Topics in Halakhic Thought – Lesson 22

Table of Contents

• Changes in reality and changes in values in Jewish law
• Critique of judging religions by their sources and the reciprocity of the argument
• Desecrating the Sabbath to save a non-Jew, Meiri, and ways of peace
• The gap between theory and life, “it just doesn’t fit,” and feedback from reality
• Practice versus sources, empathy in criticism, and criticism of Rabbi Tzvi Yehuda
• Deviation from sources through culture and social setting: ISIS and honor killings
• Yeshiva heads, community rabbis, and the feedback of “this doesn’t make sense”
• “It did not spread among most of the public” as a test of truth and not a compromise
• The inflation of stringencies in the Haredi world, “the view of the oylem,” and positive feedback
• The connection between facts and norms: the presumption that a person does not pay before the due date
• “Torah” as “if-then” and not as facts or bottom-line rulings
• Analogies to logic, geometry, music, and marketing
• Criticism of rabbinical ordination exams, the study of Jewish law, and analytical study versus breadth
• Criticism of broad survey study, “you get reward for Torah study but not Torah study itself,” and the give-and-take of the Talmud
• Halakhic expertise, Sinai versus uprooter of mountains, and databases in our time
• The authority of rabbis in factual determinations: life-threatening danger regarding territory and traffic laws
• The expert-decisor model and the addition of an intermediate stage

Summary

General Overview

The text distinguishes between a change in the factual situation, which leads to a different application of the same halakhic values and norms without being considered a change in Jewish law, and a change in values, which is more problematic because it challenges fidelity to Torah values, yet in practice also affects halakhic ruling through feedback from life. It argues that the gap between halakhic theory and life is not a malfunction but a mechanism that corrects theory for the sake of life, and that religions or systems cannot be judged only by their texts but by practice and by the way their internal contradictions are resolved. It develops a view according to which “Torah” in Jewish law is neither factual determinations nor “bottom lines,” but transition rules of the form “if-then” that attach norms to changing facts. In the end, it raises a question about the authority of halakhic decisors in determinations that seem factual, such as life-threatening danger in handing over territory and traffic laws, and sets up a more complex model of expert-decisor relations that will include an additional stage beyond the two commonly assumed stages.

Changes in Reality and Changes in Values in Jewish Law

The text presents two scenarios of change in Jewish law: a change in factual reality that requires adjusting application to a new reality while preserving the values, and a change in values that does not stem from facts and therefore raises the question of how much fidelity to Jewish law is being maintained. It argues that in changes of reality there is no real change, only continuation and application of the same values under different conditions, whereas a value change raises the concern of adopting a “fashionable value system” instead of Torah values, even though the distinction between “Torah values” and the sages’ interpretation is always mediated through interpretation.

Critique of Judging Religions by Their Sources and the Reciprocity of the Argument

The text casts doubt on the claim that no stable arrangement can be reached with Muslims because the Quran and Islamic law prevent acceptance of foreign rule, and therefore any arrangement is only a temporary hudna. It presents a parallel claim that a Muslim could make about Jews on the basis of sources such as “do not show them favor” and laws about relations to a non-Jew, and conclude by the same logic that one cannot get along with Jews either, because for them too every arrangement is just a “hudna” until “their hand becomes strong.” It argues that the flaw in the argument is ignoring the fact that reality and changes in values affect the way Jewish law is actually implemented, and therefore judging religious systems by text alone is irrelevant.

Desecrating the Sabbath to Save a Non-Jew, Meiri, and Ways of Peace

The text argues that in practice, when halakhic authority is in the hands of decisors, it will be obvious that one desecrates the Sabbath even through Torah-level prohibited labors in order to save the life of a non-Jew, without relying on “gimmicks” like ways of peace in the sense of fear of reaction or desecration of God’s name. It cites Rabbi Unterman, who interprets “ways of peace” as a genuine value-based conception of what is morally proper and not merely an image-based or utilitarian consideration. It attributes to Meiri in Yoma, chapter eight, the position that for non-Jews “who are bound by the norms of the nations,” one desecrates the Sabbath to save them, and that the sages spoke about the non-Jews they knew, whereas in Meiri’s time, in 13th-14th century Catholic Christian Provence, those laws no longer applied, and he notes this consistently in many places.

The Gap Between Theory and Life, “It Just Doesn’t Fit,” and Feedback from Reality

The text argues that there is a gap between life and theory, and that the gap favors life because life gives theory “positive feedback” that improves it. It says that the expectation that “when our hand becomes strong, we will return and observe” harsh laws is an illusion, and that in practice direct or indirect reasons will be found not to act that way because it just doesn’t fit, and he describes this “it just doesn’t fit” as a central halakhic consideration, “the fifth section of the Shulchan Arukh.” He argues that even with regard to examples like the beautiful captive woman, people tend to apologize and explain that “today it isn’t relevant,” but in fact even if there were political power, in practice they would not permit it, and the discomfort with a “Reform-sounding” aroma causes the decision to be wrapped in indirect halakhic excuses.

Practice Versus Sources, Empathy in Criticism, and Criticism of Rabbi Tzvi Yehuda

The text states that what should be judged is what people actually do, not what theory or the sources say, because theory and practice together create the actual mode of conduct. It criticizes an article he saw in “one of the early issues of Tzohar,” in which Rabbi Tzvi Yehuda’s criticism of the New Testament was presented, and defines the criticism as shallow because the very same difficulties could be raised a thousand times over with respect to Jewish tradition, except that internal empathy allows contradictions like “an eye for an eye” to be resolved through the sages’ interpretive readings. He argues that the difference stems from the degree of empathy toward the system being criticized, and that such criticism is aimed at Jews rather than Christians, whereas an empathetic Christian would resolve contradictions in ways no less good.

