normative system may set a different risk threshold. In the event of a conflict between a legal ruling and a halakhic ruling, the practical decision depends on a person’s loyalty to the different value systems and on his preferences, and in such dilemmas one should act as one does in any value conflict. The speaker clarifies that he is not discussing the principle of the law of the kingdom here, but the principled question of whether the laws of guarding life, in and of themselves, coincide with the legal threshold.

Additional claims about traffic: theft, normal behavior, and risk to others

The response of Rabbi Agrazan is brought, according to which exceeding the speed limit involves theft, because the public conditions the use of the road on the rules it established, and the speaker distinguishes between such a claim and the laws of guarding life. It is argued that a reasonable person tends to violate traffic laws a little, and therefore one should not turn the legislator’s law into a Torah-level law and demand an “ultra” religious stringency beyond accepted civic norms. Alongside this, a claim is brought that crossing one’s personal threshold also harms others who may not agree to that threshold, and the speaker replies that the practical reality is that driving on the road involves a practical acceptance of the risk of certain deviations from the law.

Critique of “rule by experts” and the illustrative examples

The speaker argues that there is no interesting question that can simply be handed over to experts alone, and that in public discourse experts are misused in order to advance normative conclusions. In the example of homosexuality, it is argued that the question “is this a disease” is not a professional question, but depends on a value-based definition of “disease” as something undesirable, and therefore removing it from the DSM was a social-cultural change, not a scientific discovery. A debate with Professor Yoram Yovel is mentioned, in which it is argued that psychiatry mixes values into facts, and that this should be acknowledged instead of presenting a value judgment as a professional determination.

Abortion, the definition of a “human being,” and the moment of death

In the context of abortion, it is argued that the determination of from when a fetus is considered a “human being” for purposes of the prohibition of murder is a value judgment involving the placement of a threshold along a developmental continuum, and therefore doctors have no professional advantage over others in making that determination itself, even though they can provide data about functions at each stage. In the context of the moment of death, it is argued that a doctor does not “determine” death, but only checks whether the criteria that were set on value grounds have been met, and that the dispute between “brain death” and “cardiac death” is a dispute in normative definition, not a medical question. It is argued that the medical consensus on brain death is influenced by the needs of organ transplantation, and criticism is brought against the argument that “one does not return from brain death” as a basis for defining death.

The philosophical roots: the naturalistic fallacy and the sorites paradox

The naturalistic fallacy is defined as David Hume’s position that one cannot derive what ought to be from what is, and therefore moving from facts to judgments requires a normative “bridging assumption” that is not within the domain of scientific expertise. The sorites paradox is presented in order to show that many everyday concepts are not binary but continuous, and therefore questions like “from when is this dangerous,” “from when is this a disease,” “from when is this a human being,” and “from when is this big” require setting a threshold that is not determined by the data themselves. The proposed solution is to understand that adding one unit changes the situation “a little,” and to speak in terms of degrees, while practical decision-making requires cutting the continuum at a point determined by the value-decider.

At the end of last time, I started—in effect I moved on from the discussion about changes in Jewish law, which really touched on the seam between facts and the norms we apply to them. Jewish law basically determines, regarding a certain situation, what the binding norm is: forbidden, permitted, obligatory, and so on. So in effect, Jewish law is always attaching a norm to a factual situation. There are certain factual circumstances, and the question is what the relevant norm is for those circumstances. And we talked there about this issue also in terms of changes in Jewish law: if the circumstances changed, then what do we do in terms of the norms? And the claim was that this is not called a change in Jewish law. Once the circumstances change, the very same norms are applied differently because the circumstances are different. After that I spoke about the relation between—or not the relation, but what Jewish law is altogether. And my claim was that Jewish law… my claim was that Jewish law is not the facts and not the norms, but rather the hyphen that exists between them. The hyphen that says that if the facts are such-and-such, then the norm is such-and-such. If the facts are different, the norm will come out different if we use the same hyphen. And therefore the Torah, if I want to distill out of all this whole mess what Torah really is—Torah is the hyphen. Not the facts and not the norms attached to them, but the link between the facts and the norms. It’s a collection of factual situations, each one of which has a norm attached to it. Okay? And therefore a different factual situation will yield a different norm, but what is identical in both situations is the hyphen. And the rule that determines the connection between reality and the facts will be the same rule, and that is basically Jewish law. I gave examples of this from logic, music, and all sorts of other things. At the end of last time I began dealing with the implication of that matter—yes, this is basically the third layer in which I’m dealing with the connection between facts and norms. The first layer was changes in Jewish law, the second layer was an attempt to define what Torah is at all, and I said it’s the hyphen. And now I want to talk about halakhic decision-making when we need to take facts into account. Again, the hyphen: there are facts, and norms need to be attached to them. But now I want to add another element that is missing from the picture with the hyphen. In the hyphen picture we pointed out that there are facts and norms are attached to them according to some rule that makes this matching, or a kind of function that takes facts as input and gives a norm as output. Okay? That function is Torah. Not the norms and not the facts. The function is Torah. Okay? Now I want to argue that this function is more complex than it seems at first glance. Because at first glance—and this is where I arrived at the end of last time—at first glance, when we make a decision, then of course think about a religious court that has to make a decision. At the first stage, it obviously has to determine what the facts are: did he borrow, did he not borrow, are there witnesses, are there no witnesses, what were the facts? After the facts are determined, it’s possible to determine what the Jewish law is that applies to them. If you borrowed and did not repay—that’s facts. After we determined that those really are the facts, the ruling will be: “Now you are obligated to pay him the money.” Okay? That is the norm attached to those facts. In the standard halakhic picture, when we make a halakhic decision—for example a religious court, or a halakhic decisor, or whatever it may be—we need to investigate the facts and then determine, through halakhic ruling, what norms apply to those facts. How do you investigate the facts? You investigate the facts through evidence or experts. Right? The judges are not experts, so if, for example, there is some medical or scientific fact that they don’t have the relevant information about, they bring in an expert, and the expert gives them the factual basis they need. After they get the factual basis from him, they determine what the Jewish law is. Therefore the accepted model in the halakhic world, and also in the legal world, is that at the seam there is really a seam here between two stages. The stage of facts is entrusted to experts, and the stage of ruling is entrusted to decisors. And the seam is supposed to be that the expert updates the decisor about what the facts are. And after the decisor receives the facts from the expert, he determines what the law is. Say someone wants to know whether he has to fast on Yom Kippur—he is ill, and the question is whether to fast on Yom Kippur. He goes to an expert, a doctor in this case, who will tell him whether it is dangerous. With the doctor’s opinion, you go to the expert—you say, the doctor said it is dangerous. Am I allowed to fast? Or do I have to fast? Then the decisor is supposed to tell you no: assuming the facts are that it is dangerous, as the expert said, then you are forbidden to fast. This is basically a two-stage process, where there is some seam between the facts and the norms. Of course sometimes there can be a situation where the experts disagree about the facts. A very common situation in courts and also in religious courts. Usually, for some reason, the defense experts always say what the defense needs, and the prosecution experts always say what the prosecution needs, even though they are all equally expert. So it’s a very interesting phenomenon. In any event, what happens in a case where the experts disagree about the facts? It is obvious that here this is the