Halacha and Reality – Lesson 8

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[Rabbi Michael Abraham] That’s what those who say it cannot be voided are referring to. But there are situations in which we do void it. For example, the Talmud in Kiddushin, the long Tosafot there on page 50—or actually 49—the Talmud says there that someone who sells his property with the intention of going up to the Land of Israel, he sold his property because he planned to move from Babylonia to the Land of Israel, so he sells the property, he doesn’t need the house, the field, he sold them. And then something went wrong, he wasn’t able to go up to the Land of Israel. So the sale is void.

Now, Tosafot discusses it there: after all, he didn’t make a double condition. He didn’t say that the sale would be void if he didn’t go up to the Land of Israel. There’s no formal double stipulation here. So how does this work? And the answer is: these are things that are in his heart and in everyone’s heart. But what does that mean? It means that a future situation—in the end, some problem happened that prevented me from going up to the Land of Israel. At the moment the deal was signed, everything was complete, there was no missing information, everything was done with full intent. But later a situation arose such that if I had known about it at the time of the deal, I would not have made it. And that is enough to void the transaction, even though we’re talking here about a situation that only came into being after the contract was made, long after the contract was made. Still, there can be cases—and it’s not simple to define exactly when and how—but there are cases in which even a future event can void the deal. Okay?

There are those who tie this to a stipulation, because really it is a stipulation. Every reasonable person basically means to say that if I don’t go up to the Land of Israel, obviously I need my field and my house. Where am I going to live? What am I going to make a living from? So even if he didn’t explicitly stipulate it, it’s as if he did. And once he stipulated, everyone agrees that if he stipulated that if the move to the Land of Israel doesn’t work out, then the sale is void. So obviously the sale would be voided; a stipulation is certainly a valid legal mechanism.

So some explain that voiding on the basis of a future event is really a mechanism of stipulation, just an implicit stipulation. Meaning, he doesn’t have to stipulate it explicitly; rather, we have some presumption that obviously anyone would intend to make that condition even if he didn’t say it outright. Maybe there’s even some kind of mistaken sale here even without an implicit stipulation; there’s room to get conceptual about it on the analytic level. But the fact is that such cases do exist.

Except that the Talmud in Bava Kamma on page 110, I think—or 102, I don’t remember, 110 I think—the Talmud says there, it discusses voiding betrothal, and it says there that we do not void betrothal on those grounds. Why? Because “it is better to sit as two than to sit as a widow.” A woman prefers to live with a partner, no matter what defects he has or how problematic he is, rather than remain alone. “To sit as a widow” means to remain alone; widow there of course doesn’t literally mean that her husband died, but that she lives alone, without a partner. Women want a partner. And therefore, even if all kinds of defects are discovered in the husband that she wasn’t aware of—whether defects that existed already or defects that arose later, it doesn’t matter—that doesn’t interfere, because the woman consents. That’s what it says there in the Talmud.

And therefore there is no voiding. There, in that case, she fell into levirate marriage before, I don’t know, some leper or something like that. And if she had known that she would fall into levirate marriage, that her husband’s brother was a leper and that she could fall before him for levirate marriage and become the wife of a leper, then she would not have consented. So ostensibly there would be room to void this deal. The Talmud says no, because a woman always consents to live with a partner; she prefers that over life without a partner. That is what it says there in the Talmud.

Now, in that same case that came before us, I argued as follows. What does this presumption say—this presumption of “better to sit as two”? It’s a presumption that is very, very controversial nowadays. What lies at the basis of this presumption is that the woman gets a relationship and in exchange she is willing to pay even a heavy price: to live with a husband who, I don’t know, whatever, to endure beatings, whatever it may be, all kinds of things like that. She prefers a relationship over living alone, let’s say. That’s the estimate the Talmud offers.

So what I argued regarding the case I described to you earlier is this: I’m willing to accept that Talmud. I made two claims. First claim: let’s say I accept that Talmud as clear authority—women, that’s what they want, fine. But this woman did not get “as two.” After all, he had already fled from her; from the very first night he was not with her. He fled abroad. Meaning, he wasn’t planning—by the way, he was living abroad with another woman in a house. With another woman, and they had an apartment. Meaning, he didn’t give her even one minute of “as two.” He was at the wedding ceremony, at the wedding, and after that he disappeared. By the way, disappeared with the money too. The wedding gift money as well, just to make life more interesting.

In any event, my argument was that everything the Talmud says—that a woman is willing to pay prices—is only if in exchange she gets a relationship. “Better to live as two than to live alone.” For that she is willing to pay prices. But if she got no relationship at all, who can say that she prefers not to get a relationship and still, yes—as the saying goes—both eat the fish and leave the city? Meaning, that certainly is not stated in the Talmud, and it also makes no sense. Therefore I argued that even if one accepts this Talmud as Jewish law, here the betrothal can be voided, because the woman never got “as two” at all.

[Speaker C] And what if he had run away after a week?

[Rabbi Michael Abraham] That’s a different question. There would be room to hesitate, maybe. I tend to think that even a week is still nothing, but here there would already be room to argue, because she did get some kind of “as two.” And what about ten years or thirty years? After thirty years he suddenly goes crazy. Fine?

[Speaker C] Right, but that’s why I deliberately picked something that really is very, very borderline.

[Rabbi Michael Abraham] Fine, I don’t know. I don’t know. There is a gray zone where I truly don’t know. Again, it’s the question of the line—where exactly the line passes. But as I said, there is a gray zone, but there’s also black and white on both sides. And here, in my view, this belonged to the black, not the gray. She got no “as two” whatsoever. They didn’t live together at all. So how can the presumption of “better to sit as two” apply in such a situation? It’s simply absurd in halakhic terms.