Deviation from Sources Through Culture and Social Setting: ISIS and Honor Killings

The text presents the opposite possibility, in which practice deserves criticism even if the sources do not, and gives the example of “honor killing,” which he says he heard from several people is an Arab cultural phenomenon that slipped into Islam and has no source in Muslim law, yet in practice it happens, and therefore the criticism is directed at Muslims and not at Islam. He concludes that “in the end, what matters to me is what you do, not what your theory says,” and warns that anyone who implements a theory “one to one” is childish and dangerous.

Yeshiva Heads, Community Rabbis, and the Feedback of “This Doesn’t Make Sense”

The text quotes Rabbi Benny Lau, who said that one of the tragedies of religious Judaism in our time is that leadership was handed over to yeshiva heads instead of community rabbis, because a yeshiva head gets feedback about consistency and logic from young students but does not get feedback from life of “makes sense” and “it just doesn’t fit.” He argues that in life you cannot work only with a consistent and brilliant theory; there must be interaction with reality and the reception of feedback.

“It Did Not Spread Among Most of the Public” as a Test of Truth and Not a Compromise

The text uses the rule that an enactment or decree that did not spread among most of the public is void, and argues that the common understanding sees this as consideration for the constraint that “the Torah was not given to ministering angels,” but he reverses the direction and says that this is an indication that the Jewish law produced in the study hall is incorrect, and that here there is feedback correcting the theory. He argues that Torah is supposed to go out into life, and when it is not absorbed that is a sign of disconnection and crooked theoretical thinking, and he emphasizes “the Torah was not given to ministering angels” as an exclamation point, not as an apology.

The Inflation of Stringencies in the Haredi World, “The View of the Oylem,” and Positive Feedback

The text argues that the inflation of stringencies in the Haredi world stems from the absence of feedback that cancels enactments which did not spread, because anyone who objects is seen as “not one of our people,” so his opinion does not count. He mentions a quotation in the name of the Chazon Ish distinguishing between “the view of the fools” and “the view of the world,” and describes a system in which “the fools” are the study-hall world that neutralizes the street. He compares this to the engineering concept of “positive feedback,” which leads to explosion, and presents the law of “it did not spread among most of the public” as “negative feedback” that stabilizes the system and prevents explosion.

The Connection Between Facts and Norms: The Presumption That a Person Does Not Pay Before the Due Date

The text returns to the topic of “the presumption that a person does not pay before the due date” in Bava Batra 5a and explains that this presumption causes the burden of proof to be shifted to the defendant even though “the burden of proof rests on the claimant.” He asks what happens when reality changes and people really do pay before the due date, for example in the context of early mortgage repayment because of interest, and argues that then the factual presumption changes and therefore today one cannot rule according to the old presumption. He rejects the conclusion that one can simply “tear out page 5,” because the Torah innovation is not the psychological-social fact but the normative rule that a presumption can reverse procedural order and shift the burden of proof.

“Torah” as “If-Then” and Not as Facts or Bottom-Line Rulings

The text argues that a statement such as “a person does not pay before the due date” is a fact and not Torah, and it is subject to empirical examination that can change from time to time and from place to place. It defines Jewish law as dealing with norms that are attached to facts through an “if-then” structure, and formulates that Jewish law is neither the “if” nor the “then” but “the hyphen between them,” “the arrow between them.” He states that clinging to the bottom line when the circumstances have changed is actually a deviation from the words of the Talmud, because it changes the transition rule in practice, and therefore changing the bottom line can be genuine conservatism if it comes from preserving the “if-then” rule.

Analogies to Logic, Geometry, Music, and Marketing

The text compares Jewish law to logic: neither the premise nor the conclusion is “logic,” but rather the validity of the transition from premises to conclusion. He also compares it to geometry: mathematics does not claim that the sum of the angles in a triangle is 180 degrees, but rather that if Euclid’s axioms are true then the sum is 180 degrees, and the physicist determines which geometry fits the world. He adds an analogy to music and argues that Bach’s genius is his understanding of the “if-then” of fitting music to human structure and not some accidental “bottom line,” and parallels this to marketing, where the talent lies in fitting a message to different populations and not in accidental success with one population.

Criticism of Rabbinical Ordination Exams, the Study of Jewish Law, and Analytical Study Versus Breadth

The text argues that rabbinical ordination exams that test recitation of “the collection of facts written in the Mishnah Berurah” do not test knowledge of Jewish law, because the halakhic skill is “to compare one matter to another” and to adapt norms to circumstances. He criticizes the separation between analytical study and the study of Jewish law, and argues that “the topic aligned with Jewish law” means reaching a halakhic conclusion from the Talmudic passage, not studying analytical Talmud in the morning and Mishnah Berurah in the afternoon as a disconnected field. He argues that studying law books is just “plugging holes” until one has the tools to really learn, and that “knowing Jewish law” means knowing the “if-then,” not the recitation.

Criticism of Broad Survey Study, “You Get Reward for Torah Study but Not Torah Study Itself,” and the Give-and-Take of the Talmud

The text argues that broad survey study is inefficient because most people do not remember much from it, whereas analytical study builds connections and enables memory and understanding. He tells a story in which a lecturer points out that a halakhic answer is located exactly where the study pair is learning, but they are unable to derive the conclusion from it because they are learning in a broad survey mode, and he formulates it this way: “You do get reward for Torah study. But, but, but you do not have Torah study.” He defines the difference between analytical study and broad survey study as the difference between dealing with problems that happen to arise along the way and “seeking friction,” deliberately surfacing difficulties, and explains that the Talmud is built as give-and-take and not as a code because it teaches the modes of thought and not bottom-line rulings.

Halakhic Expertise, Sinai Versus Uprooter of Mountains, and Databases in Our Time

The text argues that halakhic expertise is not someone who knows all the material, but someone who knows how to make inferences and attach norms to facts, and that today “the weight of knowledge keeps decreasing” because of databases and books. He mentions Rabbi Chaim of Volozhin, who wrote that nowadays the rule “whoever forgets something from his learning is liable for his life” no longer exists, because the value of memory has declined when books are available, and he formulates it by saying that “Sinai is far less significant than uprooter of mountains.”

