Philosophy of Halakha – 5783 – Lesson 12

[Rabbi Michael Abraham] It doesn’t matter, that’s why I’m doing this here on Zoom, it doesn’t matter. From your point of view it’s not supposed to make any difference. All right, this is basically the second semester. In the first semester we started with topics in the philosophy of Jewish law, and in this semester I want to continue the picture. But at the moment we’ve got one person continuing and one person who’s new, so I’ll start with some concise summary of the picture I described last semester, and then we’ll see how we continue from there. Okay. So last semester I started with the distinction between Jewish law and things beyond Jewish law. And the claim basically was that there are certain parts of the Torah, and then of course also of the Oral Torah, the Talmud / Talmudic text, and so on, that are commands of do and do not do, and that’s basically what is called Jewish law. Things that are not written in the form of commands are the non-halakhic things, and I spoke about the importance and the significance of the halakhic category, and how you define the halakhic category properly in the first place. I’ll say it again briefly. The claim is that there is an essential difference between the halakhic category and other categories. For example, there is a verse that says, “Now the man Moses was very humble, more than any man upon the face of the earth.” We can of course learn from here that the Torah expects humility from us, right? Meaning, there’s some lesson we learn from this. The assumption is that all the verses are supposed to have some lessons like that, and still, this is not Jewish law. Why is it not Jewish law? Because the verse is not addressing me; it is telling a story. “Now the man Moses was very humble, more than any man upon the face of the earth.” So it describes a fact to me. I can derive all kinds of conclusions from that fact, but the verse itself doesn’t command me to do anything and doesn’t forbid me from anything. Jewish law is only verses that command me or forbid me. These are called verses. It’s not correct to define Jewish law as all the verses from which something emerges that has practical application for me. That is not the definition of Jewish law. In principle that’s true of all verses—not all, but many of them. Okay? The verses that define Jewish law are those verses written in what’s called the imperative mood, because in grammar we distinguish between four tenses: past, present, future, and imperative. Right? When I say to you, do something. Okay? That’s a different kind of sentence from the sentence: yesterday you did something, today you’re doing something, tomorrow you’ll do something. Those three sentences are descriptive sentences about past, present, or future. They describe facts. The sentence “do something” is a commanding sentence. It’s a different type. By the way, structurally it resembles the future tense. The imperative resembles the future—and why? Because when I command someone, the expectation is that he’ll do it in the future. I don’t command someone about the past. Okay? So there is a certain connection. Maimonides talks about this, and we dealt with it a bit last semester. Maimonides notes this in the eighth root. But for our purposes, Jewish law is a different grammatical kind of verse. So in principle there is a sharp distinction between the halakhic parts and the non-halakhic parts of the Torah, even though in both types of sections there are lessons that we can learn from them. Okay? After that I spoke very briefly—I’m doing it now too, but I still want the points to be understandable in themselves. After that I spoke about the importance of Jewish law. I brought the first Rashi on the Torah, who says in the name of Rabbi Yitzhak: why didn’t the Torah begin with “This month shall be for you the beginning of months”? Why did the Torah begin with Genesis? And very often people don’t pay enough attention to the question—they immediately move on to the answer, “He declared to His people the power of His works,” and so on, because the answer is well known. But the question is interesting. Why should the Torah begin with “This month shall be for you the beginning of months”? Why is that better than “In the beginning God created the heavens and the earth”?

[Speaker B] The question is what the Torah is. Is it a God who reveals Himself to human beings and tells them about something He did, and therefore also created their world? Or does it come and speak to me: this and this and this and this—God commands you, period. Why? That doesn’t matter, but that’s what He commands you.

[Rabbi Michael Abraham] No, you said two things there that are very similar. The question is whether the Torah comes to say what is expected of me, or whether the Torah comes to command me. That’s almost the same thing.

[Speaker B] Here in Genesis it comes to tell the reason why. Why He created the world. Why He had an interest in creating some sort of world here.

[Rabbi Michael Abraham] And therefore He also basically—that’s an interesting question. I’m not sure you’ll find an answer to that in the book of Genesis. You’ll find an answer to the history of the matter, how it unfolded. Why He did it? I don’t think there’s an answer to that in Genesis. But let’s put it this way: Rabbi Yitzhak’s question assumes that the essence of the Torah is Jewish law. Therefore he says it should have started with “This month shall be for you,” that’s the first commandment commanded to Israel. He says it explicitly. It should have started with “This month shall be for you,” because that’s the first commandment they were commanded. And his assumption is that basically the Torah should have contained only Jewish law. Everything beyond Jewish law requires explanation. And there are explanations—he offers an explanation there—but in principle everything beyond Jewish law requires explanation. Okay, that’s basically Rabbi Yitzhak’s point. Now, again, in my opinion the explanation isn’t terribly convincing, but fine, maybe you can find explanations. But it’s clear from the question that even after you find an explanation, that still isn’t the main point. The main point is Jewish law. There are explanations that explain why you need additional material of other kinds. But basically the main thing is Jewish law. And we spoke about the fact that basically, I think, in a broader sense too, the definition of Judaism is Jewish law. That’s the definition. Meaning, everything beyond that is not Judaism. In my opinion there is nothing except Jewish law, nothing at all. Meaning, no Jewish thought, none of that, there are no things—the other fields are empty. Meaning, there is no such thing. In all the other areas, if something is true, it is true for everyone in the world, and if it’s not true, then it’s not true for Jews either—for no one is it true. It’s measured by whether it’s true or not true. True or not true is a question that shouldn’t change between Jews and others. Right? If, say, it is true that the messiah will come—a certain theological principle, right? A principle of faith that the messiah is supposed to come. If the fact that the messiah is supposed to come is a true fact, then from the perspective of non-Jews too it is a true fact. Maybe it interests them less, maybe they don’t care, but it’s a true fact. Meaning, theological principles are in essence universal principles. Meaning, if a fact is true, then it’s true for all human beings, and if it isn’t true then it isn’t true for anyone. Therefore, in anything that is not Jewish law, I don’t think there is any meaning to saying that it is a Jewish matter. Okay? The only thing that is particular, yes, that distinguishes Jews and is relevant only to them, is Jewish law. The seven Noahide commandments are relevant to all human beings, but Jewish law beyond the seven Noahide commandments is only for Jews. Because it isn’t measured in terms of true or false. Okay? Those aren’t the relevant terms. The question is: whom does it obligate? Okay? So whom does it obligate? Only Jews. So that’s regarding the status of Jewish law. Yes, meaning its centrality—let’s call it the centrality of Jewish law. Therefore, for example, today many people are looking for a definition of who is a Jew or what Judaism is. Okay? So everyone says, this is my Judaism, that is my Judaism, here, there. I don’t think there is any definition that holds water except the halakhic definition. Meaning, all these people who say my Judaism is, I don’t know, paying taxes, serving in the army, and whatever, all kinds of things like that. In what sense is that Judaism? Meaning, that is proper or worthy citizenship in the State of Israel. Just as in Belgium you’d have to serve in the army and whatever and pay taxes because you’re a loyal citizen of Belgium. There is nothing special here except that you happen to be a citizen of the Land of Israel and he is a Belgian citizen. Meaning, the values being discussed in the non-halakhic context, in the moral context, in the human context, are universal values. Being a good person is not Judaism. Every person has to be a good person. Therefore you cannot use these moral definitions as a definition of what Judaism is, as a characteristic of what Judaism is. That’s why often all kinds of criticisms are made about conversion processes, for example. Conversion processes put emphasis on ritual commandments and not on moral commandments. Right? People always say, wait a second, why if you’re a murderer can you be Jewish, but if you don’t eat kosher you can’t be Jewish? Murder is a more serious sin than not eating kosher. That is a mistake. It’s a logical mistake, because the definition is not supposed to revolve around the question of what’s most important. The definition is supposed to revolve around the question of what is most unique. When I want to define something, I need to define what distinguishes it, not what is most important about it. Okay? I want to define a lawyer. Is it right to define a lawyer by a person who does not—why not by saying he’s not a murderer? Why not say a lawyer is someone who is not a murderer? Because clearly what matters most is not murdering, right? Even for lawyers, in principle, the most important thing is not to murder. Fine. But that’s true for every human being, not just for a lawyer. Faith? No, because faith is a factual claim, as I said before. If there is God, then there is God. What does that have to do with whether I am Jewish or non-Jewish?

[Speaker C] You can claim there is God, or believe it.

[Rabbi Michael Abraham] I don’t think you can claim—what do you mean?

[Speaker C] You can’t claim it? At one hundred percent you can’t prove anything.

[Rabbi Michael Abraham] You can’t prove the law of gravity at one hundred percent either. That has no significance. You can make very strong arguments for the existence of God. If not, then I also don’t see why I should act, why I should accept it. So what if I’m Jewish? Convince me. If you convinced me, fine. If you didn’t convince me, then what? Because I was born Jewish, that means I’m supposed to act differently? What does that have to do with anything? If it’s a fact? Of course, it’s a fact. What do you mean “understood”? It’s a fact. Not connected to what’s “understood.” You can say I don’t accept that fact, but the claim that there is God is a factual claim. There is God. Now how do you get to that?

[Speaker C] That can be discussed, it’s not the topic—

[Rabbi Michael Abraham] It can be discussed, I wrote a book about it. But the point is, categorically, it is a factual claim. That’s obvious, that’s the nature of the claim. How you get there, or whether you get there, those are arguments—you can argue, you can discuss, that’s another issue. Therefore all the—yes?

[Speaker B] So doesn’t that make Judaism more or less not a system of faith that obligates ritual, but just pure ritual?

