Halacha and Ethics, Lesson 9

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[Rabbi Michael Abraham] Not necessarily thinking about God. The definition of a human being is not thinking about God. I don’t remember exactly, but as far as I remember he speaks about the capacity to think, not specifically about God. And then it becomes a quantitative question, unless you say that a living creature has no concept of thought at all. Because that takes us back again to the same discussion from before: it’s not clear that it thinks; it responds. Input-output, similar to ours. All the emotions that we attribute, say, to animals, that’s of course personification. Meaning, who told you they experience that? Sometimes you think a dog is in pain because it reacts in a way very similar to a human being who is in pain, but I don’t know, maybe it’s just some kind of spasm. Right, right. Since another person is similar to me, I assume he experiences what I experience too, but still.

[Speaker B] It’s not reasonable to say that about human beings.

[Rabbi Michael Abraham] Not reasonable, okay, but still possible, and therefore there’s a philosophical question here that is hard to decide. I’m not offering an answer, only questions. I’m not giving answers here. In any case, there are whole discussions here about what exactly defines life, how we distinguish when this is considered a human being whom one may or may not kill, and from when he ceases to be a human being in a case of this sort. It depends on how you define a person. There are those who would say that because of the doubt, once he already was a person at some point, I never touch him. Meaning, a kind of prior presumption—if he was clearly a person at some stage,

[Rabbi Michael Abraham] a person living a normal life, then he is a person. From that point on, since I have no criterion, I never decide that he is not a person. By the way, I tend to think there is a lot of truth in that, that in this matter I would be very cautious. Danger is treated more stringently?

[Rabbi Michael Abraham] What? Danger is treated more stringently.

[Rabbi Michael Abraham] Right. Again, I didn’t come here to argue with such a strong claim, but—

[Speaker B] It’s very extreme.

[Rabbi Michael Abraham] Yes, yes, that’s where I’m heading.

[Speaker B] What was the reasoning of the Supreme Court in the Shefer case, which basically accepted it?

[Rabbi Michael Abraham] What exactly does he come back to in the end?

[Rabbi Michael Abraham] It comes back to the answer. If—

[Speaker B] If the conservatives had been in power, federal, with all the evangelicals, it would have been pro-life.

[Rabbi Michael Abraham] The state is commanded to protect human life, and that is its highest interest and also its right. The parents filed a claim against the state, which is the guardian of every citizen’s life, but there can be a situation in which one must recognize the individual’s right-interest as overriding the interest of the state. Such was the case of Karen Quinlan, whose interest was to die. Here the state’s right to prevent this expired.

[Speaker B] The state’s interest?

[Rabbi Michael Abraham] Yes. Now here, if I’ve read the whole ruling, this is the passage quoted here. I don’t know. You’d have to see, because on the face of it this really looks very problematic.

[Speaker B] The interest—

[Speaker D] of the girl to die?

[Rabbi Michael Abraham] Yes. But the parents. It’s presented that way from the outset. Again, these are all excerpts I’m taking from him, so you have to read the actual things inside.

[Speaker B] Maybe he can better explain what the state’s interest is in her living. What is the state’s interest?

[Rabbi Michael Abraham] No, no, it is the state’s duty to protect her right to live.

[Speaker B] But what is the interest?

[Rabbi Michael Abraham] No, it’s not a matter of interest. Not what the interest is. “Interest” here means, I think, its goal—its main goal. Meaning, its duty. That’s the point. And against that stands the individual’s right over her own life.

[Speaker D] No, but I think the meaning here is that it is in the state’s interest that she live so that this won’t undermine its concepts and won’t undermine the holiness of human life among other people.

[Rabbi Michael Abraham] Fine, I don’t think that’s what he means. But it doesn’t matter. Again, I can’t criticize this ruling based on reading three lines that he cites here. That’s not serious. But on the face of it, it really does somewhat contradict what he brought at the beginning, because at the beginning at least—again, according to what he writes—what was at stake here was that the judge himself was not at all convinced that this girl herself wanted to die. It was a burden on her surroundings. So here, in this case, it’s hard to see how the Supreme Court writes that the girl’s interest, or the girl’s right, overrides the state’s duty to protect human life. I would even say here that it doesn’t override it. If she doesn’t want her life protected, then maybe the state really doesn’t need to protect it. The state is supposed to protect your rights when you want them. But if you don’t want them, then maybe there is no need to protect your rights.

[Rabbi Michael Abraham] And then I don’t even need to see this as some conflict between values.

[Speaker B] But as law, he wants to preserve the law. The law that says people’s lives must be protected.

[Rabbi Michael Abraham] Yes, but if that’s the case, then we’re discussing right now exactly the question of what the law says. So you can’t use this matter—

[Rabbi Michael Abraham] of there being a law and the state wanting—after all, the discussion now is about what the law says. So if I decide that the law here permits it, then by definition there won’t be a law forbidding me. Because that’s the interpretation I gave. That’s what the law says. When I interpret the law, I don’t come in assuming there is a law and therefore—

[Speaker B] If you waive the right to live, then the state doesn’t need to help you live?

