Deriving *Ta‘ama d’Kra*: B. Reason and *Geder* (Column 715)

That’s it. Back to the important matters.

In the previous column we saw the tannaitic dispute about deriving ta‘ama d’Kra (the reason of the verse) and its implications. Here I wish to discuss a fundamental difficulty regarding how to apply the rule that we do not derive ta‘ama d’Kra, which will shed additional light on this puzzling topic.

The difficulty

Anyone who has worked through Talmudic sugyot knows that in many cases we do look for the reasons of the commandments. This is done in the Talmud itself and in the commentaries. Halakhic literature abounds with conclusions drawn from interpretations of the Torah’s commandments, and it is not clear how this can be if we do not seek ta‘ama d’Kra. Such interpretive conclusions can arise from two types of sources: (1) interpretive considerations from the text and its contexts; (2) considerations based on sevara (reasoned argument). If the interpretation relies on considerations of type (1), then this is not necessarily ta‘ama d’Kra. One interprets the text according to its meaning and context, and there need not be any appeal to purposes and rationales (even though no interpretation is purely textual). That is a literal, not a teleological, reading. But interpretations grounded in sevara almost always involve understanding the commandment’s reason. Can one seriously claim that in the Talmud and its commentators we do not find interpretations that rest on sevarot, but only on textual-interpretive considerations of the biblical text? To be more concrete, let us take an example where the commentators themselves have already noted the issue.

The Rif at the beginning of Bava Kamma (ch. 1, hal. 2) writes: “Shen and regel in the public domain are exempt, because that is their normal manner (orchei-hu).” He offers a rationale for the exemption of damage by tooth and foot in the public domain: a person’s way is to walk there with his animal. The public domain is designated for that, and therefore it is not reasonable to require him to constantly supervise his animal. It is more reasonable to expect owners of fruit or various objects not to leave them there unattended.

The Rosh (there, §1) writes about this:

I am astonished: why was it necessary to explain the reason for the exemption as “because that is their normal manner,” when the verse states, “and it consumes in another’s field,” which we expound—“but not in the public domain”? It is possible that he came to explain the reason of the verse—why the Torah exempted [shen and regel] in the public domain: because its way is to walk in the public domain, and it is impossible for the owners to go after them at all times. But with keren (goring) one is liable in the public domain, even though its way is also to be there, for since it has been forewarned and one knows that it gores, the owner ought to guard it; and so the halakhah stands—that it is a fine, in order that he will guard his ox.

And a practical difference from this reason: if there were a long beam, part of it lying in the public domain and part in the private domain, and [the animal] stepped upon it in the public domain and broke vessels in the private domain—since it is its way to go and tread upon it, [the owners are] exempt. But R. Yitzḥak b. Shmuel did not explain thus below regarding “the ox proves [that the damage was] in [the victim’s] domain.”

The Rosh wonders why the Rif needed to bring a reason for a law that is derived from a verse, and explains that it has a halakhic implication: if an animal walking in the public domain moves a long plank that causes damage in the victim’s courtyard, according to the Rif it would be exempt even though the damage occurred in the victim’s courtyard. Since the animal was going in its ordinary manner in the public domain, and there is no obligation to supervise it, its owner is exempt even for damage it causes in the victim’s courtyard. The Yam shel Shlomo (there §4) brings a dispute of the Rishonim on this matter.

Note that even the Rosh, who remarks on the Rif’s need to offer a reason for a law learned from a verse, is not troubled by the principle that we do not derive ta‘ama d’Kra. If his difficulty were based on that principle, then his answer would not heal the wound. What does it help that it has a halakhic implication? On the contrary: deriving a halakhic implication from the reason is precisely what we are not supposed to do if we do not derive ta‘ama d’Kra. Why, then, does the issue of ta‘ama d’Kra not trouble the Rif and the Rosh?

