Ontic and Epistemic Doubt IV: The Doubt of *Pesik Reisha* (Column 325)
In the previous columns I discussed the distinction between epistemic doubt and ontic doubt. After a conceptual and scientific introduction, I went on to illustrate this with respect to two halakhic issues (bererah and kiddushin that are not fit for intercourse), and in the last column I addressed the connection between them and its implications for “quantum collapse” in halakha. In this column I wanted to touch on the topic of doubtful pesik reisha, which greatly confuses people (I was asked about it here a few weeks ago, and now I can’t find it), and as we will see, it too connects to our discussion. In the next column I will show that it even adds another category to the overall picture in the topic of ontic vs. epistemic doubt.
First Introduction: “Not Intending” (eino mitkaven)
There is a Tannaitic dispute in the Talmud about a forbidden act performed for another purpose that is itself permitted. For example, a person drags a bench on Shabbat from place to place and, in doing so, makes a furrow in the ground. Making a furrow in the ground on Shabbat is prohibited (because of the melakhot of building or plowing), but dragging a bench is permitted. In such an act there are two distinct aspects, one permitted and one prohibited, and the person performing the act intends the permitted aspect. This exists not only in the laws of Shabbat. For example, one who sprinkles wine on the altar and that sprinkling extinguishes the fire (which is forbidden even on weekdays: “It shall burn on the altar; do not extinguish it.” See Zevachim 91b).[1]
Regarding liability for such an act, the Tannaim disagreed: Rabbi Shimon permits and Rabbi Yehuda forbids. These matters are cited there in Zevachim, and with respect to Shabbat, for example, in Beitzah 23b and parallels:
Whose opinion is this? — It is Rabbi Yehuda, who says: An act not intended (davar she-eino mitkaven) is prohibited. For if it were Rabbi Shimon — he says: An act not intended is permitted. (As it is taught) +Masoret HaShas: [as it was taught]+, Rabbi Shimon says: A person may drag a bed, a chair, and a bench, provided he does not intend to make a furrow. Say the end: Rabbi Yehuda says: Not everything may be dragged on Shabbat except for a wagon, because it compresses [the ground].
The baraita that appears in most of the sugyot brings only Rabbi Shimon’s view permitting it, but from the context it is clear that Rabbi Yehuda disagrees and holds it is prohibited. Note that in practice all the poskim rule like Rabbi Shimon: an act “not intended” is permitted.
It is important to understand that “not intending” in halakhic language is not what we colloquially call “lack of intention,” i.e., an action done unwittingly. In halakhic terminology, an unwitting action is called metasek. “Not intending,” by contrast, refers to a fully deliberate action, for the person knows and is aware that when he drags the bench a furrow may be created, and nonetheless he does not make the effort to avoid it. It is therefore clear that here we are speaking of an exemption due to absence of an offense, not an exemption due to lack of blame or duress. Intention is a condition for the act to constitute a transgression, not a condition for guilt and punishment. This means that an action done as “not intending” is not a transgression at all; therefore, even if the person could have foreseen that this result would occur — i.e., a case in which he would be blameworthy — there is still no transgression and it is permitted.
Second Introduction: Pesik Reisha
On top of the dispute about “not intending,” there is an important limitation. In Shabbat 75a we find a discussion about killing the ḥilazon on Shabbat:
Our Rabbis taught: One who traps a ḥilazon and crushes it — he is liable only for one [offense]; Rabbi Yehuda says: he is liable for two…
But let him also be liable for taking life! Rabbi Yoḥanan said: He crushed it dead. Rava said: Even if you say he crushed it alive, he is a metasek regarding taking life. But didn’t Abaye and Rava both say: Rabbi Shimon admits in the case of pesik reisha — “and it will not die”?! — This case is different, for the longer it remains alive the better it is for him, so that its dye will be preserved.
One who kills a ḥilazon violates several melakhot on Shabbat. In the course of the discussion, the question arises whether there is also the prohibition of taking life (killing). It is indeed a case where someone traps a ḥilazon without intending to take its life,[2] and in practice we rule that he is exempt (like Rabbi Shimon). Nevertheless, the Gemara says that Rabbi Shimon must admit in such a case that he does violate taking life because that result necessarily follows from his act. When one traps the ḥilazon it will necessarily die. The expression the Gemara uses here, “pesik reisha v’lo yamut,” means that when one cuts off the head of a rooster to use its head as a toy for children, its life will necessarily depart. It is a rhetorical question: if one severs its head, will it not die?! In our context, although the decapitation was not done with the intention to take life, the death is an inevitable result of the permitted action (severing the head); therefore, even according to Rabbi Shimon, there is no exemption of “not intending” in such a case. And so is the halakha.
Thus, even according to Rabbi Shimon, who holds that an act not intended is permitted, if the prohibited result is an inevitable consequence of the permitted act, it is nonetheless prohibited. Hence, in the case of dragging the bench described above, the Rishonim already wrote that this is a case where the ground is not too soft, so it is not clear in advance that dragging will produce a furrow, and therefore Rabbi Shimon permits. But if the ground were soft so that the furrow would inevitably result from dragging the bench, then even Rabbi Shimon would agree that the one who drags is liable.
I note that, simply put, liability in a case of pesik reisha is also not based on blame, for as we have seen the exemption of “not intending” is not an exemption due to lack of blame. A case of pesik reisha is treated as if there were intention. A clear indication is the halakha that if the person dragging the bench does intend to make the furrow (i.e., he uses the bench as a plow and his purpose is to plow the ground), then it makes no difference whether the act constitutes a pesik reisha (i.e., whether the furrow is an inevitable result of the dragging). When a person intends the prohibited act, he is liable even on hard ground (where it is not certain a furrow will form).