The Authority of Rabbis in Factual Determinations: Life-Threatening Danger Regarding Territory and Traffic Laws

The text gives the example of a ruling by three rabbis, “Rabbi Neria, Rabbi Yisraeli, and Avraham Shapira, I don’t remember anymore, or Dov Lior, I don’t remember exactly, some other third rabbi,” who determined that handing over territory to the Palestinians constitutes life-threatening danger, and raises the question of what authority they have to make a factual determination about danger. It gives another example from Rabbi Nebenzahl, who ruled that someone who drives above the speed limit or does not obey traffic laws violates the Torah-level prohibition of “and you shall carefully guard your lives,” and here too he asks in what sense the decisor is more qualified in determining the facts. He argues that in both cases he holds the opposite view from the tendency around him: he justifies rabbinic authority to determine life-threatening danger in handing over territory, but argues that Rabbi Nebenzahl “has absolutely no authority to determine that; it has no halakhic force whatsoever.”

The Expert-Decisor Model and the Addition of an Intermediate Stage

The text describes the accepted model as a two-stage model in which the expert provides facts and the decisor determines Jewish law “given that these are the facts,” and notes that the model becomes especially sharp in the context of Jewish law and medicine. It argues that this model is “not correct” because there is another stage in the middle in which the rabbi is involved, and that precisely ignoring this stage creates mistakes in understanding the examples of handing over territory and traffic laws. It concludes by saying that the explanation of the model and its application to the two examples will continue next time, and in the meantime confirms to the questioner that the rule “the burden of proof rests on the claimant” is itself an “if-then” rule, and that one returns to it when the assumption of the presumption collapses.

