Migo and Legal Reasoning – Lesson 2
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
🔗 Link to the original lecture
🔗 Link to the transcript on Sofer.AI
Table of Contents
- [0:00] Presenting the two aspects of migo
- [3:10] The simple conception of the power of a claim
- [4:36] First difficulty – the Illui of Meitshet
- [6:42] Second difficulty – the loop and the identity of migo
- [8:10] Second note – migo as evidence about the person himself
- [12:21] The roles of the litigants in religious court
- [13:56] The roles of the judges and the final decision
- [19:14] Separation of roles – witnesses, litigants, judges
- [21:37] Migo as evidence about the person himself and not about the matter
- [24:44] How witnesses are chosen without evidentiary weight
- [26:30] Maimonides’ instructions to one detailing claims
- [31:38] The story of Rabbi Eliezer and the Oven of Akhnai
- [36:47] The lesson: “It is not in heaven” everywhere
- [38:19] Rabban Gamliel versus Rabbi Eliezer – excommunication in Lod
- [39:35] The synthesis of theses: Akiva, Yehoshua, and Eliezer
- [45:34] The story of Yosi ben Durmaski and Rabbi Eliezer
Summary
General Overview
The text presents two aspects of the concept of migo and challenges the view of it as simple evidence of “why should I lie”, emphasizing the possibility that migo operates as the power of a claim and not merely as proof of credibility. It brings examples in which migo collapses even though the consideration of “why should I lie” seemingly still exists, and suggests that this is understandable if migo depends on the practical ability to win with the alternative claim. It goes on to argue that migo is evidence about the person himself and not about the matter itself, and therefore it is hard to reconcile with the disqualification of a litigant from testimony and with the principle of separation of roles in religious court. These ideas are woven together with a conceptual reading of passages such as the Oven of Akhnai, in the clash between a conception of Torah as a tradition passed through a channel of moral reliability and a conception of deciding on the basis of arguments about the matter itself and the multiplicity of views in the study hall.
Migo of “Why should I lie” and migo as the power of a claim
The text defines “why should I lie” as a logical consideration according to which, if a person wanted to lie, he would have made a better claim, and therefore we believe his weaker claim. It points to cases in the Talmud in which there are additional components in migo, such as a migo involving brazenness, and gives the example of a claim of “paid” against a document together with a migo that he could have claimed “forged” before the rabbinic enactment requiring validation of documents. It states that when witnesses later come and validate the document, the migo falls away even though the defendant also admits that the document is valid, and explains that this makes sense if migo is the power of a claim: only when there is an actual possibility of winning with the claim of forgery is one granted the ability to win with the claim of payment. It adds that already among the medieval authorities (Rishonim) there appears the possibility that when witnesses come, there is concern that the defendant knew about them and therefore did not claim forgery, and in that way even the “why should I lie” falls away; but this is used mainly to highlight the meaning of the power of a claim.
Logical difficulties in migo according to the Illui of Meitshet and the division of types of migo
The text cites in the name of the Illui of Meitshet a difficulty of a logical loop: when a person knows that migo will give the weaker claim the same force as the stronger one, he may choose the weaker claim precisely in order to benefit from the migo, and so the proof that “if he were lying he would have made a better claim” disappears. It emphasizes that the question applies mainly to migos in which both claims lead to the same result and only the quality of the claim changes, like “paid” with a migo of “forged.” It distinguishes this from a migo in which the alternative claim achieves a better result, such as “half of it is mine” with a migo that I could have said “all of it is mine” regarding a cloak, where even after applying the migo it is still preferable to say “all of it is mine,” because the outcome changes. It adds that some later authorities (Acharonim) see such a migo as stronger, and even as useful for exempting from an oath according to views that do not ordinarily say migo can exempt from an oath in a regular migo. It concludes that the paradox of the Illui of Meitshet undermines “why should I lie” but does not undermine the conception of migo as the power of a claim, and therefore sharpens the point that the power of a claim remains even where “why should I lie” is shaken.
Migo as evidence about the person himself and the disqualification of accepting testimony from a litigant or relatives
The text states that migo proves that the person is not lying and does not prove the facts of the case, and therefore it is evidence about the person himself and not about the matter itself. It argues that such evidence is not useful where in any case testimony from that person is not accepted, such as relatives, and gives the example of Moses and Aaron being disqualified from testimony as relatives even if it is clear that they are not lying. It adds that migo also will not help where there is no suspicion of lying but rather concern about a mistake regarding reality, as in badadmei in testimony about a husband’s death for an agunah, because the problem is the inability to determine reality and not the speaker’s reliability. It applies this also to a litigant who is disqualified from testifying about himself because “a person is his own relative,” and argues that if his disqualification is not because of lying but because testimony from an interested party is inadmissible, then a migo that proves credibility should not solve the problem.
Three functions in religious court and separation of powers according to the Ritva and Tosafot
The text describes three functions in religious court: judges who decide, witnesses and evidence that clarify the truth, and litigants who present requests and initiate the discussion. It argues that in Jewish law a litigant has no evidentiary weight, unlike the ordinary legal system in which a judge may form an impression of the litigants and give their words weight. It cites the rules that a litigant cannot be a witness, a litigant cannot be a judge, and a witness does not become a judge, and presents two approaches in Tosafot regarding “a witness does not become a judge”: one view ties it to the fact that the witness will not accept being refuted as a conspiring witness against himself, and another learns it from the verse, “And the two men who have the dispute shall stand before the Lord.” It quotes from the Ritva’s responsum, section 52, that when a litigant testifies for himself, his words do not receive the status of testimony but remain those of a litigant, and stresses that “witnesses are distinct in themselves apart from the litigants” by virtue of that same exposition of “the two men” as the witnesses and “who have the dispute” as the litigants. It concludes that the Torah does not want a mixing of functions, and therefore even if migo proves that the litigant is speaking truthfully, that does not turn his words into admissible evidence, just as reliable indications do not validate testimony of relatives.
Detailing claims according to Maimonides and defining the role of the litigant as a request and not testimony
The text quotes Maimonides in the Laws of Plaintiff and Defendant, chapter 6, that the religious court does not accept a defendant’s general response such as “I owe you nothing,” but requires him to specify whether he borrowed or did not borrow, deposited or did not deposit, paid or did not pay, stole or did not steal. It brings Maimonides’ reason that the concern is error that may lead to a false oath, such as where he returned it to the plaintiff’s son or wife, or gave a gift corresponding to the debt and imagines that he is exempt. It interprets the requirement of detail not as due to evidentiary weight given to the litigant’s words, but in order to provide a framework for the discussion and clarify to the court exactly what is being requested and what needs to be clarified. It presents a conception according to which the litigant does not “assist” in clarifying the facts but rather defines his request, and therefore even when witnesses would undermine his claim, the request is rejected and his “testimony” is not what has been refuted.
Evidence about the matter itself versus evidence about the person himself, and examples from “the slain man walked in on his own feet” and character witnesses
The text distinguishes between a case in which evidence is produced through the litigant but is about the matter itself, and migo, which is evidence about the person himself. It gives the example of a defendant who claims that he is mute against witnesses who testify that he blasphemed, where the very existence of muteness is evidence about the matter itself even though it “comes from him.” It brings the example of “the slain man walked in on his own feet,” where Shimon’s appearance in court refutes testimony of murder because it is direct evidence about reality and not testimony of a litigant. It argues that migo is not similar to that, because it only removes suspicion that the speaker is lying, and therefore even “character witnesses” who testify that he never lies should not, in Jewish law, be effective as decisive evidence, because a litigant’s speech has no evidentiary weight.
