Study and Halachic Rulings – Lesson 12

[Rabbi Michael Abraham] Last time we finished the discussion about the status of rabbinic laws or rabbinic commandments, and the basic claim was that rabbinic commandments have no essence behind them; there is only a command. And in a certain sense, that’s why this isn’t Torah. Not just in a certain sense—it isn’t Torah, in principle. It is part of Jewish law, it is part of what we are obligated to do, but it is not part of Torah, because Torah is supposed to express certain truths, or principles, or meta-halakhic insights, whose practical expression is the norms of Jewish law. And in rabbinic laws there are only the norms. Meaning, they do not reflect some objective truth or insight—let’s call it that—or some extra-halakhic truth whose expression happens to be halakhic; rather, there is only the halakhah itself. In other words, it is not an expression of something more fundamental, or in other words, there is no specific divine will behind it, unlike Torah-level laws. It is only an obligation of obedience, and there really isn’t that essential aspect. Again, we distinguished between different kinds of rabbinic laws, but that’s the general point.

Now, for our purposes, when we come back to study and halakhic ruling—which is our topic—what does this whole picture say about that? In the context of study and halakhic ruling, I think in both contexts, both study and ruling are supposed to look different if we understand the matter this way—if we understand what Torah is. Study is supposed to deal with the insights that underlie Jewish law. Study is not memorizing laws and knowing what is forbidden and what is permitted, or taking the Mishnah Berurah and learning it by heart, or some other summary. Rather, it means studying the topic analytically and trying to clarify the essences, the insights that stand behind the bottom-line laws. That’s regarding the form of study.

And I said that contrary to what is accepted in the yeshivot—and I think I said this, I already don’t remember where I said what because I have several series—contrary to what is accepted in yeshivot, where they split analytical study from the study of Jewish law: when we study analytically, let’s say, we spend one or two study sessions a day on that, studying a topic in depth, and there you say all kinds of ideas and possibilities, you raise one hypothesis or another, and the thinking is very free. But when you sit down to study Jewish law, you take a Mishnah Berurah, or let’s say a Shulchan Arukh with commentaries in the better case, and you learn what has to be done, and it is disconnected from your analytical study. That’s called the study of practical Jewish law, or in accordance with the law, or all sorts of things of that kind. There are various names for it, but the idea is one and the same. And analytical study means studying conceptually the different possibilities and things like that.

And that is a mistake. When people say one should engage in the passage in accordance with the law, the whole idea of engaging in the passage in accordance with the law is to study the passage in a way that ends in law. When you do analytical study, the study is supposed to end with the halakhic conclusion that emerges from the topic. Therefore there are not two kinds of study, analytical study and the study of Jewish law. Rather, analytical study itself is the study of Jewish law; you just need to finish the topic with these and these conclusions: what is permitted, what is forbidden, what is obligatory. In that lies Jewish law—you have studied Jewish law.

And this connection between analytical study and the study of Jewish law of course changes both analytical study and the study of Jewish law, because in the end, when you study Jewish law, you are not supposed to study bottom lines—permitted, forbidden, obligatory, and so on—but rather the infrastructure that stands behind those bottom lines, and from that derive the bottom lines. And that of course affects not only the way I study, but also the way I issue halakhic rulings, because when I rule in Jewish law, there too I am not supposed to open the Mishnah Berurah—or I don’t know, the Shulchan Arukh—and extract from it the instruction for the case that comes before me. Rather, I am supposed to clarify the topic from its foundations, the insights that lie behind it, the essences that stand behind the matter, and from them derive the halakhic ruling or practical instruction.

Maybe at the beginning of this series I talked about this a bit, I think—I’m no longer sure—that there is something in this kind of study of Jewish law, or halakhic analysis—for me it’s the same thing, the same study—whose principle is to connect theory with practice. In other words, the joining of heaven and earth is really the essence of Torah study. And what I think is unique about this study is that you’re supposed to deal with abstract ideas that can go all the way to the level of questions like what is the essence of time, and causality, and all sorts of completely abstract questions, maybe philosophical questions, and from them derive the conclusions about how you put your socks on in the morning. In the end, it gets translated into what you are supposed to do in the practical world. That connection between theory and action—that is the essence of Torah study. And that means it is also the essence of halakhic ruling. When you issue a halakhic ruling, you are supposed to rule from within the understanding of the essences or insights that underlie the matter, and not just issue a ruling based on looking into one book or another. Just one second—there is a very interesting chapter in the Maharal.

[Speaker B] But does the Rabbi think that even if you’re not at the level of a decisor, you still need to do that? Or should you consult your rabbis or your decisors before that?

[Rabbi Michael Abraham] I’m talking about someone who is qualified for this.

[Speaker B] Yes, he’s qualified to understand conceptual arguments and topics, but he’s not at the level of a decisor.

[Rabbi Michael Abraham] I have no criterion that says from when you become qualified. Who is qualified?

[Speaker B] At the very least, is general knowledge of the entire Talmud required—at least the Babylonian Talmud? I don’t think so. The Rabbi doesn’t think so.

[Rabbi Michael Abraham] You need to be qualified in the sense that if you’re interested in a question, you know how to approach the material, extract the answer, and defend your conclusion. One of the criteria I suggested in some article—I suggested it based on myself, for example—is that there was a period of quite a few years in which I had very clear conclusions after I had studied a topic. A year or two later I came back to the same topic and didn’t understand why I had reached those conclusions. The conclusions looked completely different to me. That means I had not yet reached the stage where I was consolidated.

And one criterion that I think is important—I don’t know if it’s the only one, and it’s not sharp either—but a good criterion for checking whether you’re qualified is whether, when you return to the topic, the conclusions are more or less the same conclusions, or usually the same conclusions, as the ones you reached the previous time. What does that mean? Because basically my claim is that what is required of you in order to rule independently is not to be Moses our Teacher, as Rabbi Zusha says, but to be Zusha. Rabbi Zusha said that when he gets to heaven, they won’t ask him, “Why weren’t you Moses our Teacher?” They’ll ask him, “Why weren’t you Zusha?” And in that sense, I think the criterion for when you can already rule for yourself is when you’ve reached the point of being Zusha. You don’t have to be Moses our Teacher, and not Rabbi Ovadia either. You need to be who you are. When you are already consolidated—with your abilities, your skills, your inclinations, your modes of thought—and that is your conclusion, then that is how you should act.

Now, how do you know when you’re consolidated? I’m saying: I have no mathematical criterion for that, and there’s some healthy intuition by which you can sense and understand whether you’re there or not. I don’t have anything more precise than that to say.

[Speaker B] But is there at least an obligation to see all the decisors on the issue who spoke about it? Or can you…

[Rabbi Michael Abraham] No. I’m saying: if you have enough and you manage—I think it is proper. There were Torah scholars; obviously they weren’t talking nonsense. It’s very worthwhile to study what they said, and even to think about what stands behind their views. And even someone I disagree with—it is obvious that he deserves some credit, and one should try to think why he said what he said. And then, after I’ve seen all that, I reach my own conclusions and do what I think.

But it’s not obligatory. It’s the best way to do it, the most complete way to do it, but we’re all human beings, as I said before, and not always able to do that. When you have enough self-confidence and you already know, across quite a few questions or topics, that you understand the business, the material, you already know what to do in such a situation—they won’t catch you in stupid mistakes. Any person can make a mistake, but they won’t catch you in stupid mistakes. So fine—if that’s how it seems to you in the topic, then do it. You don’t need to see what every single person said and try to think what his method is and so on. There’s no end to it. On the practical level too, it’s simply not practical.

