A Look at My Method of Study and First-Order Rulings (Column 637)

With God’s help

Disclaimer: This post was translated from Hebrew using AI (ChatGPT 5 Thinking), so there may be inaccuracies or nuances lost. If something seems unclear, please refer to the Hebrew original or contact us for clarification.

Some time ago I had a discussion with a colleague in the beit midrash about the status of the rule “ha-motzi me-chavero alav ha-ra’ayah” (whoever seeks to extract from another bears the burden of proof). As is well known, later authorities debated whether the money truly belongs to the one in possession so that he may do with it as he pleases, or whether he is merely permitted to retain it (thus not committing theft) but only out of doubt rather than certainty. From there we moved on to the familiar inquiry of whether a rabbinic form of acquisition (kinyan de-rabbanan) is effective on the Torah level (de’oraita) or not. During the discussion, thoughts arose for me about how halakhic rulings should be issued in disputes, and afterwards about the tension between halakha and reality.

By way of preface, I have often been asked about my method of study and urged to write about it. It is hard to define a “method,” and perhaps I should leave that to researchers who can observe my work from the outside and identify patterns and comparisons. But one cannot abstain entirely, so I will try here to propose the essential characteristic (which includes several components): systematicity itself. This includes identifying meta-halakhic principles and conducting an a priori conceptual analysis. Here I will try to demonstrate this through topics that are discussed ad nauseam by the classical commentators and also by contemporary scholars, and precisely for that reason it will be easier to show what is nevertheless missing in those discussions.

Background: Presumptive Possession

When a monetary dispute comes before a court, there are rules of procedure and rules of evidence. In the Mishnah and at the beginning of Bava Metzia ch. 1 and Bava Batra ch. 3 we find several rules for resolving monetary doubts (shuda de-dayyanei, yehei munach, kol de-alim gavar, yachloku, and the like), and the early authorities try to arrange these rules—i.e., to determine when to use each one. But when there is a possessor (mukhzak), the primary rule is that the burden of proof lies on the claimant, and in the absence of evidence the money remains with the one who holds it. In the language of the Gemara (already in the Mishnah, Bava Batra 153a): “ha-motzi me-chavero alav ha-ra’ayah” (= HMMH). Later authorities formulated this as: “In monetary doubt we are lenient,” meaning that although we usually rule stringently in Torah-level doubts, in monetary cases we are lenient toward the defendant (and stringent toward the claimant).

What is the source of this rule? Why use it? At first glance some sought to base it on the presumption that the early authorities phrase as: “There is a presumption that whatever is under a person’s hand is his.” Seemingly there is a statistical majority of objects that are found under their owners’ control, and that is the basis for preferring the possessor (see, for example, here and at great length here where such an explanation is offered). But it is unlikely that this explains the law of possession for several reasons: first, this is merely an item of evidence in favor of the possessor and no different from any other proof. Why treat it as something more fundamental and define possession on its basis?! Beyond that, I have explained elsewhere (see Column 256 and references there) that this “majority” does not in fact exist statistically. True, if we look at all objects in the world we will find that they are with their owners, but that is true of the entire class of objects. We, however, are concerned with the subset of objects over which there is a legal dispute, and within that subset there is no reason to assume the possessor is more likely to be correct and the claimant is the one lying. It is therefore more plausible that this presumption is a result of the HMMH rule and not its explanation.

We can also see that HMMH is used in cases where it is clear there is no evidentiary support for the possessor. For example, in the case of one who exchanged a cow for a donkey and it gave birth (Bava Kamma 46b, 100a). There the doubt is whether the birth occurred before or after the purchase of the cow, and the question is to whom the fetus belongs (seller or buyer). Clearly, whether the fetus is in the buyer’s possession or the seller is the original owner (mara kama) proves nothing factually; nevertheless, the halakha follows the Sages (against Sumchus) that HMMH applies. Similarly with the case of a doubtful firstborn (Bava Metzia 6a), and others.