Indeed, the Pilpula Ḥarifta on the Rosh there (sec. 9) brings that this does seem to be the Rif’s view in light of an omission from later in the Gemara:

“And a practical difference emerges from this reason—that if there were a long beam, etc. The author of Shilte ha-Gibborim added and wrote as follows: ‘And certainly this is our master’s view, for in the chapter “Keitzad ha-Regel” he omitted the question of R. Yirmiyah to R. Zeira, who asked him: if it spattered [pebbles] in the public domain and caused damage in the private domain, what is [the law]? And we conclude there that one is liable, and our master omitted it, implying that he holds this is not the halakhah; rather, if it spattered in the public domain and damaged in the private domain, one is exempt—for that is its normal manner.’”

And he challenges this:

“I am very astonished at all this: whence did the Rif take the liberty to explain the reason of a verse from his own heart, and to derive a law from that reason in a way that runs contrary to the Talmudic conclusion? … And see our master’s words in tractate Avodah Zarah at the end of the chapter ‘R. Yishmael,’ where he wrote on this unlike the Rif.”

Here he does raise the difficulty against the Rif on the grounds that we do not derive ta‘ama d’Kra. What is the answer to this? And even more: why are the Rif and the Rosh not bothered by it at all?

Definition (geder) and reason (ta‘am)

In yeshivot, questions like these arise from time to time, and the customary answer is that we are dealing here with the geder (the halakhic contour) of the law, not with its reason. In the case of damage by shen and regel in the public domain, the claim is that the Rif is not stating the reason for the exemption of shen and regel in the public domain, but only its geder. He maintains that the exemption applies in any case where the animal is walking in its ordinary way in the public domain. But he is not offering an explanation or reason for the underlying basis of the exemption.

It is very hard to read this into the Rif, for he does not even bother to bring the halakhic implication; he simply states that the reason for the exemption is that, in principle, the animal has permission to walk in its ordinary manner. The word “because” (mishum) in his words looks overtly like a reason. Beyond this, even if one could squeeze this into the Rif’s language, one gets the impression that this distinction is very fine and doubtful whether it truly exists. It looks more like apologetic pilpul. Categorically there is a difference between geder and ta‘am: the reason is the purpose of the matter, while the geder is the description of the halakhic outcome. But that raises the question: when exactly is seeking the reason a forbidden ta‘ama d’Kra, and when is it merely a geder that one may establish?

The difficulty is deeper still. Even if there is such a categorical distinction, another question arises: how does one determine a law’s geder without relating to its ta‘am? Suppose we do not appeal to the law’s reason but only to its geder—how did we arrive at that geder? Consider the Rif’s words: if he is truly not claiming that this is the reason for the exemption, then whence does he know that the law’s geder is that the animal is exempt whenever it walks in its ordinary manner in the public domain? Is it not clear that the geder is determined because of the underlying reason? Even if one does not put the reason on the table but deals only with the geder, the reason is surely present in the background of the discussion. Therefore, de facto we indeed are deriving ta‘ama d’Kra. Consider, for example, the tannaitic dispute we saw in the first column regarding taking collateral from a widow. R. Shimon could have refrained from deriving ta‘ama d’Kra and simply established the geder: one takes collateral only from a poor widow. Does the fact that he did not mention the reason mean that he did not derive ta‘ama d’Kra? His arriving at the halakhic contour—namely, that it concerns only a poor widow—is because the law’s reason is “lest he give her a bad name among her neighbors.” One cannot set the geder without having set the reason. And if Rabbi Yehuda were to say that a king is forbidden to multiply wicked wives without saying that the problem is “they will turn his heart,” would he then not be deriving ta‘ama d’Kra? Clearly he targets “wicked” because of the reason of “turning the heart.”

The conclusion is that although geder and ta‘am are two different things categorically, there is a necessary connection between them: the geder is a consequence of the reason. One cannot deal with the first without presupposing the second. And if we do not derive ta‘ama d’Kra, we cannot determine the geder either. On the other hand, we can see here that if so, it is impossible to uphold the requirement not to derive ta‘ama d’Kra. That requirement effectively prevents us altogether from interpreting the halakhah.