The Oven of Akhnai, “It is not in heaven,” and the struggle between moral reliability and argument about the matter itself
The text interprets the Oven of Akhnai as a struggle in which Rabbi Eliezer presents signs, wonders, and indications identified as evidence about the person himself, and the Sages do not accept them because Jewish law is decided in discussion and argument in the study hall and not on the basis of symbols of authority or testimony about personality. It connects this to the position of Rabban Gamliel, who admitted to the study hall only one whose inside matched his outside, and presents that as a conception according to which Torah is transmitted as a tradition through a “hollow channel” in which personal reliability is the key point. In contrast it presents a conception according to which there is no filtering based on character, but rather arguments are examined, and decision emerges from engagement with the matter itself and from a multiplicity of views. It adds that even if “It is not in heaven” is usually understood as rejecting heavenly ruling even about the matter itself, he argues that there too there is also an element of rejecting evidence about the person himself, such as “the law follows him everywhere.”
Yavneh, the removal of Rabban Gamliel, the excommunication of Rabbi Eliezer, and Tractate Chagigah 3a
The text presents the excommunication of Rabbi Eliezer and the removal of Rabban Gamliel as part of a revolution surrounding the rules of the game of halakhic ruling, and argues that Rabbi Eliezer was excommunicated because he did not accept discussion about the matter itself but entrenched himself in personal authority. It describes that in Chagigah 3a it is told that Rabbi Yohanan ben Beroka and Rabbi Elazar ben Chisma go to greet Rabbi Yehoshua in Peki’in, and he says, “Even so, a study hall cannot be without something new,” and they tell him that it had been the Sabbath of Rabbi Elazar ben Azaryah, who expounded “in order to give reward to those who bring them” regarding the children in the section of Hakhel. It brings the continuation of Rabbi Yehoshua’s exposition on “The words of the wise are like goads and like well-planted nails” and on “masters of assemblies,” in which these declare impure and those declare pure, and concludes that one must hear the words of all of them because “all were given by one shepherd.” It presents Rabbi Yehoshua’s closing remark, “A generation is not orphaned when Rabbi Elazar ben Azaryah dwells within it,” as admiration for a style that allows for a multiplicity of views in the study hall.
Rabbi Yosi ben Durmaski with Rabbi Eliezer and the hollow channel of a law to Moses from Sinai
The text brings the story in which Rabbi Yosi ben Durmaski goes to greet Rabbi Eliezer and reports, “They counted and concluded that Ammon and Moab tithe the poor man’s tithe in the Sabbatical year,” and Rabbi Eliezer says to him, “Yosi, stretch out your hands and receive your eyes,” and he stretched out his hands and received his eyes. It describes Rabbi Eliezer’s weeping and his statement, “The secret of the Lord is with those who fear Him, and His covenant to make it known to them,” and his sending him to tell the Sages, “Do not be concerned about your count,” for so it is accepted in tradition all the way back to “a law to Moses from Sinai.” It presents this as criticism of pilpul and argumentation as opposed to direct traditional authority, and then brings that “after his mind was settled” he said, “May it be His will that Yosi’s eyes return to their place,” and they returned. It ends by stopping at this point in the lecture: “Okay, so we’ll stop here.”
Full Transcript
[Rabbi Michael Abraham] I gave, um, on the two, the two aspects of migo. I started with the migo of, um, basically I mainly spoke about the first one, the migo of “why should I lie.” That’s the initial conception, what’s written in the Talmud. “Why should I lie” means that if I wanted to lie, I would have made a better claim, therefore believe me that I’m not lying. A logical consideration that you can understand. About that consideration I said that two questions come up. One question, meaning, beyond the fact that there are examples in the Talmud where it doesn’t seem that this is the only element in migo, like a migo involving brazenness, and maybe I’ll bring another example that I didn’t mention. Suppose I say: someone presents a document against me and says to me, “I lent you money,” and I say to him, “It was paid. This document was paid.” I’m not believed when I claim “paid” against a document, but I have a migo because I could have said “forged.” Because before the rabbinic enactment that a document has to be validated, an unvalidated document wasn’t valid, it wasn’t effective without validation. After that rabbinic enactment, basically if I had claimed “forged,” I would have won. Now that I claim “paid,” I’m believed through a migo of “forged.” Then witnesses come afterward and say that the document is valid, not forged. So what then, is that okay? When I say “paid,” what am I really saying? I’m saying the document is not forged. I have a migo because I could have said it was forged, and that migo helps me make a claim against a valid document, because after all I admitted that it’s valid, and the migo is apparently a principle sufficient to win against a document, because in the end I agree that the document is valid. But let’s see now what happens when witnesses come afterward and say that the document is valid. Again, the document is valid, but that’s not a problem; I also agree it’s valid, right? I just have a migo, so I should still win. No. If witnesses come afterward saying the document is valid, I don’t win; the migo has fallen away. Why has the migo fallen away? Because I couldn’t claim that the document was forged; there are witnesses that the document is valid.
[Speaker B] Okay, but when I said “paid” and I could have—
[Rabbi Michael Abraham] made the claim through a migo of “forged”—
[Speaker B] there still weren’t any witnesses; the witnesses came later.
[Rabbi Michael Abraham] Does he in effect admit that there are witnesses in the world? No, he simply doesn’t admit it. Does “paid” mean there are witnesses on the document that this document is valid? No, he didn’t say there are witnesses, he just said the document is valid; he didn’t say there are witnesses. A valid document—no, the witnesses can die. The validating witnesses are not necessarily the signing witnesses. The signing witnesses may have died. Meaning, I don’t think there’s necessarily an admission here that there are witnesses. There were witnesses, that’s it. But right now before the religious court, that doesn’t mean anything. So the witnesses came; at this moment I don’t have—
[Speaker D] a migo because I couldn’t—
[Rabbi Michael Abraham] say “forged”; the witnesses say the document is valid. But I definitely did have the “why should I lie,” because at the time I said “paid” I definitely had the option of claiming “forged”; I still didn’t know that witnesses would come. Maybe you did know? Wait a second. In principle I didn’t know. If they came later—I’ll get to that in a moment. So I have the migo, and on the other hand witnesses come and say the document is valid, but the witnesses are unnecessary; I also say it’s valid. What’s the problem? So once again the question remains whether my migo helps against a document established as valid. Apparently we saw before that it does, in “paid” with a migo of “forged” without witnesses, so my migo helps against a valid document. So why not here? What’s the difference? The simple conception—and that’s what some later authorities say—is that migo works not only by the rule of “why should I lie.” The “why should I lie” really does exist even when witnesses come later, because in the end I still have the claim: believe me that I wasn’t lying when I said “paid,” because if I wanted to lie I would have chosen instead to claim “forged” rather than “paid.” I still have the “why should I lie” even if witnesses came. Rather, migo is the power of a claim. You have the power to win with the claim of “forged,” so we give you the power to win with the claim of “paid.” Once the witnesses came, I no longer have the power to win with the claim of “forged,” because there are witnesses that it’s valid, and since I don’t have the power to win with the claim of “forged,” I don’t have the power to win with the claim of “paid.” That’s another proof that migo is not only “why should I lie”; it also has to involve the power of a claim. True, already among the medieval authorities (Rishonim), not only among the later authorities, your point was raised: once witnesses come, there is some concern that in fact he knew there were witnesses, and the reason he didn’t claim “forged” wasn’t because he is such a great truth-teller, but because he was afraid witnesses would come, because he knew there had been witnesses, and then that really does knock out the “why should I lie” too. It depends; there are later authorities who learn it this way and others who learn it that way. But I’m only bringing this as an example to show the meaning of the power of a claim. There are other examples of this too. The second point—so both difficulties were raised regarding migo as “why should I lie.” Beyond the cases where it seems in the Talmud that it isn’t only that, there are also two intrinsic difficulties. There is a difficulty in understanding migo as a consideration of “why should I lie.” The first difficulty is what I brought in the name of the Illui of Meitshet, who says that once I know they will believe me because of migo, then I make the weaker claim so they’ll believe me through migo, because the weaker claim is no longer weak; it receives power like the stronger claim. So once again the migo falls away, because the whole migo is built on—
[Speaker C] the fact that the alternative claim—
[Rabbi Michael Abraham] is stronger than this claim, and after we apply migo, this claim receives the same power as the alternative one. So then there is no longer any migo. Because in practice there’s no reason to lie? What? In practice there’s no reason to lie. Meaning, it’s this kind of logical loop. You have no reason to lie and no reason not to lie, fine. So then there’s no evidence against you? No, but there is no evidence in your favor. Evidence in your favor from the fact that if you wanted to lie you would have made that claim—that’s not true. You made this claim because you knew we’d believe you by virtue of migo. More than that, I said that if you had made that other claim you would have been acquitted because of doubt. When you make this claim, you’re acquitted and there is even evidence in your favor; they rule because they know you’re right. It’s not just that there’s no evidence against you; there is a migo in your favor, I even come out righteous, not just simply winning the case. That’s the question of the Illui of Meitshet. I said that this question exists in migos built on the superiority of claims relative to the same result, like “paid” with a migo of “not forged.” In both cases I could avoid paying the debt; it’s just that “forged” is a stronger claim than the claim of “paid”—sorry, “forged” is stronger than “paid.” But if I say “half of it is mine” with a migo that I could have said “all of it is mine,” as in the case of a cloak, there the migo doesn’t face the question of the Illui of Meitshet, right? Because even after there is a migo, it’s still obviously preferable to claim “all of it is mine.” Because if I claim “all of it is mine” I get the whole cloak, and if I claim “half of it is mine” I get only half. So the result isn’t the same.
