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

With God’s help

Some time ago I had a discussion with a colleague in the study hall regarding the question of the status of the rule “The burden of proof rests on the one seeking to extract property from another” ("the claimant who seeks to extract property from another bears the burden of proof"). As is well known, the later authorities discussed whether the money actually belongs to the possessor and he may use it as he wishes, or whether he is merely permitted to keep it and there is no prohibition of theft involved, but only because of doubt rather than certainty. From there we also moved on to discuss the well-known inquiry whether a rabbinic acquisition is effective at the Torah level or not. During the discussion, thoughts occurred to me about the way Jewish law is ruled in disputes, and afterward about the tension between Jewish law and reality.

I should preface this by saying that I have more than once been asked about my method of study and requested to write about it. It is hard to define a method, and perhaps I ought to leave that to scholars who observe my work from the outside and can characterize it and draw comparisons. But one cannot exempt oneself entirely, so I will nonetheless try here to propose what I take to be the essential feature (which includes several components): the systematicity itself. This includes identifying meta-halakhic principles and a priori conceptual analysis. Here I will try to demonstrate this through topics that have been discussed ad nauseam by the classic commentators and also by our contemporaries, and precisely for that reason it will be easier to show what is still missing from those discussions.

Background: possessory status

When there is a monetary dispute that comes before a religious court, there are rules of procedure and rules of evidence. In the Mishnah, and at the beginning of the first chapter of Bava Metzia and the third chapter of Bava Batra, several rules are given for deciding monetary doubts (the discretionary award of the judges, Let it remain unresolved, whoever is stronger prevails, they divide it, and the like), and the medieval authorities try to create order among these rules, that is, to determine when each of them is used. But when there is a current possessor, the primary rule is that the burden of proof lies on the claimant, and in the absence of evidence the money is left with the person who holds it. In the language of the Talmud (actually it already appears in the Mishnah, Bava Batra 153a): "The burden of proof rests on the one seeking to extract property from another" (= the burden of proof rests on the claimant). The later authorities formulate this as "monetary doubt is treated leniently," meaning that although in general, with Torah-level doubt, we are stringent, in monetary doubt we are lenient toward the defendant (and stringent toward the claimant).

What is the source of this rule? Why use it? At first glance, some wanted to base it on a presumption that the medieval authorities formulate as follows: "There is a presumption that whatever is in a person’s possession belongs to him" ("there is a presumption that what is under a person’s control is his"). Ostensibly there is a statistical majority among objects found under their owners’ control, and this is the basis for the priority given to the possessor (see, for example, here, and at much greater length here, where such an explanation is offered). But it is not plausible that this explains the law of possession, for several reasons. First, this is really only evidence in favor of the possessor, and it is no different from any other evidence. Why should we treat it as something more fundamental and establish possessory status on that basis?! Beyond that, I have explained in the past (see column 256 and the references there) that this majority does not really exist statistically. True, if we make a statistical survey of all objects in the world, we will find that they are located with their owners, but that is true of objects in general. What interests us are objects that are the subject of legal dispute, and in that subgroup there is no reason at all to assume that the possessor is more likely to be right and that the claimant is the liar. It is therefore more reasonable that this presumption is a result of the burden-of-proof rule, not the explanation of it.

One can also see that the burden-of-proof rule is used even in cases where it is clear that there is no evidence at all in favor of the possessor. For example, the case of one who exchanges a cow for a donkey and the cow gives birth (Bava Kamma 46b, 100a). There the doubt is whether the birth took place before the purchase of the cow or afterward, and the question is to whom the calf belongs (the seller or the buyer). It is clear that if the calf is in the buyer’s possession, or if the seller is the prior owner, that proves nothing at the factual level, and yet Jewish law rules like the Sages (against Sumchus) that the burden of proof rests on the claimant. The same is true regarding a doubtful firstborn (Bava Metzia 6a), and more.

Thus, for example, Maimonides formulates it (Laws of Plaintiff and Defendant 8:1):

All movable property is presumed to belong to the one in whose possession it is found, even if the claimant brings witnesses that these movable items are known to him. How so? If he says, “This garment or this vessel that is in your possession or in your house is mine,” or “I deposited it with you,” or “I lent it to you,” and the witnesses testify that they knew it previously to be in my possession, and the defendant says, “No, rather, you sold it to me or gave it to me as a gift,” then the defendant takes a rabbinic oath of inducement and is exempt.

The wording here clearly implies that this is not a statistical consideration but rather a presumption that serves as a halakhic starting point. In other words, it is a result of the burden-of-proof rule, not an explanation of it. So what is the explanation?