An implication regarding the Briskers

This reminds me of the Brisker ethos that advocates that when studying a Talmudic sugya we do not ask “why?” but only “what?”. We are too small to understand the words of the Sages and the early commentators; we can only ask what they said, without trying to understand why. I have often explained that this is probably why they are especially fond of the orders Kodashim and Taharot. The assumption is that there we have no independent understanding, and so we can come to the study clean and merely describe the “what” we find there without mixing in our own ideas (the “why”). But of course, this is a childish illusion. Without having ideas about the “why,” you have no way to understand the “what.” The Briskers themselves interpret the sugyot and use sevarot—even in Kodashim and Taharot. Again and again they discuss what is more reasonable and what less so. How do they know what is or isn’t reasonable if they do not understand the reasons? It turns out that behind every “what?” there always sits some “why?”. The question of how we could possibly have understanding of the “why” in sugyot of Kodashim and Taharot will be discussed later.

R. Gedalia Nadel’s proposal

Rabbi Shilat, in his article “On the Methods of Study of the Gaon Rabbi Gedalia Nadel,” describes the relationship between geder and ta‘am as follows:

“The idea of the commandment is not what is called ‘the reasons for the commandments,’ nor is it the view of R. Shimon that one derive ta‘ama d’Kra. The idea of the commandment is essentially what is commonly called the halakhic geder of the commandment; but this geder is not a purely formal matter that is deduced from the laws appearing in the Gemara without asking their reasons. Rather, it is the idea that the commandment expresses, which is often the source of the laws that appear in the Gemara. The Sages understand the idea from an intelligent reading of the text, and from this fundamental idea they derive laws—sometimes by sevara, sometimes by linguistic inferences in the text, and sometimes via the 13 hermeneutic principles.”

That is, we can arrive at the commandment’s idea even without understanding its reason. This emerges from a thoughtful reading of the biblical text, in which sevara, textual-interpretive considerations, or hermeneutic middot are involved.

He now brings an example:

“In the laws of Sukkah there is a rule, ‘tēshvu ke-ein taduru’ (Sukkah 27a and elsewhere)—from which several laws are learned. What is the source of this rule? The answer: the idea of the commandment. The Torah commanded that we dwell seven days in the sukkah—not to ‘visit’ it, but that it be our home. This is the commandment’s idea, i.e., the commandment’s geder, when one grasps its intent. The reason for the commandment is something else entirely, and in this case its essence is explicit in the verse: ‘that your generations may know that I made the children of Israel dwell in sukkot,’ etc., and one can add further reasons.”

This example is excellent, for it offers a sharp distinction between geder and reason, and indeed here the two seem unconnected. The geder of dwelling in the sukkah is to live in it as one lives in a house. That is not connected to the commandment’s reason, which is the remembrance of the sukkot that God had our ancestors dwell in in the desert. So whence did we learn that this is the geder of dwelling in the sukkah? Apparently from the meaning of the term “dwell” (tēshvu) in the verse “In sukkot you shall dwell seven days.” The Sages understood that to “dwell” means to live in the sukkah (instead of the house).

However, this example will not really explain cases like the one we saw above in the Rif. There it is not clear how one can arrive at the geder of the exemption without appealing to its reason. Unlike the Sukkah example, it is evident that in most cases the halakhic definition is derived from our understanding of the law’s reason itself. In fact, any explanation and any sevara we deploy in Talmudic analysis is, seemingly, ta‘ama d’Kra. Is it impossible to use our reason when learning halakhah and halakhic sugyot in the Torah?

Ta‘ama d’Kra in derashot: back to the Rif

To understand this, it is important to note a significant limitation on the prohibition to derive ta‘ama d’Kra. This rule pertains only to peshat-level interpretation of the verse. In derashot (halakhic midrash), one may always seek the reason of the law, and that does not contradict the rule that we do not derive ta‘ama d’Kra. In column 647 I discussed the derashah of Shimon ha-Emsoni: “‘You shall fear the Lord your God’—to include Torah scholars.” There I described in detail how he arrived at his derash, and what R. Akiva added. In short: the word “et” tells us to include something, but it is still hard to know what to include. Should we include chairs? Doves? Holy books? In short, how did the Tannaim decide to include specifically Torah scholars? Clearly the decision of what to include is entrusted to the darshan, who decides this by his own sevara. The same is true for all the hermeneutic principles. For example, when there is a gezerah shavah, the Torah tells us to compare two biblical contexts, but it gives no hint as to what to compare and what not. And so too with the principles of “general and particular” and the like. The conclusion is that halakhic midrash always rests on two stages: deploying a hermeneutic principle that constitutes a textual trigger telling us where in the verse to expound and in what mode (to compare, to include, to exclude, etc.)—like “et,” which comes to include. Then comes the sevara that tells us what content to pour into the derash—in our case: to include Torah scholars.