I will mention two explanations brought by the commentators as to why in pesik reisha Rabbi Shimon rules liable:
- Certainty turns the doer into one who intends, and like any intentional act he is liable. A person cannot claim he did not intend the prohibited result if he knew with certainty beforehand that it would occur. This is easier to explain if one adopts the view of the Arukh and those who follow him that pesik reisha makes one liable only if the person benefits from the prohibited result (i.e., although he did not perform the act for that result, he is pleased that it occurred). In such a case — where the result follows inevitably from his act and he is pleased with it — he cannot claim he did not intend it. I note that this is more compelling if we understand “not intending” as lack of knowledge and not lack of intention or will.
- Pesik reisha does not make him into one who intends, for even if the result is inevitable he can still claim that was not his goal in performing the act. Rather, the problem with lack of intention is that the prohibited result is not considered connected to him, since he did not aim for it when performing the act. But when the prohibited result necessarily follows from his act, it is considered halakhically connected to him even if he did not intend it. This is an alternative linkage (in place of intention) between the act and the actor.
Below we will see an interesting ramification of these two explanations.
The problem of doubtful pesik reisha
We have learned that the permission for one who does not intend a prohibited outcome rests on a state of doubt as to whether the prohibited furrow will be created or not. But when there is no doubt — i.e., when the furrow will necessarily be created — then even Rabbi Shimon forbids. When there is no doubt, the permission of “not intending” does not exist. This doubt is the subject of the present column.
What is the law in a case where we doubt whether this is a case of pesik reisha? For example, the bench is dragged over ground where we doubt whether a furrow will be created or not. Seemingly, this is exactly a case that is not pesik reisha, for the person does not know whether a furrow will be made. But as we will now see, at least in certain cases this determination is a matter of dispute among the poskim.
Doubtful pesik reisha: the view of the Taz
Shulchan Aruch, Orach Chaim 316:3, deals with the melakha of trapping (tzedah) on Shabbat. Among other things, it states there as follows:
Anything whose species is normally trapped — one is liable for it; if its species is not normally trapped — he is exempt but it is prohibited. Therefore, flies — even though their species is not normally trapped — it is prohibited to trap them.
Trapping is one of the prohibited melakhot on Shabbat. But trapping is Biblically prohibited only when a person traps an animal that people normally trap in order to use it. Trapping flies is not Biblically prohibited, for even if one traps them this is not done to use them (to have the fly in my possession) but to avoid disturbance. In halakhic terms a fly is a creature “whose species is not normally trapped.” The Sages, however, decreed a Rabbinic prohibition even on trapping creatures whose species is not normally trapped,[3] and therefore trapping flies is Rabbinically prohibited.
On this the Rema adds in his gloss there:
Gloss: Therefore one must be careful not to close a small box or seal utensils in which there are flies on Shabbat, for this would be a pesik reisha that they will be trapped there (Beit HaTerumot, Mordechai end of Perek “Kira,” and Agur). And there are those who are lenient in a case where, if one opens the vessel to take them, they will fly away.
The Rema rules that one must be careful not to close a small box that contains flies, for doing so transgresses the prohibition of trapping. What is the novelty of his statement? Seemingly he repeats the Shulchan Aruch. The Rema is speaking of an act done as “not intending.” When closing the box is not done for the sake of trapping but for another purpose, there would be room to exempt the one who closed it since the trapping was done “not intending.” To this the Rema writes that since closing it will inevitably trap the flies inside, it is prohibited even according to Rabbi Shimon. This is a prohibition of “not intending” with pesik reisha.
At the end of his words he brings an opinion that is lenient, because the flies inside the box are not considered trapped: according to this view, if the person opens the box to take the flies, they will fly away, and therefore they are not truly at his disposal for use. In such a case, closing the box is not considered an act of trapping. Trapping is supposed to place the trapped creature at the person’s disposal (as a result of the trapping it must be considered trapped).
The Tur, Orach Chaim 316, brings the words of the Baal HaTerumot, the source of the Shulchan Aruch’s ruling, and disagrees with him:
Anything whose species is normally trapped — one is liable; if its species is not normally trapped — he is exempt but it is prohibited. Therefore, flies — even though their species is not normally trapped — it is prohibited to trap them. Therefore, the Baal HaTerumot wrote that it is forbidden to lock on Shabbat a box that has flies in it; rather, one should place a knife or something between the lid and the box so that they can get out. And it seems to me there is no need to be so exacting, for flies are not considered trapped in a box, for if one were to open the box to take them, they would fly away. This is not like bees in a hive, regarding which it is taught that one may spread a mat over a hive provided he does not intend to trap, for the hive is small and the bees are trapped in it. Moreover, regarding the hive itself it is taught “provided he does not intend to trap,” which implies that if he does not intend it — it is permitted.
The Tur himself writes that there is no need to be exacting in this, and seemingly permits closing the box even if there are flies inside. This is the source for the second view cited by the Rema above.
Now, the Taz there brings this dispute, but he interprets the Tur differently:
“Therefore, flies…” — “Therefore one must be careful…” The Tur, in the name of Baal HaTerumot, wrote stringently here, and he wrote on him: “And it seems to me there is no need to be so exacting…”
And it seems to me the Tur’s words are correct, and first we should examine his wording: he wrote “it seems to me there is no need to be so exacting,” and he did not write “it seems to me it is permitted” — rather, he too holds it is prohibited when one certainly sees flies in the box; he is saying only that there is no need to be exacting afterwards to check if there are flies there.