Maimonides formulates this, for example, in Laws of Claims and Counterclaims 8:1:

“All movables are presumed to belong to the one in whose possession they are, even if the claimant brings witnesses that these movables were known to him—e.g., ‘this garment or vessel in your hand or in your house is mine,’ or ‘I deposited it with you,’ or ‘I lent it to you,’ and the witnesses testify that they used to be in my possession. And the defendant says: ‘No, you sold it to me or gave it to me as a gift’—the defendant takes a rabbinic oath (heset) and is exempt.”

From this wording it is clear that we are not dealing with a statistical consideration but with a presumption that is a halakhic point of departure. In other words, it is a consequence of HMMH, not its explanation. So what is the explanation?

The Gemara in Bava Kamma 46b discusses the source of this rule:

“R. Shmuel bar Nachmani said: From where is it derived that the one who seeks to extract from his fellow bears the burden of proof? As it is written, ‘Whoever has a claim shall approach them’—let him bring proof to them. Rav Ashi challenged: Why do I need a verse? It is reason: the one who feels pain goes to the doctor.”

At first a verse is cited, but then this is rejected since the rule can be learned from reason (and the verse is applied elsewhere in the sugya). The reasoning is that the one who is “in pain” (i.e., seeking redress) goes to the doctor: for a beit din to act, it needs a reason; absent a reason, it does not act. Therefore, if no reason is brought either way, the money remains with the one holding it, since that follows from the court’s passivity. To make the court do something—i.e., to change the status quo and extract the money from the possessor—the claimant must bring proofs.

There is another possible explanation: if we do not give priority to the possessor, any scoundrel could attack people in the street and claim some object or sum from them on false pretenses. True, people have a presumption of uprightness (“There is a presumption that a person does not sue unless he has a claim”—Shevuot 40b), but even a few liars in society would put everyone at risk. Note that the situation is asymmetric: the one holding the money cannot do so by mere fiat—after all, the money is already in his hand. According to our approach, the presumption that a person does not sue frivolously may itself be the result of the priority accorded to possession. Without the rule of possession, it is not clear such a presumption would exist.

Mahari Bassan’s Question

R. Shimon Shkop, in Sha’arei Yosher at the beginning of Gate 5, cites the well-known question of Mahari Bassan (see my articles here, here, and here):

“We hold that in monetary doubt we are lenient (Chullin 134a). It is fitting to explain why the prohibition of theft should be any less than other prohibitions, regarding which we hold that all Torah prohibitions are treated stringently. Many of the great later authorities have addressed this, and the first to raise it was R. Yechiel Bassan, of blessed memory.”

On its face this is a strange question. He expects the possessor to hand over the money to the claimant to avoid a possible theft. But the doubt exists only for the court; the litigants themselves know the truth, so why should they act stringently against themselves if they know the facts favor them?

Mahari Bassan himself suggested an answer, which is cited there in Sha’arei Yosher:

“He answered that there will in any case be a ‘doubt of theft’: if we are stringent with the defendant, there will be a doubtful theft in the claimant’s hand. And all the later authorities objected to this answer, for in a case of definite claim versus uncertainty (bari ve-shema) there is no concern of prohibition for the claimant, for even in a case of doubtful prohibition a definite assertion (bari) helps; moreover, according to the halakha we follow Shmuel that we do not follow the majority to extract from a possessor (Bava Kamma 27b), so for the claimant there is a majority that helps in matters of prohibition. And beyond this, it is puzzling on principle: what of it if each one should be concerned for himself? It would have been proper that even the court not leave matters as they are until both litigants consent.”

Within his words one can also see a response to the difficulty I raised earlier. In a regular case there is indeed no need to be stringent, but there is a situation of bari ve-shema: the claimant asserts definitively, while the defendant answers uncertainly. In such a case the Amoraim disputed, but the halakha rules that “bari is not preferable”—i.e., we still apply HMMH. Yet in such a case there is certainly room to require the defendant to give the money to the claimant, since he himself is in doubt (and not only the court), whereas the claimant is not in doubt and can hold the money. Thus, Mahari Bassan’s question is relevant only to a case of a definite claim against a possessor who defends himself with uncertainty.

