Objectivity and Subjectivity in Halacha and in General – Lesson 6
This transcript was generated automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
🔗 Link to the original lecture
🔗 Link to the transcript on Sofer.AI
Table of Contents
- Two kinds of doubt: ontic and epistemic
- Partnership, undivided ownership, and retroactive clarification
- “Mathematical” tools: fuzzy logic and probability
- Legal status as a meta-legal state and its implications
- The Sabbath rest of one’s animal and the Rogatchover: ownership as a metaphysical bond
- A slave awaiting a bill of emancipation: prohibition-based ownership without monetary ownership, and injury payments
- An intermediate category: doubtful inevitable result
- Trapping flies in a small box: Rema, Tur, Ba’al HaTerumot, and Taz
- Rabbi Akiva Eiger: a doubt about the past as a stringent case of doubtful inevitable result
- Doubtful inevitable result as epistemic doubt versus ontic doubt
- Biur Halakhah, rabbinic doubt, and majority versus certainty
- Rabbi Shimon Shkop: an inevitable result does not turn a person into someone acting intentionally
Summary
General Overview
The text distinguishes between ontic doubt as a kind of vague reality in which both sides exist, and epistemic doubt as doubt that stems from lack of knowledge. It argues that even in a vague reality there is a systematic way to act, similar to the laws of doubt, even though it is not exactly a doubt. It illustrates this with the case of five plots of land and with betrothing one of two women, and defines the “mathematical” tools for dealing with these as fuzzy logic for vague reality and probability for ordinary doubts. It then develops a meta-legal conception of legal status, according to which legal status derives from a factual/meta-legal state, and shows the implications of this through the Sabbath rest of one’s animal, the Rogatchover, and the case of a slave awaiting a bill of emancipation. Finally, it presents an “intermediate category” through the topic of doubtful inevitable result, the dispute between Taz and Rabbi Akiva Eiger, and the distinction between uncertainty about the future and uncertainty about the past, with a principled framework that connects this to the question whether an inevitable result makes a person count as intending the act or merely links the result to his action.
Two kinds of doubt: ontic and epistemic
The text defines ontic doubt as a vague reality in which both sides exist, not as a lack of knowledge. It argues that when there is a vague reality there is a clear and systematic way to proceed, similar to the laws of doubt even though this is “not really a doubt.” It gives the example of someone who sells “one of five plots” without specifying which one, and says that in practice the buyer owns one-fifth of each plot. It then presents solutions such as returning the money or buying/choosing one specific field. The text stresses that with women this is more complicated because “once the betrothal takes effect, it takes effect,” and therefore in the case of betrothing one of two women there is a weak betrothal in each one, and the Talmud says, “you give a bill of divorce to both of them.”
Partnership, undivided ownership, and retroactive clarification
The text defines the outcome of the transaction involving five plots as a well-defined legal partnership, and compares this to the reality of undivided ownership, where each partner has rights everywhere in the plot without physical division. It cites Ran at the beginning of the chapter HaShutafin in tractate Nedarim, who brings a dispute among medieval authorities (Rishonim) over whether partnership means “an undetermined half of the field” or that each person has a share “in every grain of the field.” The text argues that undivided ownership makes transactions difficult and requires either dissolving the partnership or dividing usage rights. It describes dividing usage over the axis of time and connects this to topics of retroactive clarification, in a way that translates economic value into days of use according to ownership percentages.
“Mathematical” tools: fuzzy logic and probability
The text says that the tools for dealing with the two kinds of doubt are fuzzy logic: for vague reality it is fuzzy logic, and for ordinary doubts it is probability. It notes that the two are similar, but “not exactly the same thing.” It adds that in vague reality, “even in a rabbinic doubt here we would also rule stringently,” unlike an ordinary doubt where in rabbinic matters one rules leniently, because here “it’s not a doubt; you simply take both sides into account, both sides exist.”