Sometimes there’s also a situation where—actually today I thought of an example, I’m trying to remember—ah yes, I had an example, some discussion I had today in the kollel. I heard someone saying that with regard to “the burden of proof is on the claimant,” it’s obvious that if you gained possession of money by force of the rule that the burden of proof is on the claimant, then you can betroth a woman with it. It’s completely yours. True, you got it without bringing proof, just because the other person didn’t bring proof. That was the reason you got the money. There could have been room to say that maybe it remains with you only by doubt, and it’s not definitely yours, and therefore maybe you can’t betroth a woman with it—maybe she would only be doubtfully betrothed. He said it’s obviously not so, okay?

So I sent him a WhatsApp message—I heard him from the side. Isn’t this in Shaarei Yosher?

[Speaker B] Shaarei Yosher talks about this a little, doesn’t it?

[Rabbi Michael Abraham] With the Mahari Basan? Shaarei Yosher talks about it, but there are later authorities who discuss it. There’s Kuntres HaSefeikot, there’s Kovetz He’arot, there’s Kovetz Shiurim, there are several.

[Speaker B] No, the question is why “the burden of proof is on the claimant” isn’t a Torah-level doubt that should be treated stringently.

[Rabbi Michael Abraham] No, no, that’s a different question. It’s a little related, but it’s a different question. So the claim—never mind—so I sent him that in practice this is discussed among the later authorities. Not everyone agrees with that. There are later authorities who argue that it’s a doubt, or who disagree, and they bring disputes among medieval authorities that they tie to this. Meaning, it isn’t obvious to them that if you acquired money on the basis of “the burden of proof is on the claimant,” then you can betroth a woman with it. And I added at the bottom: in practice, it’s obvious that you’re right. I wrote that to him on WhatsApp. I said to him: in practice, it’s obvious. I had simply heard a class he was giving from the side, and I didn’t want to interrupt him in the middle. So I said to him: in practice, it’s obvious that you’re right. Obviously, if I acquired money by force of “the burden of proof is on the claimant,” I can betroth a woman with it. That’s the meaning of saying it’s mine. Otherwise it wouldn’t be called that I acquired the money. What does it mean that the money is mine but I can’t use it? What kind of thing is that? To me that’s nonsense.

Now, I don’t know, I haven’t gone back through all those discussions among the later authorities now. I did see it once, actually, but never mind—let’s say I don’t know all those discussions among the later authorities. Was I required to look at Kovetz He’arot, Kovetz Shiurim, Kuntres HaSefeikot, see all their proofs, enter all their topics, and check everything? I think not. It’s clear to me that I’m right, and that’s it, period. Now I’m not saying it’s impossible that it will turn out I’m wrong. It could happen—the chance is small, fine. I’m not going to invest two weeks in this because of that small chance. I think I’m right; this seems to me to be a simple conceptual argument.

Now of course, in a place like this, where also the majority of the medieval and later authorities say like I do, it’s much easier for me. Then obviously I haven’t missed some basic point. Something that I really shouldn’t have missed, because there are medieval and later authorities, great Torah scholars whose least is thicker than my waist, and if they said it, they didn’t miss something simple. Okay? So here I can even be calm that I didn’t see all the reasons of all those who disagree; conceptually it seems to me that this is the case, and that’s it—it’s clear to me that this is the case.

Or the same with discussions about whether a rabbinic acquisition is effective on the Torah level. It’s almost the same discussion. If a rabbinic acquisition is effective on the Torah level—there’s the acquisition of ma'amad sheloshtan, where one acquires only rabbinically—how do you acquire debt documents? You acquire them by ma'amad sheloshtan. So what does that mean? A rabbinic acquisition: if all three parties are there, I can sell the debt owed to me by someone to a third party, okay? Meaning, a debt that someone else owes me, I can sell it to a third party in the presence of all three, if the three of us are all together, and that’s a rabbinic enactment.

Now the question is: I acquired this thing—can I betroth a woman with it? Yes, the Rabbi said yes. The question is whether a rabbinic acquisition is effective on the Torah level. So here too it’s a dispute; later authorities discuss it and so on. To my mind it’s obvious that you can betroth with it, period. You don’t need to read all the lectures of the various conceptual explanations why. The simple conceptual argument is that you can betroth a woman with it—that’s what it means when the Sages say this money is mine. You can’t say it’s mine rabbinically but not mine on the Torah level; there’s no such thing. Money is either mine or his. That’s the argument.

Now, I assume those who disagree also understood that argument, and they just don’t agree with it. Okay, I’m not dismissing them or anything, but that is my reasoning, and I can go with it even without checking all their proofs and seeing whether I agree or disagree, and how I explain each Talmudic passage. And here too, of course, since most of the medieval and later authorities also—I don’t know if most, but many; I didn’t do statistics—but many hold like I’m saying, so again, I probably don’t have a basic mistake here. There is a conceptual dispute; you can understand it this way and you can understand it another way, but I don’t have a basic mistake here, and so my reasoning is this.

Meaning, sometimes you can use a certain conceptual argument you have—and again, I say, if you have reached the level of giving rulings, if you are qualified. I’m not talking about someone who is just beginning and whose conceptual arguments maybe aren’t worth much. But if someone is familiar with the matter, he is qualified. He isn’t Moses our Teacher, he isn’t Maimonides, and he isn’t Rabbi Ovadia either. Fine, “I am far lesser”—certainly I’m not there. But still, I think I’m familiar enough with the matter to be considered qualified. That’s it—I’m already Zusha, okay? And if I’m already Zusha, then I go with what I think.

[Speaker B] And does the Rabbi think you can also instruct others from that same standing? Yes, of course, yes.

[Rabbi Michael Abraham] If they ask me, then that’s what I tell them. You’re asking me? That is my opinion. You can choose not to ask me—that’s your problem of choice.

[Speaker B] But there are laws of issuing halakhic rulings—in Maimonides and so on all these things appear.

[Rabbi Michael Abraham] The rules about issuing halakhic rulings are all inventions from A to Z. A very, very small part of them—say, “if one sage prohibited, another sage may not permit”—that is Talmud. But even on that Talmudic statement there are so many medieval and later authorities who pull it this way and that way, that in the end you won’t be able to extract something very clear-cut from the Talmud. You’ll be able to extract all kinds of conceptual arguments from people who said this or that.

For example, Rabbi Shlomo Zalman—on this I do agree with him, though again I don’t have a Talmudic source for it; my own reasoning agrees with him—Rabbi Shlomo Zalman claims that if someone comes to ask you a question, you are supposed to lay out before him all the opinions, not tell him only your own opinion. And he cites the Ketav Sofer, who says this, and he claims that this is only so in rabbinic law. Since in a rabbinic doubt we rule leniently, if you have one opinion and you know there’s another opinion—say you are stringent, and you know there’s another view that is lenient—and someone comes to ask you, you have to tell him that there are two options, because he can be lenient. You have a certain opinion, so you are stringent because that is your opinion, but he has no opinion of his own—after all, he came to ask a question. And why should my opinion be the only one on the market? There is someone else with an opinion too, and he is also a Torah scholar, everything is fine. So I have to tell the questioner that there is also such an opinion and also such an opinion; this is my opinion, but you have whom to rely on—rabbinic doubt is treated leniently.