“The Laws of Justice”

R. Shimon brings there various answers of later authorities and rejects them. Later in that chapter (sec. 3 and on) he introduces his well-known innovation:

“3. But what is well written in Kuntres ha-Sfeikot, General 1, sec. 6, did not fully explain the matter. He writes: it appears that the resolution is as follows—that the Torah forbade theft only of what is another’s ‘by law’; but what is one’s own ‘by law’ the Torah did not forbid. Therefore, a monetary doubt governed by HMMH involves no whiff of prohibition if he does not return it; and the Urim ve-Tumim wrote similarly that the Torah forbade only definite theft, like definite tithe and not doubtful tithe…”

The Torah forbids only what is not his in law. But if, in law, there is money that is his, then after the court’s ruling that the possessor keeps the money there is no longer any doubt of prohibition and he need not act stringently.

He clarifies further:

“4. The explanation is, in my view, based on a general premise: all the ‘laws of justice’ (dinei mishpatim) of monetary law between man and his fellow are not like other mitzvot of the Torah. In the other mitzvot, the Torah’s command—positive and negative—is the primary obligation upon us to fulfill God’s command. In monetary law it is not so. Before the divine command to pay or restore applies, there must first be a legal liability. Even if a minor steals—who is not obligated in mitzvot—the court must rescue the oppressed from his oppressor and compel the minor to return the stolen object to its owner. Another fundamental principle: when we adjudicate a person’s rights or ownership over an object or monetary lien, we are not adjudicating the observance of a mitzvah, but a matter of reality—who owns the object and who is legally entitled to hold it. Accordingly, when the Sages formulated the rules for monetary doubts, they did so by rational determination under the laws of justice: e.g., in the cow-for-donkey case with a birth and a doubt when it occurred—if, at the time of the doubtful birth, the offspring is found in one party’s domain, it will be in his domain; if it is in the marsh, we follow the original owner. And the prohibition of theft is that one may not take what, under the laws of justice, is another’s; similarly, one may not withhold a worker’s wages which, under the law, he must pay. How can we suggest that one who withholds money under the Torah’s law should be concerned for theft, if under the Torah’s law the money is his? The prohibition of theft is a general prohibition not to take what is another’s—whether by inheritance, sale, gift, or ownerless acquisition—and also when one acquires under the Sages’ legal system.”

The prohibition of theft differs from other Torah prohibitions, since it rests on a meta-halakhic substrate (what he calls “the laws of justice”) that sets the rules of ownership. Only after we legally determine the rules of ownership does “You shall not steal” come and say that it is forbidden to take money that belongs to someone else.

This resolves Mahari Bassan’s question: after the court has ruled that the possessor may keep the money, he no longer need worry about theft. If legally we determined that it is his (even if “before Heaven” we erred), there is no theft here and he may keep it.

There are, however, situations of doubtful theft in which we indeed rule stringently, as he explains (sec. 5):

“5. According to this, it is clear to me that a doubt of theft is biblically forbidden like any Torah doubt. But such a doubt is far from reality, since in every monetary doubt the Sages provided a legal ruling under the laws of justice; once there is a legal rule, there is no longer a doubt of theft—either it is certainly theft or certainly permitted. If the claimant seizes in a case where seizure does not help, it is certainly theft; where seizure helps, it is certainly permitted. A doubt of theft exists where there is no legal rule of monetary law—e.g., to steal from someone who is of doubtful gentile/doubtful Jew status, according to the opinion that stealing from a gentile is permitted. In such a case, it is a standard doubt of prohibition, since it is not at all a matter of the laws of justice. Even according to the opinion that stealing from a gentile is permitted, one has no right or power to steal from him, as the Magen Avraham (Orach Chayim 637:3) quoting Sefer Yere’im (sec. 422) writes—that even for that opinion it is not ‘yours.’ Other such cases will be explained below. In all such cases, it is prohibited due to doubt. Therefore, what is written in Kuntres ha-Sfeikot that what the Tehumim [sic; Urim ve-Tumim] wrote—namely that the Torah permitted doubtful theft—is similar to his path, is puzzling, for these matters are far apart.”