[Rabbi Michael Abraham] What distinguishes Judaism is ritual. That ritual stems from faith in God and from the revelation at Sinai. But the fact that there is God and that He revealed Himself at Sinai—those are facts. And they’re very relevant, they are facts. And if they are true facts, then in principle a non-Jew should accept them too. Except that as a result he is not obligated to do anything. That’s another matter. Therefore on the factual plane there shouldn’t be any difference. Okay? By the way, as I said last semester too, not on the moral plane either. There is no such thing as Jewish morality. Jewish morality is an oxymoron. There is no such thing as Jewish morality, that’s nonsense. There is morality. If morality obligates doing something or forbids doing something else, that’s true for all human beings. There is no such thing as Jewish morality. There is such a thing as Jewish law, which is Jewish and not relevant to a non-Jew. But morality, by definition, is universal. And the fact is that the Torah does not define moral principles. It only says in general, “And you shall do what is upright and good.” It does not get into the question of what the definition of morality is. Why? Because it assumes everyone understands what that is. Yes, they came with a claim against Cain before they had been commanded anything—the Holy One, blessed be He, comes to him with the claim, “Where is Abel your brother?… The voice of your brother’s blood cries out to Me from the ground.” What, I don’t understand—how am I supposed to know that murder is forbidden? Did You say it? You didn’t say anything. The simple assumption is that obviously murder is forbidden; you don’t need a command for that. Everyone understands it. So when it says, “You shall not murder,” why does it say, “You shall not murder”? To say that besides the moral prohibition there is also a halakhic prohibition. That’s all. We would have known the moral prohibition even before that. Therefore in principle—and I’ll say more about this later—morality too is universal by definition. There is no such thing as Jewish morality. Therefore neither morality defines Judaism, nor do any facts define Judaism, nor anything else except Jewish law. That’s it, only Jewish law. I think nothing else stands up to critical scrutiny. So the claim, in short, where we stand up to now, is that command is first of all a special category of verses, and that is in the imperative, not past, present, or future. Second, command constitutes the unique central domain of the Torah. First of all, that’s what the first Rashi on the Torah says, right? That this is the essence of the Torah. The Torah comes basically to state only Jewish law. Everything beyond that needs explanation as to why it appears there. There are various explanations, but it’s clear that the essence of the Torah is basically Jewish law. And the third thing I said is that only Jewish law can define Judaism. What is Judaism? Only Jewish law. Okay? I would even say Torah—not only define Judaism but maybe also define Torah. Essentially, Torah is only Jewish law. Everything else isn’t really Torah. Torah in the person, Torah in the object—I won’t get into the nuances now, I spoke about that a bit last semester. After that we moved to the question of authority, and I distinguished between—I’m summarizing last semester—I distinguished between substantive authority and formal authority. Substantive authority is authority that stems from expertise, like the authority of a doctor. Okay? A doctor prescribes me medicine—why should I take it? I’ll accept what he says because he knows, because he understands. That’s called substantive authority. Formal authority is authority that is institutional. Meaning, it stems from who you are, not necessarily from your being right. And therefore, for example, the authority of a parliament or the Knesset or a judge, whatever, is not authority that stems from their being right. It has nothing to do with whether parliament is right, and nothing to do with whether the judge is right. Their authority stems from the fact that they are parliament and judge. Meaning, from the fact that they hold that office in that institution. That’s what is called formal authority.

[Speaker B] Authority out of power. Purely.

[Rabbi Michael Abraham] No, not power. No, I’m not talking about power. I’m talking about authority in the sense of justification, not in the sense of enforcement capability. It’s true that you have to obey a judge not because he can punish you. That’s only a sanction. Rather, the fact that he punishes me is because basically I assume there really is an obligation to obey him. And consequently, if I didn’t obey him, I also deserve punishment. We don’t view punishment as something arbitrary; we view punishment as something justified. Therefore the claim is that formal authority is grounded in an institution. Meaning, there is a certain institution that has authority by virtue of being the institution in question—a judge, a legislator, or whatever it may be. The authority of the Holy One, blessed be He, for example, I assume is both. He has substantive authority because He knows better than we do—everything. And He has formal authority because He is the Holy One, blessed be He. I mentioned Maimonides in Laws of Idolatry chapter 3 law 6. Maimonides speaks there about one who worships idolatry out of love or fear. Usually most of the medieval authorities (Rishonim) understand this as love and fear of a person: I want to please some person whom I love or fear, and so I worship his idol. Why do they explain it that way? It’s not the straightforward meaning of the Talmud. It says that one who worships idolatry out of love or fear is exempt. It’s a dispute between Abaye and Rava, and Maimonides rules like Rava that he is exempt. Why exempt? If he worships the idol out of love or fear of the idol, apparently that’s classic idolatry—why should he be exempt? So that’s why almost all the medieval authorities (Rishonim), including Rashi and Raavad and Rivash, almost all of them explain that the intent is love and fear of a person, not love and fear of the idol itself. But in Maimonides it does not say that. In Maimonides it says that love and fear mean love and fear of the idol. And then the question arises: okay, so what is full-fledged idolatry then? Meaning, if idolatry out of love and fear gets you exempted, if that’s not full idolatry, then what is full idolatry? Maimonides writes there: if he accepted it as a god, then he is liable. What does accepting it as a god mean? Accepting it as a god—I’m doing this very briefly, I expanded on it last semester. What is a god? A god means someone who has institutional authority, formal authority, such that what he says, I do. Because he is a god, not because he is right. I assume he is also right, but that’s not why I do it. I do it because he is the god and one must obey the god, for whatever reasons there are, without getting into the question of why right now. The correct answer is just that, but we won’t get into it now. So one must obey him because he is the god. That is the concept of a god. Therefore, for example, in the Torah judges are called “elohim.” Talmud at the beginning of tractate Sanhedrin, right? How do we know that for monetary cases you need three judges in a religious court? Because “elohim” appears three times in the passage. “Elohim” means judges: “the owner of the house shall come near the elohim.” “Elohim” means judges. Why? Exactly for this reason—because the judge has institutional authority. What he says, I must obey because he is the judge. That’s it, as simple as that, no explanations needed. I don’t obey him because he is right, I don’t obey him because I am afraid of him, I obey him because he is the judge. That’s all. Simply from the fact that he holds that office, his authority follows. I mentioned, I think, that there was a British mountain climber named Thomas Mallory—there was, he’s no longer with us, I think. He climbed Everest, and they asked him, why are you climbing the mountain? So he said, because it’s there. If someone needs explanations for why I climb Everest, I have no explanations. Whoever understands, understands: simply because Everest is there. It’s obvious, no explanations are needed. If it’s there, I climb it. I think that’s a nice analogy for our issue. Someone comes and asks me: why do you worship the Holy One, blessed be He? Let’s assume the Holy One, blessed be He, exists and revealed Himself at Sinai and commanded us everything—let’s say we accept all that infrastructure. Why obey Him? What for? What? What is the reason to obey Him? Okay, the fact that He exists and that He commanded at Sinai is not in itself enough. This is what’s called David Hume’s is-ought fallacy. Meaning, the “is”—the fact that He exists and that He revealed Himself at Sinai—those are facts. But the “ought,” yes, what I am obligated to do, what it is proper for me to do, does not follow from the “is.” Right? Normative claims cannot be derived from factual claims. So the fact that He revealed Himself and that He exists is not enough to say that I am obligated to listen to Him. So why listen to Him? Okay, what I answer a person who asks me a question like that is: what is he really asking? He says, suppose I believe that there is God and that He commanded us commandments, and still—why observe them? Now, if you ask why observe, then you are not assuming that there is God or that He commanded. Because someone who assumes that cannot ask the question why observe. No further explanation is needed. From the very fact that He is God follows the conclusion that one must obey Him. It’s like someone who comes and asks me: look, I understand that murder is morally forbidden, but why shouldn’t I murder? What would you answer him? If you ask that, then you do not understand that murder is morally forbidden. Because that is the meaning of the concept that murder is morally forbidden. Murder is morally forbidden means: don’t murder, murder is forbidden. You can’t understand factually that murder is forbidden and then ask, yes, but why shouldn’t I murder? If you understand the meaning of “murder is forbidden,” there is no question of why not murder. Meaning, I’m not talking about the question that it says in the lawbook that murder is forbidden, and now I ask why not murder. That is a good question. Because the fact that it says so in the lawbook is a fact. From a fact I cannot derive a prohibition. I’m not talking about that. I’m talking about the question: I know that murder is forbidden—not that I know that somewhere it says that murder is forbidden, but I know that murder is forbidden. So the question, okay then, and now why not murder? What do you mean, why? You just said because you know that murder is forbidden. There is no room for that question. I mentioned this last semester: the claim basically is that there is a different kind of fact here. There is the fact that this wall is white, there is the fact that there is a table here, and there is the fact that murder is forbidden. The fact that this wall is white or that there is a table here are neutral facts. That is the “is” David Hume is talking about. From them you cannot derive the “ought,” what should be done, the norm, yes, the forbidden and the permitted, okay, or obligation. But from ethical facts, moral facts, of course you can derive the forbidden and the permitted. That is the meaning of an ethical fact. The ethical fact that murder is forbidden means that murder is forbidden. On the one hand that’s a fact, but on the other hand the naturalistic fallacy does not apply to it. From that fact you can derive norms. Not only can you—you must. Someone who does not derive norms from that fact simply doesn’t know that fact, or doesn’t accept that fact, whatever—he cannot say I accept that fact but why obey it? You don’t accept it. I claim the same is true of the command of the Holy One, blessed be He. If God exists and revealed Himself at Sinai and commanded us—or doesn’t matter, commanded us in general—you cannot now ask the question, okay, He was revealed and exists and commanded, why should I do it? Because He is God. That’s all.

[Speaker C] And what about all the sections of curses? How does that kind of—

[Rabbi Michael Abraham] No, you’re asking why there needs to be reward and punishment at all, not specifically curses and blessings. Fine, it’s like law. Do you have to obey the law because of punishment? No. You have to obey the law because the law must be obeyed. Punishment comes to help you do that, for whoever needs it. People on a higher level really don’t need it. Children need it; adults don’t need it. But, you know, we’re all human beings and we all fail sometimes, and punishment helps us do what needs to be done. But you have to understand that punishment cannot be the explanation. There are philosophers who want to claim that it is; in my opinion that’s absurd. Because if punishment is the explanation, then it’s not an explanation for the obligation to obey the law—it’s an explanation for why it’s worthwhile to obey the law lest you get hit. Okay, I understand punishment the opposite way. Punishment is imposed on me because there is an obligation to obey the law, not that there is an obligation to obey the law because of punishment. What justifies punishing me? Because fundamentally there is an obligation to obey the law. Otherwise you’re just arbitrarily imposing punishments on people. Okay, so that’s—well, that’s the difference between a force-based reason and a substantive reason. When people talk about coercion, fine, coercion always exists, but those are not reasons and philosophy doesn’t need to deal with that. Everyone can make his own calculations. When people talk about beatings—meaning, if you’re trying to persuade someone, trying to explain to him what is right and what is not right—then coercion is irrelevant to that discussion. Coercion can perhaps tell him, maybe you made a mistake in your calculation, know that you’ll lose, just do the calculation more correctly. That’s not persuasion. Right? So basically the claim is that the Holy One, blessed be He, has both kinds of authority. That is what Maimonides says both regarding idolatry and the service of God: if you worship out of love or fear, you are exempt, because to serve God or to worship idolatry out of love or fear—fear basically means this is not worship grounded in the simple fact that God commanded, but because I love Him, I fear Him, all kinds of reasons like that. Those are side reasons. Love and fear of God are values, there are commandments—love and fear of God are two of the 613 commandments. One must love and fear the Holy One, blessed be He, but those cannot be the reasons why I am obligated in what He commands. I am obligated in what He commands because He is God. I have accepted Him as a god—acceptance as a god. That’s what Maimonides says. And that is the antithesis of love and fear. Okay? Acceptance as a god. And acceptance as a god means that I do it because He said so. Therefore, for example, why is it that when I’m driving over the speed limit on the road, and suddenly I see a policeman, I slow down so I won’t get a ticket? Okay, have I committed idolatry? I’m obeying the orders of the policeman out of fear. Right? I’m afraid he’ll give me a ticket.