[Rabbi Michael Abraham] Okay, so we’re basically in the topic of facts and norms. We got to this, and I’ll just remind you of the context. We got here from a discussion about changes in Jewish law, and last time I ended by distinguishing between two situations: a change in the factual situation, a change in reality, which then raises the question whether Jewish law needs to be adjusted to the new reality or applied in a way that fits the new reality—we talked about whether that even counts as change or not. And the second scenario is a change in values, not a change in facts. And that, as I said, is a more problematic scenario, because once you’re responding to changes in values and not changes in facts, then the question is how far you can really say that you’re still preserving Jewish law. With factual changes, all the last few sessions I spoke exactly about how in fact there isn’t any real change here. It’s an application of the same values, the same norms, in a different reality. And once the change is in a different reality, then practically we’re supposed to conduct ourselves differently, even though that different conduct is actually the true continuation and the true implementation of the values the Torah demands of us. But where we’re talking about a change in values, there the situation is more complicated. Because with a change in values, who says—on what basis am I now adopting new values and not the values of the Torah? After all, in the end I’m supposed to be faithful to the Torah’s values. If not, then whom am I serving? What am I serving? What does it mean? Am I basically just following every passing moral fashion? Seemingly we’re supposed to stick to the Torah’s values, and I spoke about this a bit—the question is what exactly the Torah’s values are. Everything, after all, comes through the mediation of rabbinic interpretation, and we’ve discussed that here in the past. In any case, maybe one more sentence that connects to current events, but also to this topic—it just popped into my head now, and I also wrote about it today in my column. There are all kinds of learned explanations for why we can’t reach a serious arrangement with Muslims—say Hamas, or Palestinians in general. Why? Because basically we know that in the Quran and in their law there is no possibility that they can accept foreign rule over Muslims, and people of another religion are supposed to be subordinate to Muslims, to pay them taxes and be their subjects at best, and receive some sort of limited tolerance—that’s the maximum one can hope for. And therefore it’s obvious that any arrangement we make will only be a temporary ceasefire until their hand is stronger, so to speak. I’m intentionally using terms from our own halakhic decisors—you’ll soon understand why. So people quote this source and that source from Islamic law and say, forget it, you simply don’t understand the real rules of the game, the subtext, this can’t work. Even if they tell you now that they’re reaching an agreement with you, it’s obvious this really can’t work. So I want to cast doubt on that thesis, even though it sounds very convincing. Try to think—and this connects to what I said before—try to think of an Arab parallel to me, sitting in the neighborhood across from me, two hundred meters away, okay? Talking with his friends about the Jews. And every sentence I just said, he could say about us. Every last one. After all, he says: “You know, in their Jewish law it says ‘do not show them favor,’ right? It’s forbidden to leave non-Jews in the Land, they don’t sell them apartments or land, right? Obviously someone who worships idols, or someone like that—his law is that one lets him die and does not save him. Okay? It’s forbidden—they don’t return lost objects, don’t restore them, don’t save the life of a non-Jew on the Sabbath—that’s their law. True, right now they don’t do it because their hand is not stronger and right now it’s not practical and so on and so on, but that’s all temporary, it’s a ceasefire. Meaning, even if you reach some arrangement with them, in the end it’s a ceasefire. Later, when their hand is stronger, their messiah comes or I don’t know exactly what, then they’ll go back to the sources, because the sources are stronger than anything, and therefore in the end don’t expect anything from the Jews.” You can’t get along, you can’t get along. It’s exactly the same argument. So what’s the bug in that argument? At least the way I understand it as a Jew who knows our law from the inside, and therefore I try to imagine how a Muslim who knows their law from the inside might think about it. From our perspective, it’s quite clear to me—and here I come back to the change in values and change in reality that I discussed earlier—from our perspective, it’s obvious that reality affects the way values are implemented. Not only that, changes in values also have an effect. My guess is that when our hand is stronger, and no non-Jew will see anything and none of that matters, once the authority is in the hands of halakhic decisors to determine what we do here in the Land, they will solemnly announce that everyone desecrates the Sabbath through Torah-level prohibited labors in order to save the life of a non-Jew. And there is no danger to any Jew, and no “ways of peace,” and none of the indirect tricks they manage to find in order to save this bothersome Jewish law. Everyone will say it. Why? Because it’s just not fitting. You cannot leave a human being—a non-Jew, enlightened, normal, a good person, not a terrorist, not a potential terrorist—forget for a moment all the baggage we have here with our neighbors. Obviously you can’t leave a person to die. Now, there are those who explain this directly. Like Rabbi Unterman—he has a famous article on this issue. He explains that “ways of peace” are not just what people usually understand: how people will see us, desecration of God’s name, and what they’ll do to us if we don’t save non-Jews, or that non-Jews won’t save Jews around the world, and things of that sort. Rather, “ways of peace” is a real value-based conception, that this is truly the proper way to behave. It’s not about some deserted island where nobody sees and it will have no effect whatsoever. That’s the explanation he offers. What I argued following him—the Meiri already writes explicitly in tractate Yoma in the eighth chapter—that non-Jews who are bound by the norms of civilized nations, one desecrates the Sabbath in order to save them. What the sages said—that one does not desecrate the Sabbath, a Torah prohibition of course, this isn’t a rabbinic statement—but the sages established that prohibition because they were speaking about the non-Jews they knew. The non-Jews they knew, let’s say, were like beasts; they did not behave at a human level. On the human level they were inferior—not only that they were idol worshipers or committed various transgressions—and therefore the attitude toward them was like that. But, says the Meiri, in our time—just to remind you, this is the thirteenth, fourteenth century, yes? In Christian Catholic Provence—in our time the non-Jews are bound by the norms of civilized nations, and therefore all those laws regarding them are void. And he repeats this in dozens, hundreds, I don’t know how many—very many—places. Every single law that speaks of improper treatment of a non-Jew, he nullifies it. Everywhere, he is meticulous. He doesn’t just make some general comment at the top; he makes sure to note it in every place. And then that basically means that today, when you truly see a non-Jew who is normal, a human being, yes? Not just some—I don’t know—human scum, but a normal person, a non-Jew, then you have to desecrate the Sabbath at the Torah level to save him. That’s one explanation. And another explanation that, between us, is really the straightforward Jewish law. Others will twist it: yes, but how do you know, the birds of the heavens will carry the sound, and if you don’t save a non-Jew then they won’t save a Jew in Australia; you think nobody sees, but in the end they do see, and all sorts of tricks like that which nobody really believes, but they need to give some kind of explanation. Whereas at root, in my opinion, people simply are not truly willing to forbid it. At least those for whom this would be practical. About a midrash you can say anything, no problem. But out in the field, where you have to issue practical instructions on how to behave, you don’t leave a person to die. So fine, find excuses more straightforward or less straightforward, but you don’t leave a person to die. What does that mean? It means that unfortunately—I don’t know, maybe it’s a bit troubling—if you like, disappointingly, there’s a gap