One further clarification is needed. Many understood R. Shimon Shkop to mean that society determines ownership, and prior to the Torah’s prohibition “You shall not steal” there was no prohibition against infringing another’s ownership; the prohibition is entirely a halakhic innovation. Previously, there was merely a map and technical assignment of ownership without legal or halakhic effect.

But this is a mistake—both in itself and in understanding R. Shimon’s intent. He means that even before the halakhic command there is a prohibition to steal—but a legal one. The halakha added “You shall not steal,” which means there is also a halakhic-religious prohibition. That is, the “laws of justice” do not merely assign ownership and acquisitions; they also include a (legal) prohibition to steal and to damage another’s property. There are several proofs of this from R. Shimon’s own words. First, in the last passage quoted he speaks of a prohibition to steal from a gentile even according to the opinion that, biblically, stealing from a gentile is permitted. Second, in the next chapter (ch. 2) he discusses the nature of personal liability and the obligation to repay loans, and he writes:

“19. It seems to me that personal liability (shi’bud ha-guf) in all monetary obligations is a legal duty whereby a person is obligated to provide from his assets to his fellow such-and-such; this obligation is a legal obligation even without the Torah’s command—just as the types of acquisitions and rules of ownership are legal matters even without the warning of ‘You shall not steal,’ as we explained. It is inconceivable to say that the reason we ascribe an object to Reuven is because Shimon is warned by the Torah not to steal it from him; the reverse is true—the prohibition of theft comes after the determination, by legal rules, of ownership boundaries. Similarly, the mitzvah to repay a creditor follows the determination of the debt by legal rules: once the legal system creates a monetary obligation upon Reuven, the Torah adds a command to pay the obligation he owes under the legal rules.”

Up to here he applies the idea of “laws of justice” to liens and loans. But then he raises a difficulty:

“At first glance it is puzzling: what compels a person to act without the Torah’s command and warning?”

If his intent were that the “laws of justice” only assign ownership without forbidding theft or damage, there would be no question. Clearly he understands that the “laws of justice” also prohibit stealing, and he asks why one should obey a prohibition that is not written in the Torah.

He answers:

“But on deeper reflection, this is understandable. The obligation and compulsion to serve God and fulfill His will are themselves obligations according to the judgment of reason and cognition; likewise, monetary obligation and liability are legal obligations, whether arising through acquisitions or through the Torah’s imposition (e.g., damages, redemption of the firstborn). For this we require a legal acquirer and right-holder.”

A fascinating answer: even the duty to obey the Torah’s commands is grounded in reason; therefore, the duty to obey what reason dictates is no less binding than the duty to obey the Torah’s commands. The question rests on a conceptual mistake.

Summary and the Status of Presumptive Possession

For our purposes, the picture thus far shows that the possessor’s priority is part of the “laws of justice,” i.e., it has no textual source but arises from reason. The rationale we explained above: for a court to act it must be given reasons; absent such reasons, the money stays with the possessor and the court does not intervene. We also saw another rationale for possession—namely, an enactment to prevent false claims by liars.

This naturally leads to the familiar inquiry among later authorities about the status of money left with the possessor in the absence of proof. As described, the status of the money is in fact doubtful: probabilistically there is no real advantage to the possessor, though there are good reasons to give him legal priority. After halakha established the rule of possession, the question remains whether the money belongs fully to the possessor, or whether the rule of possession merely allows him to retain it out of doubt (i.e., he need not hand it over because of a possible theft).

Here too we might distinguish between an ordinary possessor who knows the truth. In such a case it makes no sense to forbid him from using the money, since he has no doubt. But in a case where the possessor claims uncertainty against a claimant asserting definitively (as above), the possessor himself is in doubt. In such a case it is unclear whether the money remains with him but the matter is still doubtful, or whether it is fully his.

From R. Shimon Shkop’s words above it plainly follows that the money is his. There is no doubt of theft, because the “laws of justice” determine that he may hold the money. Yet, on its face, one could also argue that the situation remains doubtful. Several later authorities dealt with this question (see also the responsum here on the site).