[Speaker B] But in practice you still don’t—you really don’t believe in his authority.

[Rabbi Michael Abraham] Of course I believe in his authority. I fully believe that if he catches me speeding, he’ll give me a ticket.

[Speaker B] But he’s not really the ruler. The proof is that you don’t drive—you drive, for example, on a road where there’s no policeman over the limit, because if the policeman really were grasped as authority, fear of the policeman—

[Rabbi Michael Abraham] What do you mean—

[Speaker B] some kind of something.

[Rabbi Michael Abraham] Why don’t I believe in its power? I completely believe in its power. If I didn’t believe in its power, I wouldn’t slow down. I believe in its power because I’m afraid. I know he’ll fine me.

[Speaker B] Exactly, exactly because of the punishment.

[Rabbi Michael Abraham] Right, obviously. What’s the question? That’s called serving out of fear, isn’t it? Serving out of fear. Idolatry is when I serve someone who is not the Holy One, blessed be He, out of fear—I’m afraid he’ll do something to me. No? So why isn’t that idolatry?

[Speaker C] I know there’s a motive here—you’re obligated.

[Rabbi Michael Abraham] So first of all, then you’re serving the state—you’re worshipping the state as idolatry. So what? It’s still idolatry. The answer is: because you’re serving out of fear. Service out of fear is not religious service. Service out of fear is an interested calculation. I’m making an interested calculation about what yes and what no. That’s not called religious service—not service of God and not idolatry either. That’s why Maimonides says that idolatry out of love or out of fear is exempt—it’s not idolatry. Why? Because you’re doing it for your own reasons, because you love, fear, something like that. Religious service is unconditional commitment, not because of one reason or another, but because He is God, that’s all. Because He is there. Not because He’ll punish me or not punish me or something like that. Okay? That’s called religious service—or full-fledged idolatry, on both sides. Okay? The moment I have reasons, a calculation because of which I do this thing, it’s not religious service. It has no meaning.

[Speaker C] So what is religious service?

[Rabbi Michael Abraham] So I’m saying: religious service is the result of accepting divinity. The definition that He is God, and what He says I have to do because He is God. Formal authority. Not because of fear, love, this consideration, that consideration.

[Speaker B] That’s exactly why the story—what was the example, Shimon Horkanus, was it—Shimon the Maccabee who forced conversion on the Edomites, it doesn’t count because in practice he came and explained to them with a sword that it wasn’t recommended not to.

[Rabbi Michael Abraham] Could be, although here we’re not talking about coercion. Here we’re talking only about an external consideration. It doesn’t matter if it’s not possible—the question whether financial coercion counts as coercion is not a simple question. In this case, for example, it’s financial coercion—the policeman will fine me. But I’m not talking—that’s not an argument from coercion. Rather, once you have a calculation because of which you obey, that’s not religious obedience. Not because it’s coercion, but because the basis of religious obedience is that there is formal authority here. I simply obey because he said so, that’s all. Not for some side reason, even a positive reason like love and fear. Okay? That’s the meaning of religious service. Therefore the authority of the Holy One, blessed be He, is first and foremost formal authority. Not only because He is always right and what He says is more correct, but first of all because He said so, that’s all. And this is the meaning of “greater is one who is commanded and does than one who is not commanded and does.” Tosafot, the Rosh, and the Ritva say that one who is not commanded and does—he does the commandment, and there is the benefit that the commandment is supposed to bring him. Of course there is value in the fact that he did the commandment. But if he is commanded and does, then there are two things: both the benefit of the commandment that he did, and the obedience to the command. Therefore he is greater. Same thing with a transgression. Right? With a transgression, someone who commits it when he isn’t commanded—maybe it harms him, but he didn’t transgress, he didn’t rebel against a command. Someone who is commanded—it’s more severe if he commits the transgression. Okay? It’s not because of all the discussions about inclination and all those things, but a simple calculation. In one who is commanded and does there are two positive aspects, and in one who is not commanded and does there is only one aspect. Therefore one who is commanded and does is greater. And we see that the value of commandments is rooted in the command itself, simply in the fact that we were commanded. Not in the fact that it’s right because it repairs these upper worlds or I don’t know exactly what, for one reason or another. No calculation whatsoever is the reason why one really has to serve God. One has to serve God because He is God. That’s all. There’s no better reason than that. The difference between formal authority and substantive authority—I’m leaving the Holy One, blessed be He, now, and moving to sages, decisors, the Sanhedrin, and the like. So in Jewish law, formal authority comes from “do not turn aside.” Right? The verse “do not turn aside from all that they instruct you, right or left”—that is the source of formal authority. Who is it talking about? According to almost all the commentators, aside from the Sefer HaChinukh I think, maybe one or two others, but almost all the commentators—and that is also the plain meaning of the Torah—it’s talking about the Sanhedrin. Formal authority belongs only to the Sanhedrin. Okay? What does that mean? That if the Sanhedrin said something, I have to obey not because they are right, but because they are the Sanhedrin. Like we said about the legislator or whatever. Of course, I’m describing this very crudely; the Talmud at the beginning of Horayot discusses one who errs regarding the commandment to heed the words of the sages, so it’s not entirely true that I have to obey everything they say. If I know they are mistaken, then certainly there are many views in Jewish law according to which I may refuse to obey them, but I’m not going into those details now. In principle, the Sanhedrin has formal authority. What happens beyond the Sanhedrin? The Sanhedrin disappeared more than 2,000 years ago. So the Talmud—the Mishnah and the Gemara—also has formal authority, but it comes from below and not from above. The authority of the Sanhedrin begins from above. The Holy One, blessed be He, ordained Moses, Moses ordained Joshua, they ordained the sages after them, they created the Sanhedrin, and ordination began from above and passed from one ordained person to another until the—yes, until the Sanhedrin of their own time. That is ordination from above. Authority from above. Okay?

[Speaker B] What do you mean, the Sanhedrin of our time?

[Rabbi Michael Abraham] “Our time” meaning the generations in which there was a Sanhedrin. In every generation, up to the Sanhedrin of that generation, there is ordination from generation to generation.

[Speaker B] So now can we really speak about a central halakhic tradition among the Jews in exile, because who determined—

[Rabbi Michael Abraham] I’m not talking about halakhic tradition at all. Who talked about that? I’m talking about a chain of ordination. It has nothing to do with the question of halakhic tradition. I’m not talking about the question of what is halakhically correct or not correct to do. I’m saying: there is an ordained sage, and he ordains another sage. And that’s how the other sage becomes ordained. How did the chain begin? With Moses our teacher. Right? The Holy One, blessed be He, ordains him, he ordains Joshua, and so on, and every court seats another court and ordains more people until it creates a court of seventy-one, the Sanhedrin, and that’s how the Sanhedrin came into being. That Sanhedrin appoints the next Sanhedrin, or they replace people, and they keep making sure there are seventy members and there is a Sanhedrin. And so from generation to generation, ordained sages ordain other sages. In smaller courts too there are ordained members. I’m talking about the Sanhedrin right now for the sake of the discussion. So the Sanhedrin is basically an ordination process that begins and ends from above. From the Holy One, blessed be He. Whoever the Holy One, blessed be He, ordained, ordains the next generation, and so on—so everything is from above. “From above” meaning not from the people, but from the Holy One, blessed be He. Okay? In contrast, the Gemara has authority from below. What does that mean? As Maimonides writes in the Laws of Rebels, the authority of the Talmud is not because the Talmud is right—not because of what everyone tells us, that they were all there with divine inspiration and never made mistakes, which in my opinion is nonsense. The authority of the Talmud stems from the fact that we accepted it upon ourselves. That’s all. Like parliament. We elected it. Okay?

[Speaker B] Meaning that here there are already two kinds of formal authority.

[Rabbi Michael Abraham] There is authority from above, which is the original authority the Torah speaks of in “do not turn aside,” and the authority of the Talmud. In fact, one who violates the Talmud, in the straightforward sense, does not violate “do not turn aside,” because it is not a ruling of the Sanhedrin. In the Babylonian Talmud certainly it was not a Sanhedrin. In the Jerusalem Talmud there were still periods when there was a Sanhedrin.

[Speaker B] If nowadays we came and said that we stop accepting the authority of the Talmud?

[Rabbi Michael Abraham] If the public as a whole stopped accepting the authority of the Talmud, then indeed, it would seem in the simple sense that there would no longer be authority. That’s unlike the Sanhedrin, for example, where such a thing doesn’t exist, because that comes from above. When it comes from below, the mouth that forbade is the mouth that permitted. Okay? Like the authority of a local rabbi, for example, in his community. The authority of a local rabbi in his community has a formal dimension, but not because he is ordained in an unbroken chain from Moses our teacher, but because the community appointed him over itself. It accepted him upon itself. It’s a kind of contract. They made a contract with him that we accept your authority in certain matters, that doesn’t matter right now. That too is authority—in a certain sense, formal authority. That’s it. Meaning: aside from the Sanhedrin and the Talmud, and maybe a local rabbi, there is no such thing as formal authority in Jewish law. All the other authorities are substantive authorities. For example, the authority of the medieval authorities, great halakhic decisors, the Shulchan Arukh, and whatever you want—that’s all substantive authority. What does that mean? It’s authority that stems from the fact that they are Torah scholars, so they are probably right, like a doctor. But there is no obligation to obey them. Just as with a doctor, there is no obligation to obey a doctor. It’s just sensible to obey a doctor because he understands more than I do. But no one will sue me if I don’t listen to the doctor—I’ll just die. Fine? It’s not an obligation to listen; rather, reason says that if he is an expert and understands the matter, then it probably makes sense to follow him. Same thing in Jewish law. The authority of the great decisors, insofar as such authority exists at all, is not formal authority. It isn’t—they are not the Sanhedrin, and no one accepted them upon himself absolutely. Rather, people recognize their greatness, their position carries weight, but yes—you can also disagree with them, and everyone does disagree with them too. Right? Therefore they do not have formal authority. Their words carry weight. They definitely carry weight. Why? Because they are Torah scholars. That’s all. And they know a lot of Torah. And since that’s so, obviously their words carry weight, and one should think very carefully before disagreeing with them. But in principle, I have violated no prohibition if I disagree with them. Okay? That’s really the claim. Therefore all authorities after the Talmud are substantive authorities and not formal ones. There is no prohibition against disagreeing with all decisors from one end to the other, from the Gemara onward—from after the Gemara onward. By the way, that is what the Rosh writes in Sanhedrin, chapter 4, section 6. It is brought as Jewish law in the Shulchan Arukh, ironically enough—in Shulchan Arukh, section 25. The Shulchan Arukh, the book whose entire basis is the opposing approach, itself kind of receives a sort of formal authority, the Shulchan Arukh. Right? Today many people relate to it that way. Yet in the Shulchan Arukh itself it says that anything after the Gemara has no formal authority—section 25.