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

Rabbi Shmuel bar Naḥmani said: From where do we know that the burden of proof rests on the one seeking to extract property from another? As it is stated: “Whoever has a cause shall come near to them”—he must bring proof to them. Rav Ashi objected: Why do I need a verse for this? It is logical: one who suffers pain goes to the physician..

At first a source from a verse is brought, but afterward it is rejected, since this rule can be learned from reason alone (the verse is later applied there to something else). The reasoning says that if someone is in pain, he goes to the doctor. Simply put, the meaning of this rule is that in order for a court to act, it needs a reason. In the absence of a reason, it does not act. Therefore, if no reason is brought in any direction, the money remains with its possessor, since that is the meaning of the court’s passivity (its not acting). To cause the court to do something, that is, to change the situation and extract the money from the possessor, the claimant must bring evidence for his claim.

There is another way to explain this rule: if we do not give priority to the possessor, any liar will be able to accost any person on the street and claim an object or a sum of money from him on false pretenses. Admittedly, people enjoy a presumption of propriety (“There is a presumption that a person does not make a claim unless he has a basis against the other”, Shevuot 40b), but it is enough that there be a few liars in society for all of us to be in danger. Needless to say, the situation here is not symmetrical. One who is holding the money cannot do so by some simple decision of his own, since in the end the money is already with him. On our understanding, the presumption that a person does not sue for nothing could itself be a result of the possessor’s priority. Without the law of possession, it is not clear that there would be such a presumption.

The objection of Mahari Basan

Rabbi Shimon Shkop, in his Sha’arei Yosher at the beginning of Gate V, brings the well-known question of Mahari Basan (see my articles here and here and here):

We hold that in cases of monetary doubt we are lenient (Hullin 134a), and it is fitting to explain why the prohibition of theft is treated more lightly than other prohibitions, for we hold that every Torah prohibition is ruled stringently in cases of doubt. Many great later authorities have already addressed this, and the first to raise the issue was Rabbi Yechiel Bassan, of blessed memory..

On its face this is a strange question. He expects the possessor to hand the money over to the claimant so as not to violate a possible prohibition of theft. But in such a case the doubt exists only for the court. The litigants know the truth, so why should they be stringent with themselves if they know that reality is on their side?

Mahari Basan himself proposed an answer, quoted there in Sha’arei Yosher:

And he of blessed memory answered this by saying that in any event there would still be a doubt of theft here, for if we are stringent toward the defendant, then there would be a doubt of theft in the claimant’s possession. All the later authorities challenged this answer, for in a case of certainty versus uncertainty there is no concern of prohibition for the claimant, since even in doubtful prohibitions certainty is effective. Moreover, according to what we hold in accordance with Shmuel, that we do not follow the majority to remove property from the possession of the one holding it (Bava Kamma 27b), on the claimant’s side there is a majority that would be effective with respect to prohibition. And one may also wonder at his basic point: so what if, in any case, each party must be concerned for himself? The religious court still ought not to leave the matter as it is until both litigants are satisfied.

Within his words one can also see an answer to the difficulty I raised above. In an ordinary case there really is no need to be stringent, but there is a case of certainty versus uncertainty, that is, where the claimant asserts with certainty (he claims to know the truth) and the defendant answers uncertainly (he is not sure what the truth is). In such a situation the Amoraim disagreed, but Jewish law was ruled that certainty is not preferable, meaning that here too the burden-of-proof rule is applied. But in such a situation there is indeed room to require the defendant to hand the money over to the claimant, since he himself is in doubt (and not only the court), whereas the claimant is not in doubt and can hold the money. In other words, Mahari Basan’s question is relevant only to a certain claim against a possessor who defends himself with uncertainty.

‘The laws of justice’

Rabbi Shimon brings there the answers of several later authorities and rejects them. Later in that same chapter (section 3 and onward) he introduces his famous innovation:

3. But he wrote well on this in Kuntres Ha-Sefekot, principle 1, section 6, though he did not explain the whole matter properly. These are his words there: “And it appears to me that the resolution of this matter is as follows: the Torah forbade theft only of that which belongs to another as a matter of law; but that which belongs to him as a matter of law, the Torah did not forbid to him. Therefore, in a monetary doubt where the rule is that the burden of proof rests on the one seeking to extract property from another, there is also no element of prohibition when he does not return it.” And the Urim Ve-Tummim also wrote something similar, that the Torah forbade only definite theft, and it is like a definite tenth and not a doubtful tenth, end quote.

The Torah prohibits only what does not legally belong to a person. But if the money is legally his, the Torah does not prohibit it, and therefore after the court rules that the possessor has won the money, there is no doubt of prohibition here and he need not be stringent.