[Rabbi Michael Abraham] No, I’m saying that if you reach that conclusion, then I’m not sure one must arrive at a conflict saying that the state has a duty to protect her life, while against that she has a right not to live, to give up her life, and in this conflict the state must retreat. It may be that here there’s no need to reach a conflictual state at all, because the state has no duty to protect a right you are not interested in. After all, the whole point of protecting that right is for you, because it’s your right. If you’re not interested in it, then what’s the problem? If someone wants to abandon his property—

[Speaker E] But she was in a vegetative state.

[Rabbi Michael Abraham] So again I’m saying: if you’ve already reached that conclusion, then I’m not sure you have to reach a conflict. You can argue about that too, I agree. I’m only saying I’m not sure you need to reach a conflict. When someone declares his money ownerless, will the state protect his money so nobody takes it?

[Speaker D] No, but life yes. Meaning, if someone tries to commit suicide, then the state—who says?

[Rabbi Michael Abraham] It depends. I don’t know what their view is on that. It’s not certain.

[Speaker D] Usually in most countries, I think—

[Speaker B] they don’t allow it, they won’t let him commit suicide.

[Rabbi Michael Abraham] Fine, not certain. I don’t know. I have no idea. But that’s another discussion. We can discuss that too. It may be that we assess that the suicidal person doesn’t really want it. He’s not sane enough to make decisions for himself. That’s another discussion, because then we really are saving him from himself. It could be that after we save him he’ll thank us.

[Speaker D] But here, in the case of the girl, maybe here too there would be a trial with two lawyers representing—

[Rabbi Michael Abraham] the two sides of his split personality? Yes, right.

[Rabbi Michael Abraham] No, there’s— I think I once told you about Ron Aharoni’s book, The Cat That Isn’t There, which is a devastating critique of philosophy. He’s a professor of mathematics at the Technion. A devastating critique of philosophy. When I started reading the book, I almost fainted. I thought he had smashed philosophy completely, not left one stone standing on another. For me it was really a hard experience, because the philosophical subject is close to my heart. We corresponded a bit afterward. I did. But what he says there in the book is that he basically argues that all the major philosophical issues—and the man knows what he’s writing, unlike others who criticize philosophy without knowing— all the major philosophical issues

[Rabbi Michael Abraham] are nothing but confusion between the subject and the object. He shows it there issue after issue: the philosophical problem is born simply out of confusion. That is the definition of philosophy. The definition of philosophy is basically someone who gets confused in this confusion. In other words, there is no philosophy. Meaning, it’s simply an occupation born of a failure. That’s all. Whoever doesn’t fall into that failure has no philosophical issues. There are either empirical issues or meaningless issues; there is nothing else. That is his claim. Everything else is confusion.

[Speaker D] What does he include under philosophical issues?

[Rabbi Michael Abraham] Everything you include, everything.

[Speaker D] The existence of God as well, and free will and morality, certainly.

[Rabbi Michael Abraham] And the claim is that when you grasp yourself in those two hats that I spoke about earlier, with consciousness, the mixing that we do—and many times we get into loops because we identify it as the same person—then what comes out is that the perceiver and the perceived somehow converge, and loops are created, sometimes in a very surprising way. There are some issues that don’t seem connected to this, but he somehow shows that they are connected too. And the claim is that failure to distinguish between the subject and the object in the personal context is what leads to all philosophical issues, basically. And the moment you make the distinction and relate to them as two different people—which, by the way, he himself doesn’t explain, meaning he doesn’t explain the justification for doing that—he only claims that once you adopt that assumption, philosophy dissolves with all its issues. Nothing remains. It’s an interesting claim in itself even if he’s wrong. Because if he’s wrong, and that distinction is not correct and one should not distinguish, it’s still interesting. Meaning, it’s still interesting that all philosophical issues sit on that point. That’s an interesting mathematical statement, regardless of whether he’s right or not. A brilliant book, by the way. I really strongly recommend reading it to anyone who gets the chance.

[Rabbi Michael Abraham] Okay, but let’s return to our subject. So within his discussion he begins with the following sentences: What is the meaning of the concepts of an earthly creature’s right to live?