Legal status as a meta-legal state and its implications
The text argues that the legal status of a person or an object is a derivative of a factual or meta-legal state, and presents the status of a married woman as a reality from which the consequences flow: she is forbidden to the world, permitted to her husband, bound by mutual obligations, and subject to all the laws of a married couple. It argues that one can speak of a woman who is both married and divorced at the same time, similar to the model of two women being betrothed simultaneously, because the status of married woman and the status of divorced woman both apply to her. It proposes a practical rule for deciding such cases: we take the implication of the positive legal status and ignore the implication of absence. It illustrates this by saying that if we ask whether she is permitted to marry a priest, she is forbidden because of the “divorced” side, whereas the permissive side of being single is only “permitted,” which is merely an absence, not an affirmative status. The text says this is similar to the laws of doubt, but not identical.
The Sabbath rest of one’s animal and the Rogatchover: ownership as a metaphysical bond
The text presents the Sabbath rest of one’s animal as the question why mere Jewish ownership of an animal obligates Sabbath observance, to the point that if the animal “goes and plows on its own, without any connection to me,” its owner violates the prohibition of the Sabbath rest of one’s animal. The text notes that there is a dispute among medieval authorities (Rishonim), mentions Ritva and Tosafot Rid, and describes a view attributed here to Tosafot Rid according to which ownership itself generates a Torah-level prohibition when the animal performs prohibited labor. It says that, simply speaking, this is a positive commandment (“so that it may rest”). It argues that if ownership were merely a bundle of rights/prohibitions vis-à-vis others, one would not expect consequences unrelated to monetary law. Therefore, the Rogatchover brings this as proof that ownership is a metaphysical bond, and the halakhic implications are a result of that metaphysical state rather than the essence of the legal state.
A slave awaiting a bill of emancipation: prohibition-based ownership without monetary ownership, and injury payments
The text presents the example of a Canaanite slave who is awaiting a bill of emancipation, where the master “declared him ownerless” without giving him the bill, and describes in the language of the later authorities (Acharonim) a state in which “the monetary ownership has lapsed, but the prohibition-based ownership remains.” It notes that the Talmud says that one who injures such a slave “pays the master,” and connects this to the law of the thirty-shekel payment for a slave when an ox gores and kills the slave, where payment is made to the slave’s master, and even in the case of a slave awaiting emancipation the payment is made to the master. It quotes Tosafot: “What difference is there between killing him entirely and killing him partially?” and cites the question of Pnei Yehoshua, who distinguishes between a fine (the thirty-shekel payment for a slave) and monetary compensation (injury payments), and asks why injury payments go to the master when he has suffered no monetary loss. The text argues that there is still ownership in the sense of a metaphysical bond even without usage rights, and therefore even without monetary loss the tort payment goes to “the owner of the property.” It presents this as a novel understanding of tort law: the payment goes to the owner of the injured property not necessarily because he is the one who actually suffered the loss, but because that is how the law of payment is structured. The text concludes that one cannot “abandon the metaphysical state and keep only the consequences,” but one can “do the reverse,” as in the case of a slave awaiting emancipation, where the metaphysical state remains without the derivative rights.
An intermediate category: doubtful inevitable result
The text presents epistemic doubt as subjective and ontic doubt as objective, and seeks to introduce an intermediate category through the topic of “doubtful inevitable result.” It brings the dispute between Rabbi Yehuda and Rabbi Shimon about an unintentional act, the example of dragging a bench and making a furrow in the ground, which is liable as plowing, and the rule that Jewish law follows Rabbi Shimon, who exempts in the case of an unintentional act. The text then brings the qualification: “Rabbi Shimon agrees in the case of an inevitable result and it will not die,” and illustrates this with cutting off a chicken’s head to make a “soccer ball,” where the result—the death of the chicken—is certain, and therefore one is liable even without intent. It presents two understandings: an inevitable result may turn the person into someone who “knows/intends,” or alternatively it may link the result to his action even though he is still acting unintentionally. It argues that this point will matter later.