Later there he clarifies this further:

4. And the explanation of this matter, in my humble opinion, is based on a general premise: that all the laws of civil judgment, monetary law between one person and another, are not like all the other commandments of the Torah. For with all the commandments, what is primary is that the Torah has commanded us through positive and negative commandments, and our obligation is to fulfill God’s command. But in monetary law this is not so, for before God’s command upon us to pay or to return takes effect, there must first be a prior legal obligation upon us. For even if the robber is a minor, who is not subject to the commandments, nevertheless the religious court is obligated to rescue the oppressed from the hand of his oppressor and to compel the minor to return the stolen object to its owner. And there is another fundamental principle here: when we judge concerning some right and ownership of a person in some object or monetary lien, we are not at all judging a matter of observance of some commandment; rather, it is a question of the factual legal reality—who owns the item, and who, according to the law of jurisprudence, is entitled to hold the object. Accordingly, what the Sages stated as the rules of Jewish law in cases of monetary doubt—they certainly found this to be so on the basis of rational determination, that according to the law of jurisprudence this is the correct ruling: for example, in the case of one who exchanged a cow for a donkey and the cow gave birth, and there is doubt when the offspring was born—if the offspring was found at the time the doubt arose in the possession of one of them, then it remains in his possession; and if it is standing in the marshland, we follow the prior possessor. Now the prohibition of theft is that a person may not steal from another something that, according to the law of jurisprudence, belongs to the other. Likewise, one may not withhold a laborer’s wages that, according to the law of the Torah, he is obligated to pay. So how can one say that a person who retains money in his possession according to Torah law should be concerned about the prohibition of theft? If the money is his according to Torah law, what prohibition of theft could there be? For the prohibition of “you shall not steal” is a general prohibition that forbids stealing from another what is his, whether by inheritance, or by acquisition through purchase, gift, or ownerless property, or whether he acquired it by virtue of the rulings of the Sages.

The prohibition of theft differs from all other Torah prohibitions, because it rests on a meta-halakhic infrastructure (which he calls ‘dinei ha-mishpatim’ or ‘torat ha-mishpatim’) that determines the laws of ownership. Only after we have legally determined the laws of ownership does the prohibition “You shall not steal” come and say that it is forbidden to take money that belongs to someone else.

This resolves Mahari Basan’s question, since after the court has determined that the possessor may keep the money, he no longer has to fear the prohibition of theft. If we have legally determined that it is his (even if Heaven knows that we erred), no prohibition of theft exists here, and he may keep the money.

There are situations of doubtful theft, and there we will indeed be stringent, as he explains there in section 5:

5. Accordingly, it seems clear to me that doubtful theft is prohibited by Torah law just like any other doubt involving a Torah prohibition. However, doubtful theft is something far removed from practical reality, because in every monetary doubt the Sages instructed us what the law is according to the principles of jurisprudence. And once there is some legal ruling in the matter, there is no longer any doubt concerning the prohibition of theft; rather, it is either certainly theft or certainly permitted. For if the claimant seizes the property in a case where the law has ruled that seizure is ineffective, it is certainly theft; and in a case where seizure is effective, it is certainly permitted. Doubtful theft exists only where there is no monetary-law framework at all in the case, such as stealing from a person who is of doubtful status—possibly a gentile, possibly a Jew—according to the view that theft from a gentile is permitted. In such a case it would be a doubtful prohibition like any other Torah prohibition, for in such a case it has nothing at all to do with monetary law, since even according to the view that theft from a gentile is permitted, one still has no right or authority to rob the gentile. As the Magen Avraham wrote in the laws of the lulav (siman 637, se’if katan 3) in the name of Sefer Yere’im (siman 422), that even according to the view that theft from a gentile is permitted, it is not considered “yours.” Further such cases will, with God’s help, be explained below. In all such cases it is prohibited because of doubt. Accordingly, what is written in the book Kuntres Ha-Sefekot—that what the Tummim wrote, namely that the Torah permitted doubtful theft, is along the lines of what he himself wrote—is puzzling, for the two things are far apart and have no relation to one another, as is clear to anyone who studies the matter.

There is one more necessary clarification. Many understood Rabbi Shimon Shkop to mean that society determines the laws of ownership and property, but that before the Torah prohibition of “You shall not steal” there is no prohibition at all against violating another person’s ownership of his property. The prohibition as such would then be created entirely by the halakhic command. What existed beforehand would be only a map and a technical determination of ownership, without halakhic or legal significance.

