Jewish Law and Reality – What Halakhic Expertise Is

Tzohar – 5761

A. Introduction

In recent years many have wrestled with questions concerning the determination of Jewish law in relation to questions of fact. This is expressed in contexts such as Jewish law and politics, Jewish law and security, and so forth. The halakhic precedents for this discussion are brought mainly from the area of Jewish law and medicine, where there is an established halakhic discussion dealing with the relation between Jewish law and the assessment of reality (between the physician's determinations and the rabbi's determinations).

In these contexts a simple distinction usually arises between the determination of the facts and the halakhic determination, and it can be formulated schematically as follows: the physician determines the facts, and the rabbi evaluates them from a halakhic standpoint. The physician supplies data about the danger expected from various actions and situations, and the rabbi makes the value decision.

At first glance this is a simple and familiar distinction between the role of the expert and that of the rabbi, and there seems to be little point in discussing it. In truth, I hesitated whether it was worth elaborating on this topic, since my conclusions, at least once explicitly formulated, seem trivial. I will now present two examples that will help the reader decide whether that is indeed the case, or whether despite everything there is reason to continue reading.

1. A ruling by rabbis published about a year ago determined that handing over territories to the Palestinians involves a danger to life. One should note that they did not determine that if it involves danger to life it is forbidden to do so; rather, they made a factual determination that handing over territories entails danger to life.

This aroused sharp, and apparently justified, criticism. Questions were raised in the broader context of Jewish law and reality, such as: if I assess reality differently from the rabbi, am I obligated to heed him? And the like. If the rabbi decides that some medical procedure involves danger to life, and I, as a physician, or as someone who consulted physicians, think that this is not so, must I heed him? Anyone troubled by questions such as these is invited to continue reading.

2. Is an observant Jew halakhically obligated to obey traffic laws, for example those that set the maximum speed permitted on a given road? Apparently yes, for the question of the risk involved in traveling at a certain speed is a matter for traffic experts and not rabbis. For this reason, those who determine traffic laws are experts and not rabbis. Therefore, the calls of various rabbis are apparently understandable, some of whom have ruled that one who does not drive in accordance with the legal speed limits violates the halakhic laws of preserving life.

I, humble as I am, will allow myself to raise doubts about these determinations below. Those who agree with them are likewise invited to continue reading.

As we shall see below, the misunderstanding in these cases reflects a problem that is not purely halakhic; it concerns value-based decision-making in general. Indeed, as we shall see, many phenomena can be discerned that reflect similar failures in non-halakhic contexts as well.

The discussion I wish to conduct here can also be opened from another angle. Many wonder what the expertise of the rabbi, or the halakhic decisor, actually is. How is it possible that people turn to him in such a wide variety of areas and expect from him a rational decision in all of them? Many wonder whether there can be a person who is an expert in every field. Here too one usually hears statements about the rabbi consulting 'the expert' and formulating a halakhic position in light of the determination of the facts.

These questions touch on understanding the role and essence of an 'expert' in general, and from them one can try to understand how halakhic expertise differs from other kinds of expertise in the world.

In this article I wish to discuss this question briefly. The basic claim will return to the description of the physician and the rabbi in the worn-out example above, but the expansion and generalization undertaken here may illuminate it in a broader and clearer light. Below I will try to present several additional examples and, through them, clarify the basic claim about the nature of Torah-halakhic expertise.

The character of the discussion, by its very nature, will be theoretical and a priori, and I will hardly resort here to detailed halakhic examples or halakhic references. It seems to me that the ideas are self-evident and can be justified even without a detailed halakhic discussion of the specific examples that will be presented.

B. Driving Speed on the Roads and Handing Over Territories: Two Planes of Relation between Values and Reality

Let us begin with a common assertion concerning the duty of an observant Jew to drive at the speed permitted by law, for reasons of preserving life (his own and that of others). In my humble opinion there is no such duty, beyond the civil obligation that of course rests on every law-abiding person. I wish to argue that there is no 'religious,' or halakhic, layer to the duty to drive at the permitted speed. It is a civil obligation alone (below I will qualify this claim somewhat).

At a superficial glance this is a provocative and exaggerated assertion, and perhaps also a dangerous one. On second thought I will try to show that there is nothing here beyond the claim above regarding the relation between the determinations of the expert (the physician) and the determinations of the decisor (the rabbi).