[Speaker E] Because the result is not—
[Rabbi Michael Abraham] the same, not just that it’s a better claim leading to the same result. Because when it’s a better claim leading to the same result, then you can ask the question of the Illui of Meitshet. But if the result is better, there really are later authorities who claim that this is a stronger migo. It succeeds in exempting from an oath, even according to the views of the medieval authorities who say that we do not apply migo to exempt from an oath. So there are later authorities who want to argue that a migo of this type is stronger than an ordinary migo. So that’s one more difficulty; that’s one question.
[Speaker F] And the second question: regarding the loop, why does it matter which migo it is? After all, in the end you have the maximal power of claim that can be generated from one of them. So now it doesn’t matter, claim whatever you want, A or B, it makes no difference. In the end the result, the maximal power, is a given.
[Rabbi Michael Abraham] What power of claim is there here, I’m saying? There is “why should I lie” here.
[Speaker F] I’m saying this paradox has no meaning whatsoever. I mean, this migo business—what difference does it make which migo? In the end, if one of them can make it so they believe you, then they’ll believe you. Doesn’t matter which one; choose whichever one now.
[Rabbi Michael Abraham] But why? I’m not making the one that gives me credibility. I’m claiming “paid,” not “forged.” I’m claiming “paid.” “Paid” on its own is not believed. So what do they say to me? “If you wanted to lie”—I say, if you wanted to lie, you would claim “forged.” They say, what are you talking about? You’re claiming “paid” because you know we’ll believe you through migo; otherwise you really would have claimed “forged.” You’re lying.
[Speaker F] No, the point is that once you have the power of a claim—meaning, if there is some claim that establishes for you some maximal ceiling at which we will believe you, then now that’s the ceiling. Now you could say, okay, you’re claiming because of this—but it doesn’t matter; I mean, there is some sort of—no—
[Rabbi Michael Abraham] But I’m saying that this knocks down the ceiling. Meaning, if you apply migo, then it really does give more force to the weaker claim. But after you’ve given more force to the weaker claim, that itself knocks out the force; it goes back to being weak.
[Speaker F] Why does it knock it out? Because you’re saying there is no “why should I lie” here? Yes. But if you understand it as the power of a claim, then it doesn’t knock it out.
[Rabbi Michael Abraham] Right. That’s why I’m saying: the power of a claim is here, “why should I lie” is not. That’s the first note. The second note—I started talking about it, I started explaining it; I’ll say it briefly and then expand on it a bit afterward. The second note is that migo is really evidence about the person himself and not about the matter itself. Migo basically proves that I’m not lying. Migo doesn’t prove that the document was paid, that the debt was paid. Migo proves that I’m not lying. But evidence about the person himself won’t work in a place where you can’t accept testimony from that person anyway. For example, if Moses and Aaron were to come and testify that—Moses and Aaron are disqualified as relatives, yes, and witnesses who are related to one another are also disqualified. If Moses and Aaron come and testify that Reuven owes money to Shimon, we don’t accept their testimony. Why not? Not because they’re lying; Moses and Aaron don’t lie. Rather, because the Torah said, “Fathers shall not be put to death because of sons,” meaning we do not accept testimony of relatives. Fine? Now, with Moses and Aaron it’s obvious they’re not lying. I have thousands of proofs of that, that they always speak the truth. Will that help? It won’t help. Why? Because my problem with them is not whether they are truth-tellers—they are truth-tellers—but I cannot accept testimony from relatives. Right? So it won’t help me to prove that they are truth-tellers. If Moses and Aaron had a migo—let’s say not Moses and Aaron, just ordinary relatives—if they had a migo, that migo would prove that they are truth-tellers. Very nice; I already thought they were truth-tellers before. I just can’t accept your testimony even if it’s true. So what good does migo do? Migo can solve a problem only if the reason I don’t accept something from you is because I suspect you’re lying. Then migo proves that you’re not lying. But if I can’t accept your testimony for some other reason, not because you’re lying, then migo won’t help you. One example I brought for this is badadmei, when a person—there is a concern, someone identifies a person, in the case of an agunah, and says her husband died. So I say, maybe he thought that— but in truth he didn’t die. He’s not a doctor; he can’t determine death, so that’s what he thought. Now if he brings a migo, according to this approach it won’t help. The migo proves that he’s not lying, and my suspicion of him isn’t that he’s lying but that he simply didn’t grasp reality correctly. So what will the migo help? Migo helps only where I don’t accept a claim or testimony because of concern that you’re lying; then migo says no, look, I’ll prove to you that I’m not lying. But if that’s not the point—now, a person who testifies, his disqualification from testifying about himself in a case, his disqualification from testifying about himself is because a person is his own relative, as the Talmud says. The disqualification is that of a relative, not because he’s lying. He’s not believed to testify about himself even to his own detriment, not only to his own benefit. The admission of a litigant I’ll talk about in a bit, but let’s say at least in criminal law. Okay? So he’s not believed to testify about himself even to his detriment. It’s not a problem that I think he’s lying; a person is his own relative. Meaning, a person cannot testify about himself. So what good would it do for him to have a migo? The migo proves he’s not lying; I didn’t think you were lying to begin with. My problem with you isn’t that you’re lying. My problem with you is that I can’t accept testimony from an interested party. An interested party is disqualified from testimony. A person testifying about himself—yes, as I mentioned earlier, I and myself are brothers; we have the same parents. Right? And therefore we’re brothers. Meaning, when the Talmud says a person is his own relative, it basically means that a person is, among other things, his own brother; he has the same parents as—so of course he is a relative, right? The disqualification of relatives is basically the disqualification of a person testifying about himself. But relatives are not helped by migo, so why should a person testifying about himself be helped by migo? That’s the second problem with “why should I lie.” “Why should I lie” comes to show that the person is not lying, but my problem with an interested party isn’t that he is lying. My problem with an interested party is that I’m not willing to accept the testimony of an interested party. And here I want to expand a little, because this will also connect with what comes next. Basically, when we come to look at the religious court, when we look at the laws of plaintiff and defendant, those laws are conducted in religious court. In religious court there are three functions. One function is the judges, a second function