Trapping flies in a small box: Rema, Tur, Ba’al HaTerumot, and Taz
The text presents the laws of trapping: “Anything of a kind that is normally trapped, one is liable for trapping it,” whereas if it is not of a kind normally trapped, one is “exempt but it is forbidden.” It applies this to flies, which it is forbidden to trap. It quotes Rema, who warns “not to close a small box or stop up vessels containing flies on the Sabbath,” because this is “an inevitable result that they will be trapped there.” It then notes that some are lenient “in a case where, when one opens the vessel, they will rush out and flee,” on the grounds that this is not trapping that stands for practical use. The text quotes Tur in the name of Ba’al HaTerumot, who forbids locking a box containing flies unless one leaves an opening through which they can escape, and quotes Tur: “It seems to me that one need not be so exacting about this,” on the grounds that when one opens it and takes it, they will flee. The text reports that Taz interprets Tur’s language as referring to uncertainty whether there are flies in the box, and argues that one need not inspect and check, because even if there is uncertainty, this is “a doubtful inevitable result,” which he defines as an unintentional act and therefore permits. It concludes with Taz’s practical ruling that if one sees flies, he should first drive them away, but “there is no need to go looking for this.”
Rabbi Akiva Eiger: a doubt about the past as a stringent case of doubtful inevitable result
The text presents Rabbi Akiva Eiger as disagreeing and arguing that it is forbidden, defining this as “a doubtful prohibition in the case of an inevitable result,” rather than as an unintentional act without an inevitable result. It cites Rabbi Akiva Eiger’s difficulty from Rema in Yoreh De’ah, who forbids stoking a fire under the pot of idol-worshippers out of concern for cooking meat and milk, and asks why this is forbidden—after all, it is “unintentional,” and “it is not an inevitable result,” because “perhaps the idol-worshipper did not cook both meat and milk in the pot.” The text brings Rabbi Akiva Eiger’s answer, which distinguishes between “doubt about the future,” as in dragging a bench where perhaps no furrow will be made, and “doubt about the past,” as in absorbed meat and milk in the pot: if there is absorption, then by stoking the fire “it will certainly cook,” and the only doubt is whether the absorption is already there. The text explains that this distinction depicts a situation where, if the factual condition exists, the result is certain; therefore it remains in the category of inevitable result even though the person is uncertain, and it calls this “doubtful inevitable result,” almost an oxymoron.
Doubtful inevitable result as epistemic doubt versus ontic doubt
The text proposes a principled reading of Rabbi Akiva Eiger’s distinction as the difference between ontic doubt and epistemic doubt: in ground that does not necessarily produce a furrow, there is vagueness in reality itself and therefore it is not an inevitable result; whereas with flies in a box or absorbed substances in a pot, reality is sharp and definite, and only information is missing as to whether the condition is present. The text argues that in epistemic doubt, “if there are flies in the box, then closing the box certainly traps them,” and the fact that “you just don’t know” does not remove the label of inevitable result, and therefore one must be stringent. It raises the question of a case “where it is possible to clarify” and whether that still counts as a doubt, and contrasts this with Taz’s conclusion that “one need not be exacting” even when it is possible to check.
Biur Halakhah, rabbinic doubt, and majority versus certainty
The text notes that Biur Halakhah discusses this at length, and that there is a dispute among medieval authorities (Rishonim), involving Tosafot and Nachmanides, and remarks that the speaker does not understand “what exactly the discussion is about,” since this is a rabbinic prohibition and in a rabbinic doubt one might have expected leniency. The text stresses that an inevitable result requires certainty, not just a majority, and explains that majority is a rule for conduct in cases of doubt, but it does not generate prior certainty for purposes of inevitable result. It compares this to discussions of presumption, to the idea that “we stone and burn on the basis of presumptions,” and to topics such as doubtful impurity in the public domain and in the private domain, and suggests that with majority one still remains with incomplete knowledge even though Jewish law reaches a decision. It also connects this to the topic of “throwing a stone into a group” and to the rule of fixed status, and suggests that the connection there to intention/knowledge is interesting and requires thought.
Rabbi Shimon Shkop: an inevitable result does not turn a person into someone acting intentionally
The text quotes Rabbi Shimon Shkop in Sha’arei Yosher, who states that the reason for “Rabbi Shimon agrees in the case of an inevitable result” is not because every inevitable result “counts as intentional” due to certain knowledge, and therefore from that perspective there would have been room to permit a doubtful inevitable result. The text concludes from this that Rabbi Akiva Eiger necessarily does not hold that an inevitable result turns a person into someone intending/knowing; rather, an inevitable result links the action to him even without intent. The text notes that Rabbi Shimon Shkop accepts that in a doubtful inevitable result this is “a doubt concerning a Torah prohibition,” and refers to tractate Shabbat 95a and to the example of “sweeping,” where sweeping may cause uprooting on the Sabbath.