The legal or halakhic decision regarding the maximum speed permitted on a given road consists, in principle, of two distinct stages:

1. Determining the level of risk involved in traveling at each speed; that is, plotting an entire graph of risk as a function of speed for all relevant speeds.
2. Determining a value threshold for the level of risk one may take (halakhically or civically).

Clearly the first stage is a matter for traffic experts. The expert is supposed to be the one who can plot the graph and report the level of risk present at each relevant speed. He can do so on the basis of experiments that have been carried out, on the basis of theory, or by means of any other scientific tool.[1]

Now let us assume, simplistically, that the experts present a graph showing that on the road in question the risk of injury at 70 km/h is half a percent, at 80 km/h 0.7 percent, at 90 km/h 1 percent, at 100 km/h 1.2 percent, and so forth. Up to this point: the facts. The institution, or person, entrusted with the value determination must now set the threshold of risk permitted from a value standpoint. Does a risk of half a percent fall under the category of violating the duty to preserve life? Is 1 percent the threshold? Or perhaps 2 percent? The value threshold that determines what level of risk constitutes a violation will determine the maximum permitted speed. For example, if it is determined that the permissible risk is 1.2 percent, then the permitted speed on this road will be set at 100 km/h, and so forth.

In this context a situation can arise in which the legislature sets the threshold at one percent, whereas Jewish law, according to one view or another, determines that the halakhically forbidden level of risk is one and a half percent and above, or half a percent and above (this can, of course, be either more lenient or more stringent). The halakhic prohibition is determined by the halakhic threshold and not by the legal threshold. It must be reemphasized that the legal threshold obligates every law-abiding citizen, but one should not confuse it with the halakhic threshold.

There is no room for the argument that the legal threshold is set by traffic experts, whereas the halakhic threshold is set by institutions that are not experts in this field. Setting the threshold, whether legal or halakhic, is not a matter for traffic experts but for 'experts in values.' Traffic experts are responsible only for the first, factual stage. Every citizen must then decide who the 'value experts' are whose authority he accepts; in our case, the rabbi or the legislator. On that basis he should determine his speed on the road in question.

We thus learn that the decision about the maximum speed permitted for travel on a given road is not a purely professional decision. It is decided specifically by a value process. Before I continue and generalize this point, I will note several reservations relevant to it.

First, Rabbi Shlomo Zalman Auerbach's ruling is well known: the halakhic level of risk is determined by common human practice. That is, there is no special halakhic way of determining a prohibited level of risk. Anything that people ordinarily do is not considered a halakhically forbidden risk.[2]

This determination requires discussion in its own right; it is not at all simple, and this is not the place for it. I wish to note that even if Rabbi Shlomo Zalman Auerbach's position is correct, it is still clear that the decision regarding permitted speed is not professional but value-based. At most, his determination collapses the distinction between the halakhic threshold and the legal threshold, but it certainly does not undermine the basic schema presented above. According to this schema, every process of setting a permitted speed, halakhic or legal, has a value layer. That is the point important for our purposes here, and I will be content with that.[3]

A second reservation regarding the above claim concerns the fact that, since there is no value decision agreed upon by all the citizens of the state, including those who are not observant, there is an element of unfairness, perhaps more than unfairness, in deciding to drive above the speed permitted by law. Even if I decide to accept the risk according to the halakhic threshold (for example, one and a half percent), by driving I endanger others who are willing to take upon themselves only a risk of one percent. Their entering the road was on the understanding that drivers would keep the speed legally permitted.

I am not sure that this is indeed the case, if only because on our roads in a typical situation there are quite a few who violate traffic laws, and if a person is unwilling to take any risk beyond what is set by law, it would be better for him not to go onto the road. Anyone who goes onto the road does so taking the realities of place and public practice into account; that is, willing, so to speak, 'to drive with offenders.'

It is important for me to stress again that the discussion here is not meant to exempt anyone from the civic duty to obey traffic laws. My purpose here is only to illustrate the mistake made in the assertion that the value threshold (halakhic or legal) is determined by experts. Even if, in practice, experts are indeed the ones who set the threshold (it seems to me that this is in fact the case), that is of no significance. They have no greater essential competence or authority to do so than any layman.[4]

As noted above, the relation between the determinations of the expert (the physician) and those of the rabbi at first sounds clear, perhaps even trivial. By contrast, the conclusion above regarding speed laws may have struck some readers as more surprising at first glance. The reason apparently lies in a failure to distinguish between two kinds of claims that, on a superficial view, may look similar.