But that is a mistake, both in itself and in the understanding of Rabbi Shimon Shkop’s words. What Rabbi Shimon means is that even before the halakhic command there is a prohibition against theft, only it is a legal prohibition. Jewish law added “You shall not steal”, which says that there is also a halakhic-religious prohibition here. In other words, ‘dinei ha-mishpatim’ do not merely determine the distribution of ownership and acquisitions; they also include a (legal) prohibition against stealing and damaging another person’s property. There are several proofs of this from Rabbi Shimon’s own words. First, in the last passage I cited he speaks about a prohibition against stealing from a gentile even according to the view that theft from a gentile is halakhically permitted at the Torah level. Second, in the next chapter there (chapter 2) he discusses the nature of the lien on assets and the obligation to repay loans, and writes:

19. And in my humble opinion, the bodily obligation in all monetary liabilities is a legal rule that a person stands obligated to provide such-and-such from his assets to another. This obligation is a legal obligation even without the Torah’s command, just as the modes of acquisition and the laws of ownership over property are legal matters even without the warning of “you shall not steal.” As we explained above, it cannot possibly be said that the reason we attribute an object to Reuven is because Shimon is warned by the Torah not to steal it from him; rather, the matter is the reverse: the prohibition of theft comes only after the matter has been determined by the laws defining the boundaries of ownership. So too it appears that the commandment to repay a creditor also comes only after the matter of the debt has been established by legal judgment. If a payment obligation devolves upon Reuven under the laws of jurisprudence, then the Torah adds a warning and commandment to ensure that he pays the obligation for which he is liable under the legal system.

Up to this point he applies the idea of ‘dinei ha-mishpatim’ also to liens and loans. But now he asks:

And although at first glance this is puzzling—what compulsion or obligation could there be upon a person to do something without the Torah’s command and warning?

If his intention had been that ‘dinei ha-mishpatim’ only determine ownership but do not prohibit violating it (through theft or damage), there would be no room for this question. It is clear that he understands that ‘dinei ha-mishpatim’ also forbid me to steal, and about that he asks why I should obey such a prohibition if the Torah did not write it.

And he answers this as follows:

But when we examine the matter carefully, this must be understood. For the obligation and necessity of serving God and fulfilling His blessed will is also a matter of obligation and necessity according to the judgment of reason and understanding; similarly, a monetary obligation and lien are legal obligations, incurred through the modes of acquisition, or imposed by the Torah, as in cases of damages, redemption of the firstborn, and the like. And for this, it is necessary that one acquire and obtain this right.

A fascinating answer: the obligation to obey what the Torah commands is itself grounded in reason, and therefore it is clear that the obligation to obey what reason dictates is no less than the obligation to obey the Torah’s commands. This question is based on a conceptual mistake.

Summary and the question of the status of possessory status

For our purposes, what emerges from the picture so far is that the priority given to the possessor is part of ‘dinei ha-mishpatim’, that is, it has no source in the Torah text but arises from reason. We explained the reasoning above: for a court to act, it must be given reasons. In the absence of reasons, it leaves the money with the possessor and does not intervene. We also saw an additional explanation of the law of possession, namely that it was instituted out of concern that liars might randomly sue innocent people.

From here, of course, arises the well-known inquiry of the later authorities regarding the status of the money that remains in the possessor’s hands in the absence of evidence. As I described, the status of the money is in fact uncertain. Probabilistically there is no real preference for the possessor, even though there are good reasons nonetheless to give him legal priority. Once Jewish law has established the law of possession, the question remains whether the money fully belongs to the possessor, or whether the law of possession merely allows him to keep it because of doubt (that is, there is no obligation on him to hand it over because of a possible prohibition of theft).

Here too there is room to distinguish between the case of an ordinary possessor who knows the truth. In such a case there is no logic in forbidding him to use the money, since he is not in doubt. But in the case of a possessor who responds uncertainly against a claimant who claims with certainty (as we saw above), the possessor himself is also in doubt. In such a case it is not clear whether the money remains with him while the situation is still doubtful, or whether it is completely his.

From Rabbi Shimon Shkop’s words above it simply emerges that the money is his. There is no doubt of the prohibition of theft because ‘dinei ha-mishpatim’ determine that he may hold the money. But on its face there would seem to be room for the claim that this remains a doubtful state. Several later authorities dealt with this question (see also in the responsa here on the site).

The words of the later authorities

The discussion begins with the words of the author of Kuntres Ha-Sefekot, principle 1, section 8:

And I have considered investigating whether, in every monetary doubt where we rule leniently for the defendant and place the burden of proof on the one seeking to extract property from another, if the defendant betrothed a woman with that disputed property, or if the claimant seized it and betrothed her with it, what is the law governing such betrothals?