It follows that when we come to interpret the halakhic product of a derash, there is no impediment to using sevara and seeking the reason. When I come to interpret the law of reverence for Torah scholars, I can say that it pertains specifically to scholars who are also righteous. Why? Because only they resemble the Holy One, and that is why we are to fear them. The justification for relying on the reason in such cases is that the original darshan himself relied on the reason when he created this law. In seeking the reason we merely reconstruct his reasoning and extract from it the law’s geder. There is no sense in thinking that the darshan may seek the reason but we may not; therefore there is no logic in forbidding seeking the reason in midrashic laws. The conclusion is that the denial of ta‘ama d’Kra was said only with respect to interpreting verses on the level of peshat, as I explained in the previous column.

This resolves quite a few difficulties raised by commentators in various sugyot, where they wonder why reasons are sought there; they apparently did not notice that those are cases of halakhic derash rather than peshat, and there one does seek reasons. It is possible that the Rif’s words above are explained this way too. He seeks the reason of the verse because we are dealing with a derash and not a peshat-interpretation. When one learns the exemption of shen/regel in the public domain from the verse “and it consumes in another’s field,” that does not look like the verse’s straightforward meaning. One could have interpreted the peshat in many other ways. So if one of the Sages interpreted the verse—by his sevara—as excluding liability for shen/regel in the public domain, he presumably had a reason to choose that interpretation. If so, there is no problem for a later sage like the Rif to explicate the sevara underlying that law and derive halakhic implications from it.

But even that does not address the underlying difficulty. When we are dealing with peshat-interpretation of the verses—where we are not to derive ta‘ama d’Kra—the question remains: how can one use sevara and reason without appealing to the reason? For example, how do Rabbi Yehuda or the Tanna Kamma shape the law of taking collateral from a widow? Do they cling entirely to the scriptural wording and refrain from sevara? That is highly implausible. Often we interpret laws that arise from verses using sevarot. We qualify the laws and redefine them, and it does not seem that this is done only on the basis of the text alone. How, then, can we interpret a commandment without appealing to its reason? How do we determine its geder without appealing to the reason?

To understand this, I must offer a brief philosophical-psychological preface.

Daniel Kahneman’s two systems of thought

In several past columns (see, e.g., 38, 653) I mentioned Daniel Kahneman’s thesis, described in his book Thinking, Fast and Slow, where he distinguishes between two modes of our thinking, which he calls System 1 and System 2. System 2 is our recursive thinking—slow, logical, calculated, and conscious. It analyzes concepts and principles and uses arguments in order to draw conclusions. Decisions made in this system are slow but logically grounded, consider various possibilities, and adjudicate between them. By contrast, System 1 is an instinctive-intuitive system that reacts immediately and automatically, using fast and non-conscious thinking. Our thinking in System 1 does not pass through our recursive reasoning apparatus. System 1 is a kind of autopilot—we respond from the gut without thinking.

It is important to understand that “from the gut” is not necessarily pejorative. There are cases where a System-1 response is far preferable to a System-2 response. When a response must be quick and precise, when the problem is complex and difficult to handle with systematic, analytical tools, System 1 can carry us straight to the conclusion. For example, in tasks like those in the following list (taken from Wikipedia), there is an inherent advantage to System 1: judging that one object is farther away than another; locating the source of a sound we hear; completing the expression “war and …”; expressing disgust at a repulsive sight; answering a simple problem like 2+2; reading text on a billboard; driving a car on an empty road (and even not empty—autopilot); playing an excellent chess game for a very skilled player; uttering simple sentences; linking a description like “a quiet, introverted person with an eye for detail” to an occupation, and the like. All these lie within System 1’s capabilities, and in some of them it even has an advantage over System 2. By contrast, System 2 is preferable for solving complex problems where we have no experience or intuitions, such as evaluating a complex logical argument, solving a non-trivial multiplication, and certainly difficult scientific or mathematical problems, finding someone in a noisy party, solving riddles, and so on.