When discussing the relation between the rabbi and the physician, people generally say that the rabbi must rule on the halakhic question at the value plane, for example by determining that saving life is a halakhically binding consideration, while the physician determines the facts; that is, what state constitutes danger to life, or what is the preferable action to take in order to prevent such a state.

As stated, this is an obviously correct claim, perhaps even a trivial one, and it is what is generally said in these contexts. The claim I have tried to illustrate here says something altogether different: the 'factual' determination of whether there is danger to life here or not also generally contains an element that does not belong to expert judgment but to the rabbi, or more generally to the value-decider. The determination of what degree of risk falls under the category of danger to life does not belong to the physician's field, but to the sphere of halakhic decision-making.

We thus learn that the rabbi, or value-decider, takes part in two different stages of the value decision: in the first, principled stage, which says that considerations of danger to life are halakhically binding. This is a stage of halakhic information, and it seems self-evident to anyone who reflects on the problem. The more problematic point is to realize that the rabbi, or value-decider, is involved also in the stage of determining the facts, that is, determining the threshold of risk that constitutes danger to life from a halakhic or evaluative standpoint. This is a stage of halakhic decision, and it is not merely informative or professional.

Let us now move to the second example presented in the introduction. Many now say that rabbis must decide in light of expert data on the question of danger to life and the handing over of areas of the Land of Israel. Military experts will determine whether there is risk or benefit in one political step or another, and the rabbi will decide what should be done from a halakhic standpoint; that is, whether in the face of some degree of risk one may, or must, hand over territory, or perhaps not. Rabbinic rulings stating that handing over areas of the Land of Israel in a given situation involves danger to life sound to many people beside the point, and are often rejected with the claim that experts must determine reality. Is a certain rabbi authorized to determine that handing over a certain area involves some risk? Apparently this is a matter for security and policy experts.

In light of our discussion here, it turns out that there is indeed a layer in which the rabbi's decisions are fully relevant, and specifically the experts' decisions are not. The threshold of risk that may be taken from a halakhic standpoint is certainly a matter for a halakhic, or evaluative, expert, and not for experts of any other kind. After plotting the graph of risks, which is based on risk assessment, and this and only this is the business of military-political experts, the value-decider (the rabbi) must come and determine the threshold of risk that is binding from a value standpoint. Is a one-percent possibility of war, with such-and-such a number of casualties, what is required in order to permit handing over territory, or is the threshold different? What data can halakhically be called 'danger to life'? After that, one must also decide whether considerations of danger to life are relevant to this question at all (let him be killed rather than transgress — one must be killed rather than transgress — and the like). This is the second layer in which the rabbi's, or value-decider's, position is relevant. As stated, everyone recognizes this layer, but the existence of the previous layer is not always clear to all, and it was precisely to that that I pointed in my earlier remarks.[5]

I hope that the discussion conducted up to this point suffices to convince the reader that this is indeed the case, and perhaps also to justify my treatment of the two examples in the introduction. The main conclusion to which it is important to pay attention is that there are two different kinds of claims here. This, as stated, is the focal point of the surprise one might feel upon hearing the claim that there is no 'religious' layer to traffic laws. It is also the reason for the widespread misunderstanding regarding rulings that determine that, under given circumstances, handing over territories involves danger to life.[6]

C.  What Expertise Is: Generalizing the Above Fallacy and Its Theoretical Basis

In the previous chapter the claim was discussed, in some detail, that determining the maximum speed permitted is not a professional determination, and therefore it is not a matter for experts. We then saw that the same applies to the issue of handing over territories. In this chapter I wish to generalize this way of looking and argue that all value decisions are like this. I intend to bring several more controversial examples and argue that no decision, whatever it may be, is a matter for experts. Put differently: expertise, as such, concerns not decisions but facts alone. At the end of the chapter I will try to point to the principled basis for the failure to distinguish between the halakhic plane and the factual one.

As in the matter of traffic, so too in every other decision, the process of arriving at the value decision consists of the same two stages: the factual stage, which belongs to the experts, and the value stage, which belongs to the 'experts in values.'

This claim seems at first simple, especially after the previous discussion, and therefore I will try to present several examples that will clarify how little it is actually taken into account. Another point worth noting is that the analysis conducted in the previous chapter is relevant to every value decision, and not specifically to halakhic decisions. Even one who does not obey Jewish law, and makes value decisions in other ways, must concede that the final value decision need not necessarily be placed in the hands of the experts, but in the hands of the 'value-decider.' That is why in the previous chapter I alternated, in this context, between the terms 'rabbi' and 'value-decider.'