But he argues that with Torah-level law, no. The Ketav Sofer argues that even with Torah-level law, yes. And I think the Ketav Sofer is right. I think that in the end—and I also wrote about this, both in the third book of the trilogy and in my article on leniency and stringency, where I discussed this, and maybe we’ll get to it later in the series—I argued that in fact the one who is supposed to make the decisions is the questioner, not the decisor. A decisor is not supposed to make decisions. A decisor is a halakhic expert, not a Sanhedrin, not a religious court. I’m talking about a decisor. Obviously a religious court makes decisions; a religious court has to decide what to do, and so does a Sanhedrin. But a decisor whom people ask a question of prohibition and permission is just a halakhic expert, and he should say: look, I think this, but the opinions are… But you have whom to rely on. If you go this way, it’s the minority opinion; the majority opinion isn’t like that. What is the price of each view?

Of course, you need to accompany the questioner, because the questioner is not qualified—that’s why he’s asking you. But at the end, after you’ve laid out the map for him with all the prices of each option, the decision is his. And only his. He has to make the decisions, not you.

And again, I’m not living in the clouds, and many times there’s no time. And when a person comes and asks a question, he wants an answer; he doesn’t want to study the topic analytically with me. He wants me to say: permitted or forbidden. So again I say: in a large part of the cases I insist and don’t answer. I’m not willing. Meaning, I say these are the options, I’ll tell you what my opinion is, but these are the options, and you need to decide.

For example, I wrote about this in the context of family planning. I have an article on the site about this—it’s not a published article, but there was a forum of rabbis and I wrote a position paper there, a long article on this issue—and I argued that the decision is the couple’s decision. No decisor is supposed to decide for them what they should do. What you need to do, what you can do, is lay out before them the options: what the price is, what the opinions are, what the possibilities are, to what extent distress justifies. But only they know the level of their distress, how hard it is for them to bring a child into the world now, what level of economic and other constraints they have, what the relationship between them is and how much it can be harmed or not harmed by such a thing. I don’t know any of that; they know themselves and their own world. And therefore they are the ones who need to make the decision. I tell them what the options are. At a certain level of distress, you can rely and act also this way—but you need to decide whether you are distressed enough, and how God-fearing you are, and how important this is to you, and all that—those are your decisions, not mine.

Now, it’s true that decisors who are asked a hundred questions an hour cannot work like this. Such a decisor has to answer yes, no, permitted, forbidden—there’s no choice. That’s life; nothing can be done. I’m not asked so many questions at that level, so I can afford this more. There are some questions on the website, but not so many halakhic questions where I have to really enter the topic with the person. So fine. Yes?

[Speaker C] Yes. Is what the Rabbi is explaining now only in a case where there are several opinions on the topic, so I can allow myself to choose the opinion that suits me best after I’ve studied it? Or does it also mean that I can go against the law when there is only one opinion?

[Rabbi Michael Abraham] Who is “I”? I, the decisor?

[Speaker C] I’m not a decisor. I’m, as the Rabbi says, qualified—I’m not a decisor.

[Rabbi Michael Abraham] So if—no. A qualified person is the one who makes the decision. Yes. If you have an opinion that is not like the opinion of the decisors, you have to do what your own opinion says.

[Speaker C] And that’s very hard. That means that theoretically everyone has his own independent Torah. Right—in a certain sense that’s true. No, I mean: everyone has his own independent Torah? Everyone decides for himself what is correct and what is not correct for him? Exactly.

[Rabbi Michael Abraham] That’s the question. Agreed.

[Speaker D] But Rabbi? Yes.

[Speaker C] It seems to me like a kind of anarchy.

[Rabbi Michael Abraham] And what we have today isn’t anarchy? So instead of ten thousand opinions, there’ll be ten thousand and one opinions. Okay. So what?

[Speaker C] So now it’s anarchy because of that one additional opinion? Rabbi, even practically speaking it’s clear that most of the people can’t reach that level. The fact that today there is a Shulchan Arukh and a Mishnah Berurah…

[Rabbi Michael Abraham] I’m not talking about most of the people. I’m talking about someone qualified. Fine—most of the people can’t? Excellent. Let him appoint a rabbi for himself.

[Speaker C] No, because the Rabbi says that even someone who isn’t qualified comes to me and asks me questions, and I, who am qualified, give him the option to choose. But who says he even has the tools to choose properly?

[Rabbi Michael Abraham] You have to accompany him and guide him in his choice, but he has to choose. Only he. A decisor is not supposed to make decisions.

[Speaker C] And there’s no issue of “do not deviate” in these matters?

[Rabbi Michael Abraham] Of course not. What do you mean? “Do not deviate” applies only to the Sanhedrin.

[Speaker C] “Do not deviate” does not apply to later decisors? Not to, say, Rabbi Ovadia or—there’s no “do not deviate” here?

[Rabbi Michael Abraham] What do you mean? “Do not deviate” applies only to the Sanhedrin. To no one else. Not to Maimonides, not to Rashba, not to the Shulchan Arukh, not even to Rav Ashi. Not there either. The Talmud has authority because we accepted it upon ourselves. That’s already the issue of authority—we accepted it upon ourselves. But it is not by force of “do not deviate.” “Do not deviate” was said about the Sanhedrin. Sefer HaChinukh has some special approach on this matter; he claims that “do not deviate” also applies to the sages of later generations, not only to the Sanhedrin, though he doesn’t define which sages. What, anyone who is a Torah scholar in a generation—then there is “do not deviate” regarding whatever he says? That sounds completely absurd. In any case, it’s an isolated view and a very implausible one, so I don’t think it’s correct.

[Speaker B] But in the end, Rabbi, the one who makes the decision also seemingly has to take account of the majority, the majority of decisors.

[Rabbi Michael Abraham] No, you don’t need to make the decision according to the majority of decisors.

[Speaker B] If it’s in the same discussion, at least, then you do, no?

[Rabbi Michael Abraham] If it was in the same discussion, that’s something else, but then the decision is the decisors’ decision. If decisors sit in a joint discussion and you come and ask a question and you don’t have a position of your own, then you should accept the opinion of the majority of decisors. But if I am not persuaded, the fact that most decisors say otherwise means I’m supposed to accept their opinion?

[Speaker B] No, right, so the individual decisor should tell the questioner his own ruling, but the questioner should take account of the majority of the decisors.

[Rabbi Michael Abraham] I said: if you ask me, in any case I’m supposed to lay out before you all the opinions.

[Speaker B] Yes, and then I’d be obligated to go by the majority, as it were?

[Rabbi Michael Abraham] In a case where all the decisors who dealt with the topic—in the hypothetical case that never actually happened—where all the decisors who dealt with this topic sat around a round table and exchanged views, and each one checked the others and thought about what the others said, and they ended up with disagreements and it became clear that the majority went one way—then yes, someone asking who is not qualified should go with the majority of decisors. That’s at least what is written in the Shulchan Arukh. I’m not sure it’s right, but that’s at least what is written in section 25 of Choshen Mishpat. Anyway, let me get back.

[Speaker D] Rabbi, if the focal point of the matter, from what I understand from the Rabbi, is that the autonomy of the decisor is the important thing—after all, we’re not looking for the truth, rather autonomy is more important here than truth—then the anarchy the previous questioner spoke about isn’t troubling at all. And in the end, the truth is—if we admit the truth—that this is what already exists in practice. I mean, who actually keeps the entire Shulchan Arukh exactly as written? And even when he doesn’t keep it, if we don’t accept the fictitious principle of weakness of will, then he does what he believes he should do as a Jew aspiring to keep Jewish law and do the word of God. So in truth there will be a Judaism on a spectrum, which is completely logical.

[Rabbi Michael Abraham] Again, what’s the claim?