between life and theory. And that gap favors life, not theory. The feedback that life gives theory is very often positive feedback—it improves it, it doesn’t ruin it. People often tend to think these are constraints, there’s no choice, but when our hand is stronger we’ll go back and observe everything the sages said. Nonsense. When our hand is stronger, we’ll need to find more elaborate excuses to explain why we are not doing that. And we will not do it. We won’t do it in many places, and there have already been such things. We don’t do it because it’s just not fitting. That’s why we don’t do it. “It’s not fitting” is a very central halakhic consideration, the fifth section of the Shulchan Arukh. And the claim, basically, is that when you’re isolated… what is written there is not necessarily what actually happens on the ground. And the question of what happens on the ground is influenced by conditions of life, influenced by changes in reality or changes in values. Here it connects to what I said earlier, because I’m now not talking about changes in reality, I’m talking about changes in values. And there is no doubt that changes in values also affect Jewish law. And last time I spoke about why that nevertheless does not count as a betrayal of your commitment to halakhic values. But it is clear—factually clear—that this is the case. And therefore my claim is that just as when people criticize me and I explain to them: okay, you’re taking things out of context; today we don’t act that way; these are ancient sources; they were speaking in a different reality—right, we all know these excuses. They explain the beautiful captive woman to me—yes, how can it be that one rapes a woman in captivity? So everyone immediately starts apologizing: no, no, that’s an old law, today it’s irrelevant. What do you mean, today it’s irrelevant? And if our hand is stronger, then it will be relevant, no? How many people will tell you honestly that even if our hand is stronger today, we will not permit that? Very few. But practically, nobody will permit it. Even if our hand is stronger and even if nobody sees. It’s just that people feel distress in the face of the Reform scent wafting from that approach, and so they come up with all kinds of excuses wrapped in this consideration or that one, halakhic considerations, evasions, left hand and right foot and closing one’s eyes, I don’t know what—do it with your eyes shut. But in the end, that is what will happen. And therefore this judgmental attitude, when we judge other religions—Christianity or Islam—through what is written there, is not a relevant judgment. If they judged them according to what is written in our sources, we would not come out looking much better. What one has to do is judge people according to what they actually do. Because reality is an integral part of conduct; not only theory determines conduct. Theory plus practice determines conduct. When one examines—once I saw in one of the early Tzohar journals, I saw an article published there with a chapter from a book that was going to be published; later I saw it indeed had been published, many years ago—in which there is a critique by Rabbi Tzvi Yehuda of the New Testament. All the contradictions he finds there and various criticisms. It’s a book for stupid children, with all due respect. Really stupid children. It was shocking to see how shallow that critique was. Why? Because those same difficulties that he raises about the Christians, I can raise a thousand times over about us. Except what? About us we are already so used to it. After all, it says “an eye for an eye” אצלנו, yes? But the sages already interpreted it: “an eye for an eye” means monetary compensation, everybody knows that. Right? So do you really think we gouge out an eye? Of course not. Ah, but that’s a contradiction—Rabbi Eliezer says that indeed they gouge out an eye for an eye. No, what are you talking about? The Talmud says that even Rabbi Eliezer didn’t really mean that. We are already so used to the excuses we tell ourselves that it seems to us that we have no problems. But really the whole question is just how much empathy you have for the system being criticized. If you’re part of it—I’m a Jew, so I’m empathetic toward Jewish law—when there’s a contradiction, I reconcile it. But I’m not empathetic to the Quran, nor to the New Testament. When there’s a contradiction there, I can laugh at them: you have contradictions, you’re talking nonsense. But the Christian who is empathetic to it will show you that it’s not a contradiction. What, is he an idiot? He’ll also reconcile it in ten ways, no less good than the way you reconcile yours. It’s just that when you look at it from outside, you have no interest in being empathetic and reconciling the contradictions, so you write a critique. That critique, of course, is not aimed at Christians; it’s aimed at Jews. Anyone who looks at it from outside and understands there’s a contradiction here won’t have any initial thought of becoming Christian—as if anyone does. Well, today they say there is some such phenomenon, but it’s not serious. It’s childish criticism. Why? Because you can’t find—the question is what one does with it practically. There are plenty of contradictions in plenty of places; the question is what one does with them. How one reconciles them, how one applies them, what one does with them on the ground. That is an inseparable part of religious conduct, and it has to be taken into account in criticism. And this goes in the opposite direction too, by the way. You see ISIS, or you see, I don’t know, honor killings among Muslims. So various Muslim sages say: look, but in our sources there is no basis for this at all. These are inventions. Not regarding ISIS, say, but regarding honor killings. And it’s pretty clear—I heard this from a few people—that this is Arab culture that made its way into Islam and somehow was absorbed into it and became… part of Arab Islam at least. There’s already a kind of religious aura around honor killing there, but there’s really no source for it in Muslim law. But on the other hand, in practice they do it. So what do I care that it has no real source? Then the criticism is not of Islam but of the Muslims. That’s the other side of the same coin: sometimes practice deserves criticism even though the sources do not. In the end, what matters to me is what you do, not what your theory says. What your theory says—well, theories are something you can get a degree out of if you want. Theory is not something meant for implementation. Someone who implements theories one-to-one is a dangerous person. And it doesn’t matter, by the way, what the theory is. Someone who clings to theory and applies it in life one-to-one is both childish and dangerous. No theory is meant to be implemented as is, one-to-one. Theory is a conceptual framework, theory is guidance, inspiration, a mode of thinking, but in the end it has to come into interaction with reality. I once saw that Rabbi Benny Lau wrote that one of the tragedies of religious Judaism in our time is that leadership was handed over to yeshiva heads instead of rabbis—community rabbis. Why? Because what is a yeshiva head? A yeshiva head may be a truly brilliant person, he gives wonderful lectures, beautifully structured, and he sharpens himself on eighteen-year-old boys. And those eighteen-year-old boys will test him to the end; they’re talented fellows, all good, they’ll test him to the end—whether he’s consistent, whether it’s brilliant, whether it’s original—they’ll give him feedback, they’ll try to break his structure. So he becomes very strong intellectually. But a community rabbi, when he comes and gives a lecture to the householders in his community, they’ll tell him: this doesn’t make sense, it’s just not fitting. No, okay, it’s all true, very logical, very consistent—it doesn’t work. No, it’s not right, not sensible, it doesn’t make sense. And that’s a kind of feedback a yeshiva head usually doesn’t get. A yeshiva head gets feedback on his logic. He doesn’t get feedback on whether it makes sense, whether the argument holds water. And in life you must not work with a theory that is only consistent, brilliant, and original. Good to have those in the background. But afterward you also have to work in interaction with reality, know reality, and receive feedback. I once said—this drags on a bit, but it is connected to what we’re doing—I once said this to a newly observant fellow whom I had accompanied a bit. He came to some very frum Haredi community in the south. And they commented on everything he did. He rode a bicycle, they told him it’s not fitting, an avrekh doesn’t ride a bicycle, no, a Jew doesn’t do things like that—they mean