Let us now turn to several examples that will sharpen the distinction and its scope.

1. Homosexuality. Some time ago a radio debate took place on homosexuality. Knesset member Zehava Gal-On argued that nowadays it is already outdated to say that this is a 'disease,' since almost thirty years ago the American Psychiatric Association decided to remove homosexuality from the list of diseases. Claims of this kind are very common in public discourse, and it should be noted that this is a discussion not necessarily halakhic, but generally evaluative. A debate on this point can take place between any two people and not necessarily between a religious person and a secular one.

Knesset member Gal-On's claim contains the same kind of fallacy we saw above. The professional psychiatrist can, at most, determine whether a certain symptom has a genetic source or some other source, and as a result he may perhaps also determine what the best way to treat it is, if such a way exists at all, and what will happen if we do not do so. All these are, at the level of principle, factual determinations. The question whether to treat this or that symptom, and whether it is a disease, depends on a value perspective. Some will see homosexual inclination as a deviation incompatible with moral norms, and some will not see it that way. With respect to this plane of discussion, psychiatric training adds no value, and therefore the determination of a psychiatric association on this subject has no significance. Clearly, this determination was not made on the basis of medical or scientific data. It reflected a worldview prevalent in a certain American public and found expression among the members of that association as well. Knesset member Gal-On's claim adds nothing to the discussion; it is nothing but empty demagoguery that tries to recruit the mantle of scientific expertise for needs that do not truly pertain to it. The psychiatrist is no more authorized in this matter than laymen.[7]

Clearly, this argument applies to every psychiatric or medical symptom, and not only to homosexuality. The value determination of whether this is a normal phenomenon (not in the sense of prevalence, but in the normative sense) or a disease is not within the psychiatrist's sphere of authority and expertise.[8] A medical determination that a certain patient's life is in danger is likewise a factual determination. The question whether to act in order to save his life is a value question entrusted to the value-deciders.

Our conclusion is that even if one can conduct a debate (outside the realm of Jewish law, of course) as to whether homosexuality is a legitimate phenomenon or not, the psychiatrist's words add no value to that discussion.

2. Abortions. The debate on abortion (again, in most cases only outside Jewish law) is ancient and worn out. One of the central questions discussed in this context is: from what point onward is the fetus considered a person? Here too we constantly hear that the physician, who knows the process of fetal development, is the one who should determine whether the fetus falls under the category of a person. According to that same approach, one can understand why abortion committees are populated predominantly by physicians.

Here too the physician can determine, at most, what functions the fetus has at each stage of pregnancy and development in the womb. This is the factual stage involved in plotting a kind of graph of fetal development (stage 1, in the speed example of the previous chapter). Here too the value stage must then follow (stage 2, in the above example), in which the threshold is set from which point onward the fetus is considered a person (assuming that the relevant stage is physical at all and not mental-spiritual, but that is beyond our present scope). In this determination the physician's position has no added value beyond that of any other layman. The physician should provide professional testimony before such a committee, but need not necessarily be a member of it.

3. Education. Various discussions of pedagogical problems are likewise conducted by experts in pedagogy. Questions about the attitude toward Talmud study in high-school yeshivot, problems of violence, and the like, are generally discussed by educational psychologists, educators, and the like. These experts can offer various technical proposals to help solve some of these problems. Such solutions often have a value layer with respect to which the educational psychologist, and even the educator, has no added value. For example, proposals concerning changing the character and emphases of Talmud study have evaluative implications, and as such they are not a matter for educational psychologists. In the most important layers of the discussion, a rabbi or value-decider must participate.[9]

One could go on like a peddler and enumerate all the areas of value discussion, but there is no point in that. I hope I have managed to show that there is no value decision that rests on a purely professional basis, and consequently that a value decision is not a matter for experts. I also wished to argue that this is a universal claim whose relevance extends to all disciplines of value discussion and decision, and not specifically to Jewish law.

The root of the 'expertise fallacy' that underlies all the above examples lies in two phenomena (which are certainly related to one another): 1. the vagueness of basic everyday concepts. 2. the philosophical mistake called Hume's 'naturalistic fallacy.' Let me explain this briefly.