[Speaker B] To what extent can we take upon ourselves, for example in everyday life, as relevant, the view that no later court can overturn things ruled by an earlier court? No, no, no—it has nothing to do with everyday life.

[Rabbi Michael Abraham] Because there we are talking about things established by the Great Court, the Sanhedrin. And then, in Torah-level law, a later court can disagree; in rabbinic law, only if it is greater in wisdom and number. But that is all a relationship between Sanhedrins. Once we do not have a Sanhedrin today, we cannot change what an earlier Sanhedrin established, in principle. It cannot be changed. Only a Sanhedrin can change what a Sanhedrin did, can disagree with an earlier Sanhedrin. That is why “a matter established by a count requires another count to permit it”—that is one Talmudic passage. And the other Talmudic passage says that the court must be greater in wisdom and number. The medieval authorities ask about the contradiction between the passages; there is the Ritva, Maimonides, the Meiri, and others, and most of the medieval authorities explain, as Maimonides explains at the beginning of the Laws of Rebels, that the passage “a matter established by a count requires another count to permit it” deals with Torah-level laws, and therefore in Torah-level laws, if it was established in the Sanhedrin, a later Sanhedrin can change it with no problem at all—it need not be greater in wisdom and number. But in rabbinic law, a later Sanhedrin can disagree with the earlier one only if it is greater in wisdom and number. Not every later Sanhedrin can disagree. But if it is a ruling established in a Sanhedrin, and the one coming to change it is not a Sanhedrin, there is no way to do that in principle. If the ruling was not established in the Sanhedrin, then nothing is needed in order to nullify it, because it is not valid. It has no force at all. Therefore laws that come from the medieval authorities—not when they interpret the Gemara, the Mishnah, or the Torah, but when it comes from the medieval authorities themselves—have no force whatsoever. At most, custom. You can say that the Jewish people practiced this, and custom has significance. But that’s all. They have no force. I’m saying again: this is not the accepted view in the world when you ask people, but it’s clearly correct. I don’t know, so I’m not even—I mention it because one still has to be honest. But it’s clearly correct, what I’m saying. Meaning, you can’t argue with it. You can’t—but many do. It’s like, you know, when people say about something that “it’s unthinkable”—they always say it after someone already said it, right? “It’s unthinkable to say such-and-such.” When do you say something like that? When you hear someone who said it. If it’s unthinkable—well, there, it was thought, there he is saying it. Fine. What’s the difference between a non-Jew and a complete non-Jew? Do you know the difference? A non-Jew is a non-Jew, someone who isn’t Jewish. A complete non-Jew is only a Jew. Have you ever heard someone say of a non-Jew that he’s a complete non-Jew? Every non-Jew is a complete non-Jew. When people say someone is a complete non-Jew, it’s only about a Jew. Fine. In any case, the difference between formal authority and substantive authority is very important, because all the institutions—or rabbis, or decisors—whose authority is substantive authority, which means almost all of them except for the Gemara and, to a small extent, a local rabbi for his community, can be disagreed with. Okay? They don’t really have real authority. They have—you need to relate to what they say, because they are Torah scholars, so it’s not sensible just to go against their words for no reason—but there is no obligation to obey; that is not formal authority. Okay? Therefore there is also no need to get into all these exaggerations that all the sages of the Talmud had divine inspiration and all kinds of things, and could revive the dead, and all kinds of legends of that sort. It’s nonsense. They were human beings like me and you, but fine, more righteous, less righteous—you can debate that—but wise, not wise, doesn’t matter; from my perspective it’s not a relevant discussion. This type of reasoning speaks to people who think like children. It’s not that I have to obey the Gemara only because it’s a collection of prophets, a whole band of prophets, because of course they’re right. They don’t understand that there is also a formal system of rules that says you have to obey something because it is the deciding institution, like parliament. Would someone tell people, listen, you have to obey the laws of the Knesset because they’re so wise there, the ones sitting there never make mistakes, they have divine inspiration, they can all revive the dead. Mostly they can kill the living; reviving the dead I’m a little less sure about. No, we don’t need that, right? Everyone understands that there is such a concept as authority that does not stem from your being the greatest expert. Even if you really are an expert, your authority is not because you are an expert. Okay? Like, I don’t know, a district psychiatrist. What’s the difference between a psychiatrist and a district psychiatrist? In principle they are experts at the same level, but a district psychiatrist has the authority to hospitalize someone by force. A regular psychiatrist does not. Why? Because he received authority from the legislator or the government, or whatever, from the authorized institutions. So the difference between him and a regular psychiatrist is not in the level of expertise. Our obligation to obey—or his ability to enforce his decisions—is not because he is more expert, but because he has authority by virtue of holding the office of district psychiatrist. Same thing with a judge—a judge versus a legal scholar. A law professor may be a far better jurist than a judge, but what the law professor says I can ignore, I can disagree with. Maybe that isn’t wise because he is more expert, but I can—there is no obligation to obey him. A judge, no—I can’t ignore him, even if he’s a complete fool and certainly mistaken. Doesn’t matter, he’s the judge. Meaning, there is another anchor of authority, a formal anchor, and you don’t need to appeal to substantive considerations in order to explain why an institution or a person has authority. Now I want to go one step further and say that although decisors have substantive authority—they are Torah scholars, so one has to take seriously what they say—not only is there no obligation to obey them, but in fact there is an obligation not to obey them. Again, let me say in advance: this is only my own position, or that of a few other Jews, but it is certainly not agreed upon. There is an obligation to conduct oneself autonomously. That is what I want to claim here. What does that mean? A person has an obligation to do what seems right in his own eyes on the basis of analysis of the topic, even though greater Torah scholars say otherwise, and the topic seems to lead them elsewhere. Why? Not because he is right—they are greater Torah scholars, it is more likely that they are right—but because there is an obligation of autonomy. An obligation of autonomy means that I must rule autonomously. I have to study the passage, reach a conclusion, and do what I think. Now of course this applies only to someone who is capable; otherwise it’s just games. Obviously a first-grader should not rule for himself—he knows nothing. And obviously an ignoramus cannot rule for himself either. But if a person is learned and already knows how to make decisions—true, he is not the greatest sage of the generation, he is not Rabbi Moshe Feinstein or Rabbi Ovadia, or I don’t know, all the great decisors, fine? But he is a Torah scholar, he has the ability to form a position on a topic, then in principle he should rule for himself.

[Speaker B] And where does that obligation come from?

[Rabbi Michael Abraham] It’s an obligation from reason, an autonomous obligation.

[Speaker B] An obligation to be autonomous—

[Rabbi Michael Abraham] Why is there an obligation—

[Speaker B] to be autonomous?

[Rabbi Michael Abraham] From reason. You want a verse? No, there’s no verse. There are—I can bring proofs that such an obligation exists, but I don’t have a verse for it. I’ll give you an example. The Talmud says in Eruvin that Rabbi Meir’s colleagues did not rule like him. Now if I disagree with him and I didn’t understand why he’s right and I’m wrong, then I probably missed something, because he’s such a genius, ten levels above all of us. So clearly the law should be like him everywhere, right? Why is that a reason not to rule like him? You said the law needs to be understandable to human beings? Okay. Meaning, I have to rule the law according to what I understand the law to say. Even though, notice, I myself agree that Rabbi Meir is ten times greater than I am. And if you ask me who is right, me or Rabbi Meir, I myself will tell you Rabbi Meir is right. But since in my chain of reasoning the law comes out this way, and I don’t understand why Rabbi Meir says otherwise—if I don’t understand why he says otherwise, I don’t have to do it.

[Speaker B] But there it’s the public versus the individual—maybe there’s some public—

[Rabbi Michael Abraham] No, no. A person versus a sage, not necessarily the public versus the individual. Not necessarily “the law follows the majority.” If the law were simply that it follows Rabbi Meir, then there would be no need for explanations why we don’t rule like Rabbi Meir. The law follows the majority; individual and majority, the law follows the majority. Why do we need special explanations that we don’t rule like Rabbi Meir?

[Speaker B] I understood that that was the novelty. There?

[Rabbi Michael Abraham] They—

[Speaker B] were the majority and they knew he was right, and the majority still had to rule like themselves because that’s the majority.

[Rabbi Michael Abraham] Well, so what’s the difference? Then you’re saying exactly what I’m saying. What difference does it make whether it’s a majority or not? So also an individual. If I know that he’s—if I know he’s right but I think otherwise, then my position will be not like him. Now if there are ten of us and he is one, then we are also the majority. But—but the majority is the result.

[Speaker B] If the majority knows that the individual is right, yes—do we also say in such a case that—obviously—that the law follows the majority?

[Rabbi Michael Abraham] Obviously. You are arguing the opposite, that only in such a case do we say it. I certainly agree that in such a case we say it, but I’m claiming that even an individual is like this. Even if an individual thinks the other person is right but doesn’t agree with him and doesn’t understand why he is right, even the individual should go not like the one who is right, not like the wiser man. The fact that with a majority it’s certainly so—that’s simple. A majority is ten individuals, so all ten individuals each form a position according to what they think, and in any event there is a majority against him, and the law inclines like them.

[Speaker C] If I’m a neutral person—

[Rabbi Michael Abraham] Wait. Why do they begin with the youngest in the Sanhedrin in capital cases? So that he won’t be influenced. Right? Why shouldn’t he be influenced? On the contrary, let the greatest one speak first and then you’ll understand what is correct. What?