And this dragged on for years in the rabbinical court and they got nowhere, and they kept chasing after him. By the way, how was it finally resolved? We voided her betrothal, but of course that isn’t recognized by the state. So what did they finally do? The rabbinate was terribly proud of this. What they did was send some agent and gave him—paid him—forty thousand shekels so that he would agree to give a divorce bill. Public money, of course. In short, they bribed him. They bribed him so that he would agree to give a divorce bill.

Just think about the fact that forty thousand shekels solved the problem. Meaning, these people apparently weren’t exactly in some incredible financial situation. You think he was doing these tricks for years and all this insanity for a million dollars. Forty thousand shekels got a divorce bill out of him. But still, in my eyes this was a scandal. A scandal, because he should not have been given a penny. What is this? We’re talking about a legal institution authorized by the state, not some private court. This is a state court giving a bribe to a litigant in order for him to comply with the law. Can you imagine such a thing? Meaning, the judge says to the litigant: listen, I ruled that you need to pay him a thousand shekels, but you know what, I’ll give you five hundred shekels if you agree to pay him the thousand shekels that I ruled you owe. What kind of thing is that?

Of course you can hide it, you can only impose five hundred on him and in effect that’s giving him a bribe so that he’ll pay the other five hundred. Okay, but there are things you just do not do. You do not pay someone a bribe when you are a state institution, certainly. And I would expect any court not to do that, but certainly an official court, state employees, paying a bribe to a litigant so that he will comply with the judgment imposed on him. With public money! It’s not a private person paying a bribe; they paid a bribe with our money. And afterward they were even proud of their devotion, about how they work to free every chained woman and every woman denied a divorce bill, and how much money they invest and how they establish a fund for chained women. They were so proud of it that these people are really crazy. They don’t even understand what should be hidden and what one can be proud of.

[Speaker C] And according to Jewish law he’s supposed to get beaten, not paid.

[Rabbi Michael Abraham] Right. Rabbi Shilat, by the way, once wrote—and this is all in parentheses, not really the point—Rabbi Shilat once wrote an article in the Sabbath supplement of Makor Rishon. He wrote there that he thinks what should be established in Israeli law is that anyone who is a divorce refuser according to a ruling of the rabbinical court—that he must give a divorce bill and refuses to do so—should be beaten brutally until he gives the divorce bill. That’s it. Don’t sit him in prison for twenty years. There are stubborn people who sit in prison for decades and don’t give a divorce bill. Don’t chase him, don’t prevent him from leaving the country, don’t freeze his bank accounts. Beat him brutally until he gives her the divorce bill, that’s all. Solve the problem in one day. Beat him with a whip until his soul nearly leaves him. You compel a person regarding commandments, even to that point. Certainly in a place where he is pursuing someone else. He is simply persecuting her; he is not allowing her to remarry. And with a pursuer one may even kill him. And here there’s a big question whether if he is chaining her, that is enough to kill him—I don’t know. But certainly one may harm him.

Okay, so everyone was terribly shocked—what do you mean, beatings? That’s not moral. Yes, but to sit him in prison for thirty years and leave the woman chained all her life is so very moral. And to beat him, heaven forbid. Yes, he didn’t say who would do the beating, but believe me, there are many volunteers. I see here in the chat some question about it. I’m sure we could find volunteers. The interrogators of the Shin Bet could put their skills to use here too. Yes, when there is—what do you call it—a smoking gun or something like that, right? When there is a ticking bomb, sorry, not a smoking gun—when there is a ticking bomb, then they know how to beat, so let them beat here too. Anyway, that’s really in parentheses.

But for our purposes, that was the first claim: she did not get “as two.” The second claim, which I did not want to rely on, partly because my colleagues did not agree—at least one of them did not agree to join me on the second argument—and also because it’s weaker externally, meaning other people would be less likely to accept it, but in my view it is a correct argument. My claim was that today it is simply not true that “better to sit as two” applies at any price. A woman wants a relationship; a man also wants a relationship; everyone wants a relationship. It may be that a woman wants a relationship even more than a man, I don’t know, I haven’t tested that. There’s some such feeling, but I don’t know if it’s true. But the claim in the Talmud, the claim is factual. And here we come to the point. The claim is factual. It states facts about what women think, what women want. Fine? A collection of men who wrote the Talmud explain to us what women really want. What do they really want? They really want a relationship at any price. At any price.

Now, I don’t know, I know the society around me, and in my estimation very many women around me—perhaps all of them—do not agree to a relationship at any price. It is not true. Now, I don’t know whether in the time of the Talmud this was true, or whether even there it was not true; I have no idea. It may be that it was true, because there were severe difficulties then. A woman could not support herself without it, maybe. There could be serious problems. If her father was not alive, she might literally starve. So I don’t know. But in our reality today it is certainly not true.

So why do I need to come up with excuses that here she didn’t get “as two”? Maybe the price here is just so heavy that the “as two” isn’t worth it at that price, and therefore the betrothal is void. After all, the Talmud itself says that in principle there is voiding of a transaction in betrothal just as there is in commerce. The same thing. Only because specifically the factual estimate of what women want was such that from their standpoint any price was worth it. But the Talmud also agrees that if in reality not every price were worth it, then this mechanism of voiding would operate with betrothal as well. That is obvious; it is stated explicitly in the Talmud.

So the Talmud’s halakhic determination is that this mechanism applies in betrothal too. It says so explicitly in the Talmud. Except that there is also a factual determination by the Talmud that in fact women consent to a relationship at any price. So the Talmud’s halakhic determination binds me, because there is authority in the field of Jewish law—we talked about bridge principles and so on—there is authority in the field of Jewish law for the Talmud. But the Talmud’s factual determinations, first, I am not bound to accept. Even if the Talmud were saying this about our own time, I would not be bound to accept it, because facts have no authority. Second, the Talmud itself is not really trying to state factual matters, only bridge principles, what we discussed in Bava Batra, that a person pays a debt on time. Third, even if in the time of the Talmud that was the reality, in our time that is not the reality. So why should I transfer the Talmud’s factual determination into a world in which that determination is not factually correct? There is no reason at all. Today it is not true.