1. To clarify the first phenomenon I will use the paradox known in philosophy as the 'heap paradox,'[10] and here is one possible formulation of it, among many:

Premise A: A single pebble is not a heap.

Premise B: Adding one pebble to a collection of stones that is not a heap cannot turn it into a heap.

Premise C: One million pebbles are a heap.

Clearly these three premises cannot all be true simultaneously. On the other hand, it is hard to see which of them one can give up, or which of them is false. All of them seem to fit common sense quite well.

This is a representative example of a much broader phenomenon. Every everyday concept can appear in a paradoxical form like this. One of my children once asked me: from when is it 'afternoon'? From 2:00 p.m., or perhaps 3:00 p.m., or some other time? From what shade is something 'red' (a question with practical implications for menstrual stains)? In the same way one may ask: from what point is something 'bright'? At what quantity of hair on a person's head is he called 'bald' (a question with practical implications for betrothal)? And so on. It is almost impossible to think of an everyday concept that would be mathematically defined, so that the heap paradox could not be presented about it.[11]

At least in some of the examples we saw above, the questions were: from what point is something a 'person' (in abortion)? From what point is someone 'ill' (the physician in questions of danger to life, homosexuality)? From what point is something 'dangerous' (minimum speed, handing over territories)?

If so, the basic problem is the inability to define everyday concepts in general, and value concepts (good, true, beautiful, etc.) in particular, at a scientific level. The question of from what number of pebbles something is a 'heap' is not a matter for a contractor or some other expert, but for evaluation and the setting of some threshold. This is a value determination (not in the moral sense, but in the essential sense, as for example in determining an aesthetic value).

Some will infer from this that all these definitions are arbitrary, and of course that is not my intention (especially in the evaluative-moral context). I mean only to say that these are determinations that do not belong to any field of expertise. There is indeed such a thing as 'correct' and 'incorrect' here, but those determinations lie in the domain of a different kind of 'expert.'

2. The 'naturalistic fallacy,' as presented by the philosopher David Hume, holds that one cannot infer value conclusions from factual data. For example, from the factual premise that the sky is blue one cannot infer the value conclusion that the sky is beautiful (again, 'value' in the essential, not moral, sense). To infer such a conclusion we need to add an additional premise that moves us from the realm of facts to the realm of values. In our example, for instance, we can add the premise that everything blue is beautiful. This is a premise that connects the plane of facts with the plane of values. Only now, after both these premises have been posited together, can we validly infer the value conclusion that the sky is beautiful.

So too in our case. An expert deals in facts (or theories about facts). Reliance on an expert in value determinations suffers from Hume's naturalistic fallacy. The expert cannot provide the premises that connect the factual plane to the value plane, and therefore he cannot lead us to a correct value conclusion any more than any layman can.

There is a connection between these two phenomena, and examining the examples brought above can point to the presence of both of them in the background of the mistakes I have indicated, but this is a purely philosophical discussion and this is not the place for it.

D. What Halakhic Expertise Is

The principal difference between the fields in which the expert's opinion is relevant and the fields of values lies in the degree of empiricism (= amenability to experience) of the field under discussion.[12] In all the examples we saw above, the factual determination that lies within the expert's field is the result of empirical judgment (experience), or of scientific-theoretical analysis of experimental results. The second stage, the value stage, which comes immediately afterward and, as we saw, is what leads to the value decision, is not connected to facts but to their assessment on the value plane. Therefore it is apparently clear that this judgment does not lie within any field of expertise.

This is where belief in Torah from Heaven enters the picture. For one who believes that the Torah is a collection of value norms given to us by the Creator of the world (through the mediation of human beings, but that is beyond our present scope), the conclusion that suggests itself is that these are 'correct' value determinations, or perhaps 'moral facts.' If so, the way is opened before us to change the picture described above and to turn even value determinations into an empirical field, and even to acquire skill, or expertise, in the realm of value decisions.

A Torah student who goes through the various halakhic determinations and tests his value intuitions against those determinations acts similarly to a scientist acquiring skill in some empirical-scientific field. Every value intuition he has can be tested in the crucible of halakhic study. Like the scientist, he can draw conclusions about what is correct and what is not in the value realm, and thereby acquire 'expertise' in the realm of values.[13]

By comparison, the main problem from which philosophical ethics suffers is that it is not an empirical field. When a moral philosopher wants to examine his value skill, he has no forum at his disposal in which he can test his decisions by comparing them to the 'correct' decisions, improve them, and become a 'value expert.'[14] Hence consulting experts in philosophical ethics on value problems, something that is sometimes done in our circles, is of limited importance.[15]

An important insight that emerges from our remarks is that the principal concern, in principle, of the field of halakhic decision-making (beyond halakhic information) is the ability to render value decisions. Halakhic ruling involves 'expertise' in values. Jewish law creates a situation in which value decision-making is a field with empirical foundations, and thereby the possibility is opened of improving in this matter and acquiring skill and expertise in it.