He is precise that the Tur did not write that it is permitted to close the box, only that “there is no need to be so exacting.” According to the Taz, this does not mean there is no need to be exacting about the law, but that there is no need to be exacting and check if there are flies in the box before closing it. He may close the box even if he has a doubt that there are flies inside; there is no obligation to check. According to the Taz, even the Tur does not permit closing the box when the person knows there are flies inside.[4]
He explains the Tur’s view thus:
…And regarding the Tur’s second difficulty, it seems thus: first, that even if there certainly are flies, this is not called “trapped,” unlike bees; and further, even if you say that if it were certain it would be pesik reisha and prohibited, nevertheless in a doubt whether there are flies, one may permit, for this is not pesik reisha — it is a doubtful pesik reisha, and it is a case of not intending and is permitted.
He writes that if it is not clear there are flies in the box (for, according to him, the Tur is speaking of a doubtful case), then it is not pesik reisha. A case of pesik reisha in which Rabbi Shimon forbids is only when the prohibited melakha is an inevitable result of the person’s act and he knows with certainty this will occur. But here it is a case of doubt, and the person closing the box does not have prior certainty that the prohibited result (a fly being trapped in the box) will occur. If so, we return to the ordinary permission of “not intending” in a case that is not pesik reisha.
He now brings an example:
As with a hive where it is not pesik reisha — for example, when there is a small hole, as explained above — so too here it is not certainly pesik reisha, for it is possible there are no flies there; this is like a case where it is not pesik reisha, and it is permitted when not intending.
Earlier he explained that in a hive that has small holes so that the bees will not necessarily be trapped inside when one closes it, this is a case of “not intending” without pesik reisha, and therefore it is permitted to close such a hive on Shabbat. He compares the case of the box with flies to the case of a hive with holes. In both cases it is “not intending” and there is doubt as to whether trapping occurs. That is, it is not a case of pesik reisha, and therefore it is permitted.
He concludes:
Thus we have properly established the Tur’s words, for he did not come to argue with Baal HaTerumot in principle, but [to say] that it seems to him there is no need to be exacting afterwards, and one may close the box without checking whether there are flies. And so it seems to me in practical halakha: if he sees flies there, he should first shoo away whatever he can; but he need not search further.
That is, in practical halakha, before closing the box a person should shoo away what he can, but there is no need to check whether any flies remain.
In the Bi’ur Halakha there, s.v. “Therefore one must be careful,” he brings the Taz’s words as a novelty in the laws of pesik reisha, that even when the question is whether there is a prohibition here, the law follows the rule of whether the event will occur — i.e., even such a case is not considered pesik reisha. And indeed, at first glance it is not clear what the novelty of the Taz is, for in practice Rabbi Shimon rules that if the prohibited result does not inevitably follow from the act, there is the exemption of “not intending.” In a case of doubt whether there are flies in the box, there is no such certainty; therefore, clearly the exemption of “not intending” applies. To understand the novelty in his words, we will now see the words of R. Akiva Eiger, who disagrees with him.
Doubtful pesik reisha: the view of R. Akiva Eiger
The Rema, Yoreh De’ah 87:6, brings a ruling in the name of the Mordechai:
There are those who say it is forbidden to rake the coals under a non-Jew’s pot, because they sometimes cook milk and sometimes meat in them, and by raking under their pot one comes to cook meat with milk (Glosses of the Mordechai, Perek “HaTzalemim”).
It is forbidden to stoke fire under a non-Jew’s pot because there is a concern that the non-Jew cooked meat and milk in that pot and they were absorbed into the walls of the vessel. In such a case, stoking the fire under the pot will cook the meat and milk absorbed in the pot’s walls, which is forbidden (halakha forbids cooking meat with milk even if the dish is not ultimately eaten).
R. Akiva Eiger comments there on the Rema’s words as follows:
On §6, in the gloss, “there are those who say it is forbidden to rake the coals.” This is difficult: he does not intend to cook, only to rake the fire, and it is not pesik reisha, for perhaps the idolater did not cook both meat and milk in that pot.
R. Akiva Eiger asks why the Rema forbids, for we have a doubt whether the non-Jew cooked meat and milk in this vessel. If so, this is a case of doubtful pesik reisha and it should be permitted (as we saw in the Taz above).
R. Akiva Eiger explains as follows:
We must say that only in a doubt about the future — perhaps it will not happen through his act, like dragging a chair and a bench, which is a doubt whether in his dragging he will make a furrow — is it not pesik reisha. But in a doubt about the past, as here — for if the pot has absorbed meat and milk, then by this raking it will certainly be cooked, only the doubt is perhaps there is no absorption of meat and milk — this is called pesik reisha.
At first glance, R. Akiva Eiger deals with the time axis. He distinguishes between a doubt about the future and a doubt about the past. In dragging a bench, the doubt is whether a furrow will be made — a future doubt. As we saw, when the doubt is about the future, it is not a case of pesik reisha. But in the Rema’s case it is a doubt about the current state (whether meat and milk are absorbed in the vessel’s walls or not), and such a doubt does not remove us from a case of pesik reisha. Many Acharonim understand his view this way, but below we will see that this is likely not the case.
He now adds a note about his very distinction between future and past doubt:
However, according to the Taz (Orach Chaim 316:3), who wrote there that in his view the Tur permits locking a box when there is a doubt whether there are flies — for it is considered “not intending” even though it would be pesik reisha if certain; nonetheless, perhaps there are no flies and thus it is not pesik reisha. If so, in our case, it would be absolutely permitted, for he does not intend to cook the non-Jew’s vessel, and it is possible there is no absorption of meat and milk inside it — it is not pesik reisha.