The Words of the Later Authorities

The discussion begins with the author of Kuntres ha-Sfeikot, General 1, sec. 8:

“I saw fit to inquire: in any monetary doubt where we rule leniently for the defendant and HMMH applies—if the defendant betroths a woman with that doubtful money, or if the claimant seized and betrothed with it—what is the law of these betrothals?”

The practical difference concerns one who betroths a woman with this money: is she betrothed or not? Already the way he frames the issue is puzzling. Why invoke betrothal specifically? The question is whether he may use the money at all. What about buying some object with this money? True, in a standard acquisition by money, the money serves as consideration (see my columns ), whereas in betrothal it is money of acquisition for all opinions. That is, in a regular purchase even if the money is not his, the acquisition takes effect and at worst he owes additional consideration; in betrothal the legal effect itself does not occur. Still, even in an acquisition by money, there are cases where the money functions as acquisition, not merely consideration.

Moreover, if the money is not available for his use, what is the meaning of the possessor’s priority? HMMH would allow him to keep the money without touching it—so what have we gained? It would be merely permission not to give it to the claimant, while the possessor himself would also be forbidden to use it. De facto this is a situation of doubt. HMMH would not deviate from the standard rule of stringency in Torah doubts; rather, the stringency would hit both sides. All the discussions of the later authorities cited above fade away. Interestingly, R. Shimon’s own explanation to Mahari Bassan’s question is brought as an interpretation of the Kuntres’s answer. If that indeed were the Kuntres’s intent, then it would seem there is no room for his discussion of whether it is doubtful or definite.

From the simple reading of the Kuntres it appears he means that one may make any transactional use of the money, i.e., one may purchase items. Only with betrothal does a doubt arise whether these are definite betrothals or doubtful. It is not clear, however, what justifies this distinction. If we rely on the Sages’ authority (“hefker beit din hefker”), that should help for betrothal too. On the face of it, he holds that when I buy an object with this money, the Sages also expropriate that object and practically it becomes mine for all uses; whereas in betrothal they cannot (at least not simply; cf. “whoever betroths does so in reliance on the Rabbis”) transform a null act into valid betrothal. In short: this still requires analysis.

Immediately afterwards, the Kuntres states his view:

“I did not find this law explicit, but my inclination is as follows: for those who hold that seizure does not work in doubt, the betrothal by the owner is definite betrothal, since the Torah did not obligate him to return it; it is truly his. And the second, who seized, his betrothal is no betrothal at all. For although the doubt remains—is it perhaps his?—what of it, for we expropriate it from him; thus, he gave her nothing. For those who hold that seizure works in doubt, or in cases where it works (to be explained), both their betrothals are doubtful betrothals.”

He makes this depend on the dispute among the poskim whether seizure helps in money without proof. According to those who say seizure helps, both parties’ betrothals are doubtful (see also Kovetz He’arot §71:2).

But the very position that seizure works where a court ruled for the possessor (without additional conditions) suffers from the same difficulties. On that view, what is the meaning of HMMH if anyone can seize that money even after the court’s ruling? In other words, what is the difference between ruling HMMH and ruling “kol de-alim gavar” (might makes right)? This position seems untenable.

He then brings a proof from the Rosh and the Tur who discuss property whose owner despaired (ye’ush)—whether despair effects acquisition only rabbinically or not. But there we are dealing with halakhic doubt about the money (whether ye’ush effects acquisition), in which case one can indeed say the money remains doubtful (because possession does not resolve a halakhic doubt). Moreover, that is a rabbinic doubt, in which we are lenient even under the regular rules for doubts without possession. But it seems clear that when there is a factual doubt—e.g., whether there was a loan or not—then once we rule for the possessor the money is entirely his, because legally possession determines that the money is his (halakha, as it were, resolves the factual doubt).[1] Put differently: possession will not help where there is a derara de-mamonah, i.e., where the court has an objective doubt independent of the parties’ claims; but where the doubt arises only from the parties’ claims, we simply leave the money with the possessor and have no reason to question his ownership.