authority of the judge. The judge will have to decide which professional opinion to accept for the purpose of his ruling. Of course he is not an expert, he cannot settle the professional disagreement, but by virtue of his authority as a judge who has to decide what the law is in this case, he thereby also received the authority to decide which of the experts is the view he will accept. That does not mean that this expert is right, because the judge doesn’t understand the field more than the expert does; he cannot decide between the experts. But there is no choice. In order to decide the law, he also has to decide what the facts are. And therefore, if he has authority to decide the law, he also has authority to determine what the facts are. Therefore, where there is disagreement among experts, the one who is supposed to determine what the facts are is the judge. That is his authority. It’s simple, it’s clear, there is no dispute about that. But what I want to argue is that this simple picture is not correct, or at least not complete. And a failure to understand that something is missing here can lead to mistakes. I brought two examples with which I opened the topic. One example is a ruling by three rabbis that handing over territory to the Palestinians involves danger to life and is therefore forbidden. And I said that when that ruling was published, students and others asked me: by what right, by what authority, can those rabbis determine that this involves danger to life? To determine that something involves danger to life is a professional factual determination, and that should be done by generals, security experts, statesmen, whoever understands those professional fields. Rabbis cannot determine that there is danger to life here. They can say: assuming the experts say that there is danger to life here, we claim that it is forbidden to do this. That is the rabbis’ role. But the determination itself, the very determination that there is danger to life here, is seemingly a determination about facts. And in that matter they have no authority—they understand it no better than I do. So people there asked me all kinds of things: why should I obey that ruling? Or why should I regard it as binding on me? After all, they understand danger to life no better than I do. Now again I’ll emphasize: if they say that handing over territory is something for which one must be killed rather than transgress—there is such a view, that one must be killed rather than transgress over handing over territory—that is within their authority. Maybe they are right, maybe they are wrong, maybe one can dispute them halakhically, but that is entrusted to the mandate of a halakhic decisor because that determination is halakhic, not factual. That determination basically says: it is forbidden to hand over the territory regardless of the factual situation, whether there is danger to life or not. That is a completely halakhic determination, and in that sense it is perfectly fine—again, one can argue—but the determination is entrusted to halakhic decisors. That is a determination that categorically is a halakhic determination. But what was published there was also a factual determination: first they determined that in fact this involves danger to life, and afterward they said that as a result it is also forbidden to do it. Meaning they took for themselves the authority both of the expert and of the decisor. And the question is how one can do such a thing. So I said that here the initial perception is ostensibly that they exceeded their authority or their role. And precisely here, in my view, that is not correct, as I’ll want to explain. I think they did not exceed their authority. That is one point, one example. The second example—I’ll explain the two examples together, so I’m presenting both examples first—the second example is the example of driving according to traffic law, say at the legal speed limit. This is a ruling I once saw in the name of Rabbi Neventzal, though others wrote this as well: that driving at the legal speed is a religious obligation. And anyone who drives above the legal speed is a halakhic offender, not just a legal offender; he is a halakhic offender. There is an obligation to guard one’s life, and so on, and therefore someone who drives dangerously—that is an obligation, it is a halakhic prohibition. Now here, the initial reaction of the people I met and spoke with was that yes, this is a halakhic determination. First, it is reasonable. But second, first of all, it is a halakhic determination. They did not determine that it is dangerous. They determined that if it is dangerous, then it is forbidden to drive. Who determines whether it is dangerous or not? The legislator, or the experts appointed by the legislator. So that seems perfectly fine. Meaning, if in the ruling about handing over territory under an agreement it looked as though they exceeded their authority, and I argued they did not, then in this example people think that here they are indeed within their mandate—and I will argue that they are not. Wrong; here there actually is an overstepping of authority. Now I am deliberately presenting the accepted perceptions and then challenging them, because my claim is that these accepted perceptions both fail—even though in the two examples they go in opposite directions—they both fail in exactly the same way. And that failure is that before their eyes stood the two-stage model I described earlier: the expert determines the facts, and the decisor applies norms to them. That naturally leads to the two perceptions I described regarding the two examples. Now I want to argue that there is another stage, which people usually ignore, and it reverses the picture in both examples, in opposite directions. So let’s begin with the example of driving, the legal speed on the road. In the accepted two-stage model, let’s say we want to determine what the legal speed is on the Haifa–Tel Aviv highway, Route 2, okay? What am I supposed to do? As a legislator I need to go to the department or faculty of traffic engineering at the Technion, ask for an expert report, a professional report, on what speed is reasonable in terms of danger—that is, what speed is already dangerous and what is not. Those are the facts. Then the legislator will determine that it is forbidden to drive beyond that speed. The expert at the Technion has no authority to establish prohibitions; he determines the facts. The prohibitions are established by the legislator. Okay? Therefore if the Technion expert determines that it is forbidden, that is not enough. I can still drive at such a speed. The legislator has to give it the normative stamp and say that if the expert says it is dangerous, then I as legislator forbid it. Okay? That is basically the accepted model. And by the way, the same thing of course also applies to the halakhic determination. If you ask a decisor what speed one may drive on Route 2—let’s say there is no law right now—he is supposed to do the same thing. Go to the department or faculty of traffic engineering, ask for a report, and whatever they determine to be dangerous, the decisor will say: from that speed and up, it is forbidden to drive. There is no difference between the way Jewish law operates and the way general law operates in this context. Everything I am saying in these lectures is not relevant only to Jewish law; it is relevant to every legal and normative system. There is nothing special about Jewish law in this sense. Where is the failure here? Very simple. When I ask the expert at the Technion: tell me, is driving 80 kilometers per hour on Route 2 dangerous or not? Can he answer me in his professional capacity? No. “Dangerous” is a criterion, and it is a completely different criterion. He can tell you how many people were killed at 80 kilometers per hour. Exactly. Meaning, what can the expert at the Technion tell me? What he can tell me is what your probability is of being injured in a traffic accident, or how many people out of every thousand who drove there were injured. Those are facts. Okay? That, in the best case—in the sense that those facts are not always known—but in the best case, that is what the Technion expert can supply. So in the report I ask him for, there cannot be written a yes-or-no answer: yes dangerous, no dangerous. What can be there is a risk graph. And what the Technion expert basically needs to do is give me a risk graph, where the x-axis is speed and the y-axis is percentage risk. So at 60 km/h your chance of being injured is half a percent; at 70 km/h it is 0.6 percent; at 80 km/h it is 0.7 percent—let’s say it really is monotonic, it doesn’t matter—and so on. He gives me some graph of risks for each speed. That is what the Technion expert can do. If I ask him about a certain speed whether it is dangerous or not, if he is a responsible person he should answer me: that is not within my mandate; I cannot answer you. There is no answer to that, at least no scientific answer. Science can determine at most what the risk percentage is at each speed. It cannot answer yes or no regarding any speed. Therefore if I ask them, tell me what the legal speed is, they cannot give me that. What is the dangerous speed—sorry, not the legal speed. What is the dangerous speed—they cannot give me that. Because it’s a continuous distribution, so you can’t pin down the point? No, not only because it is continuous. Even if it were not continuous, as long as it is a distribution and not a yes-or-no answer. A discrete distribution doesn’t matter either. They cannot give you a yes-or-no answer. They can give you a graph, or a histogram if it is discrete. So what is the next stage, really? So I go to the expert at the Technion—back again