Full Transcript
[Rabbi Michael Abraham] Okay, we spoke about two kinds of doubt: ontic and epistemic. In other words, doubt as a vague reality versus doubt rooted in lack of knowledge.
[Speaker B] I just mean, regarding this vague reality—it’s really just some abstract term. It doesn’t help me in real life. Meaning, once there’s a vague reality, I can’t move forward with anything.
[Rabbi Michael Abraham] Why not? I said what you do in practice. You proceed using the laws of doubt, but it’s not exactly the laws of doubt.
[Speaker B] No, you don’t proceed with the laws of doubt, because it’s not a doubt.
[Rabbi Michael Abraham] Right, that’s exactly what I’m saying. That’s why it’s not exactly like the laws of doubt. But there’s still a very clear way of knowing what to do, just like with the laws of doubt.
[Speaker B] For example, that case with the five plots. If someone says, “I’m selling you one of these plots,” then the person who bought it seemingly can’t do anything with it.
[Rabbi Michael Abraham] Why not? Of course he can. He has one-fifth ownership in each of the fields. Now, if there’s a way to solve it, then either the money gets returned, or alternatively he can buy, or he can buy one of the fields. With fields it’s simpler; with women it’s more complicated because there you need divorce and so on. So for example, with women—whereas with fields there’s no problem, you can sell your share, buy another share, no problem, it can be arranged easily—with women, once the betrothal takes effect, it takes effect. You can’t then transfer the woman and buy and sell. So there, if you betroth one of two women, then in each one there is a weak kind of betrothal, and then the Talmud says: you give a bill of divorce to both. What does that mean—that both are weakly divorced, so to speak? Fine. But there is a systematic way to deal with these situations, like the laws of doubt. That’s why people call this the laws of doubt, even though I said there’s a difference. It’s similar, but not exactly the same thing. There are places where it differs. For example, I said that in a rabbinic doubt here too we’d rule stringently, unlike an ordinary doubt, where in rabbinic cases we rule leniently. Because here it’s not a doubt—you simply have to take both sides into account. Both sides exist. It’s not a doubt.
[Speaker B] Yes, but for example with the plots, it’s not realistic. He has one-fifth in each of the five plots—what can he do with that? He can’t do anything with it.
[Rabbi Michael Abraham] Why not? What’s the simplest thing? What do you do when you’re a partner in a field with someone else? On the contrary, there it’s trivial. I’m in a field together with four other people; you have one-fifth of the field, right? What do people do with jointly owned property?
[Speaker B] Yes, but when this transaction was made, he said to him: “I’m selling you one field out of the five.” Meaning, he intended to buy one field, not to start dealing with one-fifth of all five.
[Rabbi Michael Abraham] But he didn’t choose which one. He didn’t choose which one. So in practice what came out is that he has one-fifth in each of the fields. No, this is a perfectly well-defined concept on the legal level: it’s a partnership.
[Speaker B] No, there’s also today what’s called undivided ownership—you have rights in undivided form, meaning you have a centimeter in every part of the plot, and the other person partnering with you also has a centimeter. It’s not divided, but each person has rights everywhere in the plot.
[Rabbi Michael Abraham] Ran, at the beginning of the chapter HaShutafin in tractate Nedarim, brings a dispute among medieval authorities (Rishonim) over how to define partnership. Some define partnership as an undetermined half of the field, and some claim that in every grain of the field each one has a share.
[Speaker B] Right. But in reality, when you have something like that—undivided ownership—it’s very hard to do transactions. You have to dissolve the partnership.