[Speaker C] If I’m a neutral person?

[Rabbi Michael Abraham] What does “neutral” mean?

[Speaker C] I think I don’t understand the subject well enough.

[Rabbi Michael Abraham] Fine. If you’re not a Torah scholar, I’m not talking about you. I’m talking about Torah scholars, again. I’m saying again: someone who isn’t a Torah scholar—we’re not talking about him. That’s just irresponsible.

[Speaker C] If I go to a formal institution or to an institution that I think is the very, very best—

[Rabbi Michael Abraham] If there is a formal institution, then my discussion never starts. If there is a formal institution, then of course they are authorized; no one can disagree with them. No one can disagree with the Sanhedrin. I’m talking about a situation where there is no formal authority. There is no ruling of the Sanhedrin here. There is a dispute between sages, one of whom is recognized by everyone as vastly more learned than the others, okay? And still, I don’t see why he’s right. If you ask me about the truth—what would I bet on? I’d bet that he’s right, because he’s a huge Torah scholar. Fine, I don’t understand it, I have my own position, I have to do what I think. I mentioned the Maharal in Netiv HaTorah, chapter 15, where he expands on this point. This is a well-known part of his dispute with the Shulchan Arukh. Chapter 15? Fifteen in Netiv HaTorah. The Maharal and his brother Rabbi Chaim, both of them, and also the Maharshal, were among the leading fighters against the Shulchan Arukh and the Rema. Because the Shulchan Arukh and the Rema were basically works that wanted to take for themselves—or at least the public gave them—a kind of formal authority, that what is written in the Shulchan Arukh is binding because the Shulchan Arukh wrote it, regardless of whether my own conclusion in the topic is different. And against this came out the Maharal, his brother, and the Maharshal, and said: what are you talking about, there’s no such thing. By the way, the same dispute also existed around Maimonides. This is what are called the codification controversies; in Elon’s book on Hebrew law he discusses this as the two codification controversies around Maimonides and around the Shulchan Arukh. Okay, now there are various proofs for this, I won’t expand on it here. I spoke about it last time, and I also have an article on the matter that—so I can send it. What? Send me an email maybe. Do you have my email?

[Speaker B] Yes, maybe it would be worth putting it on the site among the articles.

[Rabbi Michael Abraham] It’s on my site.

[Speaker B] Where are the articles? Is it there?

[Rabbi Michael Abraham] All the articles are there. But if you want, you can send an email: it’s mickyab@gmail—M-I-C-K-Y-A-B, Micky Abraham. It also appears on the institute’s website.

[Speaker B] This view—can we see in it, if we look at it that way, parallel to another religion that grew out of Judaism—some hints דווקא of Protestantism, which places the emphasis on the obligation of every person to study the matter privately?

[Rabbi Michael Abraham] Yes, that’s the parallel. There is a Protestant dimension in my argument, yes, definitely. Though not fundamentalist like ordinary Protestants. Anyway, by the way, in Islam too it’s the same thing. Say, the Shiites and the Sunnis—once an expert on Islam explained to me that the difference between Shiites and Sunnis is in large measure like the difference between Protestants and Catholics, and the claim is that the Shiites parallel the Protestants and the Sunnis the Catholics. Meaning, the Sunnis recognize a central authority and the Shiites don’t. Meaning, they are not bound by precedents, for example; each generation determines for itself and their Torah develops—as if, their Jewish law develops—and that parallels the Protestant model. Fine, anyway, that’s regarding this. I spoke about autonomy in halakhic ruling. After that I moved to the question of—and I commented on it a bit, I didn’t really exhaust it—but first-order ruling and second-order ruling. What does that mean? A great many responsa you see today are responsa built on the question: what does the Mishnah Berurah say here, and there’s a contradiction to what it says there, and then I reconcile it, and Rabbi Akiva Eiger says this, no, so most decisors say that, therefore the law is like this. Okay? That is basically ruling founded on precedents, on surveying precedents. Rabbi Ovadia is very prominent in this mode of treatment, although in my opinion that’s a facade. Meaning, it didn’t really work that way, but that’s how he presents what he’s doing. In a large number of cases he didn’t really work that way. He knows how to express what he thinks in that form. That’s what I call second-order ruling. First-order ruling is simply clarifying the topic and reaching my own conclusion. What do I care what the Mishnah Berurah or Rabbi Akiva Eiger or whoever said? They are all important people, I’ll study what they say, I’ll see the arguments, I’ll think carefully why one says this and another says that, but at the end of the day I don’t weigh all the opinions—I rule according to what my conclusion from the topic is. Okay? That’s what’s called first-order ruling. The example I bring for this—well, all the good stories are told about Rabbi Yonatan Eybeschutz, as is known. Once a priest came to him and said: why don’t you follow us? After all, we are the majority—the Christians are the majority, right? So he said to him: I follow the majority in a place where I am in doubt. If I am not in doubt, I do not follow the majority. Now that sounds like a joke, but it is a completely serious answer, completely serious. When we find a piece of meat in the market, and there are nine kosher shops and one non-kosher shop, we follow the majority, right? On the basic level of law—there is also the issue of meat left unsupervised—but on the basic level we can eat that piece because there are nine kosher shops. If there are nine non-kosher shops and one kosher one, it’s forbidden to eat, right? Now let’s say there are nine non-kosher shops and one kosher one, and I found a piece of meat with a top-level kosher seal on it. Okay? Is it permitted to eat? You’ll say follow the majority—most of the shops are non-kosher.

[Speaker B] But it has a stamp on it.

[Rabbi Michael Abraham] Which means that I’m not in doubt. If I am in doubt, then the rule is that we follow the majority. If I’m not in doubt, there is no reason at all to follow the majority.

[Speaker B] Like in the Sanhedrin, where there is a majority that votes this way and I—

[Rabbi Michael Abraham] In the Sanhedrin it’s something a bit different, because it’s a rule in how the Sanhedrin functions. The question is not how the minority judge should act, but how the citizen should act.

[Speaker B] Can the judge himself rule according to his own opinion?

[Rabbi Michael Abraham] That’s another issue; it depends on the passage in Horayot that I mentioned earlier. But I’m saying, on the principled level, when they say “incline after the majority,” that is not an instruction to the minority; it’s an instruction to the public. From the public’s perspective, what is the instruction of the Sanhedrin? The instruction of the majority. He really does follow the majority. Fine? So the claim basically in what—yes, it’s like what the Jerusalem Talmud says about custom: “If you do not know, O fairest among women, go forth in the footsteps of the flock and pasture your kids beside the shepherds’ tents.” What does that mean? “If you do not know, O fairest among women, go forth in the footsteps of the flock”—if you don’t have a position, then go after custom. Custom will determine what you need to do. If you do have a position, do what you think. The fact that Sephardim follow the Mechaber and Ashkenazim follow the Rema has no significance whatsoever. If I have my own position, then I need to do what I think. What difference does it make that I’m Sephardi if I think like the Rema? Or the reverse? What difference does it make? If that is what—if that is what I think, that is what I have to do. If I don’t have my own position, then I go with the customs; and Ashkenazi custom is the Rema and Sephardi custom is the Mechaber. And that is only when I have no position of my own. In principle, I’m supposed to rule for myself as I understand.

[Speaker C] But if there’s a period, let’s call it a period of anarchy?

[Rabbi Michael Abraham] What, today there isn’t anarchy? There are tons of opinions.

[Speaker C] After all, today too Jewish law has more or less already lost its standing. No, that—

[Rabbi Michael Abraham] Those are always the fears, but those fears exist today too, it’s just—

[Speaker B] That’s not anarchy.

[Rabbi Michael Abraham] All—listen, the hope, the dream, the utopia of many, many people is that when the messiah comes we’ll establish a Sanhedrin and once again everything will be uniform. I’ll flee to Australia when that happens. I don’t want it to be uniform, and I hope it won’t be either. I also estimate it won’t be. It won’t be uniform. It will be uniform in those places where you need to make a decision because you can’t function if everyone does something different. So the Sanhedrin has to make a decision, and it binds everyone. But a wise Sanhedrin doesn’t enter places it doesn’t need to enter. Why should a Sanhedrin determine that all of us have to do the same thing if each person in his own home does what he wants? What he thinks, not what he wants. It can set boundaries, but there are things that are simply out of the question—you’re just wrong. But within those boundaries, if you follow Sephardic practice, Ashkenazic practice, Yemenite practice—fine, everything is fine. Act this way, act that way. What you think, that’s what you should do. What’s the problem? In places where you can’t function—people suddenly decide not to marry one another, or all kinds of things like that—then the Sanhedrin will probably intervene and establish some uniformity in order to solve the problem. But that’s only to solve problems. There is no dream that there should be a uniform Torah. There is no such dream. Where did that dream come from? To me it’s a nightmare, not a dream. You need to do what you think—that is a basic obligation. Fine. After that we moved on to questions of Jewish law and morality, and autonomy, and I’ll come back to this issue of autonomy. We dealt with questions of Jewish law and morality, and there I raised several possibilities for how one relates to conflicts between Jewish law and morality. I said there are three categories; you can divide Jewish law into three categories. One category is moral laws, which fit morality: do not murder, do not steal, honor your father and your mother, and so on. There are anti-moral laws. Not so many, by the way, but there are some: to kill Amalek down to the infants, I don’t know what, a priest’s wife who was raped and then he has to separate from her. The question whether that isn’t moral—

[Speaker C] What? The question whether that isn’t moral.

[Rabbi Michael Abraham] That’s what you understand? What is morality? Everyone understands what—everyone understands that to murder an infant who did nothing is immoral. You don’t understand that? Give up, father, give up. Whoever moves around in your environment should be careful.

[Speaker C] It’s—

[Speaker B] That’s not morality there; it’s already a matter of, for example, if I have to—in order to defeat the enemy I have to kill—

[Rabbi Michael Abraham] No, I’m not talking about defeating the enemy. I’m talking about the obligation to destroy all the Amalekites, including the infants. Not in order to defeat the enemy—when only infants remain, we’ve already won. Or a priest’s wife who was raped, or mamzer status—children who are mamzerim—that is a crazy moral injustice.

[Speaker B] It’s a matter of showing—

[Rabbi Michael Abraham] power, for example—

[Speaker B] the Romans, for example, when they destroyed Jerusalem, they did it mainly to show the Jews what their power was and that they shouldn’t dare rebel again.

[Rabbi Michael Abraham] And therefore that was moral? What?