to this problematic tool, forgive me, I hope the experts at the Technion draw graphs better than this. This is the percentage risk, percentage, doesn’t matter, and this is speed, velocity. Okay? So now at this speed let’s say the risk is like this, so I put a point here. Okay? At that speed the risk is like this, so I put a point here. And so on. What can he then give me? Some graph, fine? A graph that traces risk as a function of speed. That is what can come out of the traffic engineering faculty at the Technion. That’s it. What is the next stage? Any suggestions? Yes—decide what counts as dangerous from a value standpoint or something like that. Right. The next stage is that I actually need to decide what percentage or what probability of injury will be called dangerous. Right? Is a 0.7 chance of being injured dangerous? Or maybe only 1.2 percent? Or perhaps a quarter of a percent? I don’t know, but one has to determine what percentage of risk is the point from which on, for me, this is dangerous. Let’s say we determined this point here, let’s say this is what counts as dangerous. So I go here, reach this point on the graph, and then I come down, and this is the legal speed on the road. Do you understand the decision-making process? Meaning that I basically get a graph from the experts at the Technion, and then I have to decide where the threshold is, the risk threshold. I determine the risk threshold on the y-axis: what percentage risk is considered dangerous, what counts as dangerous. Once I determine that, I come down and I have found the speed that corresponds to it, and now the legislator will come and say: okay, from that speed upward it is forbidden to drive on Route 2. What is new here? What is new here is that between the Technion expert and the legislator’s determination there is another stage in the middle. And at that stage the determination is what counts as dangerous. To whom is the authority given, or who has the skill, to make that determination? Maybe ethics experts? Maybe some kind of ethics expert, assuming such a thing exists. Okay, I don’t think there is such a thing, if there is such a thing. But in any event, it is clear that there is no professional or scientific expertise that gives you tools to determine this, right? That is obvious. And one thing is clear: it is not within the authority of a scientific or professional expert. Is there some other expert who can do it? Maybe I’ll say something about that later, but it is certainly not entrusted to an expert. This is a value determination, not a factual one. This is a value determination because you need to decide, in terms of the laws of danger to life, what percentage counts as dangerous. That is a normative question, not a factual question. Now notice what this means. It basically means that the process of deciding the legal speed is built not of two stages as I described at the beginning—the expert says what is dangerous and the decisor or legislator forbids driving at dangerous speeds. No, that is not all. There is another stage in the middle. The expert gives the graph, then someone comes who is really a decisor in normative matters and not in professional matters, and determines what the threshold is. He is really the one who determines what speed is dangerous, not the expert. Rather the decisor or legislator determines what speed is dangerous, and then at the third stage he also establishes a prohibition on driving at that speed. In other words, this process is made up of three stages, not two. And only the first is a factual stage entrusted to the expert. The second and third stages are both normative stages, and they are entrusted to the decisor or legislator, not to the expert. Okay? Now look. When Rabbi Neventzal says that it is forbidden to exceed the speed allowed by law, what is he actually saying? What is he assuming? He is assuming that what the law determined is the definition of dangerous speed, and after all there were experts there who determined it. Therefore Jewish law also forbids endangering oneself, so this is forbidden. But I argue that he is mistaken. Why? Because the expert only gave the graph. But who determined what speed is considered dangerous? That was determined by the legislator or some official on his behalf, doesn’t matter—but not the expert. Now here a rabbinic decisor can come and say: listen, from a halakhic standpoint it seems to me that a risk of 0.7 is perfectly fine; I think one may take a risk up to 1. Even though the legislator set the threshold at 0.7, I set my threshold at 1, at one percent. Okay? After all, this is not a professional determination, it is a value determination. It is entirely possible that the value determination of Jewish law differs from the value determination of the legislator, or of morality, or whatever you want. Or if you want, the truck drivers’ union can set for itself a lower threshold because it is stricter. No problem, that is perfectly legitimate. It is not doing something against the professional opinion. Every such decision actually has, within what we previously called “the facts,” a normative component. It is not that there are facts and on top of that we apply norms. Within the part that is “facts” there is a normative component involving what I’ll now call the value arbiter. Why do I call it a value arbiter? Because I don’t want to talk about a rabbi or a decisor, since it can also be a legislator, and it can also be Meretz’s Council of Torah Sages with Amos Oz and so on—it doesn’t matter. Let everyone appoint for himself who his value arbiter is. And it can also be me myself: if I see myself as my own value arbiter, then it will be me. But in the end there is another stage here that involves a value arbiter and not a professional expert. And the determination of the “facts”—facts in quotation marks—is not a fact and is not a matter for an expert. It is a matter for the value arbiter. Therefore I argue that Rabbi Neventzal may be right, but if he sees this as necessary, that is a mistake. Because it is entirely possible that the factual threshold, the legal threshold, and the halakhic threshold are not the same. Maybe Jewish law is stricter and forbids taking risks the law permits, or vice versa, more lenient—it doesn’t matter. I’m not setting the hierarchy right now, but it can differ for better or worse. And therefore the fact that the legislator set the speed at 90 on Route 2 does not mean that from a halakhic standpoint everyone who drives above 90 is a halakhic offender. And again, I’m not talking about a halakhic offender in the sense of dina de-malkhuta dina, of course. I’m talking about a halakhic offender in the sense of the laws of guarding one’s life. Now of course it may be that Rabbi Neventzal says: you’re right in principle—he might say, you’re right in principle—but the simplest thing is to align the halakhic threshold with the legal threshold. Why create a separate threshold for every system? So if the legislator decided on this, I too align with it. No problem; that is a decision that at the theoretical level is fine. But you need to be aware that this is your decision. Because the fact that the legislator said this, in itself, still does not mean that someone who drives beyond it violates Jewish law. He can say: as a decisor, it seems to me that the halakhic threshold is also the legal threshold. Fine—but that is a halakhic opinion. Let’s say I am another decisor and I disagree with him. Then I think one does not violate Jewish law by driving above the legal limit, but only if one drives above 120 on that road, because from the standpoint of Jewish law that risk is still reasonable. Okay? Therefore I argue that Rabbi Neventzal is not right. It is not true that if the law determines something, then the laws of guarding one’s life line up with the law. Every normative system has its own value arbiter. I’ll say more than that: if there were a Sanhedrin here, the Sanhedrin could establish a binding law that what the legislator determined is the threshold, including the halakhic threshold. Then it would align the laws of guarding one’s life with the law. If a Sanhedrin had established that, it would be binding. But Rabbi Neventzal is not a Sanhedrin. Rabbi Neventzal cannot determine things. What Rabbi Neventzal can do is explain to me what is written in the binding sources—what earlier Sanhedrins said, or in the Talmud, or in the Torah, or whatever. Therefore he cannot determine that there is an alignment between the halakhic threshold and the legal threshold. He can say: in my opinion it seems the same, and I think it is not. If a Sanhedrin had determined it, I could not say “and I think not,” because even if I think they are mistaken, it doesn’t matter: “you shall not deviate.” So once they determined that the halakhic threshold aligns with the legal threshold, then that binds me. From that point onward, the law is to drive up to the legal threshold. But so long as we do not have an institution with authority to determine—and I spoke about authority in Jewish law—but only authority to interpret and explain to me what Jewish law says, I don’t know on what basis Rabbi Neventzal determines that Jewish law aligns with the law. Is there a hint of this in the Torah codes? Where did this come from? If I were a halakhic legislative institution, I would say logic suggests aligning it with the law, and I would determine that it aligns with the law. Not because I interpret the Torah that way, but because it seems to me simple and the most sensible thing to do. Fine, if I am an authorized institution. But if I am not an authorized institution, I cannot determine things. I can say what I think the sources mean. Therefore presenting this as a