[Rabbi Michael Abraham] Other people’s duty to sustain his life? The prohibition against taking his life? Once these three questions are presented, an abyss of problems opens before us. The concepts of right, duty, prohibition—these are legal concepts. And they have no meaning except within a certain legal framework whose laws grant rights to a person and establish duties and prohibitions, which can be given a rational grounding insofar as the person belongs to the institutional framework of a certain society; he has certain rights, and certain duties and prohibitions apply to him within the framework of that society and its recognized institutions. However, the very existence of a person, the fact of his existing as a living creature, has no institutional foundation; it is a natural datum. In other words, he is making here some distinction between the normative world and the factual world. Meaning, that a person exists and is alive—that is a fact. That it is forbidden to kill him, obligatory to kill him, this whole conceptual world of forbidden, obligatory, permitted—that is a world belonging to the evaluative plane, not the factual plane. He says there is a gaping abyss between these two conceptual worlds. The meaning of this is that there is no way to connect one to the other. The naturalistic fallacy, which I think I’ve mentioned more than once already. There is no way to connect one to the other, no way to ground norms in facts. Norms live on their own; it’s some kind of world floating there, a bubble within itself, not connected to facts. And now he says: and it has no meaning except within the social framework of, let’s call it, conventions—not conventions, not entirely clear. Later on he deals with this a bit too, but it’s not entirely clear what he means. But this is some determination of society—I’ll get to that later—within whose framework alone one can speak of forbidden, permitted, duty, and the like. It doesn’t belong to the natural world. The fact that I’m alive or dead, or that there is a table here or there isn’t a table here, is not connected to society’s determinations; those are facts. Whether that’s true or not, those are facts. Here we are talking about something whose basis lies in society’s determination; therefore he says it is part of the institutions of society. It is not something that exists as a fact detached from human society. There are certain places where it seems, at least in his view, that he understands this determination as arbitrary as well—that’s one step further. The claim that this is the product of a social agreement to preserve these norms, and if there were a society that did not undertake to preserve these norms or did not give these rights to its members, then it would not exist. We’ll see this later, apparently. In any case, what does that mean? It basically means that we have no way to ground concepts such as duty, right, and prohibition. Claims about the world we do have a way to ground: observation. Observe the world and see what is true and false. Normative claims have no way to be grounded, unless you first accept the basic institutions as an assumption—that is, the conceptual, legal, juridical, or moral framework. Then, of course, within that framework you can present arguments that ground the matter. But what grounds the framework itself? The basic evaluative or normative system cannot be grounded. It’s simply that way because society determined it, period. And his next step is what he says here. He says as follows: Hence, what is the status of a person, who is also an element of that same natural reality to which the inanimate, the plant, and the animal belong? What does it mean that a person has a right to live? We already said that a right derives from an institutional framework. Very well—who or what grants a person the right to live? What is the basis for that right? What is the rational argument? Seemingly, if I do not recognize a rational basis for this right, why am I forbidden to treat a person as I am permitted to treat an inanimate object, or a plant, or an animal? And the answer to this piercing question is: indeed, there is no rational basis for it. However, this is a postulate accepted by us. There is no rational basis. Why? Because we accepted it upon ourselves. And that is the secret of its force. Because we accepted it upon ourselves. I accept upon myself. It is forbidden to take a person’s life because we recognize that it is forbidden to take a person’s life. That’s it; there is no reason outside that. The moment I raise the question why it is forbidden to take a person’s life, the force of that prohibition expires. Because then it turns out that the prohibition needs justification. They ask why. But there are no justifications. So if it already needs justification, you can throw it in the trash, because you won’t find any justifications. Meaning, the validity of the prohibition exists only so long as you do not ask why. Not because you don’t ask why out of neglect, but because you accept that one cannot ask why, because its force derives from itself. And therefore he basically says the force of that prohibition expires because it cannot be justified. Basic evaluative principles, the very concepts of good and evil, obligation and prohibition, are not anchored in reality at all and cannot be rationally grounded. Rather, their force derives from human agreement, and this agreement is not necessitated by reality and not necessitated by logic, but derives from our desire to maintain this principle. On the face of it this seems like an arbitrary statement. Not a statement—well, one can say in two ways that something’s validity derives from itself, or that its validity is absolute, not based on, not open to justification. One can say it is because it is arbitrary—it has force simply because we decided it has force.

[Speaker B] But who—who decides?

[Rabbi Michael Abraham] Society. That’s the arbitrariness—society, for example.

[Speaker B] And who determines that this is what society decided?

[Rabbi Michael Abraham] That’s a body—you can see what was decided.

[Speaker B] And can one person decide otherwise?

[Rabbi Michael Abraham] No. It has institutions. We choose institutions. There are rules.

[Speaker B] No, is he distinguishing between the right you have through agreement in law or through society’s agreement, and a right that is arbitrary?

[Rabbi Michael Abraham] No, no, no, it’s the same thing. It’s the same thing. How do you know that this right exists? Because the social arrangement determined that it exists. There is no other justification. That is what he’s talking about. He is not claiming— for him it’s the same thing. And if a group of—

[Speaker B] people cannot make a social decision about ending life when there is consciousness?

[Rabbi Michael Abraham] It can make such a decision. By the way, afterward he goes on—after he sets out his whole extreme view, just one moment, I’ll finish it—he actually says that if the doctors had not asked anyone, then maybe it would have been permitted for them to do it. Once they asked, you can’t answer them that it is permitted. You have to answer them that it is forbidden, once you’ve already asked.