[Speaker B] In principle, if you say that the use of—

[Rabbi Michael Abraham] force is a moral justification? It depends whether there is a justification for using force.

[Speaker B] In principle, the Romans acted morally because they said, wait a second, we have our Roman morality, our Roman conception as—

[Rabbi Michael Abraham] I don’t know. There is no such thing as Jewish morality, so certainly there is no such thing as Roman morality. There is correct morality and incorrect morality. That’s it. The fact that they thought that way means they were coerced by their understanding, but it doesn’t mean they were right. Those are different things. Obviously a person can be compelled, but that doesn’t make him right. If Hitler was sure that all the Jews had to be killed because they were, I don’t know, going to destroy the world—suppose he really thought that, suppose. Does that mean he was right? It means he was compelled. Fine, he really thought that, so he acted according to his view. That doesn’t make him right. I’m saying there is no Jewish morality and no gentile morality, but there is one binding morality. If we have a dispute, then one is right and one is wrong.

[Speaker B] Fine. But you can see that in the world different moral conceptions developed—

[Rabbi Michael Abraham] Developed—morality develops.

[Speaker B] Okay, there are many mistakes, they developed—

[Rabbi Michael Abraham] There are also completely different scientific conceptions, so what does that mean, that everyone is right? No, one is right and one is wrong. So there are different moral conceptions.

[Speaker B] The point is that since there is no single determination for every people, there is no universal morality, that means every people behaves however it thinks fit.

[Rabbi Michael Abraham] On the contrary. All that means is that there is one universal and binding morality. Because otherwise you wouldn’t call it a dispute in moral matters. Suppose I think old people should be put in a nursing home, and the Eskimo thinks they should be taken out into the snow to freeze quietly there. Okay? Is that a moral dispute? What’s the dispute? After all, if there is no moral truth, I act this way, he acts that way, everything is fine. Where do you see a dispute here? Is there a dispute between someone who puts old people in a nursing home and someone who eats chicken on Friday night? They’re not talking—it’s not on the same plane. If you assume there is a moral dispute, the meaning is that both sides are arguing about the question of what is right to do and what is not. That means both agree that there is one thing that is right to do and everything else is not right to do. They only disagree about what that right or wrong thing is, okay? Like any dispute—one is right, one is wrong. It’s not always certain that I’m right, doesn’t matter, I’m only saying: one is right and one is wrong. The existence of disputes only proves the existence of absolute truth; it does not refute the existence of absolute truth. That is a common mistake—it’s a mistake. Okay? If there is a dispute, that means both sides agree that there is truth. Otherwise there is nothing to argue about. I like a certain woman and you don’t like her. Fine? Do we have a dispute? No—my taste is such and your taste is different. Right? What’s the problem? That’s not a dispute. Okay? If you grasp morality in that way, then of course it isn’t morality and we don’t have moral disputes, and everyone does whatever he feels like. Okay? But if you understand that there are moral disputes, there are conflicts—this one says this and that one says that—and the question is who is right and who is not right. When you say right and not right, by that you have said that there is some single standard that determines justice, and whoever does not follow it is not right. We have a dispute over what that standard says. Fine? Fine, that’s okay; one has to be humble, one has to know—not always are you right or I right. Fine, that’s true. But that does not mean there is no justice. On the contrary, it means there is justice, only I’m not always sure what it is. Okay? So the claim, basically, is that there are moral laws, anti-moral laws, and non-moral laws. That is the third category. Non-moral laws are neutral laws—not eating pork, I don’t know, impurity and purity, all kinds of things like that. My claim—I’m doing this very briefly because I’m going to devote this whole lesson to summary, but I want to finish the summary in this lesson. So the claim is that the non-moral commandments, the non-moral laws, prove something very important: that Jewish law has purposes beyond moral values. Right? Because otherwise, why would eating pork be forbidden? It has nothing to do with morality. It has something, I don’t know, probably to arrange something else, but not—there is no moral purpose there.

[Speaker B] There could also be supra-moral purposes.

[Rabbi Michael Abraham] Also supra-moral, yes. Fine? Up to here. Fine? Now I’m saying: let’s move to the anti-moral laws. That I proved from the non-moral laws. Now let’s take it into the territory of the anti-moral laws. How do I interpret that? And I’m sparing you all the possibilities I rejected last semester; I’ll go straight to the bottom line. How do I interpret it? My claim is that there is no problem at all—it’s a conflict, not a contradiction. What does that mean? Here’s an example: two people argue whether it is proper to eat chocolate. One says yes, absolutely, because it’s tasty; the other says what are you talking about, it’s fattening. Who is right? Both are right. It’s both tasty and fattening. Usually that goes together, right? It’s both tasty and fattening. So is there an argument here or not?

[Speaker B] Each one is simply speaking about a different aspect.

[Rabbi Michael Abraham] Right, those are other aspects. But in the end I have a conflict, because the question is: I need to decide what to do. So I need to decide whether the enjoyment outweighs the health or the aesthetics—whatever obesity is here—or the other way around. Here there’s a dispute: what stands above what. But all the rationales are valid. Okay? By the way, in almost every dispute that’s how it is. In almost every dispute there isn’t a right one and a wrong one. A dispute between intelligent people usually doesn’t have someone who’s right and someone who’s wrong. If you check carefully, you’ll see it. What there are, simply, are different rationales, all of which are valid. One hundred and fifty reasons to declare pure and one hundred and fifty reasons to declare impure—that’s exactly what the Talmud says. The question, of course, is how to weigh one against the other. Which is more important and which less. We’ll get to that later. So the claim, basically, is that when you examine things through a different prism, through different aspects, you can of course arrive at different results, so that isn’t a contradiction. My claim is that anti-moral halakhot—there’s no problem at all with the fact that they are anti-moral. Why? Because if we remember that Jewish law has goals that go beyond morality—let’s call them religious values, not moral values, religious values. These are values of a different kind, yes? Not values whose role is to improve the state of humanity or the state of society, which is what we usually call morality. These are values whose purpose is, I don’t know, to improve the eternity in the world, I don’t know exactly what, to improve the spiritual world. Fine, it doesn’t matter right now what exactly—let’s call them religious goals in general. All right? Now, if I accept that fact—and I proved it from the existence of non-moral halakhot—now I move to anti-moral halakhot, and I basically say: wait a second, so what’s the problem? Once I have a conflict—say, a priest’s wife who was raped, they have to separate. Right? Now she’s gone through an insane trauma. And now you put her through another trauma? And her husband too, and the children? They want to stay together, they love the children, they love each other, but no, you must separate. Why? There is a religious value that they separate. The sanctity of the priesthood requires that a priest not live with such a woman. I don’t know exactly why, but that’s what the Torah says. That value has nothing whatsoever to do with morality. There is nothing moral here. It’s a religious value. The sanctity of the priesthood has to be preserved for some reason; I don’t know exactly why. Okay? It has no moral content at all. Nobody—people only suffer from maintaining this value. They don’t suffer from canceling this value; they suffer from maintaining this value. Okay? So what follows? There is a moral price here, and this ruling is immoral. Unequivocally immoral. But there is a religious value that overrides the moral value. And therefore there is no principled problem at all. There is a conflict, and it’s hard to be in such a situation, but there is no principled problem with the existence of anti-moral halakhot.

[Speaker C] Maybe general modern morality has simply changed?

[Rabbi Michael Abraham] The morality of two thousand years ago was different,

[Speaker C] and accordingly the non-moral commandments too?

[Rabbi Michael Abraham] No, but even two thousand years ago you weren’t supposed to inflict tragedy on people who did nothing. That hasn’t changed. Or just kill babies. That’s regarding anti-moral halakhot. Sparta…

[Speaker B] In Sparta, yes—they had no problem killing babies.

[Rabbi Michael Abraham] That means they weren’t moral. Depends whom you ask.

[Speaker B] Plutarch describes Lycurgus as one of the most moral human beings there were in Sparta. Come on—

[Rabbi Michael Abraham] Let’s say there was also one of the most moral people in Sodom—that’s not a very exalted title. Someone who was moral… the fact that he was the most moral in Sparta doesn’t make him into anything.

[Speaker B] Plutarch describes Lycurgus as a person who treated others with respect.

[Rabbi Michael Abraham] I don’t think Plutarch is my moral standard. Fine, so what? So I—

[Speaker B] I don’t know exactly what you said about the “so what,” one overrides the other.

[Rabbi Michael Abraham] So you say: there’s no contradiction in the fact that Jewish law requires me to do something immoral. Not because Judaism has a different morality. There is no Jewish morality and other morality. It’s immoral, period. But it’s not for nothing—there is a religious value. And just as even within morality there are sometimes conflicts, right? Sartre talks about the Holocaust, and he had a student who came to him with a dilemma. He asked him what to do. He has an elderly mother in Paris under Nazi occupation. And he needs to… an elderly, sick mother, and he has to help her; there’s no one else. His older brother is collaborating with the Nazis, his father is dead, there’s no one to help this mother. And on the other hand he wanted to flee to the Free French army under de Gaulle, to fight the Nazis. But then he leaves his mother alone. What should he do? Here’s an example of a very difficult moral dilemma. How do you decide in that dilemma? I don’t know. There’s a contradiction between two values here. Does anyone see a contradiction here? It’s not a contradiction, it’s a conflict. What, is there some problem with being committed both to fighting evil and to helping your mother? Is there a contradiction between those values? Not at all. There is a certain situation in which it’s impossible to realize both of those values. But there is no problem at all in holding both of those values. It doesn’t contradict the fact that I hold both of those values. Most people hold both of those values, right? Both helping an elderly mother and fighting evil.

[Speaker C] But what if there’s an expectation that Jewish law should also be moral?