[Speaker D] No, I’m reinforcing the Rabbi’s approach, just against the claim of the previous questioner that there would be anarchy. Anarchy exists today too. Everyone keeps what he believes in, only they tell themselves that they did it out of weakness or that they didn’t…

[Rabbi Michael Abraham] Out of weakness too—I said to him, today too there is anarchy, even without me there is anarchy. No, but I’m saying more than that. You began with a statement that I don’t fully agree with—but again, I’m getting a little ahead of myself; I planned to get to these things later. You said that basically autonomy is what matters, not truth. That isn’t accurate.

[Speaker D] No, more important—not that we don’t aspire all the time to truth, but when you need to decide, you don’t need to worry. Even if you say statistically that if this were a medical matter I wouldn’t do this, because in medicine I don’t rely on autonomy, I rely on the doctor—here specifically it’s better…

[Rabbi Michael Abraham] That’s a formulation I can accept. Fine, it’s like the Talmud in Eruvin says that they didn’t rule in accordance with Rabbi Meir because his colleagues could not get to the depth of his reasoning. Which on the face of it sounds very strange. Meaning, if he was such a great Torah scholar that the people who disagreed with him did so simply because they didn’t understand him, then that should be a reason to rule like him, not not to rule like him. The fact that he’s so wise that we don’t even understand why he says what he says—that should be a reason that whenever I disagree with him, I should set aside my own opinion and act in accordance with his words. But the Talmud says no: because his colleagues could not get to the depth of his reasoning, they did not rule like him. Why didn’t they rule like him? I think the simple explanation—not what I said earlier—is that there is an obligation to rule autonomously. Meaning, if I reached a certain conclusion in Jewish law and Rabbi Meir says otherwise, then if you ask me personally, I myself will tell you that I’m probably mistaken, because Rabbi Meir is a much greater Torah scholar than I am. But in the halakhic reasoning that I carried out, this is what seems correct to me. I don’t understand why Rabbi Meir says otherwise. If you just ask me generally, I’ll tell you that he is such a great Torah scholar that if he said something different from me, then he is probably right and I am wrong. But as long as I don’t understand where I went wrong, and my reasoning leads me to this conclusion, then this is how I’m supposed to proceed. And in that sense I agree that autonomy overrides truth. But autonomy comes only after I searched for the truth. I am only searching for the truth. It’s just that where there is concern that maybe I didn’t hit the truth—here, for example, when Rabbi Meir says otherwise, and I also agree that he is far greater than I am—that isn’t supposed to trouble me. In that sense I agree that autonomy overrides truth. But autonomy comes after I searched for the truth. Here, for example, when Rabbi Meir says otherwise, and I also agree that he is far greater than I am, that isn’t supposed to trouble me. In that sense I agree that autonomy overrides truth, but autonomy comes after I searched for the truth, and I search for the truth—that is what leads me to formulate my position. And now, once this is my position, this is the truth to the best of my understanding, there is the issue of autonomy, which says that I need to act in this way, even if I have some indirect suspicion that this is not the truth. To play it safe, to go like Rabbi Meir—that’s playing it safe. No, I started looking for the Maharal.

[Speaker C] Rabbi, so basically what you’re saying is not that autonomy overrides truth, but that truth is actually subjective.

[Rabbi Michael Abraham] No, truth is not subjective, no.

[Speaker C] What do you mean? But if my truth is not the truth of the halakhic decisor?

[Rabbi Michael Abraham] No, truth is not subjective, absolutely not.

[Speaker C] So what is it?

[Rabbi Michael Abraham] But again, we’re getting a little ahead of ourselves. I planned to get to that. All right, I’ll say it anyway. Since I’ve already gotten into it, I’ll say one sentence. Truth is absolutely not subjective. There is one halakhic truth, and no other. But I don’t know what that truth is. So I search, to the best of my understanding, for what that truth is, and I reached the conclusion that that truth is X. Now Rabbi Meir comes and says that the truth is Y. So if you ask me what the truth is, what the Holy One, blessed be He, intended, I’ll tell you myself: Y. He intended Y. Because if Rabbi Meir says so—he is such a great Torah scholar—that clearly, if I disagree with him, I probably failed to understand something. Yes, okay, one second.

[Speaker B] But, but, the Rabbi is saying this with certainty—wait, wait—the Rabbi is saying this in a—

[Rabbi Michael Abraham] Wait, but the reasoning that I myself carried out and through which I reached the conclusion that the truth is X obligates me, because of the duty of autonomy, to do X. That doesn’t mean there are many truths. The truth is only Y. X is not truth, but within autonomy I am obligated to do X even though it is not truth. That’s not the same as the

[Speaker C] approach

[Rabbi Michael Abraham] pluralistic approach of multiple truths.

[Speaker C] Yes, I understand. So I agreed and understood the whole move up to the duty of autonomy. How does the duty of autonomy override the duty of truth, even if I know that Y is the truth?

[Rabbi Michael Abraham] I intend to answer that maybe later on, but first I’ll just show you one passage from the Maharal that deals with this. Why did I laugh in the middle? My former study partner used to say that if you answer a difficulty left unresolved by Rabbi Akiva Eiger, then you probably have an even number of mistakes. Meaning: Rabbi Akiva Eiger remained with an unresolved difficulty on the Talmud, and the Talmud is certainly correct, right? So if Rabbi Akiva Eiger remained with an unresolved difficulty on the Talmud, apparently Rabbi Akiva Eiger made a mistake—he didn’t understand something in the Talmud. Now if I resolve Rabbi Akiva Eiger’s difficulty, clearly I’m not greater than Rabbi Akiva Eiger, just as Rabbi Akiva Eiger isn’t greater than an Amora. Apparently I just made another mistake besides the one Rabbi Akiva Eiger made, and the mistakes canceled each other out and I arrived at the correct answer, and so I supposedly explained the Talmud. Yes, that was my study partner’s pessimistic perspective. Okay, obviously I don’t accept that, but that’s a different discussion. I just want to show you what the Maharal says.

[Speaker B] Is the Rabbi saying it is certain for him that the truth is with Rabbi Meir, or just more likely?

[Rabbi Michael Abraham] More likely, not certain. There’s no certainty in anything.

[Speaker B] All right, so that’s why it doesn’t clash with truth in an absolute way.

[Rabbi Michael Abraham] What does that have to do with it? But it still seems likely that the truth is with him, so from the standpoint of truth I should do that.