is the witnesses, and the third function is the litigants. Each one has its own role, and we don’t mix the roles. In Jewish law there are a number of indications that Jewish law is not willing to accept a mixing of roles. For all sorts of reasons—there aren’t always very logical explanations for it—but you see it fairly consistently. The litigants’ role is to say what they want. They initiate the discussion. Meaning, I say, he borrowed money from me and didn’t repay me, and I want him to pay me. I’m making a request of the religious court. I have no role in clarifying what the reality is. I take no part in clarifying what the truth is. All I do is file a petition with the religious court; I ask them to act for me. That’s what I’m asking. The other side presents before the religious court his request, not his position—his request. He asks the religious court, don’t take the money from me because I paid it, or whatever, he explains. But that’s not the important thing. When he says, “I paid,” it’s not that I believe him and therefore I don’t take the money. I don’t take the money because it has not been proven that he did not pay. Meaning, he is only telling the religious court what he wants from them, and I tell the religious court what I want from them. That is the role of the litigants. Once they finish with that, they should go home. This is unlike, by the way, the legal system—the ordinary legal system—ours in Israel is not like this. In our legal system, litigants also have evidentiary weight. Meaning, a judge can form an impression of the litigants and decide that one inspires more trust in me and therefore I think he’s right. Okay? Meaning, what the litigant says has evidentiary weight. With all the limitations, of course—you think maybe he’s not truthful because he’s interested, fine, you take that into account. But there is no categorical disqualification of evidentiary weight for things that come from the litigant. In Jewish law there is. The litigant has no evidentiary weight at all; he only has to say what he wants. The witnesses are supposed—or witnesses and evidence, all the laws of evidence—are supposed to clarify what the truth is in order to help the religious court decide whose request among the litigants should be granted. A completely different function. The third function is of course the judges; they have to make the decision. None of these three can play someone else’s game. Meaning, there is a rule that a litigant cannot be a witness. Disqualified. A litigant cannot be a judge. A witness cannot be a judge. A witness does not become a judge. Okay? Now, why can a witness not become a judge? There are two approaches in Tosafot. One approach says it’s because he would not accept refutation as a conspiring witness against himself. Yes, if I testify before myself, and now someone comes and refutes me as a conspiring witness, you understand that I’m not going to sentence myself to death. Meaning, therefore this is a biased judgment. He won’t accept refutation against himself, or this is basically testimony that cannot be subject to refutation; that’s actually even deeper than just a biased judgment. It doesn’t matter, but that’s one explanation. Another explanation appears in Tosafot in the name of the Rashbam or Rabbenu Tam. He says it’s written: “And the two men who have the dispute shall stand before the Lord.” Now, “the two men”—the Talmud in tractate Shevuot learns this about the witnesses, not about the litigants. The Talmud learns it about the witnesses. And therefore, men and not women—from there women are disqualified from testimony, because of course women can be litigants; they are disqualified from testimony. So for some reason the Talmud learns “the two men” as referring to the witnesses. And the Talmud says: the verse says, “And the two men who have the dispute shall stand before the Lord,” meaning the witnesses have to stand before the judges. They can’t now switch places and sit as judges. A witness cannot become a judge. They learn that from the verse. Fine. So this is explained, actually—I’ll read you something from the Ritva’s responsum, section 52. There he discusses the disqualification of a litigant from testimony. And he says like this: Since whatever a person testifies for himself, whether for benefit or for liability, has upon it no testimony at all—the status of testimony, that is—but rather he is like the litigant himself, who claims and thereby benefits or obligates himself. He is not a witness; he is a litigant. For witnesses are distinct in themselves, apart from the litigants. There is some idea of separating the roles: witnesses and litigants. One should not perform the role of the other. Not because of concern that you’re lying or anything like that; there is some kind of separation of powers in the religious court. As it is written, “And the two men who have the dispute shall stand,” and we say: “the two men”—these are the witnesses; “who have the dispute”—these are the litigants. And they have to stand before the judges. Basically the Ritva learns from this verse, from what Tosafot learns that witnesses cannot become judges, because “And the two men who have the dispute shall stand before the Lord”—the Ritva says: not only “the two men” but also “who have the dispute,” they too stand before the Lord, meaning the judges. Therefore he says that from that same verse from which Tosafot learns that a witness does not become a judge, the Ritva says that from here we also learn that a litigant does not become a judge. And this is not because of bias in judgment; the problem is not suspicion of lying, but rather some kind of separation of powers. The Torah does not want the authorities within the religious court to get mixed together—
[Speaker E] For all kinds of—
[Rabbi Michael Abraham] reasons that one can perhaps speculate about, but yes.
[Speaker E] There I just don’t understand what that means. There is the Tosafot—so the first explanation first. According to the first explanation, that a witness can’t refute himself, then he can’t be—the first explanation was because a witness can’t—
[Rabbi Michael Abraham] accept refutation against himself, accept refutation against himself.
[Speaker E] So then it can’t be that if a conspiring witness comes, he won’t already be the judge? So he won’t be the judge. Who replaces him? He is the judge.
[Rabbi Michael Abraham] There is no authority above him. In religious court the judges determine what happens. It’s like when you go to court today and ask the judge to recuse himself. You don’t go to the supreme court and ask them, “Please disqualify this judge for me.” Meaning, he has to make decisions about himself; he is completely sovereign. Meaning, when a judge sits in judgment, he makes all the decisions. He can decide to withdraw, but he decides that.
[Speaker E] Now according to Tosafot and the Ritva, the Ritva says this about litigants and Tosafot about witnesses.
[Rabbi Michael Abraham] That witnesses cannot become judges, and the Ritva says that litigants—
[Speaker E] cannot become judges.
[Rabbi Michael Abraham] So witnesses also cannot be judges, but still it says there, “who have the dispute,” so how does he explain “who have the dispute”? He says these are two things: “the two men” and “who have the dispute.” Meaning, “the two men” are the witnesses and “who have the dispute” are the litigants. It’s a midrashic reading, not the plain meaning.
[Speaker E] That’s the Talmud.