By this we can also understand the mistake hidden in the question with which we began: how can a person be an expert in so many fields, and how can one expect the rabbi, or the decisor, to be so superhuman? The expertise of the ruling rabbi is not in all fields, but in the ability to set a value threshold in all those fields, and thereby to render value decisions within them. After the factual graph has been produced, which is the task of the experts in the various fields, the rabbi, or value-decider, must determine a line between forbidden and permitted (halakhic or otherwise).

I will conclude with a point for thought arising from what was said in the last paragraph. Decisions about the permitted speed on a given road, about whether a fetus in a given condition is already considered a person, and about whether some psychiatric symptom counts as a disease, do not belong to any of the specific fields mentioned above (transportation, medicine, and psychiatry). The question is: to what field do they belong? Seemingly, to the field of the ability to decide value questions, that is, the field of the value-assessment of reality. This raises the question whether this field is one. Is the ability to decide all those questions an ability of one and the same kind? Is someone who can decide correctly in questions of abortion also capable of deciding questions of permitted speed, or of handing over territories? My inclination is to think that at least it may be so, but I have no convincing argument for this position, and that is beyond our present scope.[16]

[1] Of course, these determinations too are not mere 'facts.' Significant theoretical assumptions underlie them. For our purposes here, this simplified presentation suffices, and this is not the place to elaborate further.

[2] These remarks relate, for example, to cigarette smoking, or to the very act of driving on roads, which apparently should have been prohibited unless there is a need of danger to life. Otherwise, one would make life impossible for any creature. See, for example, Minhat Shlomo, sec. 7, p. 47, s.v. And behold, in the Shulchan Arukh.

[3] Beyond that, Rabbi Shlomo Zalman Auerbach's position leads to the conclusion that if people customarily violate the law, then any speed accepted by the reasonable person will not be considered a life-endangering risk forbidden by Jewish law. As is well known, this is the case on many of our roads. That is, even according to him the threshold is not the law but the practice of the reasonable person.

[4] Despite what was said above, there is a certain logic in staffing the committees that determine traffic laws with experts. Since collecting the data requires transportation experts, the second stage of the decision, the value stage, is also carried out by the same body for reasons of convenience. After all, the expert is certainly no less fit for the value determination than anyone else.

[5] There is another point that arises in the context of security issues, namely to what extent one can regard those engaged in these areas as experts. Are there experts in security? And is their professional standing like that of medical experts? In my humble opinion this is not the case, but that is not our concern here. In any event, it seems to me that the rabbi, or value-decider, has an additional, third point at which he must decide: how much trust should be placed in the 'experts' in the field under discussion. This is another layer entrusted to his decision, and of course not to the decision of those experts themselves.

[6] There are situations in which the expert must evaluate two alternatives against one another; such situations can be called 'binary situations' (although we are not necessarily speaking only of two possible courses. This is merely the simplest example). For example, a physician who must determine which course should be taken in a certain illness. Here it may be possible to place the decision in the hands of the expert as well, since there is here a factual determination of the degree of risk involved in each of the two courses, and the choice between them follows trivially from the factual determination. There is no clash of values here, but rather an optimal way of realizing a single value.

This is unlike the matter of permitted speed, where there is a continuous spectrum of possibilities for which we must set some value threshold, while set against it is the value of normal life (one cannot force everyone to drive at a speed of 0). Such a simple situation may exist theoretically, but in reality there is almost no situation in which the decision is indeed so simple. For example, regarding the Land of Israel there are also value questions concerning the prohibition involved in handing over territory, the national mood, and so forth, questions that must enter the calculation even in a binary situation, but that is beyond our present scope.

[7] Again, it should be noted that he is also no less qualified than the layman, and therefore there is logic to including psychiatrists on a committee that would decide matters of this kind. See above my remark on the example of permitted speed.