[Speaker B] Yes, but to me it seems otherwise in truth, so it’s not really—

[Rabbi Michael Abraham] No, but that doesn’t matter, because I know Rabbi Meir is a greater Torah scholar. If I come out differently, then I probably made a mistake. Ah, there, exactly. I’m sharing with you the Maharal, Netiv HaTorah, chapter 15 in Netivot Olam, right? Now this is just background: it’s well known that these things the Maharal writes are part of his polemic against the Shulchan Arukh and the Rema. The Shulchan Arukh and the Rema basically ruled Jewish law by relying on precedents. And the Shulchan Arukh itself writes that it followed the majority among the three pillars of halakhic instruction—the Rif, the Rosh, and Maimonides. In opposition to this came the Maharshal and the Maharal and the Maharal’s brother, right, who even wrote a book about this, Be’er Mayim Chayim, a polemic by the Maharal’s brother against this method of ruling—the method of the Mechaber and the Rema. So what the Maharal writes in this chapter, at the end of the chapter, is probably part of that same polemic, because the Maharal was on the opposition side in this matter. So he says: “There too: one who read and learned but did not serve Torah scholars—Rabbi Eliezer says, this person is an ignoramus; Rabbi Shmuel bar Nachmani says, this person is an empty one; Rabbi Yannai says, this person is a Samaritan; Rav Acha bar Yaakov says, this person is a sorcerer.” Sorcerer meaning a magician. Right? “Rav Nachman bar Yitzchak said: it is reasonable like Rav Acha bar Yaakov,” and so on. The explanation is that when someone learned Mishnah but did not serve Torah scholars in order to clarify the reasons of the Mishnah—which is clear intellect—when one grasps the reasons of the Mishnah, he is called an ignoramus when he has not acquired intellect. Fine—why is he called an ignoramus? Because basically he reads the Shulchan Arukh and rules Jewish law from the Shulchan Arukh, and he doesn’t examine the reasons of the Shulchan Arukh, the reasons for the ruling he is following. “And Rav Shmuel added that he is called an empty one,” and so on. He continues to explain all the opinions here—therefore he is called a Samaritan. And Rav Acha bar Yaakov said that he is called a sorcerer, a magician, “because he speaks and does not understand what he is saying, and this is as though it is not Torah at all, and this is worse than everything, because in his eyes Torah is like magic, which is an inferior and base thing and not intellectual at all. Therefore sorcery belongs to women” — I hope there are no women here — “for they are weak in intellect.” And one who learned Mishnah but does not know the reason of the Torah acts as though Torah were something inferior and base that contains no intellect. And because this is something strange and outside what is proper, for the commandments of the Torah are in themselves fit to be done through intellect, and this one learned only the Mishnah, which does not contain clarified intellect but only the final legal ruling—this is something strange, outside what is proper, and is considered like sorcery, which is a strange act without intellect. Right? When you perform magic, you basically do all sorts of things and poof—suddenly the calf comes out, and you don’t even know how it came out at all. Okay? That’s called a sorcerer. So likewise, one who rules Jewish law without understanding the reasons, but only because that’s what it says in the Mishnah Berurah or in the Shulchan Arukh, is basically a sorcerer. He goes in circles, right? Reads coffee grounds, and then says this is forbidden on the Sabbath or permitted on the Sabbath, and he doesn’t know why. That’s called a sorcerer. Now he says, that’s what he says, and further there: “the Tannaim destroy the world,” right, in the Talmud there—“the Tannaim destroy the world.” Could it enter your mind? Rather: those who rule Jewish law from their Mishnah. One who rules Jewish law from the Mishnah. “So too it was taught in a baraita: Do they destroy the world? Are they not the ones who settle the world, as it is said, ‘His are the ways of the world’? Rather, those who rule Jewish law from their Mishnah.” And if it asks, “Do they destroy the world? Are they not the ones who settle the world?” and does not answer that the case is one where he did not serve Torah scholars, this is not difficult. Right? Even though he has all the things mentioned above, that he is an empty one and an ignoramus and so on, still he is not called one who destroys the world. And then he explains and resolves: “Because they rule Jewish law from their Mishnah.” Meaning, they rule even though they do not know the essential reason of the Mishnah—in this they destroy the world, because the world stands on Torah, and this is not considered Torah when one does not know the clarified reason of the Mishnah. And Torah, which is meant to instruct action, is the essence of Torah, and on this the world stands. Therefore when they rule Jewish law from the Mishnah, not on the basis of clear intellect, they destroy the world—they destroy the world because the world stands on Torah, and this is not Torah. Right? So he rejects Rashi’s method. Then he says—let’s actually read this because this is the heart of the matter: “Rashi, may his memory be a blessing, explained: they rule Jewish law from their Mishnah and destroy the world through erroneous rulings.” Why do they destroy the world, those who rule from the Mishnah? Because if they don’t know the reasons, then their halakhic rulings are incorrect. And since they do not know the reason of the Mishnah, sometimes they compare it to something that is not similar. And furthermore they do not know the disputes of the Tannaim, and therefore they issue erroneous rulings. That is how Rashi explained it. “And this explanation is not correct at all. Rashi is completely wrong.” Because what he said—look how he goes after Rashi here, right, in connection with “do not deviate” regarding the great medieval authorities (Rishonim)—because what he said, “they rule Jewish law from their Mishnah,” implies a ruling that is true, and it is not appropriate to speak of a mistaken halakhic ruling. A mistaken halakhic ruling is not a halakhic ruling; that’s just an ignoramus. “One who rules Jewish law from the Mishnah” means someone who gives a correct ruling, only he does it from the Mishnah—not as Rashi says, that it’s an erroneous ruling. Right, but the explanation is as we said. So what is correct? “But the explanation is as we said, for the essence of Torah is when one gives practical halakhic rulings, and this ought to emerge from Torah, which is intellectual. And this is the Talmud, which is intellectual, and not the Mishnah, and from this practical Jewish law should emerge.” Remember the blessing over Torah study—we talked about the blessing over Torah study in the previous class? So I said that according to Rava’s conclusion, that one recites the blessing also over Talmud, Rashi there suddenly flips the picture and it somehow appears that the Talmud is actually the main thing over which one recites the blessing—not that it is the far end, that one even recites the blessing over Talmud, but precisely that one recites it over Talmud. So here, this is exactly what he writes. “And this is the Talmud, which is intellectual, and from this practical Jewish law should properly emerge. And this is certainly the preservation of the world, which stands on Torah.” Notice: the world does not stand on your doing the correct thing. If I instruct you to do the correct thing, but I did it merely from the Mishnah without understanding, then you are destroying the world. The world stands on instruction that emerges from understanding the reasons of Jewish law, not from looking in the Mishnah Berurah. In other words, what matters here is not only that you do the truth, but that you do something autonomous, that you yourself understand the reasons and rule from that. Now look—he says this in an even more extreme way. Right, that’s what he says. Well, it’s an interesting thesis; I’m not sure he’s right. “And the medieval authorities (Rishonim), such as Maimonides, may his memory be a blessing, and the Tur, may his memory be a blessing, even though they too composed rulings without explanation”—right, they didn’t write the explanation; not that they didn’t do the explanation, but they wrote a book containing only rulings—“their intention was only to present the final law, while the rest emerges from the Talmud. But that a person should rule from it without knowing from where the law emerges—halakhah without a reason—this never entered their minds at all.” Even the Tur and Maimonides never imagined that someone would rule Jewish law out of the books they composed. Hmm. I’m not so sure.

[Speaker B] There is a letter of Maimonides, there is a letter—

[Rabbi Michael Abraham] to his student—

[Speaker B] to Rabbi Yosef, where he says exactly the opposite.

[Rabbi Michael Abraham] Yes, and in the introduction he says exactly the opposite.

[Speaker B] Yes, so it’s not clear what the Maharal—

[Rabbi Michael Abraham] No, no, that’s why I’m saying: I don’t think he’s right, but I’m bringing it so you can see what his own view is. I’m not claiming he’s right in what he says about Maimonides and the Tur. His claim, by the way, is a claim made by many halakhic decisors in the sixteenth and seventeenth centuries. Quite a few halakhic decisors wrote—the Bach and the Maharsha and others—that one should not issue halakhic rulings from the Shulchan Arukh. It is forbidden to issue halakhic rulings from the Shulchan Arukh. Though there, most of the halakhic decisors explain it on the grounds that you may err, because you don’t know the Talmudic passages and you don’t understand how what is written there relates to those passages, so you will probably err in the halakhic ruling—not because, as the Maharal says here, even independent of error, even if you are right, it is still wrong to do it. Now look—here is the key sentence. A very famous sentence of the Maharal. I love this sentence. “For it is more fitting and more correct that one rule from the Talmud; and even though there is reason to fear that he will not go by the path of truth and will not rule the judgment truly, such that the ruling will accord with the truth, nevertheless the sage has only what his intellect gives him and what he understands from the Talmud, and when his understanding and wisdom mislead him, even so he is beloved by the blessed God when he rules according to what follows from his intellect, and the judge has only what his eyes see; and this is better than one who rules from a single compilation and does not know the reason of the matter at all, for he walks like a blind man on the road.” Do you understand what he is claiming here? In God’s eyes, it is better for someone to rule Jewish law from the Talmud, from his own reasoning, even if he is mistaken, than for someone to rule from the Shulchan Arukh even if he is correct. In other words, autonomy is more important than truth. And again, in the sense I mentioned earlier: when I speak about autonomy, I mean searching for my truth. I always search for truth, not for autonomy. I search for truth. But once I have reached my conclusion, that is the conclusion I need to follow, even if there are people ten times greater than I am who think differently. Even though if they think differently, I also understand that I’m probably mistaken—still, it doesn’t matter. If this is the truth according to what I understood, this is what I need to do. That is what the Maharal claims, and it is exactly what I said earlier. He saw it by divine inspiration. Rabbi, there’s a…

[Speaker C] Are there people who disagree with the Maharal? Obviously.