[Speaker E] But why does he think that isn’t logical?

[Rabbi Michael Abraham] One moment. Here I really started in the middle. No, “logical” is a question of in what sense. I’ll phrase the question a little differently. There are two possibilities—we may have discussed this once before—there are two possibilities when I ask the question why it is forbidden to take a person’s life, or why human life has value. The answer is: because life has value. There is no answer outside that statement. But that “because” can be interpreted in two ways. There is a “because” in the arbitrary sense: that’s what I decided, period. There is no justification, and it isn’t even true in any sense. That’s what was decided, period. I’m not prepared; I tossed a coin. That’s all, I have no better answer than that. Another possibility is to say: this thing is true in and of itself; it does not need explanation. That is not the same as saying that it is arbitrary. It is only saying that I cannot explain it. That’s not the same thing. In other words, to say that I cannot explain, or because this thing is true in and of itself, is to say that it is true. It does not need explanation on the basis of a principle outside it. The “because” in the second meaning, as opposed to the first meaning where it is arbitrary—that is not “there is no explanation”; rather, it doesn’t need explanation because there is no explanation—

[Speaker B] Like a priori assumptions in many fields. In engineering too.

[Rabbi Michael Abraham] There too one can ask the same question.

[Speaker B] Between two points only one straight line passes. Why?

[Rabbi Michael Abraham] Right, there too one can ask the same question. When you say so—an axiom in geometry, between two points only one straight line passes—why? Does anyone have reasons? Is there a proof? It’s an axiom, there is no proof for it, right? And how do you know it’s true? Just because. So there are—ask mathematicians, at least those not aware of the physical aspects of the issue—and I assume you’ll hear quite a few answers that this is an arbitrary decision. We established this as an axiom and examine how fruitful it is. Meaning mathematically, we examine whether the set of axioms of Euclidean geometry will lead us to interesting theorems. If yes, then fine, we assumed this assumption—it is arbitrary, but let’s see its implications. Right? On the other hand, anyone here who knows a little about the physical aspects knows that that isn’t correct, because the assumptions of another geometry simply deal with a different kind of space, a curved space.

[Rabbi Michael Abraham] For a given space there is no more than one geometry. The multiple geometries are a wonderful example of the absoluteness of truth and not the arbitrariness of truth. What?

[Speaker D] Even without knowing the physical depth.

[Rabbi Michael Abraham] No, no, apart from the physical depth, from a physicist’s perspective, of course there are also many mathematicians—

[Speaker D] A physicist’s perspective, an ordinary person’s perspective.

[Rabbi Michael Abraham] Well, an ordinary person—

[Rabbi Michael Abraham] generally doesn’t even know what non-Euclidean geometries are, so that’s—well, in any case. So Leibowitz’s claim sounds, at least on its face, like a claim of the first kind. Meaning, that this thing is grounded in agreement. Not that it is true in and of itself—that’s not the same thing—but that it is grounded in agreement. About agreements we don’t ask questions; we agreed, that’s it, that’s what we agree to. No explanations required, because I feel like it. Not because it’s true. There is a difference between saying I don’t owe you explanations because it’s true and I don’t know how to explain why it’s true, and saying I don’t owe—

[Speaker B] you explanations because it’s arbitrary. Meaning that if I find another society, a cannibalistic one, then society A has no advantage over society B. Right.

[Rabbi Michael Abraham] There is no way to judge—not only no way to judge, it’s not true. Right. That is exactly the transition from modernism to postmodernism. Leibowitz was an extreme modernist, but whoever now takes that one step further arrives immediately at postmodernism and sees that postmodernism is not the opposite of modernism; it is only the necessary conclusion from modernism. That is exactly the step the modernists did not take. Okay, great figures—

[Rabbi Michael Abraham] in human thought have already noted this, says Leibowitz, both in Israel and among the nations of the world; here I will point only to two. This is one of his usual exaggerations. The greatest of the believers and the greatest of the halakhic decisors and the greatest of the thinkers in Judaism on the one hand,

[Rabbi Michael Abraham] and one

[Rabbi Michael Abraham] of the greatest thinkers in Christianity on the other.