So far I have described a sharp separation between the two systems and their roles. But in my view the relationship between them is more complex. I will now try to show that they do not divide tasks between them but work together in a back-and-forth.

Back and forth

In column 592 I described the vicious circle between a scientific theory and the facts on which it is based. In Francis Bacon’s naïve picture, science first collects facts. Then it analyzes them and tries to create from them a generalization (by induction) that brings them under a single broad framework. This is a process of abduction (see columns 399, 537 and others), whose goal is to create a theory that explains the known facts and also additional facts that will be examined in future empirical tests.

As a first step, as stated, we must collect the relevant facts. But this itself is not a trivial step, for in the absence of a theory one cannot know which facts are relevant. There are several clear examples of this in the philosophical literature; the most common is that of Ignaz Semmelweis and puerperal fever, brought in the book of the philosopher of science Carl Hempel.

Semmelweis headed one of two maternity wards in a large hospital in Vienna. In his ward the mortality of women was far higher than in the other. They searched for the cause, but had no clue. They tried to collect the relevant facts, but so long as they did not know what caused the mortality, they could not know which facts were relevant. As a starting point, there could be countless facts differentiating the wards: the ceiling height, the average age of the doctors, the median age of the nurses, the head nurse’s surname, the wall color, the ward area, how long it existed, the size of the chief steward’s office, the length of the test tubes, the company that manufactured the ceiling chandeliers, the third intern’s mother’s name, and on and on. As long as you don’t know what causes the mortality, you cannot search for facts. It is worth reading in Hempel’s book the fascinating description of how the relevant facts were identified in Semmelweis’s case. You would not believe where they went. They checked the priest’s walking route in the ward, the directions of the windows, the ceiling height, and other factors. They were in complete darkness and had no idea which facts were relevant and which were not.

Of course, had they known that what caused the mortality were organisms causing infections, they could have sought relevant facts that explain why hygiene differed between the wards. That is indeed what they discovered in the end, but even that happened almost by chance. The meaning is that if you have no initial direction for a theory to explain your facts, you have no way to isolate the relevant facts. But at the same time, if you have no facts, how will you know which theory is correct to explain them? It is a vicious circle with no way out (like the chicken and the egg).

Another example appears in the famous book by the British historian E. H. Carr, What Is History? He too rejects Bacon’s thesis that the historian first collects facts and then proposes the theory that explains the phenomenon. Think of the victory of Blücher and Wellington over Napoleon at Waterloo. A historian who wishes to explain why they won must collect facts. But which facts are relevant? The aide-de-camp of the 4th regiment’s height? The mother’s name of a soldier in the last platoon of the 10th regiment? The average height of the soldiers or the mules? As long as we do not know what causes victory in wars, we have no way to collect facts, because we cannot know which facts are relevant. But without facts, how will we know the theory? Again, the same vicious circle.

Note that I am speaking here about the stage at which one begins to investigate victories in battles—that is, my assumption is that at this stage we have no knowledge in this area. After knowledge accumulates we can know which facts are relevant, but then it is no longer clear why we need to collect facts, since we already know the answer. Well, that is not entirely precise. To understand why, it is important to distinguish between two different aims of research: (A) creating a new theory (paradigm)—to understand in general what influences military victories. This is the accumulation of general theoretical military knowledge. (B) Given a body of theoretical knowledge, to examine Waterloo in its light and see which factors influenced the victory in that particular battle. Task (B) is what Thomas Kuhn calls research within a given paradigm. Such a task is not particularly problematic. Here we know which facts are relevant, since the theory is known. What we try to do is to apply it to a specific case, and we must collect the relevant facts for that case. But in a task of type (A) (the search for the paradigm itself) it seems we have no way even to begin. So long as we have no theoretical knowledge of what influences military victories, we have no way to identify the relevant facts we need to collect. And without facts, how will we know the theory?!