[Rabbi Michael Abraham] Most people. All halakhic decisors today disagree with the Maharal, but I suspect that this is a late phenomenon. In my view it’s a phenomenon of the modern era. It’s not—why?

[Speaker C] Because of the decline of the generations? What?

[Rabbi Michael Abraham] I don’t know exactly. Maybe that’s what causes the decline of the generations. I’m not sure it’s because of the decline of the generations. People feel they are small, and therefore they don’t dare to rule, and as a result they become small. The claim—and again I say—even if I am small, I am still supposed to rule according to what I understand, not because I’m the greatest person in the universe. It’s not a matter of—

[Speaker C] Rabbi, so if that’s the case, why is there a Shulchan Arukh at all? Why is there a Mishnah Berurah?

[Rabbi Michael Abraham] That’s exactly what the Maharal asks. As I said, the Maharal’s polemic here is against the Shulchan Arukh and the Mishnah Berurah.

[Speaker C] But why was it written? Why did they decide to write it in the first place? What? Why did they decide to write it in the first place?

[Rabbi Michael Abraham] Because they didn’t think like the Maharal. What do you mean, why? Okay. Obviously, the Maharal here is in polemic—he and Yam Shel Shlomo, the Maharshal, and his brother—against the Rema and the Shulchan Arukh. They claim that one should not rule from these books. He wants to argue that even the Tur and Maimonides never intended for people to rule from their books. I don’t think that’s true, and certainly with the Shulchan Arukh it isn’t true—he is polemicizing here against the Shulchan Arukh. But still, this is his position. And of course you can now come and ask, wait, but most authorities disagree with him. Fine, very good. On the question of autonomy, I also decide autonomously. On the question whether to rule autonomously, on that question too I am supposed to formulate a position autonomously. So even if most halakhic decisors are against me, so what? They are against me, but I don’t agree with them.

[Speaker B] Rabbi, if we say that regarding commandments—there’s always this conceptual inquiry about commandments—that in commandments there is not only a command but also some real damage in the metaphysical worlds, that you really damage something, then there it seems very hard to say this thesis.

[Rabbi Michael Abraham] So here Darashot HaRan essentially asks something like that question. He asks it regarding the law of a rebellious elder. A Torah scholar qualified to rule hears a ruling of the Sanhedrin—he has to obey. Now he knows they are wrong. More than that, sometimes he may even be a greater Torah scholar than they are. For example, Rabbi Akiva was the greatest of the generation. The Talmud says that when he went abroad he intercalated years abroad. He left no one of his stature in the Land of Israel. Meaning, the whole Sanhedrin—he was the son of converts, so he was not a member of the Sanhedrin—and the entire Sanhedrin was inferior to him in wisdom. He was the greatest of them all, and still, once the Sanhedrin determined something, there is “do not deviate,” and even Rabbi Akiva has to obey. Now Darashot HaRan asks exactly your question. He says: if I know it is a mistake, and the mistake can lead to various spiritual harms—he asks it even according to the naturalists, as he calls them, those who claim there is physical, not spiritual, harm in the commandments, because it dulls the body, okay? So he says: what do you mean? In the name of obedience to the Sanhedrin I’m supposed to suffer and become sick or die, I don’t know, to suffer? That can’t be. So he gives an interesting answer. He says: “do not deviate” is also one of the Torah’s commandments, and if you do not fulfill it, that too will dull your heart. Meaning, the claim is that yes, you are in a bind, but that is the situation. In the end, even if you do what you think—and regarding the laws of the Sabbath you were right—with respect to “do not deviate” you were wrong, and that will dull your heart no less than the mistake in the laws of the Sabbath. So you gain nothing, and you must continue to obey them. By the way, in the Ben Ish Chai there are two interesting responsa—it appears on my website in some expert opinion I gave about citric acid on Passover. They once invited me—well, a court once asked me for an expert opinion, and I wrote there, and I brought there the two sources from the Ben Ish Chai where he cites his grandfather—it’s a bit of a digression, but never mind—his grandfather was also a rabbi in Baghdad. He tells that in his grandfather’s time, some Ashkenazi emissary came to Baghdad to collect donations, and he stayed with them for a while. And he saw there in the morning that the people were putting on phylacteries, but the phylacteries were not square as required by law. In short, all the phylacteries were invalid. He came to the Ben Ish Chai’s grandfather, who was the community rabbi, and said to him: listen, your phylacteries are all invalid; you are all in the category of one who never put on phylacteries. You have never put on phylacteries, neither you nor your ancestors, because that is how they had been making phylacteries there in the community for generations. The Ben Ish Chai’s grandfather became convinced that the emissary was right. He understood that they had erred in Jewish law. The Ben Ish Chai says: could it enter your mind that they did not fulfill the commandment of phylacteries? Certainly they fulfilled the commandment of phylacteries. But the phylacteries were completely invalid. You can say they were under compulsion, but compulsion is not like one who actually did the act, and the fact that they were under compulsion still doesn’t mean they fulfilled the commandment of phylacteries. Maybe they will not be punished for failing to fulfill the commandment of phylacteries, but how can you say they fulfilled it? I don’t know whether he really means they fulfilled it, or only that they are not in the category of one who never put on phylacteries—which you could understand, because that is not a strictly halakhic category. I’m not exactly sure. It somewhat sounds from his wording as though he actually means they fulfilled the commandment of phylacteries. But for our purposes, the claim is that the repair effected by the commandment also depends on how you do it, and perhaps also the damage. And if you do this thing by instruction of a religious court, maybe the Holy One, blessed be He, will somehow prevent the damage that this transgression would normally cause, because you did it based on the instruction of a religious court. So there may be a transgression here, but the damage created by the transgression may perhaps not occur. Perhaps. The Ran, by the way, assumes it would occur, and he argues that if you do not listen to the Sanhedrin, damage will also occur, so you gain nothing by not obeying them. All right? In any case, the Maharal’s claim is that the duty of autonomy overrides considerations of truth, and therefore in God’s eyes it is preferable that someone rule Jewish law from the Talmud based on his own reasoning, even if he is mistaken, rather than that someone rule Jewish law from a book of the greatest halakhic decisors, the Mishnah Berurah, the Shulchan Arukh—which is probably not mistaken, certainly not an obvious mistake, okay? Therefore it is more likely that you are right, and still, in God’s eyes the mistaken person who rules autonomously is preferable to the correct person who rules non-autonomously.

[Speaker E] Is there no importance to something called uniformity in rulings? For example, in ordinary law they follow precedent, because they want to create some situation in which people have a clear line, and not that every time a person starts wondering which direction he’s going.