He writes that according to the Taz, even such a case is not pesik reisha, for a box that we doubt contains flies is also a case of a past-state doubt, and according to the Taz even in such a case there is no pesik reisha. We see that the Taz does not accept the distinction between future and past doubts.
R. Akiva Eiger now adds:
I have written this so that the prohibition not be overly severe, for it is almost impossible for travelers to be careful. One can also argue that a typical earthenware vessel is not “day-old,” and thus there is no cooking of meat with milk at all…
He explains that in his opinion the Taz is not correct in principle, but he cites him to be lenient for travelers.
Thus, according to R. Akiva Eiger — contrary to the Taz — there is a difference between future doubt and past-state doubt. In the box where we doubt whether there are flies, it is a past-state doubt, and in his view that is indeed pesik reisha and should be forbidden. This is not like dragging a bench, where the doubt is whether a furrow will be created in the future, which is not pesik reisha.
To be sure, the prohibition of trapping the flies via pesik reisha exists only if there really are flies in the box — and we do not know that. Therefore, it is clear that even for R. Akiva Eiger, who forbids, it is at most a doubtful prohibition, not a certain one. This is precisely the case of doubtful pesik reisha, and we see that the Taz and R. Akiva Eiger dispute it. According to R. Akiva Eiger, a future doubt means it is not pesik reisha, but a past-state doubt remains prohibited as a doubtful pesik reisha. According to the Taz, there is no difference between the cases: as long as the person has doubt — whether due to the past or the future — it is not pesik reisha, and one may be lenient.
The question that arises is: why is there really a difference between the cases? In both, there is no certainty that a prohibition will be committed; therefore, it should not be pesik reisha. This brings us back to the distinction made in previous columns between epistemic doubt and ontic doubt.
Ontic doubt and epistemic doubt
Let us preface that pesik reisha is a case in which reality is such that the permitted act necessarily entails the prohibited result. If reality is indeterminate (such as dragging a bench over ground of medium hardness) so that it is not certain the prohibited result will occur, it is not pesik reisha. But if reality itself is perfectly determinate and only I lack information about it, that is not necessarily a case of “not pesik reisha.” In the case of the flies, if there are flies in the box, then closing it will inevitably constitute trapping. True, I do not know whether there are flies in the box — but that is only a lack of information on my part, not indeterminacy in reality itself. Such a case is a doubtful pesik reisha: if there are flies, it is pesik reisha; if there are no flies, there is no prohibition. Since I do not know which state obtains in the box, I am in doubt about the prohibition.
From another angle: in the case of the flies, reality is either “there are flies” or “there are not.” It is a 50% probability of one of the two, and the doubt is due to our ignorance. By contrast, ground of medium softness is an indeterminate reality. The factual state is “quantum”: a superposition between the possibility that a furrow will be created and the possibility that it will not. This is indeterminacy, not doubt.
It seems this is also how the Mishnah Berurah understood it there (316:17):
See the Taz, who concludes that once he has shooed away the flies he actually saw, he need not examine and be exacting that there may still be some flies there, for this is only a doubtful pesik reisha in a Rabbinic matter (a species not normally trapped), and one need not be so stringent.
It appears he rules that, in principle, such a case is a doubtful pesik reisha and is forbidden, but since this is a Rabbinic prohibition (because a fly’s species is not normally trapped), it is a Rabbinic doubt and therefore permitted. However, from here it seems he also interprets the Taz this way, even though that does not at all emerge from the Taz’s wording. In his view, the Taz too agrees with R. Akiva Eiger that a doubtful pesik reisha is not a case of ontic indeterminacy that negates pesik reisha; nonetheless, the Taz argues that we still have an ordinary doubt, and in a Rabbinic doubt we are lenient. According to this, in a case where the doubt would involve a Biblical-level trapping (e.g., a box where there is doubt whether there are dogs inside — a species normally trapped), even the Taz would agree one should be stringent because it is a doubtful pesik reisha. And likewise with cooking meat and milk, the case R. Akiva Eiger discussed (which is a Biblical prohibition) — there, even the Taz would prohibit.
As noted, a closer reading of the Taz makes it very hard to accept that this was his intent. It seems clear that in his opinion a doubtful pesik reisha is permitted as “not intending” even for a Biblical prohibition. Indeed, further consideration of the Bi’ur Halakha there suggests that his intent was probably not to interpret the Taz that way, but only to say that this is, in his opinion, the halakhic conclusion (since in a Rabbinic prohibition, either way there is no difference between the Taz and R. Akiva Eiger).[5]
According to this explanation, R. Akiva Eiger’s distinction is not between a future doubt and a past-state doubt, but between ontic doubt and epistemic doubt. Pesik reisha stands in opposition to ontic indeterminacy, but epistemic doubt does not prevent the application of pesik reisha. We can now also understand the novelty of the Taz. Above we asked what the novelty in his words is, for after all, in both cases there is uncertainty on the person’s part and therefore it is not a case of pesik reisha. We now understand that he too accepted that one can distinguish between these situations as R. Akiva Eiger did, and his intent was to innovate that this distinction is incorrect. In his opinion, as long as the person has doubt (even epistemic), it is not pesik reisha. According to him, pesik reisha is said also about the person’s knowledge and not only about reality itself. By contrast, R. Akiva Eiger holds that pesik reisha is a criterion that characterizes reality itself, not the person’s knowledge about it.
I note that the Bi’ur Halakha there elaborates on this dispute and the proofs for each side. This is not the place to discuss his words, but I have expanded on them in the fourth book of the Talmudic logic series, Logic of Time in the Talmud.