How to Decide Such a Question: The Nature of First-Order Ruling

The view that even after ruling HMMH the money remains doubtful is very puzzling. Indeed, in Kuntresei Shiurim (R. Gustman), Bava Metzia I:5, he writes as simple fact that possession cancels the doubt. As we saw, this is the meaning of an HMMH ruling and the difference between it and “kol de-alim gavar.” According to this, it is obvious that seizure does not work (contrary to the view cited in the Kuntres).

Can we decide a question like this purely on such reasoning? Absolutely. This is the essence of a first-order ruling (see Column 332, my article here, and many more). The decisor has no formal obligation to follow early or later authorities, for they have no formal authority (on the two types of authority see Column 393 and elsewhere). True, later authorities elaborate on this inquiry, but there is a simple sevara that possession is a determination; it is very hard to read the sugyot otherwise. Generally, even a first-order decisor should study the commentators to see their proofs and arguments—perhaps there are points he missed and can learn from them (they have substantive, if not formal, authority as great scholars). Only after reviewing the approaches should one form one’s own view and decide independently (rather than relying on them).

But in cases like the one under discussion, in my view one does not even need to examine the commentators’ proofs. There is a meta-halakhic sevara that decides before we see the proofs either way. Moreover, if there is a well-grounded opposing view of great decisors (and here it is the overwhelming majority), it is clear they have some way to reconcile the proofs (it is unlikely they erred in an open matter). The discussion will focus on the plausibility of interpreting each sugya—but for plausibility we have the meta-halakhic consideration, and therefore, even without delving into the details of the proofs, my sevara suffices to decide. Admittedly, regarding the sevara itself, it would be proper to study the commentators—after all, I might discover that my sevara is mistaken. But note that the commentators almost never address the fundamental meta-halakhic level—i.e., the very notion of such normative duplication (that a halakhic ruling would fail to erase reality). They discuss the question on the basis of proofs this way or that, but one will likely not find in them a discussion of the basic sevara itself (this is connected to the ambiguity and lack of systematicity in the halakhic world. See briefly in the responsum here). Therefore, in my view, in such issues a first-order decisor may rule even without entering into the commentators’ proofs and arguments.

I will now try to fill in some of the missing systematic thinking and enter the meta-halakhic discussion itself. Note that this is a type of question you generally will not find discussed by early or later authorities. But this is a crucial foundation of first-order ruling: reliance on conceptual definitions and broad meta-halakhic principles is a very important part of it. In many cases, a priori conceptual analysis saves much blood, sweat, and tears, and entanglement in precedential proofs and arguments that, in light of the a priori analysis, turn out to be irrelevant or inconclusive. The very distinction between formal and substantive authority, and between argument-from-sources and a priori analysis, is itself part of systematic thinking and a priori analysis. Now to the discussion.

On Normative Duplication

This determination rests on the idea that it is impossible for a court to rule that money remains with so-and-so while, at the same time, a doubt remains. If the court refrains from ruling—fine (some interpret “kol de-alim gavar” this way). But after a court ruling, prior doubts no longer have standing. Whatever the court determined is the status of the money. This sevara assumes that normative duplication is impossible—i.e., that even where there is a halakhic ruling, the factual doubt cannot continue to have halakhic standing such that we must behave as if there were a doubt. The ruling cannot leave the legal reality unchanged.

This raises a question about normative duplication: can there be a case where halakha determines one thing while the factual state still has halakhic standing? A clearer example is the inquiry whether a rabbinic acquisition works on the Torah level.[2] The later authorities debate whether an act that acquires only rabbinically—e.g., ma’amad sheloshtan (assignment of a loan via document), acquisition by four cubits, or meshichah according to R. Yochanan—turns the property into the buyer’s also de’oraita; or perhaps it is his only rabbinically while de’oraita it still belongs to the seller. Some early authorities support such normative duplication, i.e., that on the Torah level one person owns it and on the rabbinic level someone else does.