halakhic opinion, in my opinion, is a mistake. Now I want to argue the opposite claim in the first example, about an agreement involving handing over territory to the Palestinians, or to some other country, whatever. Okay? There it seems to people that those decisors exceeded their authority. Because really the determination that handing over territory is danger to life should have been left to military and political experts and the like. And I say that is not true. Why? Because it is obvious that in this security issue as well—and right now I’m talking only about the security aspect, again, not the other questions, like whether it is something for which one must be killed rather than transgress or anything like that—the security claim that this is dangerous, and because it is dangerous it is forbidden. Wait—how is this different from traffic accidents? Wait, wait, one second. How is it different? I’ll explain, I’m explaining now. So the claim is as follows. There is basically a risk map. Right? You cannot say whether handing over territory is dangerous or not dangerous. What you can ask, say, of military experts is for a risk map. You can say to me: look, if we make such-and-such an agreement and hand over such-and-such an amount of territory and so on, there are these risks, there are other risks, there is a chance there will be a war, a chance we will win, a chance we will lose, a chance that this many will die, this many will die, very complicated. But for each and every step you can sketch me a map, and of course not a one-dimensional graph like with the legal speed, but a multi-dimensional graph, some kind of tensor. Yes, with lots and lots of axes, and risk levels over those axes. Okay? And let’s say there are military and political experts who can give me the full risk map for every kind of agreement and every decision—what can happen in each situation at each probability. Okay? Now a person has to decide from what level of risk, or from how many deaths there would be in a war if it breaks out, this counts as danger to life, or this counts as a risk one is forbidden to take. That decision—no general can make it; he has no tools to make it. He can tell me: look, if you make this kind of agreement, the chance of war is such-and-such; if you make that kind of agreement, the chance of war is such-and-such. Give me a graph. Now I ask: but what probability of war counts as danger to life, or counts as a risk one is forbidden to take? That is the decision of the value arbiter, not of the professional. Now the value arbiter in the legal context is the Knesset or the government. In the halakhic context it is the decisor, or the Sanhedrin if you like. Therefore rabbis can certainly come and say: in our opinion this is danger to life. Why? We know the risk graph—after all everyone understands that there are risks if you hand over territory, if you don’t hand over territory, and so on. The whole question is how much risk. And how much risk to take is not a question for the professional. It is a value question. And in the value realm, at least in the halakhic context, the ones who are supposed to give their opinion are decisors. And the decisors say that, for us, handing over territory crosses the threshold that we define as a danger that one is forbidden to take. Therefore they say that this is danger to life. Because the risk graph is known. There are experts—not like with legal speed, not like in medicine—the risk graph here is known to everyone, to the point that I don’t believe there is such a thing as a security expert. I deny the existence of such a thing altogether. But let’s say there is. Still, there are experts in every direction: these say one thing, those say another, okay, there are disputes, each one assesses the risks differently. Before them stands a very complicated picture. Who determines where the threshold passes? What counts as dangerous? The value arbiter. The government in the political context or the context of the state, in the civic context; and decisors in the halakhic context. Therefore they say: in our opinion the risk created by returning territories crosses the threshold of risk that, for us, it is forbidden to take. And that is a halakhic determination, not a professional one. Therefore they are indeed in the domain where they have a mandate. Contrary to what people say—what are you determining? In the professional matter, whether there is risk or not, ask the general, you don’t understand this. Not true. The generals can give a risk map, but the one who determines whether it is dangerous—the binary question, yes dangerous or not dangerous—is the decisor. And again, one must understand that the decision-making picture I gave here is not special in any way to Jewish law. It is like this in the legal system as well, in the political system as well, everywhere it is like this. There is nothing special here about Jewish law. The legislator’s decision that this is dangerous is also a value decision. It is not a decision of the experts at the Technion. I’m not talking only about Jewish law; I’m talking about the law too. And the judge’s determination of what the “reasonable person” is when he sits in judgment—they always say that the reasonable person is the one he sees in the mirror in the morning. Right? Meaning the reasonable person is what seems to me to be the reasonable person. By what authority? By the authority of whoever appointed the judge to decide. That is exactly his role: to determine what the reasonable person thinks. Because clearly there are reasonable people who think all kinds of things. But who determines which reasonable people are the ones whose position will be considered reasonable for our legal purposes? The judge. What can you do? Who else would determine it? The legislator, for example. Or the legislator, yes, whatever, but I’m saying either the legislator, and if the legislator didn’t determine it, then the judge. The legislator cannot really determine for every case whether this is yes or no. The legislator determines the principle. In the end, the judge has to determine in the case before him whether this is reasonable behavior or unreasonable behavior. The legislator cannot apply his mind to every situation that might arise. So in the end, the three-stage mechanism I described, where I inserted another stage in the middle between the expert and the norm, describes every normative decision-making process. Not only Jewish law and not only law, but everything. And precisely because of this a gap can arise between the legal determination and the halakhic determination, or the moral determination if you like. It could be that morally I am forbidden to drive on Route 2 at more than 80, but halakhically I may drive even 120, while the law forbids over 90. And there is no problem with that. Since morally the threshold is 80—that is the level of risk one may morally take—the law has the legal threshold, and the halakhic threshold gives 120. In principle that is entirely possible. There is no reason that all these determinations should converge, since these are value determinations and every value system can see things differently. I now want to ask a question. I can’t hear. What do you do when there is a contradiction between the legal and the halakhic? What is the problem? I didn’t understand. Give me a concrete example. Let’s say with handing over territory: let’s say the legal decision is one thing and the halakhic one is danger to life. Suppose you had to be prime minister, okay? And you had to decide whether to sign the agreement or not. Now the decisors who are authoritative in your eyes tell you it is forbidden, but the Knesset or the government decided that it is permitted, even that it is required—not only permitted. So the question is what are you supposed to do. So now decide: are you loyal to the law, or loyal to Jewish law, or loyal to both? If you are loyal to both, then you have a conflict and you have to decide which prevails. As in every conflict. What do you do when there is a dilemma between two values, a clash between two values? I’ll talk about that later, a bit, regarding Jewish law and morality. You have to decide in conflicts the way you decide in every conflict; there is nothing special here. In the context of legal speed it is even simpler. In the context of legal speed, they tell you that according to Jewish law you may drive 120, but the law forbids above 90. So if you are loyal to both, don’t drive above 90. If you are loyal to Jewish law and not loyal to the law, drive up to 120. Everything depends on your value system. By the way, there are all kinds of comments here—yes, one can discuss the matter itself, say in terms of dina de-malkhuta dina. So Jewish law recognizes dina de-malkhuta dina, it recognizes the authority of the state, right. I’m not talking about that, that’s another issue. One can say that by dina de-malkhuta dina Jewish law too says not to drive above 90. Fine. I’m speaking on the theoretical level: do the laws of guarding one’s life—not dina de-malkhuta dina—coincide with the legal determination? Other claims also came up. For example, Rabbi Agrizan wrote a response to an article—I’m working here from an article I wrote, I uploaded it to Dropbox, I told you, and to Moodle. So that article was published in Tzohar, and Agrizan wrote a response to it. He said that one who drives on the road beyond the legal speed is committing theft, because the public does not allow use of the road except according to the rules the public established. So I told him two things. First, I think that if that is so, then there may be theft here, but that still is not the laws of guarding one’s life. Those are different things. And second, it