A note on the significance of these matters
We saw above that the laws of “not intending” and pesik reisha do not operate on the plane of blame, but on the plane of the very existence of a transgression. It is no wonder, then, that what matters here is specifically ontic indeterminacy, which likewise lies on the plane of the very existence of a transgression. Ontic indeterminacy concerns the question of whether a transgression occurred here (when it is pesik reisha) or not (when it is not pesik reisha), and therefore what matters for determining whether there is pesik reisha is the factual state, not the person’s cognitive state. The epistemic question — i.e., the person’s lack of knowledge whether there are flies in the box — lies more on the plane of blame (though not necessarily, of course). If in fact there are flies in the box, then there is a transgression even if he himself does not know (and then there is no blame). Therefore, this is a regular halakhic doubt, and the rules of doubt determine whether he is blameworthy (i.e., whether he should have been concerned and stringent) or not.
I assume some readers are wondering how ontic doubt is even possible — that is, in light of what I wrote in the first column and in this column, can there be a case of “not intending” that is not pesik reisha? More on that in the next column.
[1] The Acharonim discuss whether this is the same law. R. Chaim and other Acharonim following him argued that “not intending” in the laws of Shabbat means one who does not want the prohibited result to occur, whereas elsewhere in halakha it means he does not know about it.
[2] The wording in the Gemara is “metasek” and not “not intending,” but from the context it is clear that it speaks of “not intending.”
[3] In principle, trapping a fly to prevent disturbance is a melakha she-eina tzerikha le-gufa (a labor not needed for its own sake), which would seem to be Rabbinically prohibited anyway, but the Gemara in Shabbat 3a says (regarding trapping a snake) that such an act is entirely permitted (there is no Rabbinic prohibition). Seemingly, in our case it is trapping a fly to prevent disturbance (and they decreed a Rabbinic trapping prohibition on it), which would seem to contradict the Gemara there. Therefore, it seems better to say that here we are speaking of trapping the fly for its own sake, but because a fly is generally a creature “not normally trapped,” this is only a Rabbinic prohibition.
[4] Indeed, the wording of the Tur itself does not imply that this was his intent. He brings an argument relevant even to the case where there certainly are flies in the box. And so the Rema understood him. The Taz argues that the argument brought in the Tur is an additional layer on top of the consideration he himself explains.
[5] This, of course, raises the question of why R. Akiva Eiger in fact disputes the Taz and forbids, for at most this is a doubtful Rabbinic prohibition. It seems the reason is that where one can clarify the doubt, there is no permission to be lenient even in a Rabbinic prohibition. Here, one can open the box to see whether there are flies inside; therefore, in his opinion the Taz is not correct in saying there is no need to check. According to this, in Rabbinic prohibitions where clarification is impossible (or at least not easily possible), even R. Akiva Eiger would permit a doubtful pesik reisha.
Discussion
Seemingly, the explanation in an ordinary case (that is not a psik reisha) would depend on the two explanations of the reason for the exemption of davar she-eino mitkaven (“unintended action”), and consequently of the reason for liability in psik reisha:
If we say that an unintended act is exempt because one cannot impose liability as long as there is no intention, and consequently psik reisha is liable because it is considered as though he intended it — then seemingly this is true only in a case where the person himself knows that it will certainly happen; but so long as the person himself is uncertain what will happen, then it does not matter that reality itself is clear (and then there is no need to invoke ontic uncertainty, and it is also less relevant to distinguish between future and past — unless we define the past case as one where the person does count as knowing, and therefore intending, because he knows that if there are flies here they will certainly be trapped).
But if we say that an unintended act is exempt because the act is not attributed to the doer, and consequently psik reisha is liable because certain reality attributes the act to the person, then here it seemingly does not depend on the person’s knowledge but on reality itself — as long as from the standpoint of reality it will certainly happen, the act is attributed to the doer (and then we need to define this as ontic uncertainty, and the distinction between future and past is understandable — because in the past case there is no uncertainty in reality, only in the person’s knowledge).
Does the Rav agree?
It is quite clear from his wording that this is the distinction he intends. That is also how R. Shimon Shkop explained it. The difficulty of checking is not mentioned at all in his words, so in my opinion that is not an option. What is mentioned is a distinction between past and future, but in my opinion his intent is what I said (otherwise there is no logic to it). Beyond that, the reasoning that distinguishes between ontic and epistemic uncertainty seems simple to me, so why force his words in another direction?
As for the difficulty of checking, there is indeed an implication, and I will address it in the next post (I will bring R. Shlomo Zalman and argue that there is proof from there for what I am saying).
I will also address in the next post the question whether the formation of the groove is an ontic uncertainty.
Absolutely. I wrote something along those lines too.
Last night I went through the comments on your 6 Ynet articles about rational belief in God until 5:00 in the morning, mainly those of Asaf and Dan. In one of them there was a suggestion to meet with Asaf in Haifa — did anything come of it?
Do you mean epistemic uncertainty regarding the past (“did it come about?”), or ontic uncertainty regarding the future like a groove in the ground (since the recipients of the meeting proposal have free choice; it seems to me that even with the ground one would need to rely on the assumption that there is no determinism in order to present it as ontic uncertainty. And if his donkey performs a forbidden action on Shabbat and the person does not know whether labor will result from it, one could say that even according to R. Akiva Eger this is epistemic)?
And it seems that this uncertainty itself is ontic uncertainty, given the hermeneutics of texts, etc. etc.
No
Hello Rabbi.
I didn’t understand why the uncertainty about the flies is considered epistemic uncertainty, while the uncertainty about the bench is considered ontic uncertainty. After all, with the bench too, someone who knew how to calculate the formation of the groove in relation to the softness of the ground and the like would be able to know whether a groove would be formed. It is just harder to know, but seemingly this is uncertainty that I do not know how to assess, not ontic uncertainty, no?