[Rabbi Michael Abraham] No. I have no such expectation at all. That’s exactly the point. That’s exactly what I’m talking about. No, that expectation is the root of all evil. No, there’s no such expectation at all. Just as moral values can contradict one another, why can’t religious values conflict with moral values? By “contradict” I mean stand in conflict, not contradict. Okay? It’s like saying this chocolate is tasty but fattening. Meaning: separating a priest from his wife who was raped is immoral, but it is religiously important. Now you have to decide what overrides what. The Torah tells us that in this case the religious value overrides the moral value. That’s all. You don’t need to look for explanations involving some higher and exalted morality that nobody knows what it is, where somehow the supreme Jewish morality is to put this woman through yet another trauma. I don’t buy that. And we don’t need it either. And therefore I say: no need. Now I’ll say my clincher is the third type of halakhot, the morally affirmative halakhot. Up to this point. Up to this point I’ve only said that there are both religious values and moral values. In the non-moral halakhot, there are simply religious values. In the anti-moral halakhot there is a clash between the moral value and the religious value. And now what happens with the moral halakhot? And I claim that from the moral halakhot we see that there are no moral values in Jewish law at all, only religious values. Until now the previous two categories didn’t force us to that conclusion; this category, in my view, does. And why? I say: why did the Torah need to tell me, “Do not murder”? After all, Cain—as I said earlier—and complaints were made against Cain before there was any commandment. The Holy One, blessed be He, came to him with complaints for killing Abel, right? What do you want from him? There was no commandment saying “Do not murder.” So what does that mean? Obviously, everyone should understand on their own that murder is forbidden. So why does the Torah write “Do not murder”? Why do I need a verse if logic already tells me? Why does it write it? “Do not murder,” “do not steal,” and whatever else you want. My answer, at least, is that the Torah comes to say: the fact that murder is morally forbidden—we already knew that beforehand; you don’t need the Torah for that. The Torah comes to say that there is also a religious prohibition here. Besides the moral prohibition, there is also a religious prohibition. Same thing with “Do not rob.” “Do not rob”—that’s Rabbi Shimon Shkop in Shaarei Yosher. He talks about how there is the doctrine of laws and then there is the religious layer, which comes to say that when you rob someone of money, it’s not only a pre-halakhic legal prohibition; it is also a religious prohibition. That’s what “Do not rob” comes to say. I claim that “Do not murder” is the same way, and all moral prohibitions are like that. So what comes out is that all halakhic values are only religious. Moral values are outside Jewish law; Jewish law does not deal with them. They exist. The Torah says, “And you shall do what is upright and good,” and it expects us to be moral people. But that is not part of Jewish law. Therefore “And you shall do what is upright and good” is not counted by any of the enumerators of the commandments in their count of the commandments. Why not? Because “And you shall do what is upright and good” is some kind of non-halakhic statement saying that the Torah expects us to be moral. And why doesn’t it define it? Why do we nowhere find a definition of what it means to be moral? Because there’s no need. Whatever each person understands morality to be—that is what the Torah wants us to do.

[Speaker C] There are disputes about morality. Why shouldn’t the Torah explain what is correct?

[Rabbi Michael Abraham] In principle that could be, although in my opinion it doesn’t happen. It just doesn’t happen. I have never in my life heard of someone who thought something was moral, then encountered the Torah, and because of the conclusion decided it wasn’t moral—or vice versa. I’ve never heard such an example in my life. Theoretically it could have happened, but it doesn’t. When you see something in the Torah from which an immoral result emerges, you immediately start looking for explanations, right? That’s the Torah-and-morality problem. You start looking for explanations for how it nevertheless fits together. Why? What’s the problem? Here, you learned from the Torah that in this matter you were mistaken: it is moral, you thought it wasn’t moral, you were wrong, here it’s moral. But you don’t say that. You assume that what you thought in advance was moral is moral, and don’t tell me stories from the Torah. We’ll somehow reconcile the Torah. In fact, you’re not learning morality from it. Yes, what the Sages say: had the Torah not been given, we would have learned modesty from a cat and theft from an ant and all those things. Meaning, obviously, “And you shall do what is upright and good” is not explained anywhere—what is the upright and the good? What is the upright and the good? Whatever each person understands to be upright and good, that’s all. Therefore, in my view, the moral category is completely foreign to Jewish law. Foreign. It is not contained within it. It is not part of Jewish law and then there are also religious values. No. There are only religious values in Jewish law. There is morality too, which one is also obligated to carry out, and the Torah and the Holy One, blessed be He, expect us to carry it out. More than that: I claim that without God there is no validity to morality at all. Meaning, only belief in God can give validity to morality, in my opinion. But that has nothing to do with Jewish law. The Holy One, blessed be He, expects of us two systems of things: the moral system and the halakhic system. These are two systems. And the same principle we say about the chocolate. The very same act can be morally permitted or desirable and halakhically forbidden; it can be morally desirable and halakhically desirable; morally desirable and halakhically neutral. All the categories: non-moral, anti-moral, and moral. Okay? All the categories.

[Speaker B] Can one say that morality originates in man and Jewish law originates in religion?

[Rabbi Michael Abraham] It originates in man in the sense of how I know what is right, but the source of morality’s validity, in my opinion, is God. Without that there is no source of validity for morality, in my opinion. Why and what that means—if you want, I’ll send you something; there are things about it on my website. I had an interesting panel with David Enoch, the professor who was recently arrested at the demonstrations there in Jerusalem. Anyway, we talked about what I called, in more general contexts, normative duality. Normative duality means that I am committed to several normative systems in parallel. And my claim is that there is no problem whatsoever where there is a contradiction between Jewish law and state law or morality. It’s only a conflict; it’s not a contradiction. Now you need to decide what to do, who overrides whom. But the very existence of a contradiction does not constitute an intellectual problem. There’s no—this shouldn’t trouble me at the theoretical level. I have a conflict over what to do in practice, but there’s no contradiction here, no problem here, no obstacle to being committed to two parallel systems. Therefore, for example, even though I, as a person committed to Jewish law, uphold democratic values and want to fight for LGBT rights—just as I think their act is halakhically forbidden, I think, of course, it is halakhically forbidden—and I fight for LGBT rights because in my opinion democratic values require that they have equal rights. There is no contradiction in this with my commitment to Jewish law. Because this is a moral value and that is a halakhic value; they are two different things. So I will not permit homosexuals their act, because it is halakhically forbidden. Jewish law said that here it is forbidden, so that apparently overrides the moral discomfort I have with it. But where all I need to do is ensure their rights, without any connection to prohibitions, I don’t see what the problem is. These are my democratic moral beliefs, and these are my halakhic beliefs, and I believe in both systems in parallel. That is what I call normative duality. I have one normative system, a second normative system, and both are present—I am committed to both of them in parallel. And sometimes there will be contradictions between them, conflicts between them. Perfectly fine; that’s part of life. We talked about what to do when there are conflicts—not contradictions, conflicts. And even in conflicts you somehow have to decide. I spoke a bit about that. The Talmud in Yoma, for example—I brought the Talmud in Yoma regarding saving a life versus the Sabbath and showed there several mechanisms for how conflicts are decided. Even though there is a principled problem with resolving conflict—apparently it’s impossible—they talk about this in analytic ethics, the philosophical problem known as the incommensurability of values. When values have no common measure, you can’t rank them and determine which is higher than which. I tried to explain why I think that isn’t true—that yes, you can determine, resolve conflicts, or establish a scale of priorities, who takes precedence over whom. Sometimes you bypass the conflict; sometimes you confront it head-on. I talked about all that last time, so that isn’t our issue in this summary. Let’s see whether I finished everything. Yes. One last point, another normative duality we dealt with, connected a bit to what I said earlier about democracy and Jewish law or morality and Jewish law, is the law of the king and the law of Jewish law, in Ran’s Derashot, sermon 11. We discussed that at length. And the claim is that Ran basically writes there that fundamentally Jewish law, or the Torah, sees our life as a life of normative duality in an essential way, unrelated to democracy and modern values. Because there is the law of the king and there is the law of the court, or the law of Jewish law, and these are two parallel systems not obligated to one another and sometimes contradicting one another. And Ran actually even links this to the normative duality I was talking about. He says that the king is responsible for ordering life, its proper functioning, morality, justice, and everything connected to that, while the religious court is responsible for implementing Jewish law. Therefore it doesn’t always go together; sometimes there are contradictions, and these are two parallel systems, and sometimes there are clashes between them. One has to see what to do with that, but there he gives the clearest description of this duality within which we live. These are two different systems, and there is a separate court system that handles each of those systems. There he describes it at length in sermon 11.

[Speaker B] Meaning, Jewish law also has no interest in establishing some kind of political regime?

[Rabbi Michael Abraham] No. No interest at all. You won’t succeed in extracting from Jewish law anything about a political regime—not about socialism and capitalism. All this nonsense, people search for what Jewish law says about this and that. It says nothing. Do what seems sensible to you.

[Speaker B] What about, for example, the laws of the king that…

[Rabbi Michael Abraham] No, the laws of the king are something else. There are several specific laws that do obligate the king.

[Speaker B] But is there such a commandment? The Torah says there is a commandment to appoint a king?

[Rabbi Michael Abraham] A question—an ancient debate. The question is whether there is a commandment or whether it is only a response to a need. There’s a contradiction between the book of Samuel and the book of Deuteronomy. There are opinions both ways. In any case, even one who says there is a commandment to appoint a king—it doesn’t have to be a monarchic king. A democratic king is also a king. The main thing is that there be a government that manages affairs. So that too can fit with the view that it is a commandment to appoint a king. The Religious Zionist rabbis at the beginning of Religious Zionism also dealt with this—Rabbi Herzog and others spoke about it. One final point connected to this is what I called the historical accident. Meaning, at some stage in history there was an accident: we lost the monarchy. It was gone; there was no monarchy. What happened as a result was that the powers passed to the religious court. Think maybe of Poland a few years ago, when a plane crashed with most of their parliament and government on it. Almost all the functionaries in the various branches of government crashed and were killed. There was a discussion there whether it was a Russian attack or not a Russian attack; it doesn’t matter. What happened there was that the court took the powers for itself. The third branch. There’s a legislative, executive, and judicial branch. The court took powers for itself, reorganized the whole story, and reestablished the authorities. That’s what usually happens, right? That’s what ought to happen. That’s what happened with us too. Once the king disappeared—the secular authority, which is responsible for morality, justice, order, but not for Jewish law, not for religious values but for moral values; let’s call them secular values for the sake of the discussion, yes? So there’s no king. What happened? The religious court took over those values too. Therefore the heads of the Sanhedrin were from the house of David. Why do the heads of the Sanhedrin need to be from the house of David? Rabbi Yehuda HaNasi and Hillel—from Hillel the Elder onward. A presumption for rulership? Yes, because he was also king. The head of the Sanhedrin was also king in that period. He wasn’t king in the full formal sense, but the powers of the king flowed into him. By the way, as a result of this, what happened? Suddenly a situation arose in which the secular decisions too—yes, how to manage our daily life—were also made by the Sanhedrin. The Mishnah in Moed Katan says that the court repairs the roads during the intermediate festival days. The Ministry of Transportation. The court is the Ministry of Transportation. What, you don’t have a road authority? I don’t know, officials who can do it? No, there isn’t. The secular authority was also that. They appointed people; they didn’t need to pave the roads themselves. But they were responsible for the matter. Because there was no secular authority. And what happened as a result? Throughout all of history, we’re still stuck with it to this day. Throughout all of history, every question—even an administrative one—that comes up among us gets referred to a halakhic decisor. In the religious world, I don’t mean in the state. In the religious world, right? When a community wants to know how to behave when there are disputes within the community, how to conduct votes—whom do they ask? The decisors. There are masses of responsa on this. Read the Shulchan Arukh—there’s nothing to it. It has nothing to do with Jewish law at all. They asked the decisors simply because there was no king. In my view, those sections in the Shulchan Arukh can be deleted, torn out, and thrown in the trash. They have nothing to do with Jewish law whatsoever. It’s not related to Jewish law at all. It’s the result of that accident. Through that accident, people got it into their heads that everything is handed over to the decisor. And “da’at Torah” also came out of here. This idea of da’at Torah, as if everything is in the hands of the decisor—he understands everything, determines everything. He’s everything. Where did that come from? It started with the king. Then there was a clear separation. At some point we lost the king, and to this day we’re stuck because we forgot where we came from. So today it’s obvious to everyone that the religious court, or the decisors, or the Shulchan Arukh, are supposed to determine everything that happens. Taxation, yes? It’s determined in the Talmud, in the Shulchan Arukh, how taxes are divided. According to property, according to persons, according to… what? Where did all those things come from? Simply because there was no king, that’s all.