[Rabbi Michael Abraham] Fine, dissolving the partnership is also a solution—what’s the problem? Or you divide up usage rights. Jewish law has that too. You divide the usage rights, and then you get into the topics of retroactive clarification—it’s very interesting. The moment you use the field, then the whole field is yours; when you leave and he uses it, the whole field is his. And then you spread that out, say, along the timeline. If you have only twenty percent and he has eighty percent, then over time you use it one day and he uses it four days opposite that, or however you translate it. In the end we’re talking about economic value. So with a field it’s simple; with betrothal it’s more complicated. In any case, I said that the, let’s call them, “mathematical” tools for dealing with these two types of doubt are fuzzy logic: in vague reality it’s fuzzy logic, and in doubts it’s probability. Fine. There’s a similarity between the two, but it’s not exactly the same thing. After that I spoke about the concept of legal status, and the claim there, at the bottom line, was that the legal status of a person or an object is a derivative of some kind of factual or meta-legal state. When I say that a woman is a married woman, I’m not just saying that various laws apply to her; rather, there is some sort of status resting on her, the status of a married woman. And the implications of that are her legal status: that she is forbidden to the world, permitted to her husband, with mutual obligations, all those laws of a married couple. But first of all there is some reality, a reality from which those implications follow. And then we showed—I said there—that you can speak of a woman who is both married and divorced simultaneously. Which is actually a bit like two women being betrothed simultaneously, because the status of married woman and the status of divorced woman both apply to her. In terms of implications—here’s the example—in terms of implications, what do we do? We take the implication of the positive legal status and ignore the law of absence. Say I ask whether she is permitted to marry a priest. From the standpoint of the divorced aspect in her, she is forbidden to a priest; from the standpoint of the unmarried aspect in her, she is permitted to a priest. So at the end of the day she is forbidden to a priest, because from the side of the divorced woman she is forbidden, while from the side of the unmarried woman it’s not an obligation to marry the priest, it’s only permitted. And “permitted” is an absence; permitted is not some positive thing. So what determines things is the positive legal status. So this is similar to the laws of doubt, but not exactly the same thing, and that’s the practical implication here. By the way, I brought several proofs—or several halakhic implications—for this meta-legal conception. For example, I mentioned the Sabbath rest of one’s animal. Why is it that if the animal belongs to a Jew, then it is incumbent upon it to keep the Sabbath? The animal should keep the Sabbath. If the animal reaps—what? Only Beit Shammai?
[Speaker C] No, no—
[Rabbi Michael Abraham] The Sabbath rest of utensils, that’s—
[Speaker C] Beit Shammai.
[Rabbi Michael Abraham] The Sabbath rest of one’s animal is agreed upon. As for the Sabbath rest of one’s animal, there is a dispute among medieval authorities (Rishonim), but Ritva and Tosafot Rid—there is a dispute among medieval authorities (Rishonim) over what exactly the Sabbath rest of one’s animal means. And in the view, I think, of Tosafot Rid—I don’t remember anymore which of them says what—in the view of Tosafot Rid, I think, it means that the action of the animal is something through which you are forbidden to desecrate the Sabbath. Meaning, if the animal does something that, had a person done it, would count as prohibited labor, then I have violated a Torah-level prohibition. I, the owner of the animal, even though I wasn’t there and didn’t work with it—and this isn’t plowing with the animal. If I plow with the animal, I violate the prohibition of plowing. That’s unrelated to the Sabbath rest of one’s animal. When my animal goes and plows on its own, with no connection to me, then I violate the prohibition of the Sabbath rest of one’s animal. What? A positive commandment?
[Speaker D] Is the Sabbath rest of one’s animal a positive commandment or a prohibition?
[Rabbi Michael Abraham] Simply speaking, it’s a positive commandment, yes. There is—I don’t remember exactly—but I think there’s some discussion about it. But simply speaking, yes, it’s a positive commandment. “So that it may rest.” So there too the question is: why does the fact that the animal is mine cause it to be the case that when it performs prohibited labor on the Sabbath, I have violated a prohibition? If the fact that the animal is mine is nothing more than a bundle of rights or restrictions on others, then why would that have consequences in the realm of Sabbath observance? What’s the connection? I’m allowed to work with this animal in my field, and someone else may not do so without my permission. That has consequences. But if only the consequences existed, I wouldn’t expect laws that have nothing to do with monetary law. And so the Rogatchover brings this as proof. He says that from here we see that ownership of the animal is some kind of metaphysical bond between me and it, and the halakhic consequences are consequences of that metaphysical state; they are not the essence of the legal state. The legal state is only a result, a result of some sort of meta-legal state.