[Rabbi Michael Abraham] When the Talmud explains “the two men” as though it were the litigants—after all, “the two men” is the witnesses, whereas apparently it should mean the litigants—so the Talmud, this is of course midrash, not the plain meaning. “The two men” and “who have the dispute”—meaning these are two things, and they must stand before the Lord. And that the Talmud doesn’t say; that the medieval authorities say. That when the verse says they have to stand before the Lord, meaning the judges, the intention is that they have to be a separate function, that it is forbidden to mix functions. And only the Ritva expands this also to the litigant, not only to witnesses and judges. So he says that basically there is some idea of separating the powers in the religious court. Each one plays a different role. I think you can also understand a bit why that makes sense, but let’s leave that for now; maybe I’ll get to it later. So basically each one is supposed to do a different job, and that sharpens even more what I said earlier: when a litigant comes to religious court, he really only has to say what he wants. He is not testifying. What he says has no evidentiary weight. Because you can’t establish any evidence on the basis of his words. He doesn’t play that role in religious court. In religious court he submits the petition. He wants to ask the court to do something for him. The clarification of what happened, the decision—that is made on the basis of witnesses or the laws of evidence; it has nothing to do with the litigant himself. And therefore when the litigant claims that he has a migo, apparently that shouldn’t get through. It’s like witnesses bringing a migo for their own benefit—relatives, sorry, bringing a migo for their own benefit; it doesn’t help. Because by the way, it seems to me that in the Ritva’s responsum too, maybe even there, I think he says that relatives are the same idea. Meaning, relatives can’t testify because relatives are some kind of periphery of the litigant himself, and this separation that the Torah demands between witnesses and litigant is not fulfilled. Meaning, it’s basically almost the same person—or not the same, his brother—but still. So the disqualification of relatives from testimony is basically part of that same demand for separation. So really there are three different roles and each has its own role. And if so, then once again I sharpen what I said earlier: it’s not clear how evidence of migo is accepted. Migo only shows that I’m speaking truthfully. So what if I’m speaking truthfully? I’m not playing on the evidentiary field. Not because I’m lying, but because I’m not in that slot; I’m in the slot of litigant. Evidence belongs to witnesses and presumptions and majorities and all sorts of other things that fall under the laws of evidence. Therefore migo, since it is evidence about the person himself—if it were evidence about the matter itself, it wouldn’t matter that it comes from me. I’ll maybe give an example. Suppose some issue arises and someone claims that I’m mute. That’s relevant to the case. Someone accuses me, two witnesses come and say that I blasphemed; I am liable to death, because a blasphemer is liable to death. Wait, I—I’m mute. How can you say I blasphemed? So there, that’s my defense claim. When I come and they see that I am mute, then true, the evidence comes from me, but it is evidence about the matter itself and not about the person himself. It proves the claim, so there is no problem with the fact that the evidence comes from me. Right? That’s fine. It’s just that migo is evidence about the person himself, not about the matter itself. There, when that evidence testifies that I’m truthful, as a litigant that doesn’t help me. Okay? It’s like the case of “the slain man walked in on his own feet,” what the Talmud says, right? Witnesses come that Reuven killed Shimon, two witnesses come and testify that Reuven killed Shimon. Then Shimon comes strolling delicately into the religious court. The slain man came on his own feet. Okay? So what will we say? Since he is a litigant, evidence coming from the litigant doesn’t help? But a litigant is disqualified from testimony. If it were evidence about Shimon himself, maybe you’d be right; here Shimon simply creates for us evidence that is relevant to the matter itself. So I don’t care that Shimon was the one who produced it.
[Speaker C] No, it’s also not his testimony. Yes, obviously.
[Rabbi Michael Abraham] The evidence is not testimony. Yes, through him some evidence about the substance of the matter is simply created. He came strolling in. Yes.
[Speaker C] Why isn’t migo in the same category?
[Rabbi Michael Abraham] Because migo is evidence about the person himself. Migo proves that I’m not lying. Migo doesn’t prove that there was a loan, or that I repaid the loan. Migo proves that I’m not lying, and therefore since I claim that I repaid the loan, I have evidence that I’m not lying, so apparently I repaid the loan. But in the end, why does the religious court decide that I repaid the loan? On the basis of my testimony. Just don’t say I’m lying, because the migo shows I’m not lying. Fine, now that the migo has shown that I’m not lying, why does the court rule? Because I testified. But we don’t accept a person’s testimony about himself, even if he speaks the truth. Like relatives.
[Speaker C] But the migo will help me be believed.
[Speaker G] No, migo doesn’t speak about the act; migo doesn’t say there was a loan. It says that you’re a trustworthy person.
[Rabbi Michael Abraham] If two character witnesses came and said, “This man says he paid, and the other one is demanding money from him,” and two character witnesses came, as I mentioned before—two character witnesses came and said, “This man is careful; he never lies, even if a sharp sword were resting on his neck he wouldn’t lie.” Fine, two witnesses, and we saw him in cases where he paid heavy prices if—
[Speaker C] he had lied.
[Rabbi Michael Abraham] would he win the case? I don’t know an explicit source for this, but I’m almost certain he would not.
[Speaker C] That’s completely different from Western law.
[Rabbi Michael Abraham] Yes, I said that ordinary law is completely different. Because there the litigant’s words have evidentiary weight. In Jewish law they don’t. It’s testimony. Yes, in Jewish law the litigant’s words have no evidentiary weight.
[Speaker C] And if nobody comes to contradict me?
[Rabbi Michael Abraham] Then we’ve moved into a discussion of claims. We’ll get to that later. Winning through claims and not through evidence. That’s exactly the next step.
[Speaker H] Is it still possible to say that migo is a claim about the matter itself, since when a person comes and says, “You owe me 100 shekels,” “Shimon owes me 100 shekels,” he doesn’t just have to say what he wants, but also why he wants it. “Shimon owes me because I have a document that I lent him money.”
[Rabbi Michael Abraham] But for that, he first has to start explaining why. Wait, that itself is a good question. Why does he really need to spell it out? In a moment we’ll read Maimonides, who explains this. Why does the person need to be specific? After all, when we come to a religious court, you have to say, “He owes me 100 shekels,” and he’ll say, “I don’t owe 100 shekels.” As for what actually happened in reality—that’s the job of the evidence, not of the litigants. Now, the intuition is of course clear. What does it mean that he owes 100 shekels? What do we need to clarify? The religious court doesn’t know—why does he owe you 100 shekels? Because he robbed you? Because he was watching something for you and was negligent? Because he… you have to explain, to give the religious court direction as to what to check, which witnesses to look for. But not because what you say carries evidentiary weight. Right. So that’s why a migo doesn’t matter here. A migo shows that you’re telling the truth. I’m not interested in the fact that you’re telling the truth, because you are not taking part in the evidentiary clarification. The reason you need to spell out your claim is simply so that the religious court will know what to look for, not because the religious court believes you. In our everyday jargon we say, “The religious court believed him,” but the religious court doesn’t believe you about anything. The religious court rules that you are right; it doesn’t believe you, because it doesn’t base that on what you said. What you said has no weight at all. You are only placing before the religious court the problem it has to solve. It’s a riddle, a riddle that you need to solve. Okay? If you don’t say it, the religious court won’t know which witnesses to look for—witnesses to what? To a loan? To a robbery? When was it? Where was it? You can’t search like that; it doesn’t work. So it’s not because you are trusted in some way. You aren’t trusted in anything. Look at Maimonides. Maimonides, in the Laws of Claimant and Defendant, chapter 6: litigants who came to court—
[Speaker C] I’ll open a smartphone if there isn’t one here.
[Rabbi Michael Abraham] There’s a different division here from the Maimonides we have before us; in the version we have, it’s one long law.
[Speaker C] “Litigants who came to court…” Or—is this the weird Maimonides?
[Rabbi Michael Abraham] “One claimed and said: ‘I have a maneh in the hands of this one, because I lent it to him, or deposited it with him, or he robbed me, or I have wages owed to me by him because I worked for him,’ and anything similar to this; and the defendant answered and said, ‘I owe you nothing,’ or ‘You have nothing in my possession,’ or ‘He is making a false claim’—this is not a proper answer.” They do not accept such an answer from the defendant. “Rather, the court says to the defendant: answer his claim and explain your reply, just as he explained his claim.” Meaning, please explain why you say you don’t owe him. “And say whether you borrowed from him or did not borrow, whether he deposited something with you or did not deposit, whether you repaid,” whether it never happened at all—say what your claim is. It’s not enough to say, “I’m not obligated.” “Whether you robbed him or did not rob him, whether you hired him or did not hire him, and similarly regarding the other claims. And why do they not accept this answer from him?” Why don’t they accept that answer? “Because perhaps he is mistaken in his understanding and will come to swear falsely. For it is possible that he borrowed from him, as claimed, and this one returned the debt to his son or to his wife, or gave him a gift corresponding to the debt, and he imagines in his mind that he is exempt from the debt.” In other words, why don’t I accept from a person just “I don’t owe him,” but instead say to him: specify why you don’t owe him—did you repay, or did you never borrow, or did you not rob, or what? Tell me what your claim is. What’s the difficulty—why should we accept that claim? It’s that kind of question. Why should we? Let him explain. Of course. That’s exactly the point. No—he doesn’t need to explain anything. He does not take part in the evidentiary game. He doesn’t have to tell me what happened there. The litigant is not relevant on that score; the witnesses are. He says: simply, without that, we won’t be able to work. You need to investigate. Yes. You need to explain to me what has to be investigated, but not really because I want testimony from you about the matter. After all, you are a litigant, so testimony has lower weight—but still no: the detail you give me is not testimony. The detail you give me is to provide a framework for the discussion. And that’s what he says. Essentially, why do we ask for details? Because it could be that I would say, “I repaid, and therefore I don’t owe,” but the truth is I gave it to his son, his little son. Now, giving it to the little son is not considered repayment, because I need to return it to the lender’s domain in a way that he knows about it. If I gave it to the little son, then I’m still responsible; I didn’t return it to him. So the truth is I didn’t even intend to lie; I just don’t know the Jewish law. I don’t know that returning it to the son isn’t considered repayment. Therefore they say to me: tell us exactly what happened there, and then we’ll make sure you really have a claim, and then we’ll get started, and then we’ll begin to investigate. But it’s not really because what you say has evidentiary weight.