Islam. Even though there are places where avrekhim definitely do ride bicycles, but there they had decided not. He had some student-type backpack, not fitting. Use a plastic bag like an avrekh, properly. He had some Israeli kind of name, so they told him it doesn’t fit; Hebraicize it to Zerubavel or something, I don’t know, something more homey, more Jewish, not Guy, Pazit, or whatever. So in short, he said to me: tell me, what do they want from my life? At some point he just couldn’t contain all those comments anymore. So I said to him—and in the middle of the conversation some realization suddenly clicked for me—that there is a law that says if an enactment or decree was not accepted by the majority of the public, then it is void. Usually we understand that it is void because we have to take reality into account; no choice. In the study hall they create enactments or decrees according to what is really proper, but the people out in the fields can’t hold up, they’re not at that level, it doesn’t suit them, so there’s no choice, we have to take them into account. The Torah was not given to ministering angels. Sometimes it’s only a matter of tone, but the tone here makes all the difference. I think it’s exactly the opposite. I think that if it doesn’t work for the majority of the public, that is an indication that the law is not correct—it’s not a compromise. Even someone who can hold up under it should not observe it. Because if the majority of the public cannot do it and does not do it, that means it’s feedback to the study hall: friends, here you were disconnected. Torah is not meant to remain in the study hall; Torah is meant to go out into the street, into life. And Torah that leaves the study hall and is not absorbed into life—life has given it feedback and said to it: something is crooked there. The intellect of the study hall is a crooked intellect. It is crooked because it is theoretical. But it’s not that the theory is perfect and life, unfortunately, forces us to compromise with it. The theory is not good. Life gives feedback and corrects the theory so that it will be a good theory. In the end, the correct theory is the combination of theory and practice. And therefore a law that was not accepted by the majority of the public is void. It’s not a compromise—quite the opposite. It only means that the laws that were accepted in the study hall were disconnected; it is not right to behave that way. The Torah was not given to ministering angels—with an exclamation mark, not some apologetic sigh at the end, but: the Torah was not given to ministering angels. And I told him that this is one of the reasons for the inflation of stringencies we see in the Haredi world. Because what happens in the Haredi world? This feedback does not exist. Why? Some new stringency comes out—I don’t know what—in phylacteries, some new requirement, I don’t know. A few years ago they told me about something new I heard of—an invention our ancestors never dreamed of. One piece, one piece. Phylacteries made of one piece. Okay? A new invention, doesn’t matter, something someone in Bnei Brak came up with. Or all sorts of inventions on Passover and various other things. And somehow they get absorbed, and the God-fearing are careful and meticulous to do them, and so it keeps increasing and increasing and increasing. And where is this principle that if it is not accepted by the whole public then it is void? That principle doesn’t exist in Bnei Brak, almost doesn’t exist. And why? Because if someone says this thing is wrong—well, obviously, he’s not one of us. He’s someone for whom fear of Heaven doesn’t matter. And if fear of Heaven doesn’t matter to him, obviously we don’t take his opinion into account. What, should we take the opinion of secular people into account when they give us feedback on enactments and decrees? So they don’t. Basically, as they quote in the name of the Hazon Ish, we take into account the opinion of the oylem, not the opinion of the world. “The oylem” means those in the study hall. It’s an entire world that is all study hall. Even those outside are educated to think like the study hall and to repress the street within which they actually live. Because basically the real world is the study hall. And then what happens is that there is no feedback at all to stop the inflation of stringencies. Because every such feedback that tries to stop them is simply not counted, because whoever does not accept it isn’t from the oylem, he’s from the world, so it doesn’t count—he’s from outside. And then what happens is that nothing stops the process. Those who know engineering know what’s called positive feedback. Positive feedback means that in the end the whole thing blows up. And that’s what happens. And the law that says that a law not accepted by the majority of the public is void—that is precisely the negative feedback that Jewish law sets up, yes, a sort of control loop, in order to stabilize the system and keep it in the right direction and not bring it to explosion. And in that sense I return to changes in values and changes in reality. The changes that happen in the street, which then reflect back and project themselves onto the study hall—these are not only changes in reality. It’s a mistake to think so. They are also changes in values. Someone who behaves in a way that is clearly regarded today in the world as not fitting on the moral level also has a problem in his religious world, usually, at least in ordinary situations. That too is a rule, and with rules one must be careful, with sweeping rules. But usually that is the situation. Because if it’s clear that this is not how one behaves, then one does not behave that way. And now we have to see: okay, what do we do with the sources, and how do we reconcile them, and how do we apply them, and what happens this way or that way. And that brings me back to what we ended with in the previous class—the change in reality and the change in values—and the fact that a value change that occurs in the street definitely has implications for Jewish law. And not as a constraint that needs to be taken into account, but as feedback telling me: you are behaving incorrectly. The street tells you: you are behaving incorrectly, you are disconnected, you’re in the study hall. Okay, enough current events for now—with a connection to us too, two for the price of one. Now I want to move to a discussion of the connection between values and facts, and last time, at the end of the previous class, I began with the presumption that a person does not repay before the due date. In brief, what I am basically arguing is this: when the Talmud in tractate Bava Batra says that there is a presumption that a person does not repay before the due date, what is it really saying? It is really saying that if, say, I sue someone over a debt he owes me and he says within the term—say it was a thirty-day loan and I sue him after two weeks—he says: I already paid you. So he says he repaid before the due date. But there is a presumption that a person doesn’t do that. So his legal standing is weaker, and he has to pay, even though the burden of proof is on the claimant. I’m coming to extract money from him and I have brought no proof. But his claim is an unreasonable claim. And therefore he has to pay: there is a presumption that a person does not repay before the due date. Now I asked: what happens in a situation where reality changes? A person does repay before the due date. Let’s say another culture, in which people do repay before the due date. Some kind of “yekkes” who like to settle their debts early whenever they can. Or, you know, like a mortgage at the bank—today there’s interest. They don’t call it interest, they call it a sale permit contract, doesn’t matter, but it’s interest. So because there is interest, obviously if some money falls into your hands, there will be many people who say: okay, let’s settle the debt early so as not to accumulate more interest. So there you have it: a person repays before the due date—he’ll settle the mortgage before the repayment date arrives. Now such a person comes to a religious court, and the bank sues him—return me the debt—and he says: I paid, I got an inheritance and I paid. So what do we say to him? It says in the Talmud there is a presumption that a person does not repay before the due date; you have to return the money to the bank, we don’t believe that you paid, because it’s before the due date. Is that what we’ll say to him? Obviously not. Why? Because if in reality the situation is that people in such cases do repay before the due date, then with all due respect to the presumption written in the Talmud, that presumption is not correct for our reality. And in our