[Rabbi Michael Abraham] Justice Leibowitz of the Supreme Court—he usually decides who is the greatest, who is number two. Five hundred years separated them, and they lived in very different worlds, both in location and in intellectual and emotional framework. I quote. The first is, of course, Maimonides. “By the intellect man distinguishes between truth and falsehood.” This quote is from Guide of the Perplexed, Part I, Chapter 2, which we will study later. “By the intellect man distinguishes between truth and falsehood, but good and evil belong to accepted conventions, not to things apprehended by the intellect.” Parentheses: “accepted conventions”—what is accepted among people. And here he takes this matter of morality, good and evil, as distinct from truth and falsehood, as something that belongs to accepted conventions. “Accepted conventions” means the product of agreement. Now I am not entirely sure that this is what Maimonides means; maybe, we will have to think about it when we read Maimonides, but this is certainly a common interpretation of what Maimonides says, and he joins that line. “And in things necessary”—in parentheses, what exists in terms of objective reality—“there is no good and evil at all, only truth and falsehood.” In terms of reality, it is not discussed in terms of good and evil, right, duty, prohibition. It is true or false; there is nothing beyond that. Everything is cold and neutral reality. All the concepts of duty, prohibition, all the concepts from that world, are concepts whose basis is human; they belong to human society, and apparently are also the handiwork of human society. And this is the result of social agreement. That concludes Maimonides in the Guide. And the second statement he brings, translated into Hebrew, is Pascal. There is nothing in the world that is just on logical grounds. Justice is not logic; they are two different things. Custom determines fairness, which has no other reason except that it is accepted. That is the secret of its authority. The attempt to ground it in its principle—that is, in a logical reason—destroys it. So writes Pascal. So here this is indeed some kind of analogy. What? Not clear.

[Speaker F] We are discussing with rational tools concepts that are not rational.

[Rabbi Michael Abraham] No, and again, that’s the problem. The very sentence you just said can be interpreted in the same two ways I said before, and they are completely different. One can see it as non-rational because indeed it has no basis; there is no true or false here, it’s what society agreed on. Not a question of true or false; about agreements one doesn’t ask whether they are true or false. If we agreed, then we agreed. Right? True or false does not depend on agreements. True or false is measured in what is called natural law and positive law, or non-natural law. Natural law means that the law is not a product of social agreement but simply a result of truth—that is, reality dictates it. That is the conception of natural law. By contrast, positivism says that law is grounded in legislation. Legislation is what gives it its force. If we had legislated the opposite, then the opposite. The Nuremberg trials—I think we discussed this—revolved to a large extent around this point. Can I criticize a legal system that was enacted lawfully in Nazi Germany? The Nazi soldiers or officers said: we obeyed orders, and the law obligated them, and it was legislated properly and duly according to their rules. So the question is whether such a thing can be criticized. Or perhaps, since there was social agreement that indeed grounded the matter, and that is what German law at the time determined, there is no possibility of criticizing it, because its basis is agreement; it cannot be law in terms of truth or falsehood or in any objective terms outside the human determination. That is exactly the implication, by the way, and that is the birth of postmodernity. The birth of postmodernity was there, in the Nuremberg trials.

[Speaker B] The expression we use in the context of Nuremberg, that a black flag flies over a system of laws—that is the result of the Nuremberg trials.

[Rabbi Michael Abraham] The Nuremberg trials took the conception to an extreme. After all, the Germans are the fathers of the positivist conception. German jurisprudence—for them everything is logic, by the way, to this day. The tendency to see law as some kind of logical system is a German tendency, though it has weakened over the years. But that is exactly the point. And in the Nuremberg trials, that really was the point at which most of the legal world decided it was disgusted with positivism. Positivism can lead to moral scandals, because if indeed the basis of law is social agreement, then if there is a society that agrees on cannibalism, no problem—you have no way to criticize it, because the force of law derives from agreement to it. There is no way to determine that a certain legal or moral rule is true or false. That is exactly the consequence, exactly the result. And therefore the result of the Nuremberg trials was a blow to the positivist conception and, to some extent, a return to natural law. Now not everyone—Dworkin, there are various attempts to create hybrids of one sort or another between these two things, because natural law is difficult too at the philosophical level. Natural law means that you can supposedly observe reality and derive from that observation what is legally or morally true or false. How is that possible? After all, the gaping abyss we spoke about earlier is that being alive does not mean in any sense that I have a right to live. The right to live is a completely different concept from life itself as a biological fact. So where does it come from? So it is very tempting to say: fine, if it comes from nowhere, then it’s arbitrary. But if it’s arbitrary, that means that if someone else doesn’t accept it, then no. But on the other hand, as Peres says, what is their alternative? So what can one say? After all, it really has no basis. I think the only way—and I’m already jumping ahead to what I thought I would get to later—the only way, in my opinion, to create an alternative is to understand that although there is no way to ground it in first principles, as with claims about reality, factual claims, that still does not mean that the “just because” I say as a justification is “just because” in the arbitrary sense. When you ask me why it is true, the answer is “just because,” because we decided, by agreement, whatever—that is the “just because.” If that “just because” creates its own problems, on the other hand, if not “just because,” then what? After all, we have no source. No, because all justification ultimately begins with some assumptions. Right? In every field too, in geometry, everything begins with some assumptions. Now those assumptions can be, as in geometry, one can posit them; one can say that they are arbitrary assumptions, as I said before, that mathematicians tend to think that the assumptions of geometry are simply arbitrary because we decided to deal with this domain and these are the assumptions that define it. If you want other assumptions, as long as they are mutually consistent, do whatever you want. As long as it is fruitful and lets you derive all kinds of interesting theorems, that’s all. Mathematicians, from their perspective as mathematicians, see no alternative.