We find many such duplications in the realm of issur ve-heter. Many things are permitted de’oraita but forbidden de-rabbanan (indeed every rabbinic prohibition is such). But in monetary law there are two sides to the case, so such duplication is difficult to accept. I can say that de’oraita it is permitted to eat poultry with milk but the Sages forbade it; or that a certain separation of terumah is valid de’oraita but not de-rabbanan (or vice versa), which merely obligates me to act stringently (separate again, avoid eating it, etc.). But in monetary matters, it seems intolerable to say that some property belongs to Reuven de-rabbanan and to Shimon de’oraita—just as it is impossible to accept that property belongs to Reuven while “in reality” it remains doubtful. Ownership ought to be determined univocally; it cannot be subject to normative duplication.[3]

Note that, as with the Kuntres ha-Sfeikot regarding possession, in the question of whether a rabbinic acquisition works de’oraita, the halakhic consequence cited is betrothal: if one betroths with it, is the woman betrothed de’oraita or not? Again we may ask: why not cite the more obvious consequence regarding ordinary use of the money? It seems everyone agrees that ordinary use is certainly permitted in practice and the de’oraita level does not impede it, but with betrothal there might be a problem. Similarly with divorce: there are gittin invalid de-rabbanan or, conversely, those for which the Sages are concerned even though de’oraita they are valid. That is, in kidushin and gittin we are prepared to live with normative duplication, but not in monetary matters. The views that a rabbinic acquisition does not work de’oraita and that after HMMH the doubt remains apparently do not accept this distinction and treat monetary law like the rest of halakha.

With betrothal this is particularly odd. The doubt regarding betrothal is born of the doubt regarding ownership. If, for ordinary use, there is no doubt that I may use the money, why—when I come to betroth—does the doubt reappear and render the kidushin doubtful? This is why, even regarding kidushin, I wrote that by sevara a rabbinic acquisition yields kidushin de’oraita, and money left with me as possessor may be used to betroth with definite effect. Those who disagree apparently hold that while for ordinary use I may use the money, this does not change the reality that the money is doubtful. Therefore, when I create a halakhic, “issur”-type legal effect (kidushin), it will be doubtful. In transactional and proprietary outcomes we ignore the doubt because the Sages can permit use, but for kidushin they cannot create kidushin where they do not exist.

Accordingly, the crux of the dispute is whether a halakhic ruling erases the underlying reality, or merely permits me to act in ways that might contradict it (e.g., disregarding doubt rules). If the underlying reality is erased, then the ruling is all that remains: once the Sages instituted a rabbinic acquisition, there is no longer a Torah-level plane in which there is no acquisition, and once they instituted HMMH there is no remaining doubt.

A Note on Scriptural Decrees

In my article on gezerat ha-katuv I brought several examples that also touch this question. The starting point is that the disqualification of relatives as witnesses is a scriptural decree (as in the Gemara in Bava Batra and cited by Rambam and the Shulchan Aruch), meaning that in essence relatives are credible, but the Torah decreed that we not accept their testimony. Now consider two witnesses who testify that Reuven committed murder, and two brothers come and render them false (hazama). What should the court do? At first glance, the brothers’ testimony is inadmissible, so the first testimony stands and we execute the murderer. But obviously that is unthinkable: the “hazamim” are telling the truth, and there is only a scriptural decree not to accept their testimony; in reality the defendant is not a murderer. Would we kill him because of a scriptural decree? Clearly not. Similarly, if the very rule of hazama (the priority of the second set over the first) were a scriptural decree in the sense that there is no real advantage in credibility, then we would be executing the defendant or the first set of witnesses purely by scriptural decree despite having no reason to think they lied. That too is unthinkable.

I explained there that when we speak of a scriptural decree, it cannot mean an untrue principle. I identified several types of such decrees, but for our purposes: the second set of witnesses is in fact superior to the first, but that advantage would not suffice to rule without the Torah’s instruction to decide accordingly. As to the disqualification of relatives, we tend to treat it as a scriptural decree because we imagine the simple case: two brothers testify that Reuven murdered. In such a case we can live with the idea that they are telling the truth and yet we will not execute; God will settle matters with the murderer. Hence I brought the case where the brothers are the hazamim: there we must act and would end up killing an innocent person. No sane judge would do such a thing (this is no worse than recusing oneself due to “suspicious case”).