[8] For a broader discussion of this topic see Professor Mordechai Rotenberg's book Christianity and Psychiatry, in the Broadcast University series (and in his books in English). His main claim is that modern Western psychiatry rests on assumptions drawn from Protestant Christianity, whereas he himself proposes there a psychiatry developed on the basis of 'Jewish' assumptions. This is a certain offshoot of the well-known thesis of the sociologist Max Weber ('the Protestant thesis'), which states more broadly that the value assumptions underlying Western culture are drawn from Protestant Christianity. In particular, we may infer for our purposes that psychiatry is founded on value assumptions and not only factual or methodological ones.

[9] Even the discussion of the causes of the problem is not necessarily purely professional. See my article 'Torah im Derekh Eretz – A New Model for the High-School Yeshiva,' in Bimshokh HaYovel, the jubilee volume of Midrashiyat Noam, published by the Friends of the Midrashiyah Association, Tel Aviv, 5756.

[10] See, for example, briefly, in Ruth Manor's article, 'What Is Paradoxical about Paradoxes?', which appears as the last item in the collection Israeli Philosophy (Asa Kasher and Moshe Halamish, editors), Papyrus, Tel Aviv 5743, and elsewhere.

[11] The formalists, or the analytic philosophers, among us will probably propose a formal definition for these concepts, for example: afternoon begins half a proportional hour after midday (or at the time of Minḥah). Or: a heap is a collection of 37 pebbles or more. These definitions stand up to the test of formal logic, but not to the test of everyday use. The question concerns everyday concepts and not an artificial definition of them.

Leibniz and Russell, each in his own time, dreamed and even tried to build a formal language free of these and similar problems. It would be interesting to read a poem written in such a language (they, of course, did not succeed in building it, and according to Gödel's theorem in mathematical logic it seems they could not have done so anyway).

In his famous book, Zen and the Art of Motorcycle Maintenance, the hero, Phaedrus, desperately seeks a definition of the concept of 'quality.' In the end he discovers that it was the ancient Greeks who misled us into thinking that every everyday concept must have a sharp formal definition, but that is not the case.

One of the differences between the wisdom of Torah and Greek wisdom is the belief in the existence of sharp definitions for every concept and formal proofs for every claim. See, for example, at the end of Nachmanides' well-known remarks in the portion of Acharei Mot about the Greek and his wicked disciples, who were so presumptuous as to think that there is nothing in the world except what they apprehended with their intellect. A certain implication of this difference will be seen below in the last chapter when we discuss the essence of halakhic expertise as distinct from scientific expertise. This topic is important and vast beyond measure, and elsewhere I have elaborated on it.

[12] An exception to this is mathematical expertise, and this is not the place to elaborate on it.

[13] Of course, the problem of scientific induction still exists here as well, a problem that David Hume also raised in all its sharpness: how can one infer a conclusion that constitutes a general theory from a finite collection of particular observations.

This problem accompanies every scientific field, and in this sense Jewish law is no better than any other scientific field. My intention here is only to argue that it is also no worse than any other scientific field. If science can be called ’empirical knowledge,' then so can Jewish law.

For a discussion of the comparison between Talmudic discussion and the method of modern scientific inquiry, see Menachem Fisch's book, Knowing Wisdom (Science, Rationality, and Torah Study), Van Leer Institute and Hakibbutz Hameuchad, 1994.

[14] A philosophical moral theory derived from a priori considerations without any empirical layer is Kant's theory of the categorical imperative. As is well known to anyone somewhat familiar with this field, Kant is unable to derive conclusions of concrete content from such considerations, whose concern is with form alone (formal considerations).

A fine presentation of this fundamental problem in the question of the very possibility of a philosophical moral theory is found in Gershon Weiler's article, 'The Methodological Perplexity in Moral Theory,' in the collection The Just and the Unjust, edited by Marcelo Dascal, University Publishing Enterprises, 1977.

[15] Their expertise does have some added value, if only because they have usually already invested greater intellectual effort in the fields of value discussion.

[16] We find tannaim and amoraim who were experts in various halakhic fields. Rav Nahman and Shmuel were experts in monetary law, Rav in matters of prohibition. Rabbi Akiva was sent to Nega'im and Ohalot, and so on many more times. Is there here a hint to the existence of different fields of halakhic expertise, or do these determinations concern only the informative plane, meaning that the different sages possessed broader information in the different fields of halakhic knowledge?

As we have seen, the information is what builds the ability to decide on the value plane (the empiricism of halakhic values). If so, there is here a hint that these are indeed different capacities, and the matter requires further examination.