[Speaker I] Why does he have to make any claim at all in order to investigate? That is, the plaintiff comes and says, “I lent you money,” and he says, “I deny it.” The burden of proof is on the plaintiff, so let him first bring
[Rabbi Michael Abraham] evidence, and then what are you denying? That you repaid? Are you denying that there was no loan? What are you denying?
[Speaker I] I don’t want to say anything.
[Rabbi Michael Abraham] I’m saying, what you say—
[Speaker I] —isn’t true. Start bringing evidence.
[Rabbi Michael Abraham] Maimonides says they don’t accept that from you. That’s what he said. But I’m saying first of all we need to understand why this bothers Maimonides at all. It bothers Maimonides because, basically, a litigant really shouldn’t have had to say anything. What kind of business is this? “I’m not obligated.” I’m not supposed to help the religious court clarify reality. I’m only asking the religious court: don’t obligate me to pay. That’s the request. The role of litigants is only to make requests of the religious court.
[Speaker D] What if he doesn’t want to make a claim?
[Rabbi Michael Abraham] Yes, they force him to make a claim. And the continuation of Maimonides is no less interesting for our purposes. I’ll probably read it in the lecture—apparently not today.
[Speaker D] But it does obligate you, because if he says, for example, “None of this ever happened,” and later witnesses come that it did—right? Then they caught him there in…
[Rabbi Michael Abraham] Right. And then the request… no, because your request to say that you are not obligated because none of this ever happened is rejected. Because we clarified that it did happen. That’s your request. We’re specifying more fully what you’re asking for. You’re asking not just not to pay; you’re asking us to recognize that none of this ever happened. That’s what you’re asking, not what you’re testifying to. So if witnesses come and say there was indeed a loan, then your request has been denied.
[Speaker F] In Jewish law there are sometimes cases of “speaking innocently,” where a person speaks—even though he’s involved in the matter and has an interest—still they believe him because he’s speaking innocently.
[Rabbi Michael Abraham] But that’s only where the problem is interest.
[Speaker F] So you’re saying here—why don’t you believe the litigant?
[Rabbi Michael Abraham] Not because there is an interest. That’s what I said earlier: it’s not the interest. If the problem were interest, then the migo would help. Because an interest really means a concern for lying, so the migo shows that he isn’t lying. But if the problem with a litigant is what the Ritva says—no, because he does not participate in the evidentiary arena—then it doesn’t matter that he’s telling the truth. Like relatives, like related witnesses, Moses and Aaron. So the migo won’t help, because the migo proves that he’s telling the truth, but in any case I assume he’s telling the truth. I just still don’t accept what he says even if he’s telling the truth, because he is not in the category of evidentiary clarification. He is in the category of litigant. Okay. There’s another example of this. The Talmud in Bava Metzia, in the story of the oven of Akhnai. There, when Rabbi Eliezer and the sages disputed that day over the impurity or purity of an oven made of segments, Rabbi Eliezer brought that day every proof in the world: “Let the walls of the study hall prove it,” and the stream, and the tree, and all kinds of things of that sort. And the sages paid no attention to him, and afterward they ruled against him. What’s the point there? The point there is that Rabbi Eliezer brought proofs about the person, not about the matter itself. Because he was basically showing what a righteous man he was. Look, heaven testifies that I’m righteous and know everything and am wise. A heavenly voice came out and said, “Why do you disagree with my son Eliezer, seeing that the Jewish law follows him in every place?” Meaning, all of that is proof about the person. And what the sages said was: we are not looking for proofs about the person. Tell me why the oven is pure. Don’t tell me stories about how righteous you are. That doesn’t interest us. We need to deliberate about the case. Tell me what arguments you have for the purity and impurity of the oven.
[Speaker E] Although there was some issue there. Right, because why think he wanted that just to show off, and not to show… not to show off, but a real claim.
[Rabbi Michael Abraham] He is a Torah scholar and a righteous man, and therefore he is probably right. No, not only that.
[Speaker E] But no—what did he say? He said, “If I am right…” because the walls of the study hall—or if it’s true. No, “If what I am saying is true.”
[Rabbi Michael Abraham] Yes. No, it testifies about him that he can bend heaven and the walls of the study hall.
[Speaker E] And then maybe that also testifies to what is true.
[Rabbi Michael Abraham] No, it testifies about him that he can do that.
[Speaker E] What did he say there? He said there, “If the matter…” if the oven is pure—I don’t remember what—
[Rabbi Michael Abraham] —he said.
[Speaker E] I also don’t remember the exact wording.
[Rabbi Michael Abraham] But why does he need to say that? Let him bring his arguments. Rabbi Yehoshua brought his arguments. He didn’t prove it with signs and wonders. And proofs of signs and wonders—that is the meaning of “It is not in heaven,” at least in part. That is the meaning. The meaning is not only that heaven cannot decide Jewish law, but that Jewish law is decided on considerations intrinsic to the matter in the study hall when we argue. That is what determines things here. And it doesn’t matter that you are the most righteous person in the world, and that you always know, and you know everything, everything is correct—that’s proof about the person. We are discussing the oven on the basis of the oven itself, not on the basis of the person. By the way, Rabban Gamliel, Rabbi Eliezer’s brother-in-law—yes—did not agree to let a student enter the study hall unless his inside matched his outside. Right? And in the end they removed him, and benches multiplied in the study hall, and so on. What does it mean, “his inside matches his outside”? Again, the same point. I want to judge the person by his character, character testimony, not by whether he is a Torah scholar, whether he speaks to the point, but whether he is upright. Why? Because he held, like his brother-in-law—the two brothers-in-law there, you can see this very consistently—they held that Torah is basically something I transmit from the previous generation to the next; I am a hollow pipe. Okay? So all I need to prove is that I am a perfect conduit. My reliability—that’s the issue here. And what the students and colleagues there in Yavneh argued against him was that we do not see Torah as something that passes through a hollow pipe. For us, the discussion takes place here in the study hall. I don’t care if the biggest frauds in the world come into the study hall. What do I care that he’s a fraud? Let him state his argument. If his argument is good, I’ll accept it; if it’s not good, I won’t accept it. What do I care if he’s a fraud? He can tell me this in the name of Moses our teacher—that also doesn’t interest me. If it’s a sound argument, I’ll accept it—and even if it isn’t from Moses our teacher—and if it isn’t sound…
[Speaker E] Didn’t he bring arguments intrinsic to the matter?
[Rabbi Michael Abraham] At first it says that he did—no—and they didn’t accept them.
[Speaker E] So then he said, “If that’s the case, I’ll show you that this is vindicated.” Exactly. Now he always… but it’s not like someone who doesn’t know how to clarify reality and just says things casually—I didn’t come to diminish Rabbi Eliezer—but if he knows what the Jewish law is, fine, wait a second, but that’s the issue of the majority. No, they didn’t bring the whole ping-pong, but it’s not like once a heavenly voice came out, we still follow the majority. But that still doesn’t mean that what he said doesn’t show that he is right about the matter.