And during the discussion there, around this case, it came out that I was speaking with some women’s organization that had basically organized this. So I said to one of the activists there: tell me, why don’t you take some serious, professional polling institute, under rabbinic guidance from certified judges, properly organized, so that it will be recognized and they’ll understand that this is serious work, and do a proper survey among women in Israel today, in different sectors. If you want, do segmentation by sector—Religious Zionist, more Haredi-national, Haredi, secular, these, Sephardi, Ashkenazi, I don’t know—do all sorts of segmentations that seem relevant to you, and run a survey: at what price is a woman willing to consent to betrothal? What prices are simply out of the question? That she would not be willing to marry if those were the prices? These are questions that can be asked.

And once these facts are before the eyes of the world—the world of rabbinic judges—they will no longer be able to hide from reality. This is the reality! What are you going to say—that the Talmud says women consent? The facts show that women do not consent.

[Speaker E] No, then they’ll say that women are light-minded.

[Rabbi Michael Abraham] Light-minded, but—

[Speaker E] That’s still their view.

[Rabbi Michael Abraham] He betroths a woman, not a man. So you betroth her, the one who is supposedly light-minded. Fine, that’s the one you betrothed. That’s her view. If she’s light-minded, then her consent is worthless too, so how did you betroth her? After all, the whole betrothal takes effect only because she consented. That’s not an argument.

[Speaker E] Fine, they’ll find some way to draw the line. They’ll say the line for consenting to betrothal is enough, not that—

[Rabbi Michael Abraham] Obviously there will be conservatives who reject such a survey and explain to us that the Talmud knows better than all of us not only what happened in Babylonia fifteen hundred years ago, but also what will happen in the next millennium. I understand. But I think there are quite a lot among the rabbinic judges such that if there were a serious survey, backed by careful halakhic guidance—because you need to know what questions to ask, by the way, it’s not so simple—and also a proper professional polling institute that does the work correctly, one that has already proved itself, then I think quite a few rabbinic judges would accept it. I am sure of it. As long as one remains with some general estimate, then it is very easy to say: well, that’s just a general estimate; you cannot use that to go against a determination of the Talmud. And it becomes very easy for rabbinic judges to remain in their own conception.

[Speaker A] This idea of “better to sit as two” also applies to a woman who is betrothed with something worth a perutah, and also this matter that a creditor collects from medium-quality land while a woman collects from inferior land because of this whole issue. So it’s something that cuts across many laws.

[Rabbi Michael Abraham] You’re mixing two completely different things. What a woman collects as her marriage settlement is a rabbinic enactment; it has nothing at all to do with her consent to the betrothal.

[Speaker A] Why does she collect from inferior land and not from medium-quality land like a creditor?

[Rabbi Michael Abraham] What difference does it make?

[Speaker A] Because of the idea of “better to sit as two”?

[Rabbi Michael Abraham] Absolutely not. That has nothing to do with “better to sit as two.” Even without a marriage settlement she is married; what does that have to do with anything? That’s consent to the settlement, not consent to the betrothal. It’s a rabbinic law. The argument of “better to sit as two” concerns consent to betrothal. At least that’s the part that interests us.

And what I basically want to say is that when I want to investigate—again, as I said in the previous example—when I want to investigate a fact, I do not go to the Talmud, I go to reality. And one has to examine what the relevant fact is going to be. And again, one can argue; it may be that in different societies the results will differ, and I don’t know exactly what the results will be and where the line passes. But I do know that wherever the line passes, it is impossible to take this thing wholesale from the Talmud. It simply makes no sense.

And I’ll tell you more than that. Throughout the generations it was very rare, but there were cases in which this mechanism was applied. They voided betrothal despite the fact that the Talmud says “better to sit as two.” For example, Maharam of Rothenburg is cited as voiding betrothal when a woman fell into levirate marriage before an apostate. Now understand: she got a fine “as two” from her husband—could have been for decades, I don’t know how many years they lived together—but they had no children, and he died without sons, without children. She had to fall to levirate marriage, and it turns out that his brother is an apostate. Now she does not want to marry an apostate. Okay? So Maharam of Rothenburg says: if she had known that she would fall into levirate marriage before an apostate, she would not have consented to the betrothal, and therefore he voided the betrothal. And if she was never the dead husband’s wife, then she does not require levirate marriage from the apostate brother. The betrothal was voided.

And they did things like this here and there in other contexts too—not much, but there are contexts. And there are certain contexts in which sages throughout the generations saw that, all the same, this is beyond the line. To this a woman does not consent. To this a woman does not consent. Now what is interesting in this whole business is that in rabbinical courts today too, very rarely, they have examined this issue and rejected it. But how did they examine it? They examined it through precedents. They took Maharam of Rothenburg and this responsum and that responsum where such things were done. Yes, but in our case it isn’t an apostate husband’s brother, in our case it is something else. So what? And to whom did Maharam of Rothenburg compare, when he was the first precedent? To whom did he compare when he said it? To reality! He understood that a woman does not want to fall to levirate marriage before an apostate, and therefore she had not consented with that in mind. If she had known that this is what would ultimately befall her, then she would not consent.

By the way, today it might really be otherwise. Secular women, say, or something like that—not sure they care so much about falling to levirate marriage before an apostate. So there maybe today I actually would not void it; maybe I would go in the stringent direction on that issue. Because reality is different. Reality is different, sometimes for stringency and sometimes for leniency. But just as Maharam of Rothenburg went to reality and checked what in his opinion a woman consents to and what she does not, so too we today can examine in reality what a woman consents to and what she does not. We do not need to go to precedents. There is no need to search whether, when the husband fled on the first night, there is already a responsum that voided betrothal in such a case. Even if there is such a responsum—whom did it go to? What precedent did it rely on? In the end, at the very end, there is always someone who took the first step. The first step is the reasoning. Go to reality and see. Ask yourself whether the woman consents or not. So why can’t I do that? Why do I need precedents?