[Speaker F] So then you can always abandon the metaphysical ownership and keep only the consequences.
[Rabbi Michael Abraham] How can you? If you declare the animal ownerless, then there are no consequences. What do you mean?
[Speaker F] I can’t abandon part of it?
[Rabbi Michael Abraham] You can do the reverse. You can declare the slave ownerless, for example. I brought that Tosafot, right? That was another example: a slave awaiting a bill of emancipation, where his master declared him ownerless. Now, in order to free a slave—I’m talking about a Canaanite slave—in order to release him, he needs a bill. Which is actually forbidden, because it nullifies the positive commandment of “you shall work them forever,” but in principle you need to give him a bill in order to free him. Now what happens if someone declares him ownerless but doesn’t give him a bill? In the language of the later authorities (Acharonim), they call that a case where I still have prohibition-based ownership over him, but the monetary ownership has lapsed. The prohibition-based ownership remains. Now the Talmud says that someone who injures him pays his master. And the proof is from the law of the thirty-shekel payment for a slave: if an ox gores the slave and kills him, then there’s a fine that the Torah imposed, thirty shekels for a slave, paid to the slave’s master. And in the case of one awaiting a bill of emancipation, they also pay the fine to his master. Then the Talmud says—actually, sorry, Tosafot says—“What difference is there between killing him entirely and killing him partially?” Just as when they kill the slave and pay the thirty-shekel payment for a slave to his master, so too if they injure the slave, they likewise pay the payment to his master. Pnei Yehoshua asks about this: what’s the connection? The thirty-shekel payment for a slave is a fine. A fine is a penalty on the person who did it. Now if the slave dies and we want to punish the owner of the ox who did it, then what do you do? To whom does he pay? The slave is no longer here. So to whom does he pay? He pays the slave’s master. Someone has to receive the payment, right? And that’s fine; it’s a fine, the Torah obligated it. It’s not compensation for what you did. But with injury, injury payments are monetary compensation; they’re not a fine. You injured him, so you have to compensate for the damage that occurred. Whom do you have to compensate? The master can’t do anything with the slave anyway; he lost nothing. The slave no longer belongs to him in the monetary sense. So why do injury payments go to the slave’s master? What does “What difference is there between killing him entirely and killing him partially” mean? Killing him entirely is a fine; killing him partially is payment, compensation. So I said there—and I think this is also what Pnei Yehoshua means—I once had an argument with my yeshiva lecturer about this issue. But I argued that this is what Pnei Yehoshua is saying. What does it mean? Afterward we went to a religious court before one of the other yeshiva teachers—just for your sake—before one of the other yeshiva teachers in the yeshiva, and he was my advocate, that rabbi of mine whom I had argued with. So he asks the other rabbi: why do they call this remaining thing “prohibition-based ownership,” this status that remains? What is prohibition-based ownership? He remains in the status of a slave, so why call it ownership? So the basic claim was that I still have ownership over him even though I have no rights at all. I can’t make him work, he doesn’t belong to me, what he finds belongs to himself, meaning not to me, and so on. Meaning, he doesn’t belong to me in any property sense whatsoever. But the metaphysical bond between me and him—he is still mine. He is mine in the sense that he is still connected to me in a metaphysical sense, in the sense of the “Sabbath rest of one’s animal,” in that same sense I spoke about earlier. The legal consequences no longer exist. The monetary rights that this usually grants do not exist in this case, because I gave them up. And so the claim was that if someone injures a slave who belongs to me, even though I lost nothing because I can’t use him, I can’t work him, I can’t do anything, the payment still goes to me. That’s a novel point in the laws of injury. You injure a slave, and the claim is that the payment goes to the master not because the master lost anything. In this case, the master lost nothing. But if he is the master, then the payment goes to him. So the payment goes to the owner of the property. Usually we understand why the payment goes to the owner of the property—
[Speaker B] The property, not a fine, but money.