reality we have to rule according to the presumptions relevant to us, not according to the presumptions written in the Talmud. And then I asked: if so, can we tear out page 5 of tractate Bava Batra and throw it into recycling? Is that sugya no longer relevant? The presumption that a person does not repay before the due date has ceased to be relevant, so it’s basically a dead letter, it’s no longer Torah, it has ceased to be relevant—can we throw it in the trash? And I argued no. I still managed to say all this. I argued no. Why not? Because the Talmud there is not at all coming to teach me the law that there is a presumption that a person does not repay before the due date. That is not its goal at all, that is not the conclusion I’m supposed to learn from the Talmud. That I can learn from psychologists or sociologists or by checking around me how people behave and seeing whether a person repays before the due date or not. I know how to do that no less well than the sages. I don’t need psychology lessons from the sages, and they didn’t intend to give me such lessons. The Talmud’s novelty there is that presumptions can reverse the procedural order, can place the burden of proof on the defendant, on the possessor, instead of on the claimant. That is the Talmud’s novelty. The Talmud tells me: when I sue you saying you owe me money, then fundamentally the burden of proof is on the claimant, so I need to bring proof. The Talmud says: no. If he says “I paid” and that claim is unreasonable because there is a presumption against him that a person does not repay before the due date—a presumption—even though money is extracted only on the basis of two witnesses and he is the current possessor, no: a presumption can reverse possession. Now I become the possessor. There is a presumption that you did not pay. If you claim that you nevertheless paid, bring proof. The burden of proof shifts to you. So the novelty is not the presumption that a person does not repay before the due date—it could be any other presumption, that’s not the point. The novelty is that if there is a presumption, it can reverse the procedural order; it can place the burden of proof on the possessor instead of on the claimant. That is the Talmud’s novelty. And that novelty remains correct today as well. Therefore it is not right to throw out page 5 of tractate Bava Batra. True, the presumption that a person does not repay before the due date is void—let’s say hypothetically, let’s say it’s void, today everyone repays before the due date. Okay, so what? The Talmud wasn’t talking about that presumption. That presumption is just an incidental case. Whether to apply that presumption or not depends on checking the reality—the reality in which I operate. What the Talmud said, and what remains permanently binding, regardless of reality, is that the rule that the burden of proof is on the claimant can change if there is a presumption against him. That is what changed. And if the presumption is that a person does repay before the due date, then now—even though that presumption is the opposite of the Talmud’s presumption—the true application of the Talmud is to take that new presumption and apply to it the principle that presumptions can reverse the burden of proof. And that will be the true application of the Talmud to the reality of today. That is not a change in Jewish law, exactly as we saw. It is not a change in Jewish law; it is the correct application of Jewish law to the reality of our time. But now I—this is what I already said in the previous sessions about change—and now I want to draw your attention to what that means. When I look at the sugya in Bava Batra on page 5, and I ask myself what the Torah element is there, what exactly is the Torah component I learned—“there is a presumption that a person does not repay before the due date” is a factual determination. A factual determination is not Torah. It is a fact. A fact has to be checked. Observe and check. Ask experts, I don’t know, whatever you do. Check the facts, the way people check facts. That is not Torah. Not only is it not Torah, it can of course vary from place to place and from time to time; every place and time has to check the facts relevant to it, in its own place, in its own time. The Torah there is the rule that says that when there is a presumption, one may activate it against the procedural rules of burden of proof. That is a rule not connected to facts at all. Right? It is not connected to facts; it is a normative rule. And Jewish law basically deals with norms, not facts. Jewish law deals with norms. Therefore in every sugya, when you are learning the facts, know that if you understood that the facts are what the sugya came to teach, you were mistaken. You did not understand the sugya. The facts are only the medium through which the Talmud conveys to us the normative instructions, which are what is called Torah. And in fact all of Jewish law, if you look at it this way—notice—what is Jewish law? Jewish law means looking at a given reality, a given factual situation, and determining what halakhic norms are binding in that situation. Right? That is what it means to issue a halakhic ruling. What is the law if someone brought a chicken in such-and-such a condition, and I have to determine whether it is non-kosher or not. What is the law if someone brought such-and-such a mixture, and I have to determine whether it is permitted to eat or forbidden to eat. People always come before me with facts, and I as a halakhic decisor or judge am supposed to say what halakhic norms apply to those facts. Like a judge in court, the same thing. True, in the course of the halakhic inquiry I also have to investigate the facts, of course. But I do that only as a basis. The halakhic work that I do is what I begin to do after I have finished examining the facts. After I have finished examining the facts, now I have to discuss what Jewish law says about this factual situation. And that, and only that, is Jewish law. Jewish law is not the facts. Jewish law is only the clarification, the attaching of the norm to the fact. Therefore, when I now return to the Talmud in Bava Batra, the determination of whether there is a presumption that a person repays before the due date or not is not Torah at all. It is not entrusted to Torah scholars at all. It is entrusted to each of us and to experts who will check, conduct surveys, and see whether people repay before the due date or not. It can certainly vary from place to place and from time to time. It has nothing to do with that. The rule that tractate Bava Batra page 5 teaches us uses that presumption in order to teach me a normative rule. The normative rule says: if the facts are such-and-such, then the law is such-and-such. What are the facts? Check and see. Jewish law deals only with the if-then. Jewish law does not deal with the facts themselves, but only with: if the facts are such-and-such, then the norm is such-and-such. By the way, Jewish law also does not deal with what the norms are. Jewish law does not deal, for example, with the question of whether a person repays before the due date or not, and it also does not deal with the question of who bears the burden of proof. Because the question of who bears the burden of proof depends on the question of whether there is or is not a presumption that a person repays before the due date. Jewish law determines only the if-then. If the presumption is such-and-such, then the burden of proof is such-and-such. If the presumption is otherwise, then the burden of proof is otherwise. Jewish law is only the if-then. It is not the if and not the then—it is the hyphen between them, the arrow between them. It is not the rule that there is a presumption that a person repays before the due date, and it is not the rule that says that the burden of proof is on the claimant, or on the defendant in this case. Neither that nor that is Jewish law. Jewish law is only the connection between them. Because if reality is the opposite, then the burden of proof will be the opposite. If reality is such-and-such, then the burden of proof will be such-and-such. So neither the reality nor the burden of proof ultimately has to match what is written in the Talmud. What does have to remain exactly in line with what is written in the Talmud? The if-then. The rule that says: if reality is such-and-such, then the burden of proof is such-and-such. If reality is such-and-such, then the burden of proof is such-and-such. Do you understand what I’m saying? All right? Are you with me? I’d like to get some feedback so I can see that you’re with me. If not, then say so. If you disagree, if you don’t understand, whatever. Silence is praise to You. What’s going on?