[Rabbi Michael Abraham] So there is no other alternative, and it is either the result of observation, or an arbitrary agreement. But I am saying: there must be a third thing. That is the point I wanted to reach. There must be a third thing. Meaning, if we—what?

[Speaker B] I wonder: the law we know in the context of Nuremberg—it isn’t that the judge has a right to execute, the judge only clarifies whether he did the act or not. Once a person committed an act that deserves stoning, the Torah has already determined his sentence. The judge determines whether at that time he was indeed doing it. At Nuremberg, what does that mean? At Nuremberg they received an order to kill and only determined whether the Jew deserved it or not.

[Rabbi Michael Abraham] They determined whether he was Jewish. They pulled down his pants; if he was guilty of being Jewish, then he deserved the sentence.

[Speaker B] In some sense, among us the judges do not execute. The Torah executes by stoning. The judge determines whether he really did it or not.

[Rabbi Michael Abraham] That is what the defendants claimed. They claimed that what killed there was German law, the German Reich. What?

[Speaker E] Exactly, according to the laws, yes.

[Rabbi Michael Abraham] What killed there was the German Reich, not me. I only carried out the laws. That is exactly what they argued. And the question is whether there is a way to criticize the legal system, not the person. To criticize the person is easy when set against the legal system. But I am asking how one criticizes the legal system. That is the philosophical question that stood at the Nuremberg trials. That is the philosophical question, that is the essence of those trials. Do we have the ability to criticize, not the person according to a given legal system, but the legal system itself? Are there any higher principles, principles that are not the product of agreement? By the way, many say that those higher principles are the product of the agreement of all humanity. That is still agreement, and it does not stand up to the test. If all humanity suddenly became Nazi Germany, then what? Then there would be second-order Nuremberg trials. The aliens would come and judge them, I don’t know. Meaning, it really does not stand up to the test. But the problem is that people genuinely do not see the alternative. Because what is the alternative? After all, there is no justification. And this really is the product of legislation. So what other option is there? On the other hand, everyone feels that of course the Nazis can be judged. You can make claims against them; it cannot be that you cannot make claims against them. That is a simple intuitive feeling. So let’s translate that for a moment. What does that mean? It means that on the one hand it is not arbitrary. On the other hand, I understand it is not open to justification. There is nothing beyond legislation that created it. So what is the problem? Legislation supported what they did. So what is happening here? Meaning, I think the claim behind the departure from positivism is a claim saying that there are certain things that are true. I don’t know how to justify them or ground them on more basic principles or on observation or whatever. But the claim is that they are neither arbitrary nor the result of agreement. They are true in and of themselves. Now what does that mean? The philosophical question here is what “true” means at all. Because “true” in the context of truth and falsehood means corresponding to reality. Right? That is the result of a comparison. Meaning, if I say, for example, that this thing is brown, even though I haven’t seen it, maybe I don’t know whether that is true or not, but what does it mean? What does the claim that this statement is true mean? “True” means that it corresponds to reality, that in reality it really is brown. Right? So in the world of factual propositions, it is easy to speak about true and false. It is not always easy to know whether something is true or false, but the concept of true and false is well defined. It is the result of a comparison. A comparison between the statement I utter and reality. If there is a match between them, then the statement is true. But what does it mean that a moral statement is true? True in what sense—compared to what? There is nothing in reality outside what you determine, against which you compare what you determined, and then conclude whether it is true or false. But then that makes it observation again, and this is not the result of observation. That’s what we said—it is the result of legislation; there is nothing to observe here. When I observe a person, I can know that he is alive, or that he is a person. I cannot know that he has a right to live. The right to live is not the result of observation. So if it is not the result of observation, then beyond the question of how I know it is true, there is a philosophical question: what is the meaning of the claim that it is true at all? What does “true” mean in the ethical context, as opposed to the scientific, factual context? And not just what is true—what does it mean? True means it corresponds to—what? So if you speak about the Holy One, blessed be He, and some objective factor that legislates laws, then you can of course compare against them, and you solve the problem. But in a world in which there is no God, or one’s morality does not rely on God, this is a very difficult problem, an extremely difficult philosophical problem. And this problem has immediate legal implications, although of course no one actually carries those implications through, because if we do that, again we arrive at Nazi Germany. No one does that, but there is a philosophical hole here that no one fills. No one knows how to fill it. And there are people who still live in this dichotomy of either arbitrary agreement, or something that is the result of observation or some logical inference or something of that sort. There is no—what else is there? But whoever lives in that dichotomy will not get out of it alive. So all jurists do in this context is pile up words and more words and more words—nothing. No one solves this problem. And I think, again, I don’t know whether to call it a solution, but it is the only escape route there is at the philosophical level. At the philosophical level the only escape route there is: there is a concept of true, and I don’t know whether to call it not the result of comparison—maybe it is the result of comparison—but it is a comparison not against a physical fact, but against some abstract values located somewhere outside me, which are not the product of something I agreed to or created, but are given. If someone thinks you need the Holy One, blessed be He, for that, I think he’s right, but let’s not get into that question right now. Because if we did not mean those values, then here we erred. That is the possibility of criticizing a moral or legal decision or something of that kind. Again, legal in its moral sense.