The practical implication concerns someone who betroths a woman with this money: is she betrothed to him or not? But even the way he frames the problem is puzzling. Why resort specifically to betrothal? The question is whether he may use the money at all. What about buying some object with this money? Admittedly, in an ordinary money transaction the money usually serves as consideration, whereas in betrothal it is acquisition-money according to all views. In other words, in an ordinary acquisition, even if the money is not his, the transaction takes effect, and at most he owes further payment. In betrothal the very legal effect does not take place. Of course, even in acquisition by money there is a possibility that the money serves as acquisition-money and not merely as consideration.

Beyond that, if we assume that the money is not available for his use, what is the meaning of the possessor’s priority? The burden-of-proof rule would permit him to leave the money with himself without touching it, so what have we gained? This would be only a permission not to hand the money over to the claimant, but the possessor himself would also have no right to use it. One can see that, de facto, this is really just a state of doubt. The burden-of-proof rule would not depart from the rules of Torah-level doubt that require stringency; rather, the stringency would apply to both sides. All the discussions of the later authorities cited above would of course collapse. Interestingly, Rabbi Shimon Shkop’s own explanation of Mahari Basan’s question is brought as an interpretation of the answer of the author of Kuntres Ha-Sefekot. If that were indeed the intention of Kuntres Ha-Sefekot, then it does not seem that there would be any room for his discussion of whether this is doubt or certainty.

From the plain meaning of the words of Kuntres Ha-Sefekot, it appears that he means that one may make any proprietary or monetary use of the money, that is, buy things with it. Only in the case of betrothal does a doubt arise whether these are definite betrothals or only doubtful ones. But it is not clear what the distinction is. If we are building on the authority of the Sages (“Property declared ownerless by the religious court is ownerless”), that should help for betrothal as well. On the face of it, he holds that when I buy an object with this money, the Sages also expropriate that object, and practically it becomes mine for all purposes. By contrast, in the case of betrothal they cannot (at least not in a straightforward way; there is “Anyone who betroths does so subject to the authority of the Rabbis”) transform a void act into valid betrothal. In the end, this still requires further analysis.

Immediately afterward, Kuntres Ha-Sefekot there presents his view on the matter:

And I have not found this law stated explicitly, but my inclination is that according to those who maintain that seizure is ineffective in a case of doubt, the betrothal performed by the owner is definitely valid, since the Torah did not obligate him to return it and it is entirely his. The other party, who seized it, has effected no betrothal at all, and there is no concern whatsoever for his betrothal. For although the doubt remains unresolved, and perhaps it is his—what of it? Since we would remove it from him, it turns out that he gave her nothing. But according to those who maintain that seizure is effective in a case of doubt, or in cases where it is effective, as will be explained below with God’s help, the betrothals of both are betrothals of doubtful validity.

He makes this depend on the dispute among the halakhic decisors whether seizure is effective in money cases where there is no proof. According to the side that seizure is effective, the betrothals of both are doubtful betrothals (see also Kovetz He’arot, sec. 71, subsec. 2).

But the very position that seizure is effective in a case where judgment was rendered in favor of the possessor (without additional conditions) suffers from the same difficulties. According to it, what is the meaning of the burden-of-proof rule at all, if anyone can seize this money even after the court’s ruling? In other words, what is the difference between ruling by the burden-of-proof rule and the ruling “Whoever is stronger prevails”? This itself seems patently unreasonable.

Later he brings proof from the Rosh and the Tur, who discuss money whose owner has despaired of recovering it (whether despair effects acquisition rabbinically or not), but there the discussion concerns situations of halakhic doubt regarding the money (whether despair effects acquisition or not), and in that context it is indeed possible to say that the money remains in doubt (because possessory status does not resolve the halakhic doubt). Moreover, that is a rabbinic doubt, regarding which we are lenient even under the ordinary rules of doubt, without possession. But it seems obvious that when there is a factual doubt whether there was a loan or not, then once judgment is rendered in favor of the possessor, the money is entirely his, because legally possessory status determines that this money is his (according to Jewish law it effectively resolves the factual doubt)[1]. In another formulation, one can say that possessory status does not help where there is a monetary basis for the claim, that is, where there is an objective doubt for the court even without the parties’ claims. But when the doubt exists only by force of the parties’ claims, it is clear that the money is left with the possessor and there is no reason to question his ownership.

The form of decision in such a question: the nature of first-order ruling

The view that even after the burden-of-proof ruling the money remains in doubt is very puzzling. And indeed, in Kuntresei Shiurim (by Rabbi Gustman), Bava Metzia 1:5, he wrote as a simple matter that possessory status eliminates the doubt. As we have seen, that is the meaning of the burden-of-proof ruling, and that is the difference between it and whoever is stronger prevails. According to this, it is obvious that seizure is also ineffective in such a case (not like the view cited in Kuntres Ha-Sefekot above).