See the next post
A — I do not know why this is called a case of uncertain psik reisha more than the standard case of psik reisha.
B — Why are you so sure that “eino mitkaven in halakhic language is not what in ordinary language we call lack of intention, namely an inadvertent act. In halakhic terminology, an inadvertent act is called mit’asek. Eino mitkaven, by contrast, refers to a fully intentional act, since the person knows and is aware that when he drags the bench a groove may be formed, and nevertheless he does not trouble himself to avoid it. Therefore it is clear that here we are dealing with an exemption due to the absence of a transgression, and not an exemption due to lack of culpability or coercion. Intention is a condition for the act to count as a transgression, not a condition for culpability and punishment. This means that an act done as eino mitkaven is not an act of transgression at all, and therefore even if the person could have anticipated that this result would occur, that is, a case where he bears fault for what happened, there is still no transgression here and it is permitted.”
Indeed, eino mitkaven is as you said, not an inadvertent act, but it is still a lack of intention, and in that respect it is not as you said. That is, when dragging the chair his intention is not to make the groove, but it is not inadvertent — it is done with awareness. Therefore it is certainly legitimate to understand this also as a condition of culpability, and to say that an unintended act is exempt because one cannot impose liability as long as there is no intention, and consequently psik reisha is liable because it is considered as if he intended it (because he should have taken it into account). And R. Akiva Eger holds that when the uncertainty concerns the past, there is no permission, and it is considered as if he intended it, like psik reisha.
You told me to raise the question on the relevant post, and here it is waiting for your answer.
A. Who is “this”? The post was written many years ago. When you ask something, you have to clarify what you mean or are referring to.
B. Simply because that is not the meaning of eino mitkaven. That is what is called mit’asek. You are proposing an alternative that is exactly what I wrote. I do not understand what you are claiming. You are only suggesting that even if one accepts this, one can still say that there is an argument here about lack of culpability. My answer: indeed one can say that, but in practice that is not the Talmud’s intent. Eino mitkaven is not an exemption based on lack of culpability but on the absence of a transgression. This is a simple fact for anyone familiar with the sugyot.
A — I asked a simple terminological question: why is the Taz’s innovation called uncertain psik reisha? It is simply psik reisha regarding the past; it is uncertainty exactly as psik reisha regarding the future is uncertainty.
B — Where is it proven from the Talmud that eino mitkaven is not an exemption due to lack of culpability but due to absence of a transgression?
A. I do not understand the question. Because there is uncertainty about psik reisha here. I explained there that the past is not essential here at all. If one imagines a case about the future in the same form, it would still be uncertain psik reisha. For example, if there is ground and I do not know whether it is рыхлого/loose-tilled or not, and now I drag a bench over it. This would not be eino mitkaven without psik reisha, but uncertain psik reisha, even though it concerns the future. The case of eino mitkaven without psik reisha is where there is no uncertainty about the nature of the ground, and the uncertainty is only whether on this given and known ground a groove will be formed or not (if, for the sake of argument, physics were not deterministic — that is, if the nature of the ground did not determine the formation of the groove).
B. In your opinion, is melakha she-eina tzerikha legufa also an exemption based on lack of culpability? Surely it is clear that this is the same family, to the point that many commentators discuss the difference between these two. On your view there is nothing to discuss, since melakha she-eina tzerikha legufa is not a transgression, while eino mitkaven is a transgression due to uncertainty. Beyond that, the very fact that in eino mitkaven one is exempt shows you that it is not because of the laws of uncertainty, because in Torah law uncertainty is treated stringently. There are countless further proofs: why is psik reisha delo nicha lei exempt? The culpability is the same. And those same commentators (Sha’ar ha-Melekh regarding trapping a deer, Merkhevet ha-Mishneh, Or Sameach, and others) who distinguished as I wrote to you a day or two ago regarding Giddulei Shmuel — that if the transgression and the act are not always adjacent, then even if now they occurred in such a way that the transgression emerges by psik reisha, you are exempt. The culpability is the same. Am I to go on like a peddler and list them all?! Go learn it in cheder; it is elementary.
A — Your distinction may be all well and good, but that’s just it: where do we find such terminology in the halakhic decisors, regarding the future, using the expression “uncertain psik reisha,” like your example? On the contrary, even regarding the example you gave — ground where I do not know whether it is loosened or not, and now I drag a bench over it — I would be happy if you could show me a decisor who indeed holds that in such a case this would be called uncertain psik reisha.
I also did not understand the end of your words in parentheses. Surely physics is deterministic; why did you bring an unrealistic example? If you had said, as in our next post, that it seems impossible to know, fine.
B — But according to the Taz, who clearly holds that even epistemic uncertainty counts as psik reisha, it seems more that he holds that eino mitkaven is a matter of culpability or lack of culpability.
C — The fact that many times they discuss regarding a particular act whether it falls under eino mitkaven or under melakha she-eina tzerikha legufa does not prove that they are from the same family of exemptions. Rather, it is because the way of looking at the consequences of his actions is not sufficiently clear: is this called that he did not intend the act, or that he did intend the act but did not need the act itself? And the main discussion there is from melakha she-eina tzerikha legufa versus psik reisha delo nicha lei, because if it is not pleasing to him but on the other hand it is psik reisha, that is very similar to melakha she-eina tzerikha legufa, where it is certain to occur.