seems to me that in the end every reasonable person drives beyond the legal speed. Not by much, but a few km/h above the legal speed. I think that what a reasonable person does cannot be considered a halakhic transgression. What a secular citizen or a non-Jew in a democratic state allows himself—to bend the law a bit, to cut corners a bit—a religious Jew is also allowed to cut corners a bit. Because in the end what Jewish law expects of you is to be a normative citizen, not to turn the legislator’s determination into Torah law. To be a normative citizen, your obligation is to behave like a normative citizen. Other arguments came up there too: once you drive beyond the legal speed, you think you are willing to take a risk of 120, but after all you can also harm others. And maybe their threshold is that only up to 100 is allowed, regardless of the law now. So how are you allowed to drive according to your personal threshold? It’s not fair—you are harming others according to your own decisions. Who authorized you? Which is a valid argument, by the way. I’m just saying that this still doesn’t bring me to the legal threshold. Because it is not true that the reasonable person’s threshold is the legal threshold; that is simply not true. The reasonable person violates traffic law. There is almost no reasonable person who does not violate traffic law. And therefore this really means that the threshold the reasonable person adopts is not the legislator’s threshold. There may be such a threshold, but it is not the legislator’s threshold. I wrote there, yes, that one who goes down onto the road drives on the understanding that he is praying with transgressors. Meaning that if you go on the road and your threshold is the legal threshold, don’t go on the road. Because people do not drive according to the law, and you are taking the risk of driving a bit beyond what the law allows. And if you went on the road, then you know that you are taking the risk of driving a bit beyond what the law permits. Therefore I too may do it, because whoever didn’t want to take that risk shouldn’t have gone on the road. That route has already been taken over by bandits like me, so to speak. “Bandits like you have occupied it,” as the Talmud says. But that is reality. Therefore in any case you still do not arrive at the legal threshold. I do not think that the legal threshold is really the binding threshold, because the view that emerges from Rabbi Neventzal’s words is that a religious Jew has to be ultra-stringent, more than a loyal non-Jewish citizen of a democratic state. Because he relates to it as laws that one may bend a bit, circumvent a bit, fine, we’re human. But for us, you are violating “and you shall live by them” or “you shall greatly guard your lives,” a Torah prohibition. So we have to stop at 90, period. Not true. I disagree. It is not a Torah prohibition, and the threshold is not there; you need to drive like a normative person, that’s all. Okay, that is the general move. And now I want to expand it a little. And you know what? Before I expand it, we’ll now go out for a five-minute break and come back. Okay. We’re back, friends, come on, turn on your cameras, come back. Gideon. Fine. Okay, so let’s continue. I now want to show you that this is not just an anecdote. My claim is that there is no question in the world that can be entrusted to experts alone. It’s not by chance that this came up regarding danger to life and handing over territory, or regarding traffic. There isn’t one interesting question in the world whose answer should be given by experts. Contrary to all the foolish discourse going on around us, where they constantly quote experts in all kinds of fields and try to convince us of normative conclusions. I’ll bring a few examples to show you what I mean, and the rest is for you to figure out; everyone will understand this very quickly. The first question I want to discuss is homosexuality. A very sensitive question in these years, and in an old argument I once heard—but since then I’ve heard it hundreds more times—between Zehava Galon and Benizri, who was a Knesset member from Shas. They had a radio argument on this issue, and he said: it’s an illness, homosexuality, and so on. And Zehava Galon was tearing her hair out from anger and said to him: what are you talking about? You’re not up to date at all. There is already new scientific knowledge; in the seventies—I don’t remember exactly what year—they took it out of the DSM, right? The psychiatric diagnostic manual. It’s not an illness; there is already a professional determination that this is not an illness. And people keep repeating this all the time, and it’s a sensitive issue. These say it is an illness and a deviation and who knows what, and immediately all the LGBT people and the liberals and everyone explain that this is darkness and primitiveness and failure to keep up with scientific findings and all kinds of things of that sort. And of course they’re talking nonsense. Because the question whether homosexuality is an illness is one that no doctor or psychiatrist or anyone else has any tool to answer. It is not a professional question. Because the question whether, say, homosexuality has a genetic source or not—that is a professional question, one has to investigate it. I think to this day there isn’t a clear answer to that. There are apparently such elements, I don’t know exactly, but as far as I know there is still no definitive answer. I’m not an expert in the matter. But that is a question for experts. In principle they could reach conclusions and then there would be a clear answer to that question. That is a question for scientific research. Okay? Whether it has an organic, genetic source, and so on. One can discuss the question of what the implications of that are, what it causes—even on the psychological level. Then ask psychologists or psychiatrists what it causes. Those are also scientific questions. But the question whether it is an illness—how do you answer that? What is an illness? Is an illness something you die from? Nobody claims that people die from it. What is the definition of illness? I’ll tell you what the definition of illness is. An illness is something I do not want to have. That is the definition of illness. If there is something dangerous that endangers my life, it is called an illness because I do not want to die. That’s all; there is no other definition of illness. If you define illness as something that is not normative, something that does not fit the average, then homosexuality is an illness by definition. And my height is also an illness, because I am taller than average. That is not a definition of illness. There is no statistical definition of illness. It is not that whoever is in the upper five percentiles is ill. What, someone whose height is in the upper five percentiles—that’s an illness? Or someone who is kind-hearted in the upper five percentiles—that’s an illness? Maybe according to Maimonides if the middle path, I don’t know, but no, obviously not. So what is the definition of illness? Only one definition: something I do not want to have. That is the definition of illness. Therefore if I want to know whether homosexuality is an illness, the only one I can ask is myself. Am I in favor of it? Do I want it to exist or not want it to exist? If I am uncomfortable with it, it is an illness. If I am comfortable with it, it is not an illness. That’s all. Now if there are people who say this thing is halakhically forbidden, they can say it is an illness because it is undesirable that it exist; halakhically it is undesirable. What is the problem with saying that? That is a definition no less good for illness than any other definition. One can define it as something I do not want to have, and one can define it as something we do not want people to have, because that is our outlook. That’s all; what is the problem? An expert has not the slightest advantage over a layman on the question whether this is an illness or not. None. The reason that in the seventies they took it out of the DSM was purely social, cultural. Because in the seventies they concluded there is no problem with its existing. And the psychiatrists removed it from the DSM simply because they are the ones who manage the registry. That’s all. It has nothing to do with their expertise. Their expertise has no added value over me regarding the question whether it is an illness or not, whether it should appear in the DSM or not. If it bothers you, go for treatment. If it doesn’t bother you, don’t go for treatment. In other words, if it bothers you, it is an illness, and if it doesn’t bother you, it isn’t. By the way, it is also like this with organic diseases, physical diseases. If I want to die, then for me cancer is not an illness; on the contrary, it saves me suicide. It’s just that usually people do not want to die. So therefore it is obvious that something dangerous that could cause death is defined as an illness simply because there is broad consensus that this is not something we want. That’s all. But in the end, the definition is only because we do not want it. Nothing beyond that. I don’t remember how many years ago, but there was an article in Makor Rishon by Professor Yoram Yovel, Leibowitz’s grandson, who is a very well-known psychiatrist from the University of Haifa, and he also has a clinic. He wrote a very learned article there in Makor Rishon, detailed, explaining that one cannot say homosexuality is an illness. And that article blew my fuse, so I wrote a response. Afterward we also corresponded, and on my site there is some of that correspondence, and on his site too. In the end he acknowledged I was right. And it is astonishing how people who are