[Speaker J] No, but they didn’t accept the arguments. In that debate, the arguments didn’t persuade them.
[Speaker E] But there’s a difference between an ordinary person who says something and says, “I’m telling the truth,” but I don’t know the reality, the order of things, how it works—
[Rabbi Michael Abraham] Of course there’s a difference.
[Speaker E] So why doesn’t that say something about the matter itself?
[Rabbi Michael Abraham] It says nothing, because the arguments he brought were not accepted on the merits of the matter itself. And then what does he do? He recruits, in his favor, arguments about the person. And if your arguments weren’t accepted, then here’s proof about the person. I’m not interested. If you had persuaded me with the arguments, no problem—but then there would have been no need for the proofs.
[Speaker B] The proofs are about the matter itself—that in heaven this is how they think.
[Rabbi Michael Abraham] So I’m saying: if that were so, then nothing changed here. After all, he had already brought every proof in the world about the matter itself, and they didn’t accept it. So what is he actually saying? Heaven also thinks I’m right.
[Speaker B] You were right not to accept it from me? Exactly. He isn’t right in that you didn’t accept it.
[Rabbi Michael Abraham] Right, but that is proof about the person. So they didn’t accept the proof because it was about the person.
[Speaker B] Why is that about the person? It shows something about the matter; it says the matter is true; it says that the claim you raised is the law.
[Rabbi Michael Abraham] That in heaven too, they think the law of the oven is such-and-such. Could be, although I think that’s not—
[Speaker B] But the takeaway—you can interpret it that way too. The takeaway is that “It is not in heaven” applies everywhere, not just in this specific case.
[Rabbi Michael Abraham] “It is not in heaven” everywhere—that is exactly the claim about the person.
[Speaker B] That is exactly—
[Speaker I] —the claim about the person.
[Rabbi Michael Abraham] No, and you also see all along the way—you see Rabban Gamliel—the whole struggle there was about this. I can show you; there’s a chain of proofs for this. The whole struggle there was exactly over this question: is Torah built on the reliability of the person, or do we examine the matter on its own merits? Give me arguments. What do I care how righteous you are?
[Speaker I] That isn’t interesting. There was another lesson there. The lesson said that from the moment the Torah was given to Israel, even the Holy One, blessed be He, is no longer part of this dispute, and even if He says something, if the majority of Torah scholars decided what they decided, it doesn’t matter what the Holy One says.
[Rabbi Michael Abraham] That’s how people usually learn “It is not in heaven.” That it is not in heaven—even if heaven speaks about the matter itself, in a particular case we do not accept it. What I’m claiming is that there was something else there. Rabbi Eliezer not only wanted to show that heaven thought like him, but that heaven testified that the Jewish law follows him everywhere—that he is right.
[Speaker I] There’s a problem with that question, because if the heavenly voice says this is so, it could be speaking about the matter itself.
[Rabbi Michael Abraham] I said: so there are two things written there. A: we do not accept it even if it’s about the matter itself. B: we also do not accept testimony about the person—that we don’t accept because from our standpoint it isn’t a relevant argument at all. Two things. Usually, people really do learn it the way you said; that’s the standard reading, that’s how—
[Speaker H] Usually people learn “It is not in heaven” that way; I’m only saying that I think there’s another point there.
[Rabbi Michael Abraham] Okay? You can also say that in the end Rabban Gamliel’s struggle over authority, in the matter of Yom Kippur falling on such-and-such a day—that same discussion, it’s all around the same issue.
[Speaker H] Those are the same two schools colliding with each other. Yes.
[Rabbi Michael Abraham] Rabban Gamliel basically spoke in the name of authority, while Rabbi Yehoshua brought arguments. Rabbi Yehoshua brought arguments, and therefore he threw him out. But because of that—to depose him. The whole move there was that the other sages, with Rabbi Yehoshua at their head, but the younger ones joined Rabbi Yehoshua because he was of Rabbi Eliezer’s generation, and Rabbi Eliezer and Rabban Gamliel, the elders, yes, the brothers-in-law, upheld the supremacy of tradition, of reliability, of transmitted teaching. And the reason they excommunicated Rabbi Eliezer—why did they excommunicate Rabbi Eliezer? That’s a big question. Why did they excommunicate Rabbi Eliezer? Is he forbidden to think differently? The point is that he did not accept the rules of the game. He says: I am not willing to discuss the issue on its own merits; I am right, so what do I care about your arguments? There’s no such thing. If you don’t accept discussion on the merits, you will be excommunicated—we won’t debate with you. And why in that same situation did they depose Rabban Gamliel from the presidency? There was a double revolution there. Rabban Gamliel was deposed. The two leading sages—one was excommunicated until the end of his life; until the day of his death, the Talmud says, he was under excommunication in Lod. And Rabban Gamliel was removed from the presidency, repented—meaning, he recognized that he had erred—and returned to a rotation with Rabbi Elazar ben Azariah because he truly repented. But Rabbi Eliezer remained entrenched in his position in Lod and remained under excommunication.
[Speaker H] What, and did that continue at some stage, or did that school stop there?
[Rabbi Michael Abraham] In an article I argue that in the end some kind of synthesis was created. Meaning, revolutionaries always take things too far. Rabbi Akiva was the one who connected Rabbi Yehoshua with Rabbi Eliezer, and that’s why we say: an anonymous Mishnah is this, an anonymous Baraita is that, and all of it follows Rabbi Akiva. Meaning, in the end the thesis that won out was a thesis that says some kind of combination.
[Speaker H] No, did he take a side? One last thing—“friends keep away from you”—didn’t he take a side?