[Speaker B] And how do you understand the Talmud at the beginning of Berakhot that says that David the king—while all the kings of the world are in their palaces, he put his hands in placentas and blood? And then he issues rulings.

[Rabbi Michael Abraham] So he is described as a Torah scholar. Because he was a Torah scholar, not by virtue of his role as king. He was a Torah scholar whom people came to ask questions. Okay.

[Speaker B] Fine, so you’re saying that King David—

[Rabbi Michael Abraham] Elijah the Tishbite will come and resolve difficulties and problems. You know, when they say Elijah will come, he’ll settle all our doubts. So everyone asks, what do you mean? “It is not in heaven”; a prophet is not permitted from now on to introduce anything new. The accepted explanation is that Elijah the prophet will do this as a sage, not as a prophet. People will ask him because he is a Torah scholar, so he will simply explain to us, using the tools of Jewish law, why this is correct. Not that he’ll bring down prophecy for us and we’ll have to accept it.

[Speaker B] So if that’s what’s being discussed, then that’s exactly the reason why, say, the religious world in our time can never fully integrate with the political system of the State of Israel, as something that is a new layer in the Jewish people.

[Rabbi Michael Abraham] Yes, of course. But I’m saying: not because it’s new—because it’s old. That’s also how it was once. Once there was a king and a Sanhedrin, and they didn’t need to integrate; they were two parallel systems. Since the king disappeared, the feeling was that we have to live within one system and that political rules too are subordinate to Jewish law, to the religious court, and all those things—and that’s incorrect. We’re simply stuck because of that historical accident we had. It’s not true. The secular system—say, the government, and by “secular” I don’t mean without a kippah, but secular in the sense that it isn’t the religious system—yes? So it operates according to its own rules, in its own domains. It can’t determine that one should desecrate the Sabbath, but it does have its own domains, dina de-malkhuta dina, it doesn’t matter, there are rules, monetary law, tort law, everything—you can change almost all of Choshen Mishpat. There’s no problem with that at all.

[Speaker B] That’s how Ran describes things, but how do we know what it was really like in the time of King David?

[Rabbi Michael Abraham] No, I don’t think Ran is giving a historical description there. That’s how he learns the Torah; that’s how he understands things are supposed to be. Consequently, he also assumes that that’s how it was. He didn’t conduct archaeological excavations and check what was there, I assume.

[Speaker B] Okay, so what you’re saying is within Ran’s approach, or in general?

[Rabbi Michael Abraham] What do you mean, in general? I agree with him, so in general. How could people disagree with him? But I completely agree with him, and I draw some conclusions from what he said, but yes, that’s more or less what he said.

[Speaker B] But how can one know that at the beginning, before Ezra and so on—

[Rabbi Michael Abraham] So I’m saying, I don’t think Ran did that; it’s not a historical statement. That’s how Ran read the Torah, the Talmud, Jewish law, and therefore he says that this is how things should be run, so presumably that’s how it was. It didn’t begin with facts and move to a halakhic thesis; the opposite. It began with a halakhic thesis and then said, well, so presumably that is also how things really were. It’s like the Talmudic arguments about how they loaded the beams from the Tabernacle onto the wagon—the melakhah of carrying in and carrying out on the Sabbath. How did they know what happened in the wilderness? Obviously they had a halakhic conception, and from that halakhic conception they understood that this is presumably what was also done in the wilderness. It didn’t start from the wilderness; they didn’t do archaeological digs and check what exactly they did there in the Tabernacle. In the story of the concubine at Gibeah—did he find a fly, did he find a hair? All kinds of arguments that are supposedly historical arguments—they are not historical arguments. After all, how would they know what happened there? It’s obvious that they latch onto historical events, but they are really importing their own conceptions into them. Now I’m saying: someone who truly thinks that this is right is justified in saying that this is probably how it also was. Because if according to his view this is right, then from his perspective it is also very reasonable to assume that this is indeed how it was. The question is whether he is right or not, fine, but within his view it is a logical conclusion. And the question is whether—

[Speaker B] can one say here that the Jewish people really do have a governing tradition, that there really was a governing tradition, given that who even remembers what happened back then? The Jewish people as they were formed now are basically just a collection of communities in exile, which in another generation or two might already have disappeared as a people. So what, then? I didn’t understand. Meaning, can we say that precisely because the Jewish people had a historical picture in which the governmental aspect and the powers passed to the religious court—but we don’t actually know what was then.

[Rabbi Michael Abraham] But that’s the same question. Ran says—claims something about what was then. Now I don’t think he does that based on archaeological digs, but because he thinks that this is the right way to conduct things. So consequently he claims that this is what was then. If that really is the source—if this really is Jewish law as it ought to be—then obviously from his perspective everything that happened since the loss of the monarchy is an accident and needs to be restored. By the way, when we discussed this last semester, I talked about the Talmud in Sanhedrin 5a—you can see there, for example, a passage on the timeline where suddenly a dispute arose precisely about this. There is a dispute there over whether ordination in Babylonia is effective also for the Land of Israel, or the reverse—Sanhedrin 5a. In short, who rules: the Exilarch or the head of the Sanhedrin in the Land of Israel? Where did the Talmud’s conclusion come from? It came from the fact that once the governmental structure of the Jewish people in Babylonia was established, they had governmental autonomy there. Until then, we had basically been in a process of losing the monarchy; little by little the Sanhedrin also weakened, and somehow we were left without a secular government. Suddenly a secular government was born. By the way, the Exilarch too was from the descendants of King David. “The scepter shall not depart from Judah”—these are the heads of the exiles in Babylonia. Meaning, the Exilarch has the status of a king. Why? Because he received authority and had control over the entire Jewish diaspora throughout the world. He was essentially the Jewish ruler. Now a pathological situation arose. We got a king back—but he was in exile, outside the Land. There was a Sanhedrin in the Land of Israel that was used to being both the king and the Sanhedrin, and suddenly someone arose there—and there is no ordination in Babylonia. So there was no ordination there, no Sanhedrin, no ordained judges, nothing—but the king was there. Now when you want to ordain a sage, you need to do two things. That’s what is written there in the subtext of the Talmud; that’s basically what is written there. First, you have to ordain him at the professional level, meaning to see that he is a Torah scholar. That the Sanhedrin and the head of the Sanhedrin do. But you also have to give him governmental authorization that has authority, like we talked about with the district psychiatrist or the judge—that the king does. Now, until there was an Exilarch, the head in the Land of Israel did both things because he was also the king. Now suddenly there is an Exilarch in Babylonia. So the people of the Land of Israel say, what do you mean? Over here the head of the Sanhedrin determines everything. The Babylonians say, wait, wait, wait—the ordination is with you. But the conclusion in the Babylonian Talmud is indeed that the Exilarch is the king. And at some stage we lost that too, and returned again to the previous situation, where now we have neither Sanhedrin nor king. And that is exactly—

[Speaker B] So all these discussions about Torah law, Hebrew law—how relevant is that, how much is there really no such thing—

[Rabbi Michael Abraham] There’s no such thing as law—

[Speaker B] it’s all bubbe-meises, all bubbe-meises.

[Rabbi Michael Abraham] I once wrote an article about that that annoyed a lot of people. The expression “Hebrew law” in general is, in my view, a crooked expression. Jewish law is not Hebrew law; Jewish law is Jewish law. “Hebrew law”—law, if you want to establish a functioning legal system—say there will one day be a halakhic state here, if there will be—and don’t tell anyone this, yes? Then if there is one day a halakhic state here, the law book will look exactly like it does today, exactly the same, maybe with nuances, nothing else. When you need to run life, you have to run it according to sensible rules. If you exempt indirect damage, there won’t be a state here; it’s impossible. Today we can exempt indirect damage because nobody actually adjudicates damage, indirect damage, or anything else; we engage in pilpul about it in the study hall. But if we had to run a system, then of course we wouldn’t exempt indirect damage, right? And we wouldn’t do any of these things. The law has basically found the reasonable solutions for how life can be managed. And that’s the enactments, it doesn’t matter—that’s what is constantly done in monetary law. It’s just that somehow what already entered the Shulchan Arukh in Rashi script counts as Jewish law, even though it came from the same place—gentile influences and constraints and all kinds of things like that. And what today is outside the Shulchan Arukh is “gentile courts,” which according to Rav Hai Gaon one may not resort to—nonsense.

[Speaker B] Clearly.

[Rabbi Michael Abraham] Obviously you have to run life the way life needs to be run. Rashba writes in a responsum: once a community asked him what to do—are we allowed to convict on the basis of one witness or on a person’s own testimony? Yes? A person does not incriminate himself; a person does not render himself wicked. He says to them: be grateful that you are not obligated to act according to Jewish law and proceed according to the king’s law. You have an opportunity that we won’t have when we have the law of Jewish law. Meaning, he himself understands that life cannot be run according to the law of Jewish law.

[Speaker B] With God’s help there also won’t be a halakhic state.

[Rabbi Michael Abraham] No, I’m saying: there will be a halakhic state with the same law book. The question is what you call a halakhic state. Even if there is one, it will be with roughly the same law book; there won’t be much difference. Fine. So all these discussions about law…