Also your difficulty, against the view of the commentators who explain the exemption of eino mitkaven as lack of culpability — why is psik reisha delo nicha lei exempt? Surely the culpability is the same? The explanation according to this view is as follows: according to them, why is one liable in psik reisha at all? Rather, when it is psik reisha it is considered as if he intended it. Consequently, if it is not pleasing to him, they hold that in such a case we do not attribute it to him as if he intended it.
D — A general question: what is the permission for uncertain psik reisha? What about “turning one’s eyes away from the prohibition”?
I hope you answered me on the previous one.
A — But I would like to add proof for my view, that indeed it depends on past and future. Because according to you, even uncertainty about the future is called uncertain psik reisha if it can really be easily seen whether the ground is loosened. Then according to you, in the opposite case — meaning that even in uncertainty about the past it is a case of pseudo-ontic uncertainty — R. Akiva Eger should concede that here everyone would agree it is permitted under the law of eino mitkaven. Yet it seems from his words not so, because according to the plain meaning, stoking a fire under a gentile’s utensils that are doubtfully absorbed with meat and milk is pseudo-ontic uncertainty, where R. Akiva Eger should also be lenient — for it cannot easily be clarified; just go find the gentile, and then go rely on what he says. And from the fact that R. Akiva Eger compared this to the Taz’s psik reisha regarding the past, we may infer that indeed the distinction is between past and future and not between epistemic uncertainty and pseudo-ontic uncertainty; and consequently, according to this, R. Akiva Eger would also be lenient regarding ground that will turn out to be loosened.
E — You wrote, “From another angle, in the case of the flies the reality is either that there are flies or there are not. This is a 50% probability for each of the two situations,”
but the halakhic decisors bring proof that even a remote possibility counts against calling something psik reisha.
For example, I will copy from Minhat Shlomo, vol. 2, p. 27 n. 12:
“It appears from the parable in the Gemara, ‘Cut off its head and will it not die?’ that it will certainly die; and according to this, even if in the majority of cases labor will be done, this is not in the category of psik reisha, and whenever he does not intend the labor that is done, this is completely permitted. And so too in the novellae of Ritva, Ketubot 5: ‘Rather, this is what it means: since there are experts in tilting for whom there is no blood and no opening, and it is possible that such a case may occur, this is not psik reisha velo yamut; and anything where it is possible that no prohibition will be done, even on a remote possibility, is not considered psik reisha. And the expression psik reisha necessarily implies this.’ End quote. And so too he wrote further in Ritva on Yoma 34, s.v. Abbaye: ‘And whenever it is possible in any manner without labor, it is not considered psik reisha,’ as I explained in several places, end quote. And so too it is further explained in Ritva from manuscript, Shabbat 41, s.v. ‘Rather, Abbaye said,’ see there. And similarly one may infer from what Rashba writes in his novellae to Ketubot 5: …”
A — I brought my proofs. The decisors who speak in terms of the past are mistaken (or perhaps they themselves only speak that way because that is the common case). I gave the example of dragging a bench, which is an example about the future. In my classes on the subject, I recall that I also brought such cases, even from the Bi’ur Halakha, but I do not have time right now to search.
That physics is deterministic is clear to us. Not to them. They thought there were gaps in physics, and that is what I explained in those posts about pseudo-ontic uncertainty.
B — Not true. The Taz also agrees that we do not go stringently in a case of eino mitkaven.
C — Psik reisha is not “as if he intended”; according to your view it is actual intention. Everything was explained.
D — You are again returning to the same point. He is not turning his eyes away from the prohibition, because there is no prohibition. This is not a permission based on the laws of uncertainty.
That’s it.
You keep repeating yourself again and again. I have exhausted this, and I do not have time to continue. I will only note that I never claimed that it has to be 50-50 in order not to be psik reisha. That is obviously nonsense. This itself is my claim: that it is not a matter of the laws of uncertainty. Anywhere there is a possibility that it will not happen, it is not psik reisha. Therefore it is not connected to the laws of uncertainty. That’s it.
So please answer me only this:
Why did R. Akiva Eger raise the difficulty from the law of absorbed utensils? There too it is uncertainty even according to him, since it cannot easily be clarified — after all, go find the gentile, and then go rely on him — and according to them, in such a case of uncertainty R. Akiva Eger himself agrees. So how is there proof from there for the Taz’s words?
I will try not to be a bother, but please try again not to ignore me.
B — I mixed up a word: according to the Taz, even clear epistemic uncertainty is considered eino mitkaven and permitted. It seems more that he holds that eino mitkaven is a matter of culpability or lack of culpability.
C — Not true. He intended only to move the chair; only because it is psik reisha do we treat him as intentional.
D — Even according to the Taz, who permits locking the chest without checking whether there are flies inside and trapping them?
This is not at all connected to the question whether the clarification is easy or difficult. The question is what the average person thinks: does he see this as a given state of affairs, or as uncertainty whether the thing will happen? And here it is clear to the average person that the state of affairs is given, and therefore this is pseudo-ontic uncertainty. I only noted in the next post from R. Shlomo Zalman’s words that he speaks about ease of clarification, but those are neither R. Akiva Eger’s words nor mine. I explained this very well in the next post. Now I suddenly understand that probably all your difficulties stem from the fact that you did not read the next post.
But it is interesting
that specifically the Taz calls this “uncertain psik reisha,”
whereas R. Akiva Eger calls it “psik reisha regarding the past”; and according to you, for R. Akiva Eger the issue is not future or past.
I already explained: he is speaking in the ordinary, present way. The usual case is that this is in the past and that is in the future.
A — True, but it is just an interesting point, because the first innovator of this law, the Taz, did not even use that expression.