Another example is Newton and the law of gravitation. Before anyone knows the law of gravity, there is no obvious reason to relate tides, falling bodies, and planetary orbits as a set of facts belonging to the same domain and governed by the same laws and theory. Why relate precisely these facts rather than the color of the bird that flew by this morning, or the frequency of its song? Only after you know that there is a force of attraction can you understand that perhaps all these facts might be relevant to the same theory. The question is: how did Newton decide to focus on this set of facts before he had the theory?

The conclusion I offered in that column is inescapable. Each of those researchers had an initial intuition about the prospective theory. Of course, he did not know how to formulate its principles explicitly, and he had not yet conceptualized it, but he had some intuitive sense of what it might be—or, more precisely, what it is not. Even before the research and the theory’s formulation, I assume the historian understood that the aide-de-camp’s mother’s name is not a relevant datum, whereas the soldiers’ morale perhaps is. Newton likely sensed intuitively that the bird’s color or voice frequency is unrelated to the family of facts including planetary orbits, falling bodies, tides, and the like. He did not know how to say this explicitly, and perhaps was not even conscious of it, but intuitively he understood which facts might be relevant and which not. The same holds for the Semmelweis and Carr examples. In all these cases the researcher had an unarticulated intuition of which directions are in play and which facts are irrelevant. From among the remaining facts, he had to sift those that are relevant, and he does this by trial and error. He tries a certain cluster of facts, checks whether he has a theory based on them, and if not—he tries another cluster. I assume that even regarding the clustering there is some intuition (otherwise there are 2ⁿ possibilities of subsets out of n facts—no small number).

Without this initial intuition, those researchers would have wandered in circles within an infinity of facts with no ability to advance even a millimeter. Our science today would look like the science of Adam. In that column I tried to explain what this faculty I call “intuition” is; I will not go into it here. For our purposes it suffices that there is essentially a parallel, joint action of Kahneman’s two systems. The non-conscious System 1 in effect decides which facts could be relevant (i.e., which facts can definitely be discarded because they are irrelevant), and then System 2 comes and formulates and conceptualizes a theory through a conscious, orderly process. That is then checked again against the facts, and to the extent there are mismatches the theory is refined again and again (this is the articulation of the scientific theory), and so one advances via System 1, then 2, then again 1, then again 2, and so on.

Back to ta‘ama d’Kra

From the description above we learn that even before we have a formulated, conceptualized theory, we have an intuitive, often non-conscious understanding of the theory’s character. We can even infer which facts are relevant and which are not. This brings us back to deriving ta‘ama d’Kra.

Above I asked: how can one determine a law’s geder without determining its reason—that is, how can one determine the geder if one has not derived the reason? I want to apply here the picture that emerges from the philosophy of science. When we approach a law written in a verse—say, the prohibition on taking collateral from a widow—we may have an intuitive sense of where it applies and where it does not. That sense is not based on an articulated, conceptual reason; it is the product of System 1. In such a case, both Rabbi Yehuda and the Tanna Kamma would agree that we may “derive ta‘ama d’Kra,” i.e., that we may determine the law’s geder in light of that intuition. By contrast, where we lack such an intuitive sense and have only an articulated principle that arose from System 2—there we do not derive ta‘ama d’Kra. Returning to the collateral from a widow: the reason R. Shimon proposes (“lest he give her a bad name among her neighbors”) is not intuitive. Indeed, R. Shimon himself does not propose the limitation to a poor widow except by virtue of that reason. Absent the reason, he did not sense that the law speaks specifically of a poor widow (as noted in the previous column: there is no concern of harm to her, since the Torah requires returning the collateral at night). Therefore, the Tanna Kamma and Rabbi Yehuda argue that in such a case we do not derive ta‘ama d’Kra, since we must not rely on an articulated reason but only on System-1 intuitions.

When we establish the geder of a law written in the Torah without basing it on a formulated, explicit reason—there we may “derive ta‘ama d’Kra.” We may rely on System 1, but not on System 2. Perhaps the Rosh’s remark quoted in that earlier column—that where the reason is self-evident, all agree one may derive ta‘ama d’Kra—also reflects this point. He means a reason that is obvious to us and does not require formulation or conceptualization. It may be that if it is intuitively clear, then even if we go on to formulate and articulate it there is no problem, since the articulation is merely the wording of the intuitive sense. When do we not derive ta‘ama d’Kra? When we lack a clear intuition and the articulation itself is the basis of the discussion—when our recursive intellect (System 2) is the foundation, i.e., when it is not based on an initial intuition. In such cases we do not rely on it.