[Speaker B] It’s okay, everything’s okay, it’s understandable.

[Rabbi Michael Abraham] Yes, all right, clear? Okay, I hope it’s okay. The claim basically—I’ll maybe bring a few illustrations to sharpen this point. Let’s look for a moment at logic. Okay? A logical argument. A logical argument basically says, for example: all tables have four legs, the object before me is a table, therefore the object before me has four legs. That’s a logical argument. Now I ask: a logician comes and teaches me this argument—what is the logical component in this argument? The premise that all tables have four legs? No, that has nothing to do with logic, right? That’s a fact; you need to check whether it’s true or not.

[Speaker B] The if-then, basically.

[Rabbi Michael Abraham] Is the conclusion that this table has four legs also unrelated to logic. Either it’s true or it’s not, that has to be checked. So what is logic in this whole story?

[Speaker B] The if-then?

[Rabbi Michael Abraham] Only the if-then. If all tables have four legs and this is a table, then this object has four legs. Only the if-then is logic. Or if we move to geometry. If I ask a mathematician what the sum of the angles in a triangle is, he’s supposed to answer me: I have no idea. It depends on your assumptions, on what geometry you’re working with. If your assumptions are Euclidean, the sum of the angles is one hundred eighty degrees. If your assumptions are different, the sum of the angles is complex or negative or whatever you like. It depends on your geometry. Fine, so who determines what the correct geometry is? A physicist. A physicist has to examine what geometry is relevant to the factual world. That’s observation, and he checks. The mathematician cannot say anything about that—it’s not in his jurisdiction. That is not mathematics. Mathematics is not the determination that the sum of the angles in a triangle is one hundred eighty degrees—that is not a mathematical determination. The mathematical determination is that if Euclid’s axioms are correct, then the sum of the angles in a triangle is one hundred eighty degrees. That is mathematics and only that. You see the similar structure? It’s basically the same structure I described regarding Jewish law. Jewish law in this sense plays the same role that logic plays. There is a premise and there is a conclusion. Neither the premise nor the conclusion is connected to Jewish law or to logic—yes, in both the analogy and what it illustrates. Jewish law on the one hand or logic on the other is only the movement from the premises to the conclusion. Only the if-then is Jewish law and logic. Not the premises and not the conclusion. You understand that this is basically the meaning of what I talked about in previous sessions about changes in Jewish law? Because what I argued is that you can change the bottom line and it still won’t count as a change in Jewish law. Why not? Because I’m operating by the same if-then rule. And since the if is different, the then is also different, because the if-then is the same. If someone tells me: look, even though nowadays people do repay within the term—remember the swimsuits? I cling to the Talmud, remember the swimsuits? I cling to the Talmud and I rule that nevertheless a person does not repay before the due date, and the burden of proof is on the defendant. So he is faithful to Jewish law, yes, he is Orthodox, conservative Orthodox, he does not move a hairsbreadth from the words of the Talmud. Then he’s an idiot, not Orthodox. Why? Because he has completely departed from the words of the Talmud. He has not departed from the Talmud’s bottom-line conclusion. The conclusion is that the burden of proof is on the defendant. But that’s not what the Talmud says. What the Talmud says is only the if-then. And his if-then is the opposite of what is written in the Talmud. Because in his world the presumption is that a person does repay before the due date, and according to the Talmud’s if-then it should come out that the burden of proof is on the claimant. And he decides that the burden of proof is on the defendant. Where is the Talmud’s if-then? You have deviated from the Talmud. You are Reform. Clinging to the bottom line is Reform. It is Reform because it is basically a deviation from the if-then rule. You understand that when there are two different ifs and the thens are the same, that means the rule from the if to the then is different, right? When you preserve the bottom line, you necessarily change the transition rule. And Torah is a collection only of transition rules. It is not ifs and not thens. Torah is a collection of arguments, not propositions, in the language of logic. In logic too, both the premises and the conclusion are propositions. Propositions are measured in terms of true or false. An argument is the transition or inference from the premises to the conclusion. And an argument is not something true or false; an argument can be valid or invalid. Does the conclusion necessarily follow from the premises, or not? That’s how arguments are measured, not by whether they’re true or not. True or not is a measure of propositions. And therefore I say that the same is true here: adhering to Jewish law means adhering to the halakhic arguments, not the halakhic propositions. Not to the premise that there is a presumption that a person does not repay before the due date, and not to the conclusion that the burden of proof is on the defendant. It is a mistake to cling to the premise, and a mistake to cling to the conclusion. What one needs is to cling to the transition rule. And now check the premise in your circumstances, use the Talmud’s transition rule, and arrive at the conclusion that fits your circumstances—which of course will be different from the conclusion in the Talmud. I have simply described in a different way what I said in the sessions about changes in Jewish law. It is the same thing. Only what I’ve now sharpened more, which I didn’t talk about there, is: what is Torah? Torah is a collection of transition rules. Torah is not bottom lines. And that is a point people do not understand. Therefore whenever someone changes a bottom line, he’s called Reform. The one who changes a transition rule is Reform, not the one who changes a bottom line. The one who changes a bottom line is ultra-Orthodox, if the circumstances are different, because you have to change the bottom line in order to preserve the transition rule. All right, let’s take a few minutes’ break, refresh yourselves a little, and in the next part we’ll also try to get a few reactions out of you. Okay, let’s continue. Is everyone with us? Okay. Cameras—I ask you please, turn on your cameras. Okay. I’d like maybe to illustrate this point through another aspect, and then I’ll continue.

[Speaker B] Wait, I’d like to understand something, if possible.

[Rabbi Michael Abraham] That’s always a positive trend.

[Speaker B] I wanted to make sure I understood you correctly. Regarding this issue, if the rule is that if you want to extract something from another person, you have to bring proof—that’s the basic rule. That’s the default. The burden of proof is on the claimant. There are various exceptions to this. One exception is that if you have a certain presumption, then that rule—the burden of proof will shift to the other side. Right? Now, if this rule, that a person repays before the due date, has been nullified, then you simply go back to the basic rule, to the original if-then. Right. That’s basically the argument. Obviously. Okay.

[Rabbi Michael Abraham] Is the rule that the burden of proof is on the claimant also an if-then rule? Obviously. If there is a possessor and a claimant and there are no presumptions for either side, the claimant…

[Speaker B] …bears the burden of proof. Yes. And therefore here, once that premise falls away, then…

[Rabbi Michael Abraham] …you go back to the foundational rule, to the default. That’s it.

[Speaker B] Therefore—

[Rabbi Michael Abraham] The Talmud itself too, when it determined that there is a presumption that a person does not repay before the due date, seemingly changed the law, because after all the law is that the burden of proof is on the claimant. But no—it preserved the if-then rule under the new circumstances.

[Speaker B] That’s all. Nice. And once that—right, according to the words of the Maharadal.