In such cases, halakha assigns a status to testimony, but that does not change reality. If in reality the man is not a murderer, we will not execute him. And if the second set of witnesses is not more credible than the first, we certainly will not rely on them to punish. The reason is that in these cases, as in monetary law, there is another party. Acting on a halakhic designation when it contradicts reality is unacceptable—either the opposing litigant is harmed (in monetary law) or the accused is harmed (in criminal law).

This relates to the fact that both monetary law and criminal sanction are part of the judicial stratum of halakha (Choshen Mishpat and Even ha-Ezer—related to “judging”: see here)—i.e., public matters between people or entities, not matters between man and God (the domains of Orach Chayim and Yoreh De’ah—non-judicial halakha). In judicial topics one usually cannot detach halakha from reality since there are always two sides. In such cases, one cannot ignore reality due to a halakhic designation (a “scriptural decree”), since reality matters: either another party is harmed or the accused is harmed (he is the “other side” vis-à-vis the public/God/the court).

Summary and a Note on Multidisciplinarity

Above I wrote that this column illustrates my method of study. I tried to show that one of its fundamental components is systematicity itself, including the identification of meta-halakhic principles and a priori conceptual analysis. Note that the topics raised here are discussed extensively by classical commentators and also by contemporary scholars, but precisely for that reason it was easier to show what is nevertheless missing in those discussions. Even the title of the column, “Tension between Halakha and Reality,” is atypical for Talmudic analytic works. The commentators treat questions like whether a rabbinic acquisition works de’oraita or the nature of HMMH, but they do so through study of specific sugyot without placing matters in a broad meta-halakhic context. The very analysis of first-order ruling and attempts to characterize it are themselves part of this systematic way of thinking. I think you will find this in almost every column I have written here on Talmudic analysis: in most cases you will find conceptual analysis and a priori discussion, as well as engagement with meta-halakhic principles and placing the topic in a general, conceptual context. To my mind, all these are greatly lacking in standard analytic thinking, and perhaps I have managed to contribute something toward improving the situation.

In closing, a note on multidisciplinarity. There are two kinds of multidisciplinary thinking. The first finds common patterns between different fields, by which they enrich one another. This is different from another kind of multidisciplinarity that integrates different fields into a single structure, as in neuroscience. There, the fields do not necessarily enrich each other through similarities, since the discussion is not about what they share; rather, neuroscience uses knowledge from mathematics, computability and computer science, physics, biology, psychology, various technologies, and more, combining them to achieve a better understanding of our thinking and brain. Such understanding requires combining knowledge from all these fields and is usually based on expert knowledge in each. This differs from the first type of multidisciplinarity, which deals with a logical and conceptual (therefore universal) understanding of what is common to the fields. Incidentally, this very distinction arises from conceptual analysis. Chad gadya, chad gadya.

[1] Later authorities discuss whether there is a difference between a presumption in a halakhic doubt and in a factual doubt, and suggest that a presumption does not resolve a halakhic doubt (see Responsa R. Akiva Eiger, First Edition, §37—esp. s.v. “u-ve-zeh” and s.v. “ve-ya’uyin”). Admittedly, it is clear it does not resolve the factual doubt either; even if one understands a presumption not as a rule of conduct but as evidence, clearly the meaning is that it is a rule of conduct which halakhically is treated as evidence. A pre-existing presumption (chazakah) or possession (as we saw above) is not truly evidence of the facts either way.

[2] See Avnei Milu’im §28, §33; Responsa Chatam Sofer, Yoreh De’ah §314 s.v. “hineh shoresh”; Machaneh Ephraim, Laws of Sales §2; Kehillot Ya’akov, Bava Metzia §36; Ha-Makneh §33:15, and more.

[3] This is likely also the reason for several differences between monetary law and other areas (e.g., in monetary doubt we are lenient—HMMH; we do not follow majority in monetary law; in monetary law a judge must rule according to what appears to him, etc.). See, for example, yesterday’s responsum here.