experts in their field, and smart and intelligent people—he is an intelligent man—do not understand this and miss the point. And the reason for that is what I said earlier: it is exactly the same failure. Since he does not understand that when something is an illness, someone has to draw a threshold—what counts as illness. And drawing that threshold is a normative threshold, not a professional or factual one. It is a normative threshold. Now there are people who think homosexuality is forbidden, so for them the normative threshold passes below this; for them it is an illness because it is undesirable, they do not want it to exist. What is the problem? That is the statement. There are certain social stigmas attached to it—deal with the stigmas, what does that matter now. What is the problem with saying it is an illness? This is nonsense from LGBT activists and liberals who do not understand what they are talking about. Not that those who say it is an illness understand what they are talking about—nor do they. They just happen to be saying the right thing. There is some completely bizarre argument here among people who do not understand the concepts they are dealing with. And I said to him there, he also mentioned his grandfather in that article, I said to him: look, your grandfather was the man who was stricter than anyone I knew about the distance between norms and facts. That was perhaps the central theme in Leibowitz’s thought. And here you are mixing them together crudely. He said yes, in psychiatry you can’t avoid mixing values and norms with facts. I told him okay, but at least put that on the table and admit it. Because if it’s about values, then don’t tell me this is a professional determination. I also don’t know whether it is possible to develop a psychiatry that is completely neutralized from values and norms, from normative conceptions. Fine, maybe it isn’t possible. But you can’t tell me this is a professional determination. That is just demagoguery. It is using the professional cloak you have for a question that does not belong to it. One example. Most mental phenomena lie on a spectrum. There is an autistic spectrum and a spectrum… No, I’ll say more than that: bodily phenomena too, not only mental phenomena. All phenomena in the world are on a spectrum. So you just need to determine at what point on the spectrum it counts as an illness. But I am saying all phenomena in the world, not only mental ones. Yes. I’ll come to that in a moment. I’ll bring another example, this time not about the mind. Abortion. The dilemma of abortion. Fine? I had an argument about this too with some very well-known professor, actually a religious guy. And he complained that rabbis sit on abortion committees. Why on earth? This is a place for experts, professionals—doctors, social workers, psychologists. What do rabbis have to do with it? So I said to him: and how do you determine the age of the fetus from when it is already considered a human being, so that murder applies to it and one may not kill it? He said: professional determination. We are doctors; we can determine that. I said to him: can you update me on your criteria? Meaning, from when is the fetus considered a human being—what exactly are the criteria? So he had some criteria. I said to him: and who determined those criteria? The Holy One, blessed be He? Who determined them? I define “human being” differently than you do. So what added value do you have as a professional over my determination? Now this guy, again, a bright and intelligent man, people come to him from all over the country. He did not understand what I was talking about. Really like the last fool. They are so captive to these professional conceptions that they simply cannot understand. You are of course breaking their professional monopoly, and there is some bias here too. But it was strange—I couldn’t explain to him something so simple. I said to him: the definition of what a human being is, is a normative definition. If the person breathes but has a brain of such-and-such size, is he already a human being? How do you know he is already a human being? Based on what did you determine that? What functions does the fetus need to have so that it is already considered a human being and the prohibition of murder applies to it? To the fetus, not a baby, sorry. Maybe one can kill a baby too? A baby too is not yet fully mature cognitively; it still has much development ahead. Where do you draw the threshold? From when does it become a human being? It is a continuum. That line is not a professional line; it is a value line. The determination of what counts as a human being with respect to the prohibition of murder is a value determination, like the determination of what counts as dangerous with respect to the prohibition on excessive speed. It is a value line, not a professional one. The one who draws it is the value expert—and who needs to sit on those committees are only rabbis, I told him. The doctors should give them professional advice, because the doctor can tell what functions the fetus has at each stage. That is his expertise. He cannot—but that is in principle what belongs to his area of expertise. When there is complete information, maybe he will be able to say that. What functions the fetus has at each stage, fine, that is the graph. Now the question is where I draw the threshold. From what functions onward is it already defined as a human being? That is not the doctor’s determination. He has no tools at all to determine that. I’ll tell you more: the moment of death. Another question. And again, a question about the body, not the mental and not psychology. About the biggest medical determination there is. A doctor determines the moment of death, right? He cannot determine it. Nonsense. How does he define what death is? That is a value definition, not a factual one. You can say that if society has decided to define death in such-and-such a way, then the doctor is the one who can check whether the criteria are met. Because he knows how to check whether there is breathing, whether there is a pulse, what each thing means—that is his expertise. But to determine when you are considered dead—that is a value determination, not a medical one. What does the doctor understand about that? Nothing at all. That is a determination that the legislator has to make, or the decisor, or the Sanhedrin—it doesn’t matter, the value arbiter. Not the doctor. What does this have to do with the doctor at all? Take for example the dispute over brain death or heart death. What is the moment of death? We know that in the stages of death the brain stops functioning, but the heart still operates for some time, or can operate for some time, and after some amount of time—usually a few hours—the heart also stops functioning. Now what happens with transplants, for example, is that there are certain organs, like of course a heart transplant, that you cannot take after the heart has stopped beating. You cannot transplant into a person a heart that has stopped beating. You can only take a beating heart and transplant it into another person, remove it from one person—except that if you remove a functioning heart from a person, you killed him. You cannot kill Reuven in order to save Shimon. So how do they transplant hearts? The only way… What? Brain death! To take the heart in the stage after brain death and before cardiac death. When the heart is still beating but the brain is dead. Except that this depends on the question whether at that stage the person is defined as alive. If we define the moment of death as brain death—brain death is death—then at that stage the person is already dead. So taking his heart is not considered killing. Then it is permitted to take the heart from someone who is already dead in order to transplant it into someone else and thereby keep him alive—so that is fine, it is permitted. But if one defines the moment of death as cardiac death, then as long as the heart is beating the person is considered alive. So if you take his heart, you murdered him. It is forbidden to murder Reuven in order to save Shimon. So it is forbidden to remove the heart. Therefore there is a dispute among decisors, for example, about what the moment of death is. Is it brain death or cardiac death? A major dispute among decisors; there are major decisors on each side of this argument. Among doctors there is complete consensus that it is brain death, that this is the moment of death. And again, I had the same argument with him. What do rabbis understand about this? This is for doctors to determine. I told him: as a doctor you understand nothing about this. Here, right now, you just demonstrated that as a doctor you understand nothing about this. This is absolutely not for doctors to determine. The doctors understand nothing about it. Only rabbis understand it—not understand it, but they have the authority to determine it. There is nothing to understand here, but they are the ones who determine it. Or they or the legislator—I don’t care. In Jewish law they are the ones who determine it. The value arbiter determines, not the expert. On what basis do you determine that brain death is death? It is a definition! Just a definition. So the fact that doctors define something, does that give it an advantage over a definition by another group? Anyone may define whatever he wants. Your medical knowledge has no added value in this matter. You can give me data—what happens when there is brain death and no cardiac death, is it like this or like that. Data is data a doctor gives me. But determining whether, in light of that data, this is death—that is a value determination. Do you know why all the doctors suddenly have a consensus? It was not like