A difficulty for the proposed thesis: intuitions about the religious plane

Recall that in that earlier column I explained that the concern is that we will interpret the reason on the moral plane, since our intuitions usually focus there. If the commandments’ reasons are not on the moral plane, then there is a significant risk of error because of the differences between planes (which, as I explained there, exist even within moral laws). By contrast, if the reason is on the religious plane, it is hard to formulate it clearly, since we have no known principles that belong to that plane. Do we possess unarticulated intuitions about that plane? Seemingly we lack intuitive understanding there too, since it is a foreign plane that we do not encounter directly.

Above I mentioned the Brisker ethos of asking only “what?” not “why?”. I showed there that despite their turn to studying Kodashim and Taharot, they constantly deploy interpretive sevarot—what is more reasonable and what less so. That is, even in domains that clearly belong to the religious “area code” (rather than the moral) of halakhah, we have intuitions and sevarot. Anyone who has studied Kodashim and Taharot can attest to this. At every turn we weigh sevarot and positions even in those domains, though ostensibly we have no understanding of them. My claim is that even regarding the religious plane we have intuitions of right and wrong. We lack the ability to formulate and conceptualize them, but they exist somewhere within us.

In that earlier column I argued that, contrary to common conceptions, intuition is a cognitive tool, not a thinking tool (otherwise it could not say anything about the world; it would be synthetic-a priori). When we have an intuitive sense about something, it is the result of an immediate encounter, by way of intellectual cognition (Husserl’s “eidetic seeing”), with the relevant domain. In the moral domain we can formulate and conceptualize those insights, whereas in the religious domain they remain unformulated and unconceptualized—yet we still have intuitions about them. We encounter the world of religious “ideas” with the eyes of the intellect, even if we do not know how to put those insights into words.

This is the basis for our ability to interpret laws written in the Torah and to draw halakhic conclusions about their geder, even if we do not understand their religious reason. In many cases we have an immediate grasp of it, which allows us to determine the law’s geder even without formulating the reason or appealing to it. Thus one can shape a halakhic geder without deriving the reason. The reason hovers in the background somewhere, but we have not formulated it—and therefore we have not “derived” it.

Examples: murder and ye’ush in lost property

In the first column I noted that the Sages set the contours of the prohibition of murder. They discuss and sometimes exempt a killer in various odd cases—like indirect causation (grama), mitzamtzem, “the sun is bound to set,” bringing something near a fire, etc.—all even though morally these are bona fide acts of murder. I argue that their immediate sense was that religiously there is an exemption, though I do not think any of them could articulate precisely why. Moreover, in this case we can even set a general geder of the law—a phenomenological rule—namely: to violate the prohibition of murder one needs an act done by one’s hands. This rule is set even though I have no way to formulate why it matters whether I did a manual act or not (morally it surely does not matter).

Note that this is a geder of the law very similar to what we saw about dwelling in the sukkah—tēshvu ke-ein taduru. There we saw that although I cannot ground it in the law’s reason, I can still establish the geder. So too here: I have no way to formulate the religious reason of the prohibition of murder, but I can nevertheless set its halakhic contours. This is likely the same “intelligent reading of the text” of which R. Gedalia Nadel speaks in the quotation above.

Another example is the law of ye’ush (owner’s abandonment) regarding a lost object. Morally, this ye’ush has no significance. Even if the owner despaired because he thought his lost item would not be found, if it is now found and there are identifying signs that it is his, morally one must return it. But the halakhah nevertheless does not obligate returning it (only beyond the letter of the law—that is, morally, not halakhically). The Maharal explains this precisely because of the difference between the religious and moral planes (see column 541). Here too, this qualification (i.e., exemption from returning after ye’ush) was apparently stated by sevara without a source in a verse or derash.[1] The Sages sensed that this is the law’s correct geder, though they did not know how to articulate its religious reason.