Can one decide such a question merely by force of such considerations? Definitely yes. That is the very nature of first-order ruling (see column 332, in my article here, and many other places). A halakhic decisor is not bound by the words of medieval and later authorities, because they have no formal authority (on the two types of authority, see column 393 and many other places). True, the later authorities elaborated at length on this inquiry, but there is a simple line of reasoning that possessory status is a resolution, and it is very hard to understand the passages otherwise. Usually, even a first-order decisor should study the words of the commentators in order to see their proofs and arguments. It is possible that there are things I missed and that I can learn from them (they do have substantive authority, even if not formal. They are great Torah scholars, and therefore it is proper to study their words attentively). Only after studying the various approaches can and should one formulate one’s own position and decide for oneself (rather than simply relying on them).

But in cases such as the one discussed here, in my understanding one does not really need even to enter into the proofs that the commentators bring. There is a meta-halakhic reasoning here that decides the issue even before we have seen the proofs in the different directions. Moreover, if there is a well-established opposing view among the great decisors (and here it is the overwhelming majority view), then clearly they have some resolution or other for those proofs (it is unlikely that they erred on an explicit Mishnah). The discussion will focus on the plausibility of the interpretation of each Talmudic passage. But as to plausibility, there is the meta-halakhic consideration, and therefore even without entering the proofs as such, my reasoning is enough to decide. True, as to the meta-halakhic reasoning itself, one might think it proper to study the words of the commentators, since it may turn out that I have erred in this very reasoning. But one should know that the commentators almost never enter the fundamental meta-halakhic plane, namely the very logic of such a normative duplication (is it possible that a legal ruling does not erase reality?). They discuss the question through this proof or that, but apparently I will not find in them a discussion of the underlying reasoning itself (this is related to the vagueness and lack of system in the halakhic and Torah world. See briefly in the responsa here). Therefore, in my opinion, in topics like these a first-order decisor can decide even without entering the proofs and arguments of the commentators and decisors.

I will now try to fill in a little of what is missing in systematic thought and enter the meta-halakhic discussion itself. Note that these are the kinds of questions that you usually will not find discussed by the medieval and later authorities. But this is an important foundation of first-order ruling: recourse to conceptual definitions and broad meta-halakhic principles is a very important part of it. In many cases, a priori conceptual and principled analysis saves a great deal of blood, sweat, and tears, and entanglement in the proofs and arguments of precedents which, in light of the a priori analysis, turn out to be irrelevant or not decisive. The very distinction between formal and substantive authority, and between discussion of arguments and sources on the one hand and a priori analysis on the other, is itself part of systematic thought and a priori analysis. And now I will turn to the discussion itself.

On normative duplication

This decision is in fact based on the idea that it is impossible for a court to rule that the money remains in the hands of a certain person and at the same time for there still to be a doubt here. If the court withdraws from ruling, that is one thing (some interpreted the rule whoever is stronger prevails that way). But after a court ruling, all the doubts that existed beforehand no longer have any standing. What the court determined is the status of the money. This reasoning assumes that it is impossible to establish normative duplication, that is, that even where there is a halakhic ruling, the doubt on the factual plane still remains as it was, meaning that we must behave as though there is still a doubt. The ruling did not change the legal reality.

This raises the question of normative duplication: is it possible for Jewish law to determine one thing, while the actual state of affairs still retains halakhic standing? A clearer case of this strange phenomenon can be found in the later authorities’ inquiry whether a rabbinic acquisition is effective at the Torah level.[2] The later authorities discuss whether an act that acquires only rabbinically, such as the three-party transfer procedure (assignment of a debt claim in the presence of all three parties), the four-cubits acquisition, or pulling according to Rabbi Yoḥanan, which make the money the buyer’s rabbinically, also make it his at the Torah level. Or perhaps it is indeed his rabbinically, but not at the Torah level (where it remains the seller’s money). The medieval authorities discuss this, and some supported the possibility of normative duplication, meaning that on the Torah plane there would be one ownership and on the rabbinic plane another.