And again I say, there are intermediate cases. Someone asked earlier—one week. What happens if they lived together for a week? It could be that here I would hesitate whether this crosses the threshold of problematicity or does not cross the threshold. And in that hesitation, maybe I would consult halakhic decisors or people who are experts in drawing lines, as I said earlier. Fine, that’s legitimate when you are unsure where the threshold lies. But to transfer situations from what was there to what is here today is ridiculous.

The same thing, by the way, also happens in the field of conversion. In the field of conversion too the same thing happens. What happens there? People want to argue—and this time, notice, this time it goes in the lenient direction. This time what I am arguing goes in the stringent direction. People want to justify or validate the conversions of the state conversion system—yes, of Rabbi Druckman, or what used to be Rabbi Druckman, or whoever it is today—because in essence there are precedents, and yes, it has been ruled as Jewish law that even someone who converts in order to marry a woman, not because he fell in love with the Holy One blessed be He, even he is accepted. Therefore, essentially, even people who convert for side reasons—the Law of Return, to marry a woman, whatever it may be—fine, but they too are accepted after the fact as well, especially if this is “seed of Israel” and so on, all sorts of things like that.

And my claim was that the precedents—and many other arguments too—my claim was that all these precedents of every kind are irrelevant to the question. Because my question is whether the convert accepted the commandments. And unlike proposals that try to dispense with acceptance of the commandments, which in my opinion are utterly absurd, Rabbi Druckman’s system included all the judges—at least those I spoke with—and none of them claimed that one does not need acceptance of the commandments. Everyone agrees that one does need it. They only claim that even if someone accepts the commandments but is really doing so for side reasons, to marry a woman or because of the Law of Return or whatever it may be, still after the fact we accept him too, because there are such and such precedents.

And I say that this is nonsense. Why? Because in the past, when a person converted in order to marry a woman, it was clear to him that being Jewish meant keeping commandments. Right? That’s what being Jewish meant. Now, he didn’t exactly fall in love with the Holy One blessed be He and with the Torah, he didn’t keep commandments because he deeply identified with that and thought it was right, but he understood that when he married that woman, he was building a Jewish home, and that would require him to keep the commandments: eat kosher, go to synagogue, yes? And he accepted that upon himself. True, he accepted it not for ideal reasons; he accepted it as some kind of compromise in order to be able to marry that partner, but he did accept it. So in the end he accepted the commandments.

But what happens today? What happens today is that a person declares that he accepts the commandments in order to qualify under the Law of Return, to be recognized as a resident under the Law of Return, for immigrant rights and all kinds of things of that sort, and he has no intention whatsoever of observing commandments. Because today most Jews in Israel are not committed to Jewish law, so there is no presumption that if you have joined the Jewish people then of course you will also keep commandments—even if not for the proper reasons, still you will keep them. That no longer exists today. It does not happen.

And in fact a large portion of converts—although they told me I’m a bit too pessimistic, judges who know the situation claim that a respectable percentage of converts do keep at least some of the commandments or something like that—fine, I’m not arguing with reality, but certainly a significant portion, and in the past an overwhelming majority of converts, kept nothing at all. Today, by the way, partly because of criticism, such as mine and others, I think it has improved. But still, if that is the situation, then what does that have to do with all the precedents? All you want to clarify is a fact: does the person genuinely intend to observe commandments or not? That is the question. At the moment of conversion, not afterward. If he changes his mind afterward, then of course he is Jewish. But if at the moment of conversion he did not intend to observe commandments, then he is not a convert. That’s all.

Now how do I determine whether he intended it or did not intend it? Do I open responsa volumes? You need to look at the person and see whether he really intends it or not. It depends on reality, depends on the circumstances, depends on the person. The court’s role is to determine what is in the convert’s heart. That is one of its roles. So what does this have to do with all the responsa and precedents? Why is that relevant?

I’ll give you an example of a situation that is obvious. By the way, the previous case I described regarding the woman and the betrothal is also obvious. But there is someone I know who sat on a conversion court. He told me he once sat on a conversion court—and I can say it was Rabbi Katz actually, Rabbi Aharon Katz. He was the head of the kollel at Bar-Ilan, and today he is the rabbi of Ramat Gan. He replaced Rabbi Ariel, not as a permanent appointment, I don’t know; he is Rabbi Ariel’s replacement in Ramat Gan.

In any event, he told me that once he sat on a conversion court, and on Friday someone came before them and converted. A few days later they discovered that that very night he held a cheerful, festive wedding in a hall, on Friday night. On the very day he converted. Now, you don’t book a wedding hall with all the catering and photographers and orchestra and so on from noon to evening, right? I assume there was no rabbi there, unless it was the Rema. Yes, the Rema also performed marriages on Sabbath night in very exceptional cases, of course. But it is obvious that this had been planned in advance. Which means that already at the moment he accepted the commandments, he did not really intend to observe them. This did not happen afterward. So they voided his conversion, and of course his marriage too, insofar as there was one there at all—I don’t know. He is a gentile. He remained a gentile. Why? Because there it is obvious that he did not intend to accept the commandments.

Do you need precedents for that? Not precedents; you need to look at reality. Reality shows that he did not intend to accept the commandments, that’s all. So his conversion is void. That’s it. So again, one sees the same phenomenon there too. People look for precedents to explain reality to me. Precedents are not relevant for explaining reality. At most one can use them to see where the line passes, as I said earlier. Because here too one could discuss: maybe he did not know that it is forbidden to marry on the Sabbath? It could be, I don’t know exactly. Maybe he thought he’d cut corners on that, but he did intend to accept the rest of the commandments? I don’t know how many commandments one has to accept in order to be a convert. There are all kinds of debates about that too. In the Talmud it says that even one detail, if he does not accept it, then he is not a convert. But this is not brought as Jewish law in the halakhic authorities. And the question is how to understand it. I also discuss that in that article on conversion.