In both of these examples we see gedarim of laws that do not align with moral conceptions, yet they emerge from sevara rather than from scriptural readings or derashot. Seemingly this is exactly a derive for ta‘ama d’Kra—but it is done without articulating the reason. My claim is that this is based on an intuitive grasp of the law’s reason (in System 1) that does not pass through the articulation and conscious analysis of System 2. In such a case, all agree that one may derive ta‘ama d’Kra. This explains all those cases in which we find a peshat-level interpretation (not a derash) of a biblical commandment, even though the halakhah rules that we do not derive ta‘ama d’Kra.

Why is System 1 really more reliable than System 2 for interpreting verses?

A question arises: why do I claim that greater trust should be placed in System 1 regarding biblical interpretation? Interpreting verses does not seem to belong to the kinds of tasks for which System 1 is superior (see the list of examples above).

In my reply to Boaz in a talkback to the first column I wrote as follows:

“I will note that this connects to the next column that I will soon publish, where I will explain that in many cases people have a correct intuitive understanding, but when they try to articulate it they get into problems, contradictions, and weaknesses. This relates to Kahneman’s Systems 1 and 2. People well understood the distinction between halakhah and morality, but when they tried to speak about it explicitly, they fell into mental loops because it seemed to them that every value is by definition part of morality.”

My claim there was that commentators and decisors throughout the generations understood that the commandments rest on religious, not moral, values—yet they did not state this explicitly. Often when we try to formulate an intuitive insight in words, we get entangled and run into difficulties—even though intuitively we understand it well and reach the correct conclusions. In the terms of this column: regarding biblical interpretation, our System 1 often functions better than System 2.

But this is not true only of verse-interpretation. In column 707 I discussed the commentators’ desperate attempts to define the act of giving a bill of divorce (get) explicitly, and their ongoing failure to do so. This is an excellent example of our being able to understand Talmudic examples well and even apply them to other examples, but when we try to formulate things within a set of general principles, we get tangled and fail. How, then, can we make analogies between cases without understanding the underlying principles? Once again, System 1 comes into play and manages to work without passing through System 2. We have a direct, intuitive grasp that does not use analytic, conceptual definitions.

More generally, I explained in that column that this is probably why the Talmud prefers a casuistic approach over a positivist one. The positivist approach tries to formulate the law through a list of general principles, in the hope that judges can derive conclusions for particular cases by logical deduction. By contrast, the casuistic approach prefers to think through examples and analogies without general principles. In that column, and also in column 217, I explained the advantages of casuistry; the root of the matter lies in our inability to formulate our insights through sweeping rules. Rules are too rigid a framework and they will not manage to hit upon the correct conclusions. Our world is too complex for that.

This is nothing but a generalization of the principle that we do not derive ta‘ama d’Kra, but now in the form of a general approach to halakhah. We have greater faith in System 1 than in System 2. Halakhah—like other legal systems—is complex and intricate, and the attempt to force matters into rigid general rules is doomed to failure. In that column I showed that even when we formulate a sweeping rule, a host of exceptions immediately pop up. Sweeping rules do not succeed in doing the job.[2] In such complicated cases we prefer to develop intuitive insights through examples (using System 1) rather than general principles (using System 2).[3]

[1] I explained here in the past that the source cited from “zuto shel yam” is not really a source.

[2] One can debate whether there are rules but we struggle to conceptualize and formulate them, or whether in some cases there are no rules at all. See on this in the Midah Tovah article (5767), for Parashat Nitzavim–Vayelekh.

[3] In columns 410, 444, and elsewhere, I argued that a decisor (posek) should not take meta-halakhic considerations into account. He should set his stance on the question and the sugya according to what seems correct to him, without defining himself as conservative or innovative, original or not, stringent or lenient, etc. All these are matters for the scholar of that decisor, not for the decisor himself. This is a similar principle, for here too the decisor must close his eyes and refrain from dealing with the general principles that describe and guide his activity. In System 1 he may sense that he tends toward conservatism or innovation, leniency or stringency, but in the conscious system (2) he considers only the merits of the matter itself. This is merely a loose analogy to our topic, of course.