We find many such duplications in Jewish law in matters of prohibition and permission. Many things are permitted at the Torah level and prohibited rabbinically (indeed every rabbinic prohibition is like that). But in monetary law there are two sides to the game, and therefore it is hard to accept such a duplication. I can say that at the Torah level it is permitted to eat poultry with milk but that the Sages prohibited it, or that a certain separation of terumah is valid at the Torah level but not rabbinically, or the reverse, since this only obligates me to be stringent and separate again, or not to eat that terumah, and so on. But in monetary matters it seems intolerable to determine that some money belongs to Reuven rabbinically and to Shimon at the Torah level. Exactly as one cannot accept that some money belongs to Reuven but in reality remains doubtful. Ownership ought to be determined unambiguously, and one cannot accept normative duplication with respect to it.[3]

I would note that, as we saw in Kuntres Ha-Sefekot regarding possessory status, so too in the question whether a rabbinic acquisition is effective at the Torah level, the halakhic implication that is raised concerns betrothal: whether if someone betrothed a woman with such money, she would be betrothed at the Torah level or not. Here too the question arises why they did not mention the obvious implication regarding the use of the money itself. It seems obvious to everyone that use of the money is certainly possible in practice, and the Torah-level plane does not prevent it, but with regard to betrothal there may be a problem. Something similar may be seen with regard to divorce. There are bills of divorce that are invalid rabbinically, or conversely that rabbinically we must be concerned about even though at the Torah level we are not. In other words, in divorce and betrothal we are prepared to live with normative duplication, but not in money. The views that a rabbinic acquisition is ineffective at the Torah level, and that after the burden-of-proof ruling the doubt remains intact, apparently do not accept this distinction and see monetary law as part of the rest of Jewish law.

Yet with regard to betrothal this is especially strange. The doubt about the betrothal is born from the doubt about ownership of the money. So if, as regards ordinary use of the money (for buying things with it), there is no doubt that this is permitted, why should a doubt arise when I come to betroth a woman with it? Proprietarily, the money is completely mine, and that would seem to mean that the doubt has been erased from the world. So why, when I now come to betroth a woman with it, does the doubt suddenly reawaken and create a doubtful betrothal? That is why I wrote that, by simple reasoning, a rabbinic acquisition creates Torah-level betrothal, and that money left in my hands as a possessor can be used to betroth a woman and create a definite betrothal. The dissenting views apparently hold that although for ordinary use I may use the money, that does not change the reality that this money remains doubtful. Therefore, when I create with it a halakhic status in the realm of prohibitions, that status will be doubtful. In the ordinary monetary and proprietary consequences I ignore the doubt even though it exists, because the Sages can permit me to do so. They permit my use, but do not erase the doubt. But with respect to betrothal they cannot create betrothal where it does not exist.

According to this, the root of the dispute is whether a halakhic ruling erases actual reality, or only permits me to act in ways that perhaps contradict it (such as ignoring the laws of doubt). If the actual reality is erased, then the ruling is the only thing left here. Once they enacted a rabbinic acquisition, the Torah-level plane on which there is no acquisition no longer exists; and once they instituted the burden-of-proof rule, the doubt no longer exists.

A note on scriptural decrees

In my article on scriptural decree I brought several examples that also touch on this question. The point of departure is that the disqualification of relatives as witnesses is a scriptural decree (as emerges from the Talmud in Bava Batra and is also brought in Maimonides and the Shulchan Arukh), meaning that in principle the relatives are credible, but the Torah decreed that their testimony not be accepted. Now think about two witnesses who testify that Reuven murdered, and then two brothers come and refute them by hazamah. What should the court do in such a situation? Apparently the testimony of the brothers is inadmissible, so the testimony of the first witnesses stands, and the murderer should be executed. But it is obvious that this is out of the question. The refuting brothers are speaking the truth, and there is only a scriptural decree not to accept their testimony, so in reality the accused did not murder. Could it enter one’s mind that we would execute him as a murderer because of a scriptural decree? Obviously not. By the same token, if the law of hazamah itself (the preference of the refuting set over the refuted set) were a scriptural decree in that sense — meaning that there is really no preference or greater credibility to the second set — then we would execute the accused or the refuted witnesses because of a scriptural decree even though there is no reason at all to assume that they lied. That too is unthinkable.

I explained there that it necessarily follows from this that when we speak of a scriptural decree, we do not mean an incorrect principle. I showed there several types of scriptural decrees, but for our purposes it is clear that the second set really is preferable to the first; it is just that this preference would not have been enough to decide the case were it not for the Torah’s innovation that the law is to be decided on that basis. As for the disqualification of relatives, we are used to treating it as a scriptural decree because we picture the simple case: two brothers testify that Reuven murdered. In such a case it is easy for us to live with the notion that they are in fact speaking the truth and yet we will not execute the murderer. The Holy One, blessed be He, will settle accounts with him. Therefore I brought the case where the brothers are the refuting set. There we would have to take active steps and execute an innocent person. There it is clear that no sane judge would do such a thing (it is no worse than withdrawing from a case on the grounds of a fraudulent judgment).