In any case, I’m speaking only at the principled level: again, in all these cases, the attempts to clarify reality lead the rabbinic judge or decisor to responsa, to precedents. And I think that is crooked. You need to clarify your own reality, not the reality that existed in twelfth-century Ashkenaz with Maharam of Rothenburg. You need to determine what the reality is today in the State of Israel, in the society in which you are located or in which the person you are judging is located. That is the relevant thing. And for that, one simply has to look. Not search for precedents, not responsa, not anything. At most, sometimes reality is complex, so analyze it. Examine reality the way one examines it in any other context.

[Speaker C] But if we say that “better to sit as two than to sit as a widow,” even in the time of the Sages it was not at such a level that this was an unavoidable presumption that every woman is willing—main thing, not to sit as a widow, to sit with two bodies, with another body, even if he’s an eighty-year-old man.

[Rabbi Michael Abraham] The idea is that it needs to be a very high price.

[Speaker C] Yes, one needs to be very careful in voiding, because with women this is something more—if so, then maybe today too, so maybe I do need to rely on a responsum, on a precedent, to explain that in this case, despite the fact that I am voiding—

[Rabbi Michael Abraham] Again, then you’ve returned to what I said earlier. In order to draw the line, you can use responsa, earlier decisors. Agreed. If the problem really is where the line passes.

[Speaker C] If it’s a line problem, then it’s responsa.

[Rabbi Michael Abraham] Yes, but if you are making a direct transfer—from falling to levirate marriage before an apostate—that is not help in drawing a line. Because how do you know how bad it was for Jewish women then to fall to levirate marriage before an apostate? Does that give you some indication of how bad the situation has to be today? I don’t know. And even if yes, then you do not need to transfer to today the exact case of falling to levirate marriage before an apostate, but rather something that is equivalent in terms of the price that that woman in the twelfth or thirteenth century in Ashkenaz was willing to pay when she fell before an apostate. Try to estimate that. Maybe there is some way somehow to estimate it. Fine. But don’t tell me that an apostate is problematic because Maharam of Rothenburg said an apostate is problematic. That is not relevant. It is simply not relevant. Not just that it isn’t conclusive—it is not relevant at all. I have no use for it whatsoever.

And this is an everyday occurrence. There is no article that comes for publication, there is no court ruling that I see, that does not do these things—taking precedents and trying to determine reality from precedents. Which in my eyes is a scandal. It is simply detachment from reality. Now, this detachment from reality is not just that the decisor is somehow not okay. He is simply issuing an incorrect ruling. He is acting wrongfully. Because the correct law is determined according to the correct reality for today, not according to the reality in some earlier century. You think that if you follow Maharam of Rothenburg then you’re going on the safe side. Yes, you’re playing it safe, because then it’s clear and whoever changes it has the burden of proof. I say the opposite. If you cling to Maharam of Rothenburg, you are acting wrongfully. Your task is to go by the reality of today, not by the reality of the twelfth or thirteenth century. Okay?

Good. That’s regarding factual determinations. I want to get to one more point that I want to manage to cover, and with that we’ll conclude this series. There are situations—and this continues what I’ve just been saying, but in a more specific way—there are situations where reality changes and therefore the ruling has to be different. Like all the examples I’ve given until now. But there are situations where this is a bit more problematic, because we know, for example, that at least Maimonides says, and also the Raavad in one way or another, that even if the reason has lapsed, the enactment has not lapsed. In order to cancel enactments, one needs a court greater in wisdom and number, even if the reason for the enactment that once existed has lapsed. Even then, one needs a court.

And the question is: if that is so, then it puts a very big question mark over everything I’ve said until now. Because what I’ve said until now sounds a bit as though I’m entering into the reasons for the laws, checking the application of the reason to our time, and changing the law because the reason changed, because the reason has lapsed. Right? So who said one may do such a thing? In Torah laws, we do not generally derive law from scriptural reasons, meaning we do not use interpretation that relies on the reasons for laws. In rabbinic laws, at least according to most decisors, even if the reason has lapsed the enactment does not lapse. So if that is so, is there still room for the kinds of considerations I am speaking about here?

My answer is: certainly yes. And that is in several scenarios. First of all, for example, when the Talmud says “better to sit as two than to sit as a widow,” the Talmud did not determine categorically that one cannot void betrothal. If the Talmud had said: one cannot void betrothal, because “better to sit as two than to sit as a widow,” then I might have been in a dilemma. Because first of all the Talmud would have said that one does not void betrothal. Now I would come and say, yes, but the reason is because of “better to sit as two” and today that no longer applies, so therefore I need to cancel the law. I don’t know—because we do not derive law from the reason of the verse, we do not use purposive interpretation, interpretation by reasons, but go with the law established by the Talmud.

But what the Talmud established in our context, the one we discussed earlier, is only the presumption of “better to sit as two.” It did not say that under all circumstances one does not void betrothal. In the case discussed there—it seems to me it was falling to levirate marriage before a leper, I think that was the case there—in that case, the price was not severe enough to void the betrothal. That is what the Talmud said; that’s all it says there. Therefore, in my opinion, what is written in the Talmud says exactly the opposite. It says, first of all, that if there is a price that is too high, then even betrothal is voided. That is stated explicitly in the Talmud; otherwise why does it need “better to sit as two”? Why does it need an estimate of how much the woman wants? You see that it really depends on the woman’s desire. Second, one has to examine the prices translated into today’s terms. Therefore, this is not written in the Talmud. If it were written in the Talmud, then I really would have been in a dilemma. But it is not written in the Talmud; on the contrary. What is written—I am doing what is written in the Talmud, not changing what is written in the Talmud through purposive interpretation. If the Talmud had said one does not void betrothal, and the reason were only “better to sit as two,” then there would be room to say: the Talmud says one does not void betrothal; the reason has lapsed; I don’t know whether I can cancel the law even if the reason has lapsed. But that is not written there. It simply is not written in the Talmud, so why cling to what is not written?