[Rabbi Michael Abraham] That’s one of the arguments, one of the arguments against this autonomous position of the Maharal. There’s an article by Hanina Ben-Menahem, the professor—

[Speaker E] from the university—

[Rabbi Michael Abraham] from Hebrew University. He talks about why Jewish law cannot be the law of the state, because Jewish law is anarchy—there is no uniformity there, everyone acts according to the opinion that seems right to him, and therefore you can’t really run a legal system that way. The truth is that when there is a Sanhedrin, and the Sanhedrin sees that on a certain issue there needs to be uniformity, the Sanhedrin will establish uniformity and that will obligate everyone—there is “do not deviate.” But where there is no Sanhedrin, or where the Sanhedrin sees that there is an issue on which uniformity is not important, why should they intervene? Let everyone do as he understands, because the duty of autonomy is a very important thing, right? And then there is no problem at all. In a legal system, you have to understand that law is only a small part of Jewish law. The legal part of Jewish law, there is indeed logic in making it more uniform. Why? Because a person needs certainty, and when you sign a contract you need to know what that means, what a religious court will rule if you appeal. So here, obviously, once it involves relations with other people—which is the nature of the legal sphere—then certainty really is more important. But in the halakhic world in the broader sense, so what happened? I’ll eat these foods and you’ll say it’s forbidden to eat them and eat other foods—everything is fine. If a situation arises where, say, my son won’t be able to marry your daughter because they won’t be able to eat at each other’s homes, then the Sanhedrin will intervene and probably impose order there. But if it doesn’t create problems, then on the contrary. There are people whose dream, whose utopia, is that a Sanhedrin will be established here and finally there will be uniformity and disputes will stop. I tear my hair out just thinking about such a thing; from my point of view that’s an apocalypse. Meaning, the Sanhedrin that returns here, I believe—or at least want to believe—will not try to create uniformity. It will try, in those questions where synchronization really matters, because it interferes with life if everyone behaves differently, there the Sanhedrin will determine something and it will be binding—there is “do not deviate.” But elsewhere there is no reason at all that there should be uniformity. Why should there be uniformity? On the contrary, there is value in each person doing what he thinks. I’ll say more than that: beyond the question of the importance of uniformity—and this is a very important point that I also intend to get to later—even if uniformity is important, let’s say uniformity is important, still the truth is that I need to do what I think; that is the Jewish law. So even if uniformity is important, fine, it’s important—what can I do? If that’s the Jewish law, that’s what I have to do. Meaning, the fact that—if there were a Sanhedrin and it said uniformity is important and therefore I compel you to do this even though in your opinion it is a transgression, fine, then I would have to obey because there is “do not deviate.” But as long as the Sanhedrin has not established that, then what can I do? My halakhic obligation is to act this way. Does that harm uniformity? Okay, then I’ll sit shivah over the death of uniformity. But what can I do? That’s the Jewish law. It’s like something that often bothered me among halakhic decisors; later I found that the Chazon Ish already comments on this and offers some, in my opinion, rather far-fetched answer. But what often bothers me is that halakhic decisors say: look, there can’t be such chaos, and therefore I forbid it. What do you mean, you forbid it? Is it halakhically forbidden or not halakhically forbidden? If it’s not halakhically forbidden, then you can’t forbid it. Who are you? Are you the Sanhedrin, Moses our teacher, the Holy One, blessed be He? Who are you? You can’t invent laws. You are an expert in Jewish law; you are supposed to tell me what the law says. Policy considerations, slippery-slope considerations, or things of that sort, may perhaps be valid considerations, but they are not—you can’t change the law because of them. It’s like saying it is forbidden to ride a bicycle on the Sabbath because you might come to repair it, if the chain falls or something, you might come to repair the bicycle. There is no such rabbinic decree among the Sages, because they didn’t have bicycles. They didn’t have bicycles. And now some halakhic decisor comes and says yes, so I’ll decree it myself. Who are you to decree? Does “do not deviate” apply to you? Do you have authority to decree? Not because his concern is wrong. If there were a Sanhedrin today, maybe they really would forbid it. Maybe. But if there is no Sanhedrin, then it is not forbidden. That’s just the fact. The fact that you think it ought to be forbidden does not mean you can forbid it. I also think such-and-such a law ought to exist—so does that mean such-and-such a law exists? Not if it wasn’t legislated.

[Speaker C] Rabbi, but bicycles—isn’t that like poultry with milk?

[Rabbi Michael Abraham] I didn’t understand.

[Speaker C] Bicycles—isn’t that like poultry with milk?

[Rabbi Michael Abraham] In the sense that because—of course not. What do you mean, like poultry with milk?

[Speaker C] That it’s rabbinic, that because of the concern that I’ll come to fix them, I won’t ride a bicycle.

[Rabbi Michael Abraham] Poultry with milk is a rabbinic decree that was actually decreed. Regarding bicycles, there was no religious court that sat and decreed. If a religious court had decreed it, then that too would have been a decree.

[Speaker C] But it’s the same logic.

[Rabbi Michael Abraham] What do you mean, the same logic? With rabbinic decrees you don’t go by logic. Whatever the Sages forbade, they—why did the Sages have to forbid poultry with milk? I should have refrained from eating poultry with milk already from Mount Sinai; the logic was always there. So why did the Sages need to forbid it? Without legislation, there is no law. The fact that it is very logical—so what? Yes, that’s natural law versus positivism. The fact that something is logical does not make it binding law. Logical, okay—so what? As long as no decree was issued, then no, it is not forbidden. And who issues decrees? Whoever has authority to issue decrees. Who has authority to issue decrees? The Sanhedrin, or perhaps a local rabbi in his community too, if he was authorized for that, but that’s it. A halakhic decisor cannot issue decrees on me. I come to ask a halakhic question, and the decisor forbids it because he’s worried I’ll end up doing such-and-such. Very nice that you’re worried. Then try to persuade me not to get there. You cannot forbid what is permitted. You cannot invent a prohibition.

[Speaker C] Rabbi, could you please explain again why I don’t—why I have no obligation to follow the majority on this question of autonomy versus truth?

[Rabbi Michael Abraham] Why should you follow the majority? I didn’t understand. Why follow the majority? Because of “incline after the majority”? Yes. “Incline after the majority” speaks about a court. Okay,

[Speaker C] and because—what? Meaning, even if the Maharal here is the only one who thinks this way, if I agree with his view, then…

[Rabbi Michael Abraham] Yes, then that’s already second-order. On the very question of autonomy itself, I also rule autonomously. On that question too I have ruled.

[Speaker C] No, right, no—

[Rabbi Michael Abraham] That’s what I’m asking. That’s what I’m asking. Yes. Why not? If I rule autonomously on every other question, then on the question of autonomy too I will rule autonomously. So yes. These are the words of Darashot HaRan; this is what the Maharal says.

[Speaker B] What the Rabbi answered me with Darashot HaRan seems to go entirely with autonomy, because autonomy is not itself a commandment in the Torah after all.