that a few years ago. Do you know why? Because of transplants! Obviously. Because this is the only way to permit transplants. Because if you define cardiac death as death, you cannot transplant hearts and lungs. Because hearts and lungs can only be taken in that in-between stage, and if we define cardiac death as death, we have pronounced doom on all transplants of organs like hearts and lungs. Yes, you simply cannot transplant them. So for completely professional reasons, all the doctors decided that brain death is the moment of death. They have no authority at all to do this, they have no basis at all for this determination—they simply do not understand what they are talking about. Once I saw an article by the head of the transplant unit at Tel Hashomer. He wrote an article explaining why… he had a wonderful idea. What was the idea? A wonderful argument. Because from brain death, no one ever comes back. There is no case where after brain death you return to life. Therefore, that is death. Now, that logic is probably not his strong side—but that is indeed true. But I mean the ABCs of reasoning, forget logic. Nobody ever came back from age two either, you know. Everyone who was ever age two eventually died. I don’t know anyone who was age two and did not eventually die, unless he still hasn’t reached the relevant age. So age two is also death—one can take the organs of two-year-olds. “To where they go, they do not return”; age two is absolute death. What kind of nonsense is this? Every stage we pass through is irreversible; it is on the way to death. The question is where the threshold passes that determines when you are dead, not from when it is irreversible. From the moment you were born it is irreversible. But he meant functioning, probably, no? So what? Then define functioning. What does that have to do with irreversibility? You can tell me: I think that when a person no longer functions he is considered dead. Fine, that is a legitimate definition. And the rabbi thinks otherwise, and that too is a legitimate definition. Just don’t tell me you are saying it as an expert. I did not say that the definition is not legitimate. I object to the use of the cloak of expertise to support that definition. The definition itself is fine; one can argue—there are such definitions and other definitions. Among rabbis too there are those who say brain death is death, that’s fine. But, but, but don’t tell me it is a professional definition. And he objected: what do rabbis have to do with this issue? This is a matter for professionals, experts, doctors. A friend of mine who studied with me in Yeshivat Midrasha, Sodi Namir—yes, he was a doctor in Gush Katif and afterward a member of the ethics committee of the Medical Association, a collection of illiterates sitting on that committee. In short, at some point it came out that he doesn’t treat homosexuals—not that he doesn’t treat them, he’s a doctor, not a psychologist—but rather he told one of his patients that he felt sorry for him because he is ill, because he is homosexual. Oh, the outcry and celebration. The entire press erupted, as you can imagine. The chairman of the Medical Association, the number-one idiot, came out and declared: this man is not up to date on the latest scientific findings and therefore is not fit to be a doctor at all. He has a professional problem; he does not understand that homosexuality is not an illness. So how can there be a doctor who lacks such basic medical knowledge? Now you tear your hair out from frustration. The chairman of the Medical Association has no idea what he is talking about—a top-tier babbler. And everyone after him joined in, blacklisting him—by the way, they threw him off the committee, the doctors’ ethics committee. Now, by the way, they can throw him off. The legislator can throw him off. The legislator can say: from my point of view, as a value determination, homosexuality is not an illness, and I am not willing for people to relate to homosexuals like that, and therefore when I decide who will sit on the doctors’ ethics committee, I want this man not to sit there. That is a legitimate determination; I will dispute it, and it is legitimate. But when doctors remove him because he lacks medical knowledge, then simply no—they are the ones who should leave. They are the ones who lack medical knowledge; they do not understand what medicine is. If someone should leave there, it’s them. Now do you understand? Through these examples I’m trying to show you not how full the world is of idiots—that is known. What I am trying to show you is the range of contexts in which you can see the failure of this enlightened correctness. It is not in one question or another; there is no question in which it does not appear. In political questions, in security questions, in medical questions, educational questions, psychological questions—everything. Every question that is part of public debate, they always interview various experts who say this and that. Experts have nothing to say on any of these questions. They have no added value at all. The moment they bring in an expert, you can turn off the radio or the internet. Not turn it off—but do not pay attention to the professional cloak. He may say wonderfully sensible things, but not in his capacity as an expert. That is not his expertise. He may express an opinion like anyone else. But somehow, in every matter… From this point on, go away, I don’t want you. From this point on I remain by myself, or with whomever I choose to sit with. And all these decisions are value decisions; none of these decisions is professional. And the same is true of course in the halakhic realm. The same thing. The halakhic realm is not exceptional; it is like every other normative field, also in the legal realm. By the way, there are often claims against courts that they are getting into questions that are really questions of security or such things. No—those claims are unfounded. They have to get into those questions, hear the experts, and draw the line where they think appropriate. Exactly as rabbis are supposed to do, as judges in religious courts are supposed to do, as anyone is supposed to do in the field in which he decides on the value plane. And this is not entrusted to experts. It has nothing to do with experts at all. Expertise is overrated in our generation—really wildly overrated, this whole matter of expertise. I mean in these areas of course, not in physics, mathematics, chemistry, and biology. Even there one has to pay close attention whether they are speaking in their own field or not. But there there are clear domains of expertise, as Ben-Gurion already said about historians and so on: all experts are experts on what was; they are not experts on what will be. Okay, in any event, that is that. Wait, sorry, just one second—so are you basically saying that the DSM or books of physical diseases are books of norms, not scientific books? Obviously. Anyone with eyes in his head understands this. The problem is that most doctors and psychologists and psychiatrists do not have their eyes in their heads. Some of them probably do understand this, but most do not. It is ABC, you cannot argue about it at all. It is not a matter of dispute. It is not that someone can say, my opinion is this and his is that. Someone who says otherwise simply does not understand. It is just a mistake. What is the root of the issue? What is the root of the failure? There are two philosophical aspects here that one must take into account in order to understand this picture. One is the naturalistic fallacy, and the second is the sorites paradox. I’ll begin with the naturalistic fallacy. What leads to the two-stage picture—that there is an expert who determines the facts and then the value arbiter comes and determines the norm, legal, halakhic, moral, whatever it may be—what causes this is the naturalistic fallacy. What does that mean? What is usually called the naturalistic fallacy—there is some debate about terminology, but never mind—is usually what David Hume defined: you cannot derive an ought from an is, the desirable from the actual. When I say that this wall is white, therefore this wall is beautiful—when I said that this wall is white, I stated a fact. When I said that this wall is beautiful, I stated a judgment. In this case an aesthetic judgment; there are moral judgments, halakhic judgments. Here it is an aesthetic judgment—all judgments. Judgments are not derived from facts. I spoke about this incidentally in the context of Jewish law and facts, so I won’t go into it here at length. In order to determine that this wall is beautiful, one has to add to the premise that this wall is white another premise: that white is beautiful. What is the character of that premise, that white is beautiful? It is a premise that moves me from the plane of facts to the plane of judgments. White is a fact; beautiful is a judgment. When I say this wall is white, I stated a fact. When I say this wall is beautiful, I stated a judgment. From a premise that is a fact one cannot derive a conclusion that is… For the argument not to be fallacious, one has to add another premise, and that premise will always be a bridge premise connecting facts to judgments. White is beautiful, blue is ugly, this speed is dangerous. Everything we talked about earlier is really a link between facts and judgments. Okay? Therefore, when the expert is responsible for the facts, he cannot in any way make a determination about the judgments. Not halakhic judgments, not judgments of medical or psychiatric diagnosis, and not moral judgments, and not legal ones, and not halakhic ones, and nothing else. He can determine the facts only. There is an unbridgeable gap between facts