Second, if the determination is a determination of post-Talmudic sages, medieval authorities, later authorities, great decisors, and so on—there they have no such authority at all. Why would I need to convene a court in order to change a law that was ruled by Maimonides or the Rashba or Rabbi Akiva Eiger or the Chafetz Chaim? What do you mean? Where did we ever find such a thing? Are they the Sanhedrin? Do they have “do not deviate”? All the laws about canceling laws were never said about them at all. They state their opinion; I need to take it into account, I need to study their view, but in the final analysis I am the decisor here, not Maimonides.

By the way, this is an interesting remark—I’m remembering now—the Shakh in Takfo Kohen brings three answers there; never mind, we won’t go into the whole context. But the Shakh says there that when there is a dispute among medieval authorities on some issue, and a judge sits today in the twenty-first century and faces the question, and he knows that on this question Maimonides and the Rashba disagreed—fine? Now, when there is doubt, in certain situations one is allowed to seize property. A person acts on his own and seizes the money by force. Because there is doubt. In a state of doubt, in certain circumstances, you may be able under Jewish law to seize the money by force—we won’t go into the details now. But the seizure has to be before the doubt arose, not after the doubt arose. If you seized by force and only afterward the doubt arose, that’s fine; but if you seized after the doubt arose—once it already came to court and the doubt arose—then the seizure is ineffective. Now the court has to state the law.

Now the Rashba asks—the Shakh asks—what happens with a dispute between Maimonides and the Rashba that existed in the twelfth or thirteenth century? Okay? A judge sits today. Is seizure even relevant in disputes among medieval authorities? After all, that would always be seizure after the doubt arose; the doubt arose in the twelfth or thirteenth century, and you live in the twenty-first century. So every time you seize, it’s after the doubt arose. The Shakh says: what do you mean? The doubt arises for the judge today. What do I care that the Rashba and Maimonides argued? They argued. If I think Maimonides is right, I’ll rule like Maimonides. If I think the Rashba is right, I’ll rule like the Rashba. If I’m unsure, then doubt arose. The doubt does not arise because Maimonides and the Rashba disagree; the doubt arises because I have not reached a position, because I am in doubt. So the moment the doubt is born is when the doubt arises in the judge sitting and ruling today.

This is just to show you that even the greatest sages—Maimonides, the Rashba, the greatest medieval authorities—as long as this is not the Talmud or the members of the Sanhedrin, because they are tannaim and so on, they do not have the authority of “do not deviate.” I use their opinions, but I am the decisor; they are not the decisor. So certainly the whole question of changing the law if circumstances have changed never even arises regarding them. If circumstances have changed relative to the twelfth century, that is not called changing the law. If circumstances have changed relative to the Talmud, then one can begin talking, because the Talmud has halakhic authority, but Maimonides does not have halakhic authority. He stated his view, and I will state mine. So that is not relevant at all.

I am speaking only about Talmudic laws, where there really is a question: what happens if the Talmud established a law and reality changed—can I change it? Factually, this happens a lot. I can change it. Medieval authorities did it, later authorities do it, in dozens upon dozens of places. In Torah laws, in rabbinic laws, many places. I bring this in the third book, Walking Among the Standing Ones, the third book in the trilogy. There, in the sixth section, which is the theory of halakhic change, the last chapter in that section is chapter 18, and there I deal with a great many examples of changing enactments.

For example, things that were forbidden because of danger. There are decisors who say that today one need not worry about this—uncovered water. There is concern that a snake may have injected venom into the water. In my house snakes are not walking around. Once upon a time snakes walked around in houses because the houses were open; they were not this kind of fortress as today, the houses were on the ground, and snakes would move around there. Today snakes do not move around there. So is it still forbidden for me to drink water that was left uncovered overnight because maybe a snake injected venom into it? What venom and what nonsense. There are no snakes here. What concern is there that there would be a snake here?

So they say to me: yes, but even if things changed, even if the reason has lapsed, the enactment still has not lapsed. And there are decisors who say yes, one may drink uncovered water today if there is no concern that snakes were there. Then they say to me: all right, maybe because this is danger, danger isn’t really an enactment at all, it’s just a concern, and if the concern is gone then there is nothing there. But even in enactments they did this. Sages canceled, for example, in certain places, the rabbinic prohibition on lending with interest to a gentile. Tosafot on page 70 in Bava Metzia. There is a rabbinic prohibition on lending with interest to a gentile. Tosafot says: today that doesn’t apply. Why? Because we cannot do without it; we cannot make a living without this. And this is not a question of saving life, but a question of normal life.

Or selling an impure animal to a gentile. Tosafot in Avodah Zarah on page 15. Selling an impure animal to a gentile. There too Tosafot says: today to whom will we sell? In every village there are ten Jews and most are gentiles. If we do not sell to gentiles, we won’t be able to sell our animals. Therefore it is obvious that it is permitted. Okay, all kinds of things—and there it could even involve a Torah prohibition, “do not place a stumbling block,” or depending on which prohibition is involved there—but there are many dozens of examples where sages canceled things. And what lies behind this in many of the examples is the following principle. This is the principle, and I return to the bridge principle I spoke about in one of the first lessons.

The point is this, look. When we were told, say, not to drink uncovered water, what was forbidden? Was drinking uncovered water forbidden, and only the reason is that maybe there is a snake here that injected venom and this is dangerous? Or was what was forbidden the drinking of dangerous water? That is what was forbidden. Uncovered water is only the example, but what they forbade me was dangerous water. That is what was forbidden.