In such cases Jewish law assigns a status to witnesses, but that does not change reality. If in reality the person is not a murderer, we will not execute him. And if the second set is not more credible than the first, we certainly will not rely on it in order to punish someone. The reason is that in these cases, as in monetary law, there is another side. Acting in accordance with the halakhic determination when it contradicts reality itself is out of the question. In monetary law this is because the other side is harmed, and here it is because the accused is harmed.

This is connected to the fact that both monetary law and punitive law in court belong to the legal layer of Jewish law (Choshen Mishpat and Even Ha-Ezer, which belong to adjudication. See here), that is, they are public matters between people or different parties, rather than between a person and himself and his Creator (those are the matters of Orach Chayim and Yoreh De’ah — Jewish law that is not legal in character). In legal topics, in most cases, one cannot detach Jewish law from reality, because there are always two sides here. In such cases one cannot ignore reality because of a halakhic determination (a scriptural decree), since reality matters. Either there is another person who is harmed, or the defendant is harmed (he is the second party vis-à-vis the public/the Holy One blessed be He/the Torah/the court).

Summary, and a note on multidisciplinarity

I wrote above that this column is a demonstration of my method of study. I tried to show that one of its fundamental components is the systematicity itself, which includes identifying meta-halakhic principles and a priori conceptual analysis. Note that the topics raised here are discussed ad nauseam by the classic commentators and also by our contemporaries, but precisely for that reason it was easier to show what is still missing from those discussions. Even the title of the column, ‘the tension between Jewish law and reality,’ is not a typical title for works of Talmudic analysis. The commentators deal with questions such as whether a rabbinic acquisition is effective at the Torah level, or the nature of the burden-of-proof rule, but they do so through analysis of specific passages and do not place the issues in a broad meta-halakhic context. The very examination of the nature of first-order ruling and the attempt to characterize it are themselves part of that same mode of systematic thought. It seems to me that you can find this in almost every column I have written here on topics of Talmudic analysis. In most cases you will find there conceptual analysis and a priori discussion, along with engagement with meta-halakhic principles and the placing of the topic in a general and conceptual context. To my mind all of this is sorely lacking in ordinary analytical thought, and perhaps I have been privileged to contribute something to improving the situation.

As a side note, I would point out that this is also the reason that Talmudic topics, for me, connect to philosophical and other principles and topics. Once one deals with things on the conceptual and a priori plane, it is very likely that one will find lines of similarity and analogous modes of thought in all fields. Therefore, when I deal with a topic in some field (not only in Talmud and Jewish law), it usually connects in my mind to other fields. This is also the reason that it is easy for me to deal with subjects in which I have no professional expertise. I am not discussing details, but concepts and basic principles, and these are usually universal.

This brings me to a remark about multidisciplinarity. There are two kinds of multidisciplinary thought. The first finds common lines of similarity among different fields, and in that way they enrich one another. This is unlike another kind of multidisciplinarity, one that joins different fields and creates from them a single structure, as in neuroscience. There the different fields do not necessarily enrich one another, because the discussion is not about the lines of similarity between them. In neuroscience one uses knowledge from mathematics, computation and computer science, physics, biology, psychology, various technologies, and more, and combines all these in order to create a better understanding of our thinking and our brain. Such an understanding requires combining knowledge from all those fields, and it is generally based on professional knowledge in all of them. This is unlike the first type of multidisciplinarity, which deals with logical and conceptual understanding (and is therefore universal) of what the fields have in common. Incidentally, this too is itself a distinction generated by conceptual analysis. One little goat, one little goat (and so one thing leads to another).

[1] The later authorities discussed whether there is a difference between a presumption in a halakhic doubt and in a factual doubt, and they proposed the reasoning that a presumption does not help in a halakhic doubt because it does not resolve it (see the responsa of Rabbi Akiva Eiger, first edition, sec. 37, especially s.v. ‘U-vaze’ and s.v. ‘Ve-iyun’). But it is clear that it does not resolve the factual doubt either, and even if one understands presumption not as a rule of conduct but as evidence, it is clear that the intention is that this is a rule of conduct, except that halakhically it is treated as evidence. A prior presumption or possessory status (as we saw above) are not really factual evidence for either side.

[2] See Avnei Miluim sec. 28, 33; responsa Chatam Sofer, Yoreh De’ah sec. 314 s.v. ‘Hinei Shoresh’; Machaneh Ephraim, Laws of Sale sec. 2; Kehillot Yaakov, Bava Metzia sec. 36; the book Ha-Makneh 33:15, and more.

[3] This is probably also the reason for some of the differences between monetary law and other areas of law (in monetary doubt we are lenient — the burden-of-proof rule. We do not follow the majority in monetary matters, in monetary law a judge may rule according to what seems correct to him, and so on. See, for example, in yesterday’s responsum here).