But in any case, why does the Taz — who holds that psik reisha regarding the past is permitted like any place where it is not psik reisha — call this uncertain psik reisha, more than the regular case of dragging a chair where maybe it will make a groove? According to him, in both cases it is permitted, because in both he says that it is not psik reisha.
B — Question:
You wrote this —
“From another angle, in the case of the flies the reality is either that there are flies or there are not. This is a 50% probability for each of the two situations.”
How does this fit with what is brought in the Rishonim, that the permission of eino mitkaven applies even when there is only a small and remote chance that there will be no prohibition (as I quoted above)?
Leave aside the 50%. Just a figure of speech.
So this whole sentence is no longer relevant:
“From another angle, in the case of the flies the reality is either that there are flies or there are not. This is a 50% probability for each of the two situations, and the uncertainty is due to our lack of knowledge. By contrast, ground of medium softness is an ambiguous reality.”
Can one say it like this?
“From another angle, in the case of the flies the reality is either that there are flies or there are not. There is even a 5% probability that there will be no prohibition, and the uncertainty is due to our lack of knowledge. By contrast, ground of medium softness is an ambiguous reality.”
Give an appropriate formulation.
A — Rabbi Michi, why are you not answering me? We are approaching the end (not like the end of the war….).
B — And you also quoted the Taz: “Even if you say that it is certainly a psik reisha and forbidden, nevertheless where there is uncertainty whether there are flies there one should permit it, for there it is not psik reisha, because this is uncertain psik reisha, and it is an unintentional matter and permitted.”
Why does the Taz call this uncertain psik reisha? According to his method there is no difference: this too is not psik reisha, and that’s all.
C — At the end of the article you wrote: “According to this explanation, R. Akiva Eger’s distinction is not between uncertainty regarding the future and uncertainty regarding the past, but between ontic uncertainty and epistemic uncertainty… Now we can also understand the Taz’s innovation… His intention is to innovate that this distinction is incorrect. In his opinion, as long as the person has uncertainty (even epistemic), this is a situation that is not psik reisha. According to him psik reisha is stated also regarding the person’s knowledge and not only regarding reality itself… We saw above that the laws of eino mitkaven and psik reisha do not operate on the plane of culpability but on the plane of the very existence of a transgression. It is therefore no wonder that what matters for this issue is specifically ontic ambiguity, which is also on the plane of the very existence of a transgression.”
So according to this, does the Taz hold that the laws of eino mitkaven do operate on the plane of culpability? If not, then what is the Taz’s explanation? You explained only R. Akiva Eger.
“As the Lord, the God of Israel, lives, answer me….”
Is there perhaps proof from Tosafot Sanhedrin 85a, s.v. “and Rabbi Shimon,” below, apparently like R. Akiva Eger and not like the Taz?
“And one can say that the reason we forbid here a thorn or splinter is because we are concerned that when he begins to remove it, perhaps it will turn over, so that it will be impossible unless it is a psik reisha velo yamut, and he will not leave off because of that. But any other matter that is unintended and not psik reisha is permitted.”
(I still hope you will answer my above questions.)
I already have no strength or time for this matter. We are repeating ourselves again and again. And here I did not understand what you saw in this Tosafot.
The Gemara in Sanhedrin at the end of 84b basically refutes the whole permission of eino mitkaven, because it says that if when done intentionally he would be liable to death by the court (what it calls an unwitting act of strangulation/stoning), there is no permission. Rather, there must also be some other allowance, such as destructive action or melakha she-eina tzerikha legufa.
But the Tosafot above asks at the end:
“And this is puzzling, for with regard to Samuel it is stated in chapter Kira that in a matter that is unintended he holds like R. Shimon, while regarding a labor not needed for its own sake he holds like R. Judah. Since he holds like R. Judah regarding a labor not needed for its own sake, how can he permit an unintended act, for there in that sugya (41b) he permits with regard to a kettle that one emptied, to put water into it to warm, even an amount sufficient for hardening, and that would be an unwitting capital transgression?”
Meaning, they overturn the whole course of the Gemara and return to the understanding that eino mitkaven is permitted even in an unwitting act involving a court-imposed death penalty, even without any additional factor.
So then why here did Rav not allow his son to remove his thorn?
Tosafot answers: “And one can say that the reason we forbid here a thorn or splinter is because we are concerned that when he begins to remove it, perhaps it will turn over, so that it will be impossible unless there is bloodletting, and he will not stop because of that; but any other matter that is unintended and not psik reisha is permitted.”
That is, there is here a concern for psik reisha — meaning that even when he sees that it is impossible to remove the thorn without drawing blood, he will continue, and then it is psik reisha — and seemingly according to the Taz this should not interest us.
Thank you very much!
I really didn’t understand why to bring in ontic uncertainty.
Seemingly, the simpler explanation (this is how I explained it when I taught the sugya), which is closer to R. Akiva Eger’s wording, is that there is a difference between uncertainty in a chaotic system, which may perhaps technically be calculable, but in practice at present we do not have the tools for that (and therefore it is called uncertainty about the future — after the fact we will understand why it happened, but right now we have no good ability to predict it), and uncertainty in a case where we do have the tools for a present determination.
The Taz is innovating that the difference between uncertainty in a chaotic system and uncertainty in a system where predictive ability exists is an illusion. I think the novelty in that statement is self-evident.
(Perhaps the Rav will say that I am making Farmer’s mistake. It seems to me that if there is a mistake here, R. Akiva Eger already made it, so I am in good company).
Maybe the problem is that I don’t understand enough physics. Is the question of the groove being made by the bench an ontic uncertainty, and not an epistemic one?
And perhaps I just need more patience and should wait for the next post….