[Speaker C] Obviously it’s forbidden because it’s dangerous; there is no need to forbid the—why would they need to forbid it?

[Rabbi Michael Abraham] A person doesn’t use—halakhic prohibition, not just a logical prohibition. What’s the problem?

[Speaker C] No, what was newly forbidden to us? That a person is forbidden to harm himself—we already know that. We know a person may not harm himself. Right? Self-injury—where is that learned from? Is that learned from uncovered water?

[Rabbi Michael Abraham] No, I take a risk. I take risks. I am allowed to take risks.

[Speaker C] So that’s about exposed water—if the water is

[Rabbi Michael Abraham] dangerous, then with exposed water, why? Because with exposed water you didn’t see the snake, you’re just concerned that maybe there was one. So I’m taking the risk, I’m not concerned, I feel like drinking water—who says it’s forbidden for me? “You shall carefully guard your lives,” very carefully. So what? So what? Do we learn from here that even in a case of doubt

[Speaker A] you have to be careful.

[Rabbi Michael Abraham] What kind of doubt? Five percent? One percent? Forty percent? What kind of doubt? After all, you yourself aren’t careful. Do you take nonessential car trips? Where is “you shall carefully guard your lives”? The risk there is higher than with exposed water. Where is “you shall carefully guard your lives”? Do you know how many car accidents there are every year? Thousands. Thousands of injured people, very many thousands of injured people—I think tens of thousands—and hundreds killed every year. So where is “you shall carefully guard your lives”? So I take risks. And someone who drives 120 on the highway is taking a bit more risk—who says that’s forbidden? So each person according to his own adventurous nature. So the Sages say: this is forbidden. And again, it really is a question of where to draw the line. And therefore there is room for intervention by the Sages in this matter: they draw certain lines regarding what may be done and what may not be done. And if the question were a question of drawing the line, then there would be room to resort to sources and halakhic decisors, as I said earlier. But if the factual question is what’s under discussion here—not whether to draw the line, but the question of the reason for the enactment—then this is a different question. Now, here the mechanism many halakhic decisors use when they permit things like this is that they say: what was forbidden was not exposed water; rather, what was forbidden was dangerous water. Exposed water is just the example of dangerous water. Once dangerous water was forbidden, then if the exposed water in my house is not dangerous, then it simply was never forbidden. I’m not changing the Jewish law. It was not forbidden. What was forbidden is not exposed water; what was forbidden is dangerous water. Yes, the most famous example—I’ve already used it many times—is the Meiri, who says that all the Torah-level and rabbinic laws we have toward gentiles are void today. “Today” meaning in the fourteenth century, yes, in the time of the Meiri. Because the gentiles of his time were bound by the norms of the nations, they behaved properly, they were decent human beings. That’s what he claimed, and therefore all the Torah-level and rabbinic laws are void, including desecrating the Sabbath in order to save their lives. It is permitted to desecrate the Sabbath at a Torah-level—no, not permitted, required—to desecrate the Sabbath at a Torah-level in order to save the life of a gentile. That’s what the Meiri writes in Yoma, chapter eight. It’s an offense punishable by stoning to desecrate the Sabbath at a Torah-level. Okay? Why? Because he decided that the gentiles in his time were enlightened gentiles. Now, but it says that one does not desecrate the Sabbath to save a gentile, it says that one may withhold repayment of his loan, it says that one may lend to him with interest, it says that one need not return his lost object; according to Maimonides, it is a commandment to lend to him with interest, not merely that it’s not forbidden—“to the foreigner you may lend with interest”—he understands that as a positive commandment. Okay? So what—how can the Meiri nullify Torah-level and rabbinic laws that are stated explicitly in the Talmudic text? Because reality changed? So what? If the reason no longer applies, the enactment still does not lapse. And even in Torah law you would still need a religious court to do that. And we do not derive Torah law from the verse’s rationale. The Meiri simply says: the laws in the Talmudic text are not dealing with a gentile. They are dealing with wicked people. It just happened that in the Talmudic text the example of wicked people was a gentile. But in the Meiri’s time that was no longer true. Not all gentiles were wicked. The Meiri is perfectly reasonable—the same consideration I mentioned earlier regarding exposed water. And this repeats itself in many places. And then the claim is that really what was forbidden is not that what was forbidden is exposed water and the reason is maybe that a snake injected its venom. What was forbidden is snake venom. That’s not the reason for the law; that is the law, that is the definition of the law. And if that’s so, then today, when there is no snake venom, there is no problem; it is permitted to drink exposed water.

[Speaker A] So regarding the Meiri, one could also say that about Jews now—if Jews behave like gentiles today, then they would have the…

[Rabbi Michael Abraham] It definitely could be. It definitely could be.

[Speaker C] I have a question about that too, about this whole series, but I think it really belongs to the third book, about kings as human beings, that…

[Rabbi Michael Abraham] Let me just finish. So I hereby declare the series concluded and the lecture concluded, and now—since today there were also questions during the lecture—we’ll move on to the question stage. Yes, okay.

[Speaker C] My question is this: beyond whether there is a consideration of anarchy in Jewish law. Meaning, it’s true that there are situations where we can identify a change, make a change in Jewish law, such that we are not departing from the halakhic truth. Meaning, truly that is what should be done and that is how one should act. But since if we don’t go by precedents, or if we don’t follow something like what we see in the principle that the Rabbis did not differentiate, that they don’t distinguish so that—meaning, is there some value in Jewish law that there should be something everyone does? Meaning, so that in that way it will be preserved; that’s what creates the preservation of Jewish law—I don’t know if I’m saying it exactly. Meaning, is there also that consideration?

[Rabbi Michael Abraham] I’ll answer you on two planes. One plane: first of all, let’s agree that if a Sanhedrin were sitting today, okay—not me or some other private individual—then it absolutely would be supposed to make those kinds of considerations. And to establish it uniformly for everyone. To make a change, but that the change be uniform—just fitted to this generation and not to the twelfth century. Okay? So that is certainly fine. You’re only asking: fine, but then you’ve put everyone’s Torah in his own hands.