[Speaker B] But who is the critic?

[Rabbi Michael Abraham] Instinctive? Instinctive is the way to get there. I’m first of all talking about the question of what “true” means here at all. What is true? The meaning of the concept “true” is: it corresponds to that value system. Just a second. Just as it is true that this table is brown—it corresponds to the factual aspect that this table really is brown. Otherwise what is true? How can one judge and determine true at all? Now there is a practical question: how do you make that comparison? That is a different question. So far I have only defined the concept of true in this context. The practical question is a hard one. How can one criticize in practice? Yes, how can one—even before criticizing—how can one know at all? Even before you argue and criticize, you—

[Speaker B] argue when you know.

[Rabbi Michael Abraham] So I’m saying that I think that… what we often call conscience is, again, a reflection of that same question, which many people call emotion, conditioning, social agreement, education—I don’t know what to call it. I think that all these things ultimately lead us back again to conventionalism. Conditioning and all sorts of facts—facts cannot generate norms. The fact that I feel something is right because that’s how I’m built—so what? The fact that I’m built that way is just a fact. Someone else is built the opposite way. In what sense can I criticize him? Say that he’s not okay? I’m built this way, he’s built differently. The way I’m built is a fact. That same abyss Leibowitz talks about between these conceptual worlds. So there’s some kind of problem here. And therefore there has to be—I don’t even know what to call it—some other kind of reality, the good, or a certain value system that exists in some sense somewhere, that I can observe—really observe. But that observation isn’t done with the eyes, the ears, or the senses; rather, it’s what we call conscience. I’d even call it “north-science.” If I were a preacher I could… Right, right. It can be very subjective. Right, right. That’s the danger. The danger is that since it’s not through the eyes and not through things that are terribly unambiguous, we don’t always see it the same way, and we can’t always decide when we don’t see it the same way. True, but what can you do—that’s life. And still, I think the only way to take morality seriously, not to see it as convention, and not to make the philosophical mistake of thinking morality is just another fact—because that’s not true, that’s a philosophical error—the only way is to recognize a different kind of facts. It’s like facts—I don’t know exactly what to call it. But it’s a certain kind of thing that is simply true. Meaning, the fact that murder is forbidden is simply true. Anyone who looks—looks, in quotation marks, with the eyes of the intellect, what Maimonides calls it—not with our flesh-and-blood eyes, looks at the idea of morality, at his conscience, sometimes that means looking inward, but on the essential level it’s not looking inward, it’s looking at something outside us—comes to the conclusion that murder is forbidden. And the claim is that it’s not because we’re built this way or that way, or because that’s what we agreed on, or because it’s the result of agreement, because then we just return to conventionalism. Rather, there really is such a thing. We really are making a comparison. There is right and wrong here. Now the question is how to argue when we have… when we see things differently. Fine, good question. How do you argue… how do you argue when we see things differently with our eyes? Does anyone know how to do that? I don’t know. If someone sees reality differently from me, then he sees it differently from me; I can’t really argue with him about that either. But fortunately, with our eyes we usually see similarly—usually. And with conscience, less so, although there are still broad areas that I think are similar, that really are universal. But true, there it’s more vague, less… less unequivocal, which only causes people even more to get confused and think that it’s just the result of agreement, of social constructions, of how I happened to be born or something like that, and not really the result of judgment and a decision that this is right. And basically my claim, and what I want to argue, is that what Maimonides calls “generally accepted notions”—and again, I don’t know if this is what Maimonides intended; this is my interpretation. With Maimonides we’ll have to see afterward what he meant. But Leibowitz apparently took him in the direction of arbitrariness, which with Pascal probably really is the case, in the passage he presents here. The claim that “generally accepted notions” means it is not the result of intellectual reasoning, not the result of logical reasoning that you can derive, say, from observations about reality and the like. But the alternative everybody makes—that “generally accepted notions” means agreement, that it’s a convention—here I’m not sure that’s correct. So “generally accepted notions” means something everyone understands; accepted by all—everyone knows it’s true. How does he know? Through his own judgment; he kind of observes the idea of the good, he observes this ethical reality, and comes to the conclusion that this is the ethical truth.

[Speaker B] I think the word “generally accepted notions” itself actually points more in that direction than in the direction of agreement. Clearly, clearly that’s so—accepted, familiar.