[Rabbi Michael Abraham] No, no. I’m saying that Darashot HaRan only served me as an illustration. Darashot HaRan answers a different question, similar but different. He is talking about the Sanhedrin. The Sanhedrin has authority, obviously—there is “do not deviate.” I’m saying I can give the same answer here too. How exactly? Fine, so that’s regarding autonomous ruling. Now at this point I really want to start moving a bit from the question of what Torah is to the question of how one rules Jewish law, because our topic is study and halakhic ruling. So I’ve actually already begun the second part of the series—how one rules. Which is related to what I’ve been discussing until now: first-order ruling and second-order ruling. The concepts are mine, but I think they are familiar. Generally, precedent-based halakhic decisors are halakhic decisors who basically rely on the opinions of their predecessors. And when you ask them a halakhic question, they open the Mishnah Berurah and look for what the law is regarding the question before them, or the Shulchan Arukh, or whatever—a code or various halakhic codes. A first-order halakhic decisor is one who basically enters into the topic himself and formulates his own position. He can study—and preferably should study—the Mishnah Berurah, the Shulchan Arukh, the halakhic decisors, everything is fine, because he wants to study them and understand their positions in order ultimately to formulate the law himself. But in the end, he formulates the law according to what seems correct to him. That is called a first-order halakhic decisor. What I want to argue from here on is in favor of first-order ruling. And I’ll say two—well, first I’ll qualify a bit. I’m going to present here two models: a first-order decisor and a second-order decisor. But you have to understand that the distinction is not sharp. Meaning, there is a whole continuum of levels between first order and second order, and every halakhic decisor is somewhere in the middle. There are halakhic decisors who are much closer to second order, there are halakhic decisors who are much closer to first order, and there are halakhic decisors somewhere in the middle. Different proportions or different mixtures of first order and second order appear in every decisor. So you need to understand that when I present these two figures, this is only a typology. Meaning, I’m presenting two types of halakhic decisors, neither of which really exists in pure form. Every halakhic decisor is some combination of these two models; each chooses his own dosage. When I talk about second-order decisors, I mean that first order in their case is at a very low dosage. When I talk about first-order decisors, I mean that second order is at a very low dosage. Fine, but everyone is somewhere in the middle. Now I’ll try to define a bit more precisely what I mean by a first-order decisor and a second-order decisor, or first-order ruling and second-order ruling. I want to argue that this works on two planes. One plane is the plane of precedents, as I said earlier. Meaning, a decisor who approaches a question and relies on precedents, or resolves it according to precedents, is a second-order decisor. A first-order decisor studies the Talmudic passage, like the Maharal said—what the Maharal said is: you study the Talmudic passage, understand the conclusions that arise from it, and then rule the law. Of course one also studies the precedents and the great halakhic decisors—there is nothing wrong with that—it is desirable and proper, though not absolutely necessary as I said earlier, but certainly desirable and proper as part of my clarification and as part of formulating my position. I also need to analyze and clarify the other opinions and take them into account. There are cases where, as I said earlier, you don’t even need that. But in principle, yes. That is one plane on which I make the distinction between first order and second order: the attitude toward precedents. The second plane is the relation between essence and command. We discussed earlier that, at least in Torah-level laws, behind the norm stand insights or essences that are meta-halakhic, metaphysical if you like, and that is what underlies the halakhic determinations. Now second-order ruling basically treats Jewish law on the level of directives, of bottom lines. First-order ruling enters into the insights that stand behind the halakhic rulings. This is of course connected in some way to the attitude toward precedents that I mentioned earlier, but it’s not exactly the same thing. Very often, for example, in second-order ruling you will find that they don’t define the concepts, they don’t try to understand the idea that stands behind the laws or the principles I am using. Rather, I use the principles, I do this sort of mathematics, I use principles and reach my conclusion, without entering the question of what stands behind the principles, what essence those principles represent. And such ruling is a different kind of ruling. Here I want to make the two claims we saw in the Maharal: first, such ruling can lead to mistakes, because if you don’t understand the essence and you merely rely on bottom lines or on principles, then you can arrive at mistakes. And second, it is not proper to engage in ruling that way. Because that is not how one rules Jewish law, even if you are correct. And sometimes, if you do it that way, you may even be more correct, because if you rely on the Mishnah Berurah there is a greater chance that you will be right than if you decide on your own. Therefore, first there is the concern about error—that is one issue. The second issue is that the very act of issuing halakhic rulings must be done in this way—not in the manner of sorcerers, right, but in the manner of deriving the law from principles, defining concepts, understanding the relations between concepts. And often this a priori clarification, this almost philosophical clarification, makes a great deal of analysis and hair-splitting in the words of the medieval and later authorities unnecessary. First, it brings you much faster to understanding, and second, it also enables you to dismiss positions that sound unreasonable. After you have done the conceptual clarification, you will understand that many things are, in your opinion, unreasonable, and therefore you won’t need to deal with them or take them into account. Therefore first order and second order are not judged only by the question of how you relate—whether you relate only to precedents or also study the passage. The question is also: when you study the passage, how do you study it? Do you study the passage in the sense of, okay, “this one benefits and the other one does not lose” is exempt, here you benefit and he doesn’t lose, so you’re exempt? Or do you say, no, no, wait, let’s see, let’s understand why “this one benefits and the other one does not lose” is exempt. What is the idea behind that? And very often you’ll discover that if I understand the idea behind it, the application I wanted to make may not be correct. And second, even if it is correct, the Maharal tells me: that is still not how one rules Jewish law. Jewish law has to be ruled from the understanding of the intellect that stands behind the laws, not by some mathematical calculation with the laws themselves. And in the next class I’ll bring examples of this so it will be more, more clear. But I just wanted here to complete this—to complete this section and understand where we’re going. What I want now is to try to illustrate more concretely what the meaning of first order and second order is, and then we’ll do that through examples, and then maybe we’ll also want to apply it. Okay, I’ll stop here if anyone has comments or questions. Okay, if not, then have a peaceful Sabbath and good news.

[Speaker B] Rabbi, regarding the Rabbi’s point—just regarding the bicycles that the Rabbi mentioned—it could be said that there is some kind of decree or rabbinic prohibition under the general category of weekday-like activity.

[Rabbi Michael Abraham] If you think that is part of weekday-like activity, I have no problem. Either you are right or you are not, but it is legitimate to say that. But if you issue a decree on me lest I come to fix the bicycle—and many halakhic decisors write this—there is no root or branch to it. It’s absurd. You cannot invent decrees. Right? Those same Haredi halakhic decisors who say that also say they do not recite Hallel on Independence Day, or a blessing over Hallel on Independence Day, because we have no authority to institute enactments. I don’t understand that mode of thinking.

[Speaker B] Maybe they—maybe they think that since the Sages enacted something regarding riding horses or something, then they enacted everything similar.

[Rabbi Michael Abraham] Lest you fix the horse?

[Speaker B] Yes—lest you carry, lest you pluck, yes.

[Rabbi Michael Abraham] So what does that have to do with it?

[Speaker F] No—lest one repair a musical instrument. There is a decree lest one repair a musical instrument.

[Rabbi Michael Abraham] To repair a musical instrument, so playing is forbidden. Fine. But what does that have to do with it? Again, you need to understand: the logic—I can understand the logic of the halakhic decisor who tells me not to ride a bicycle because I might come to fix it. It’s not that I’m saying what he says is illogical. I’m only claiming that even if it is logical, for it to become binding law it has to go through legislation. The fact that something is logical does not make it law. For it to be law, it requires legislation.

[Speaker G] But when you mentioned it, you said that if there were a Sanhedrin today, it might also forbid it—so doesn’t that very reasoning almost obligate us? No.

[Rabbi Michael Abraham] A decree—again, reasoning is binding in laws behind which there is an essence, so reasoning tells me, look, the essence says this is how one should behave. But here this is rabbinic obedience. Obedience exists only when there was a command. If there was no command, there is no obedience.

[Speaker B] That’s what the whole classes were for.

[Rabbi Michael Abraham] I understood that.

[Speaker B] Thank you very much, Rabbi.

[Rabbi Michael Abraham] All right, have a peaceful Sabbath, and may we hear good news.