[Rabbi Michael Abraham] Yes, he went despite the excommunication. There are a few difficulties there that are not simple. Apparently it should have been forbidden. And Rabbi Eliezer says that Rabbi Akiva was the only one who came to him and asked him Jewish laws about cucumber sorcery and all sorts of things like that. And more than that: Rabbi Akiva also says there that when he learned it from Rabbi Eliezer, he learned the Jewish law regarding cucumber gathering—which is an act of sorcery and various matters like that—and did not understand. And he went to Rabbi Yehoshua, and Rabbi Yehoshua explained it to him. Rabbi Akiva was a student of both of them. And that is exactly the combination we’re talking about. In other words, Rabbi Eliezer transmitted the information to him: that is the Jewish law. But not the considerations intrinsic to the matter, why that is the Jewish law—that he heard from Rabbi Yehoshua. Because Rabbi Yehoshua speaks in terms of the matter itself; Rabbi Eliezer says: this is the Jewish law. In Chagigah 3, the Talmud says—that’s exactly what I’m speaking about in Ra’anana. In Chagigah 3 the Talmud tells there about this—that they came… what are we talking about, page a or b? You with the computer? Good. 3a. To whom? They don’t come to his house or anything. Let’s try to see. Here in the books, probably. It still hasn’t reached the phones; with the computer I’m already—
[Speaker E] used to it, but—
[Speaker C] This is… give—
[Rabbi Michael Abraham] “The rabbis taught: an incident involving Rabbi Yochanan ben Beroka and Rabbi Elazar ben Chasma, who went to greet Rabbi Yehoshua in Peki’in. He said to them: what novel teaching was there in the study hall today?” Yes, Rabbi Yehoshua, one of the disputants, was in Peki’in, and Rabbi Eliezer was in Lod. So they went to greet Rabbi Yehoshua in Peki’in. He said to them: what novel teaching was there in the study hall today? From the context it’s clear they came from Yavneh. Yavneh is the place where the whole dispute was, and where they installed Rabbi Elazar as president in place of Rabban Gamliel, and sent Rabbi Eliezer off to Lod, where he remained under excommunication. And then in Yavneh afterward Rabban Gamliel returned and there was a rotation. And many times when someone arrives from Yavneh, they ask: what novel teaching was there in the study hall today? Meaning: tell us what’s going on in Yavneh. Whose Sabbath was it? Whose Sabbath was it exactly. So they said: they went to greet Rabbi Yehoshua in Peki’in. He said to them: what novel teaching was there in the study hall today? They said to him: we are your students, and we drink from your waters—what are you asking us for novel teachings? You tell us novel teachings; you are our rabbi. He said to them: even so, a study hall cannot be without novelty. Yes, that is of course his thesis. A study hall cannot be without novelty. Rabbi Eliezer says there are no novelties; everything comes from Moses; I transmit the information to you. There are no novelties. Whose Sabbath was it? It was Rabbi Elazar ben Azariah’s Sabbath. Meaning, in the rotation it was Rabbi Elazar ben Azariah’s week and not Rabban Gamliel’s. And what aggadic teaching was discussed today? What did he speak about today—not in Jewish law but in aggadah? They said to him: about the passage of Hakhel. And what did Rabbi Elazar ben Azariah expound? “Assemble the people, the men and the women and the children, and your convert who is within your gates, so that they may hear and so that they may learn and fear the Lord your God and observe to do all the words of this Torah.” If men come to learn and women come to hear, why do the children come? In order to give reward to those who bring them. He said to them: you had a precious pearl in your hands and wanted to withhold it from me? There was such a beautiful pearl and you didn’t want to tell me? We’ve already heard things more brilliant than that. It seems to me it’s clear that what he said here is exactly that he doesn’t care who the learner is. They don’t filter learners so that only those whose inside matches their outside may enter; everyone can come and there’s no problem. And he further expounded: “The Lord has declared this day that you are His people… and the Lord has declared this day that you are His treasured people.” He said to them: the Holy One, blessed be He, said to Israel: you have made Me a single entity in the world, and I will make you a single entity in the world. You made Me a single entity in the world, as it is written: “Hear, O Israel, the Lord our God, the Lord is One.” And I will make you a single entity in the world, as it is said: “And who is like Your people Israel, one nation on earth…” and so on. In short, one single entity—everyone enters the study hall. Now look how it continues. “And he too opened and expounded.” Rabbi Yehoshua responded to them and said: “The words of the wise are like goads, and like well-fastened nails, given by one shepherd.” Why are words of Torah compared to a goad? To tell you: just as a goad directs the cow to its furrows to bring forth life for the world, so too words of Torah direct those who learn them from paths of death to paths of life. If a goad is movable, perhaps words of Torah are movable? Therefore Scripture says: “nails.” If a nail diminishes and does not increase, perhaps words of Torah diminish and do not increase? Therefore Scripture says: “well-fastened” or “planted.” Just as a planting bears fruit and multiplies, so too words of Torah bear fruit and multiply. That is how Rabbi Yehoshua expounds. “Masters of assemblies”—these are Torah scholars who sit in many groups and occupy themselves with Torah. These declare impure and those declare pure; these forbid and those permit; these disqualify and those validate. Lest a person say: how can I learn Torah from now on? If everyone says what he wants, then what is the truth? Therefore Scripture says: all of them were given by one shepherd; one God gave them; one leader spoke them, from the mouth of the Master of all deeds, blessed be He, as it is written: “And God spoke all these words, saying.” You too—make your ear like a funnel and acquire for yourself an understanding heart to hear the words of those who declare impure and the words of those who declare pure, the words of those who forbid and the words of those who permit, the words of those who disqualify and the words of those who validate. Meaning, in the end, the precious pearl was that Rabbi Yehoshua’s thesis won. Rabbi Elazar ben Azariah, who stars there, is basically saying: there are arguments this way and that way—listen to all the arguments and form an opinion.
[Speaker F] No, it’s a synthesis—it bears fruit and multiplies.
[Rabbi Michael Abraham] Yes. Intuition, yes. And in this language he said to them: the generation is not orphaned while Rabbi Elazar ben Azariah dwells within it. What is that? He was impressed by the change Rabbi Elazar ben Azariah made, against Rabban Gamliel, who was the opposite. That was exactly the point. And let’s immediately see the Rasham in the name of “an incident that occurred,” as it was taught. Now immediately after that an incident is brought. “An incident involving Rabbi Yosei ben Dormaski, who went to greet Rabbi Eliezer”—that’s from my article, not from the Talmud. That’s an explanation. What?
[Speaker F] No, there’s some explanation there. I think you need to move on.
[Rabbi Michael Abraham] Really? Because I added in my article: although the version here reads Elazar, I did not know its source… I wrote all this in my article. So it’s interesting because they have here the reading Rabbi Elazar, but really it should be Rabbi Eliezer. Almost word for word—I don’t know, I don’t understand, very strange. Okay. “What novel teaching was there in the study hall today?” asks Rabbi Eliezer, who is sitting under excommunication in Lod. Students came to him, also coming from Yavneh. He sits there lamenting his bitter fate, that he was removed from there.
[Speaker E] So how can that be? How did they get to him?
[Rabbi Michael Abraham] That’s a big question: how they got to him during the excommunication. Rabbi Akiva also got to him. But they got to him. They said to him—Rabbi Yosei ben Dormaski came to him and said: “They voted and concluded that Ammon and Moab tithe the poor man’s tithe in the Sabbatical year.” This is in Jewish law; before it was in aggadah, now he tells him in Jewish law. Ammon and Moab tithe the poor man’s tithe in the Sabbatical year. Yes, it’s a question of what counts as the Land of Israel; the region of Ammon and Moab is therefore obligated in the poor man’s tithe during the Sabbatical year. He said to him: “Yosei, stretch out your hands and receive your eyes.” He stretched out his hands and received his eyes. He blinded him. This is Rabbi Yosei ben Dormaski. Rabbi Eliezer wept and said: “The secret of the Lord is for those who fear Him, and His covenant to make known to them.” They’re babbling with all their casuistry—“Ammon and Moab tithe in the Sabbatical year”—that is a law given to Moses at Sinai. I could have told them that. With all their hair-splitting, in the end they arrive at that law. There’s no need for it. I know it. If they had come to ask me, I would have told them. They also could have reached the opposite conclusion and made a mistake. He said to him, “Go tell them”—he said to Rabbi Yosei ben Dormaski—“go back to Yavneh and tell them in my name: do not worry about your vote. Don’t worry, your decision is correct. Yes? For this is what I received from Rabban Yochanan ben Zakkai, who heard from his teacher and his teacher from his teacher: a law given to Moses at Sinai, that Ammon and Moab tithe the poor man’s tithe in the Sabbatical year.”
[Speaker H] That’s again the hollow pipe.
[Rabbi Michael Abraham] Of course. He says to them: with all your pilpul, with your arguments about the matter itself, you reach conclusions. You could have come to ask me, and I would have told you straight out. Again, critique—this is Rabbi Eliezer on one side versus Rabbi Yehoshua on the other. The question is whether you speak about the matter itself, or whether you speak about the person himself. That is really the dispute here. And then he said, after his mind was put at ease: “May it be God’s will that Yosei’s eyes return to their place,” and they returned. Okay?
[Speaker E] Just with those things, that’s nice. What? That summary with just those things is nice.
[Rabbi Michael Abraham] It’s terribly… I don’t know how to do those things; I don’t deal with that. Neglect of Torah study.
[Speaker C] Let’s continue, just to finish a bit.
[Rabbi Michael Abraham] Yes.
[Speaker E] Wow, with all this.
[Rabbi Michael Abraham] Okay, so we’ll stop here.