[Speaker C] Yes, if I overturn the medieval authorities (Rishonim), for example—what the Rabbi said regarding the medieval authorities (Rishonim), that I don’t need to find a reason to reject the rationale the Rosh gives or something like that; I can decide on my own—then in effect I’ve created a kind of anarchy. Everyone does what seems right to him, even if he’s doing the right thing.

[Rabbi Michael Abraham] I understand. So I’m saying: if it were a Sanhedrin, you wouldn’t ask this, right? It wouldn’t be anarchy, even though then too the Rosh would be set aside. But there would be uniformity in this generation. In place of the Rosh there would be the Sanhedrin of this generation, and it would establish the uniform norm. Okay? That’s one answer. Second answer: even if what you’re saying were true, the question is who is authorized to make your consideration, not my consideration. Who is authorized to establish this principle of not differentiating? After all, if what the Rosh says is not correct in this generation, then halakhically speaking, if I now do what the Rosh says, I’m a transgressor. So now I ask: who permits you to be a transgressor for the sake of uniformity?

[Speaker C] Because it could be that if I do something in Jewish law on my own, meaning on my own initiative, that has no precedent or no general agreement, then I’m creating some kind of… then in the end I’m not following Jewish law.

[Rabbi Michael Abraham] That you’re not following… you’re mixing two things together. Right now I’m assuming that my interpretation really is what Jewish law says. We’re assuming that for the sake of the discussion; otherwise obviously I wouldn’t do it if I didn’t think it was the right thing. Rather, I think it is the right thing. But someone else might think something else is right, and therefore you tell me: listen, don’t do what’s right; do what’s uniform, in order to preserve uniformity. That’s basically what you’re saying. Yes. So don’t raise the claim that it isn’t right. According to my view it is right, and you expect me to do something that is not right in order to preserve uniformity. And I ask: who permitted me to do that? When I violate a Torah-level or rabbinic prohibition, who permitted me to do that? If there were a Sanhedrin today and it determined that we do not deviate from what the Rosh says, that we stick to the Rosh even though today in principle he is not correct, I would accept that. Because the Sanhedrin said that due to the principle of not differentiating, or because of considerations of uniformity, the Sanhedrin said: we enact that one should not act according to the pure, correct Jewish law. Okay? That is a legitimate consideration. But even a legitimate consideration requires authority. Authority in order to act. You need someone who is authorized to establish a rabbinic enactment.

[Speaker C] Therefore, even if I innovate something, basically, according to what the Rabbi says, I need the mechanism.

[Rabbi Michael Abraham] Of course. Right. You need the mechanism. Not “even if I innovate something”—I’m not innovating anything. I’m only saying: do the right thing, that’s all. Okay. I agree that this is a bit counterintuitive, yes? People somehow feel that what I’m saying is some major innovation, and you need broad shoulders to say it. I don’t need broad shoulders in order not to do it. That’s what the truth is. You can’t desecrate the Sabbath just because you want uniformity—unless you are the Sanhedrin. The Sanhedrin is allowed to establish enactments that run against the strict law based on its own considerations. But authority is required for that. We don’t have it. All the halakhic decisors say we don’t even have the authority to establish a Jewish holiday today, right? They object to Independence Day, to Jerusalem Day. Yes, Jerusalem Day. Ah, exactly, that’s the issue of the day. Yes, we don’t have the authority to establish a Jewish holiday. But the authority to desecrate the Sabbath—we do have that? If there is no authorized institution, then there is no authorized institution, so one simply has to do what is right. And between us, let’s say, the issue of uniformity is not exactly one in which we excel. There are many approaches even within Jewish law. Even if you want to stick to the medieval authorities (Rishonim), you’re still left with a great many approaches in practice. So therefore, in my view, I don’t see a reason not to do the right thing. Okay, more power to you. Anyone else?

[Speaker G] Rabbi, I have a question about the beginning of the lecture. Yes. Just regarding that passage that if a daughter was born, then, as it were, woe to the person to whom a daughter was born. Woe to the person to whom a daughter was born. So could it be that this is not a factual statement but simply a moral statement, a standard the Talmudic text sets for us as human beings, like “do not rejoice when your enemy falls,” right? It could be that I do in fact rejoice.

[Rabbi Michael Abraham] It could be, but that sounds really strange to me. Because understand, there are two sides to the coin. One side is that basically the world needs women. Like tanners, right? Now, you can’t say that something bad happened to me even though I’m very happy that a daughter was born to me, but on the principled level something bad happened to me. How did something bad happen? The world needs women. At most, what you could say is only to claim: yes, but I’m sad. True, the world needs them, but why should I be the one to bear it? Let someone else have the daughter, not me. If I were sad, I’d be willing to buy that dissonance. But if I’m happy, and on the principled level the world really does need women, then how can one tell me that spiritually this is not good? What do you mean, spiritually this is not good? Spiritually it is certainly good; the world needs this, that’s how the Holy One, blessed be He, created it.

[Speaker G] Okay, thank you.

[Rabbi Michael Abraham] Anyone else? Okay, so we’ll stop here, and I’ll send a message about next week. In the meantime, as you understood, we’re continuing on Zoom. The Thursday lectures are, in principle, Petah Tikva lectures originally. They didn’t begin in the Zoom period; it’s not like Ein Ayah. But for now we’re continuing on Zoom for the next few times, and a message will come out if that changes to live lectures. Okay? Where will the live lectures take place in Petah Tikva? What?

[Speaker G] Where will the live lectures take place in Petah Tikva?

[Rabbi Michael Abraham] At Mishkan Yisrael Synagogue on Glitzenstein Street. Thank you. Okay.