and norms. This is the hyphen I spoke about in the halakhic context. The function that takes facts as input and produces norms as output. That function is itself a normative function; it is a halakhic function. Therefore an expert cannot deal with it. The expert deals only with the facts, only with the input. So the naturalistic fallacy basically says there is an infinite gap between the domain in which the expert deals, namely facts, and the domain in which the decisor deals, namely norms. And one cannot mix the domains. Except in cases—no, wait, one second—no, without exceptions. That’s it. The second component that leads to this failure is the sorites paradox. The sorites paradox goes like this. There is a whole list of paradoxes, a whole collection of paradoxes, whose generic name is the sorites paradox. It works like this. One grain of sand is not a heap, right? Now if I have a pile of grains of sand that is not a heap, if I add one grain, will it become a heap? No. One grain more or less doesn’t matter. So that means I have one premise that one grain of sand is not a heap, a second premise that a collection of grains of sand does not change status if we add one more grain. Sounds reasonable, right? And a million grains of sand are a heap—that also sounds reasonable. These three reasonable claims are not consistent with one another, right? Right—there has to be some stage where it turns into a heap. There needs to be some transition point from not-a-heap to heap. But one grain of sand cannot change the status, so how does it work? When do we move from not-a-heap to heap? Second paradox—just one second more—the paradox of the bald man. Someone who has one hair on his head is bald, right? A bald person who gets one more hair has not changed his status. But someone who has, I don’t know, 100,000 hairs on his head is not bald. Again, it doesn’t fit together. These three claims do not fit together. Third paradox, what I call the afternoon paradox. My children are not allowed to go out between two and four, right? Only after the afternoon are they allowed to go out; it’s noisy outside. Children ask me, has the afternoon arrived already? Anyone who raises children knows these questions—at least in civilized neighborhoods. Now what does that mean? Twelve o’clock is not afternoon. One second won’t change that. But four or five already is afternoon. How does that happen? One second does not move you from noon to afternoon, but twelve is noon and five is already—among Americans, for example, yes. Among Americans once twelve has passed, it is afternoon. But in Israeli Hebrew in the Middle East it is not like that. “Afternoon” is around four or five. So one second doesn’t change it—so when does the transition happen? How does it happen? And so on. One can discuss the spectrum—how many angstroms does the wavelength have to be for it to count as red? Same thing. Adding something tiny won’t move you from yellow to red. But there is yellow and there is red, so at some point the transition does happen. So how does it work? I’ll tell you, in practice every everyday concept is vulnerable to attack by the sorites paradox. Do you know Escher’s drawings, metamorphosis between fish and birds? There is a set of such drawings that show a kind of metamorphosis between a fish—slowly you see some half-fish half-bird, and in the end suddenly you see that it’s a bird. Can you put your finger on when it turned from fish to bird? No. But on the left it is a fish and on the right it is a bird. And in the middle there are these continuous intermediate stages, which is what is called metamorphosis. So basically there is a whole set of paradoxes here that does not allow me to use everyday concepts at all. Let’s go back to the heap paradox for a moment. What is its solution? You have to give up one of the premises, yes, that is clear. Which premise do we give up? One grain of sand is not a heap—that seems obvious. A million grains of sand are a heap—that also seems obvious. There is no choice but to deal with the middle premise, that adding one grain of sand does not change the status. It does change. So it does change? On the thirteenth grain? From when does it change? I don’t have the alternative. Is it our arbitrary decision? No, it’s not arbitrary. We speak—I say to you, look, there’s a heap there or there isn’t a heap—do you understand what I’m talking about? It’s not arbitrary. There are soft boundaries. It is not a binary concept. But you can’t say it’s arbitrary. It’s not arbitrary. I’ll tell you what the answer is. The answer is that the concept “heap” is not binary. What one has to do is revise the second premise and say this: adding one grain of sand does not change the status, except a little bit. That is the correct premise. Or in other words, the distinction between heap and not-heap is not binary. There is something that is not a heap at all, there is something that is a little bit of a heap, there is something that is more of a heap, there is something that is fairly heap-like, there is something that is very heap-like, there is something that is completely a heap. Or if you like, on the interval between zero and one, you can classify the degree of heapness of the pile. Zero is not a heap at all, one is completely a heap, and all the intermediate stages are different degrees of heapness. And that is the correct way to look at everyday concepts. Everyday concepts are all not sharply defined, unlike mathematical concepts. Everyday concepts are not sharply defined. All everyday concepts are concepts that lie on a continuum, and therefore it is not correct to say “bird”; one should talk about the degree of birdness of this object. It has a high degree of birdness. And it is not correct to say “fish”; it has a high degree of fishness. And it is not correct to say “heap”; it has a high degree of heapness. And it is not correct to say “red”; it has a significant degree of redness. That’s all. It’s just that for convenience we use language as though these were binary concepts, but they are not. All our concepts are like that. So where does the threshold pass? There is no threshold. One has to decide more or less: 0.7 and above already seems like a heap to me. We can call it a heap. But every added grain increases the degree of heapness a little. That is the correct description. And why am I saying this? Because if you go back to what I described earlier, you’ll see that this is exactly a reflection of the sorites paradox. Because what did I say? I said there are varying levels of danger in road speeds. Sixty is dangerous, seventy is more dangerous, eighty is more dangerous. There is a continuum of risk levels. And when I ask from when it is dangerous, that is exactly like the sorites paradox. The expert can tell me the level of risk; he cannot tell me what is dangerous or not dangerous. That is the sorites paradox. Likewise, the expert cannot tell me whether the fetus is a human being or not. He can tell me it is 0.7 human at this stage. Of course that is too simplistic, but in principle, okay? He can say it is 0.6 illness. Illness is not a binary concept. And all these concepts are no different from any other concept. The concepts in our world are not binary. And when we want to determine what an illness is, what is dangerous, what is a human being, what is heat, what is—I don’t know—various things like that for legal or halakhic purposes, the legislator or the decisor has to say where the threshold passes. There is no professional answer to that. For me, 0.7 heapness is a heap. From age thirteen he is an adult. What does “adult” mean? He is sufficiently adult for Jewish law to treat him as an adult. Do you really think that at age thirteen something suddenly enters him and he becomes an adult? Up till now he was a minor and now he becomes an adult? It is a continuum. It is a continuum of degree of adulthood in a person, and Jewish law cut it at age thirteen or at two pubic hairs. Since the term “adult” is a continuous term, an everyday term, it has no sharp line. It is obvious that a twelve-year-old is also fairly grown, and a fourteen-year-old is more grown. And at thirteen they set the threshold; from there onward it is adult for the sake of halakhic definitions. That’s all. Because of the sorites paradox—or because they ignore the sorites paradox—people do not understand that in the normative decision-making process there is a stage in the middle between the expert and the value determination, and that is drawing the line in the sorites paradox. From when is it a heap? From when is it dangerous? From when is it a human being? That is the root of this mistake. Do you hear? A judge too—but the power of his judgment does not come from his knowledge of law, according to this; it comes from the mandate of the people, basically, right? Like the decisor—his power to draw lines comes from knowledge. So I’m saying, then a doctor too—for practical purposes—basically has the mandate of the people to determine it. No problem. You can say that I put doctors on that committee because they are no worse than any other person. And since in any case one has to hear from the doctors in order to get the information, let’s just put the doctors there and also give them the mandate to decide. No problem—that is a possible decision. Just don’t tell me that this decision is a professional decision and what are rabbis doing here. Okay? I am not disputing the claim. The claim may be legitimate. I am only disputing the justification for the claim, the professional justification offered for the claim. It is not a professional justification; it is a value decision. That’s it. Does anyone want to ask or comment? If so, you can. Okay, let’s part as friends.