[Rabbi Michael Abraham] I think that the tendency to connect “generally accepted notions” with agreement really stems from the fact that we simply don’t notice there’s also a third option. Meaning, what else could it be? After all, it’s not intellectual.

[Speaker B] So if it’s not rational examination, then it seems more like it’s heading in that direction. Okay. But the truth is, there’s some other solution to this, because in the end, in order to examine the truth in these matters, you always have to arrive at a decision. Suppose there’s a dilemma—someone has to decide it, right? When you go to decide it, you’ll always arrive at some concept that you accept as the thing that will decide it, and so once again it’ll be agreement.

[Rabbi Michael Abraham] No. In my personal dilemmas, in my personal dilemmas, I’ll decide on my own.

[Speaker B] What’s the problem now?

[Rabbi Michael Abraham] Why not? A person has to know how he makes moral decisions. Am I allowed, for example, to ignore the command of my conscience? After all, surely I’m allowed to ignore the impulse to speak malicious gossip, right? Even someone who says I don’t have to ignore it—but surely I’m allowed to ignore it. Okay? The fact that there is some tendency inside me doesn’t mean I am also obligated to act that way. “Obligated to act that way” is a normative duty. The fact that there’s something inside me is a fact.

[Speaker B] The truth is, when you want to know whether what you decided and did for yourself was right or wrong,

[Rabbi Michael Abraham] I’ll compare it to the command of my conscience. I have no other way.

[Speaker B] No—when will you actually be able to know? If there were a case where you acted in a certain way and now came before an institution that would decide,

[Rabbi Michael Abraham] That institution won’t tell me whether it’s right; it will tell me whether it conforms to the law, or conforms to the norms practiced in society. But if I belong to a minority that disagrees with the majority in society, am I required to yield to that? That’s exactly the opposite point. If you’re talking about conventionalism, then certainly yes. Then by definition what the majority determines is what is just; there is no other justice. But precisely according to my view, that there is justice, then the majority can be mistaken. The agreement does not necessarily hit the truth, because there is such a concept as truth. According to the conventionalist view, there is no concept of truth; the agreement creates the truth, it doesn’t correspond to the truth. I hope that agreement often does correspond to the truth, but not always, not necessarily.

[Speaker B] Right. The term “generally accepted notions” doesn’t immediately point to acceptance; from “it is generally accepted” it doesn’t immediately follow—really,

[Rabbi Michael Abraham] Morality is generally shared by human beings. He’s talking about the things that do belong to the common denominator that we all agree on—that murder is forbidden. He’s not talking about those points where arguments arise; there it really would be harder to use the term “generally accepted notions,” because it’s not so generally accepted—something different is accepted by each person. But right now he’s talking about the moral core that is agreed upon by everyone. I think that’s what he calls “generally accepted notions.”

[Speaker B] So it’s not examination, in contrast to truth and falsehood. What? There he sets truth and falsehood against “generally accepted notions” and intellectual notions.

[Rabbi Michael Abraham] Because it’s not the result of observation in the simple sensory sense, but rather it’s simply something we all know is true. I think philosophically there is no distinction, no real distinction. These aren’t physical facts; they’re facts of another kind. Fine. Just as there are biological facts and physical facts, there are also ethical facts.

[Speaker B] But about them too you could say, about both these and those, that they belong to the intellectual category.

[Rabbi Michael Abraham] As opposed to “generally accepted notions,” where the claim is that usually you can’t anchor this either in observation or in a simple inference—at least the basic values. Once you have basic values, you can make inferences.

[Speaker B] What about ordinary social conventions—dressing a certain way, in a certain kind of clothing?

[Rabbi Michael Abraham] No, because there those really are conventions. There they really are conventions; there’s nothing there except the convention. But if we’re talking about morality—about the prohibition against murder, the prohibition against theft, the prohibition against harming someone—

[Speaker D] Maybe it should be understood differently—that the intellectual category also includes part of morality, meaning that “generally accepted notions” are only one example.

[Rabbi Michael Abraham] He talks about good and evil. What is good?

[Speaker D] Good and evil in the social sense.

[Speaker B] Exactly.

[Rabbi Michael Abraham] Fine, we’ll look at Maimonides. Again—we’ll look at Maimonides in context and try to distinguish. Here I gave some kind of introduction so that afterward we can enter Maimonides and really see what he means, because usually when people interpret Maimonides, they immediately take “generally accepted notions” in the direction of conventionalism. Now, they may be right about Maimonides. I disagree with that on the substantive issue. As for Maimonides, I don’t know. We’ll read and see. Meaning, both in Guide for the Perplexed and in Eight Chapters, because he talks in both those places about “generally accepted notions.” But here I deliberately wanted to do this before reading Maimonides, because when you read Maimonides without doing this conceptual analysis, you immediately end up with: what else could “generally accepted notions” be? Now that I’ve presented two alternatives, now we can try to see which of the two Maimonides means. Okay?