[Rabbi Michael Abraham] If it were a fine, there would be no question, right. It’s money. With a fine there’s no problem. The point is that we understand why it goes to the owner of the property—because you have to compensate him, he’s the one who lost out. My claim is: no. It goes to the owner of the property because tort payments go to the owner of the damaged property. Usually the owner of the property is also the one who suffered the loss and needs to be compensated, but that’s only incidental. That’s not why it goes to him. It goes to him because the payment has to go to him. That’s the claim. The slave is sitting there injured, and he—
[Speaker B] Might want to go work for someone else.
[Rabbi Michael Abraham] No, the question is how you understand tort damages. Even in legal theory, the question is whether you need to restore the situation to what it was before, or whether this is some kind of punitive payment. There are all sorts of possibilities here.
[Speaker B] Who’s to blame for this complexity? A wicked master who won’t give him the bill of emancipation.
[Rabbi Michael Abraham] Doesn’t matter. That’s indirect causation, that’s—
[Speaker B] He causes this whole situation, and the slave is left sitting there forbidden.
[Rabbi Michael Abraham] Fine, that’s a different discussion. But it has nothing to do with the fact that he’s to blame. What he’s guilty of vis-à-vis the slave is irrelevant. Now the one who damaged the slave is not the master; it’s someone else. The question is: to whom does he pay? The question is: what relation is there between me and the slave such that the slave could take me to a religious court?
[Speaker B] If he weren’t awaiting—
[Rabbi Michael Abraham] —emancipation, then the slave would indeed receive it. But he is awaiting a bill of emancipation. He wants me to free him? Let him go to a religious court and have them compel me to free him. That has nothing to do with the tort question; that’s an independent issue. Many people may object to this, but that’s the law. Why did I remember this? Because you asked whether one can abandon the metaphysical state and leave the rights in place. I think you can’t. You can do the reverse. In the case of one awaiting a bill of emancipation, it’s the reverse situation: the metaphysical state is there, but the rights do not follow from it. Usually when there is such a metaphysical state, rights accompany it. Here the rights do not accompany it. There is only the cause without the effect. That’s the claim. Fine. So that’s what we’ve done until now. What I want to do today is talk a bit about an intermediate state. We spoke about epistemic doubt and ontic doubt. Our topic is subjective and objective, I remind you. So epistemic doubt is subjective doubt, and ontic doubt is objective doubt. What I want to do today is talk a bit about an intermediate state. We spoke about epistemic doubt and ontic doubt, right? Our topic is subjective and objective, I remind you. So epistemic doubt is subjective doubt, and ontic doubt is objective doubt. I want to bring something that is a kind of intermediate category. And that is the topic of doubtful inevitable result. This is a famous topic, a dispute among later authorities (Acharonim) on this question. But first, a few preliminaries. First preliminary: in the prohibited labors of the Sabbath, the Tannaim disputed whether intent is required in order to violate a Sabbath labor. Meaning, if someone performs a prohibited labor unintentionally, the question is whether he is liable or exempt. Rabbi Yehuda says he is liable: in an unintentional act one is liable. Rabbi Shimon says he is exempt. Actually, this isn’t only about the prohibited labors of the Sabbath; it applies throughout the Torah. In an unintentional act throughout the Torah, Rabbi Yehuda obligates and Rabbi Shimon exempts—
[Speaker F] Except for forbidden fats and sexual prohibitions.
[Rabbi Michael Abraham] What? Yes, there, right. In principle though, throughout the Torah. And Rabbi Chaim also argues that there’s a difference between the Torah as a whole and the Sabbath—there it’s knowledge and here it’s intent. The concept of intent is really interpreted in two different ways in different contexts, but let’s leave the details aside for now. So that’s the law of an unintentional act. What does it mean? Say someone drags a bench in order to move it from one place to another, and while dragging it he makes a furrow in the ground. Making a furrow in the ground on the Sabbath is liable as plowing. But he didn’t intend to plow; he intended to drag the bench. So he is exempt. According to Rabbi Shimon he is exempt, and that is the ruling in Jewish law—that he is exempt. So that’s an unintentional act. But there is a qualification to this. Rabbi Shimon agrees in the case of an inevitable result and it will not die. What does that mean? Continuing with the bench and the furrow—if, when the person drags the bench, the ground is such that a furrow will necessarily be made, soft earth where it’s obvious that if you drag the bench a furrow will be formed, then even though when you dragged the bench you didn’t intend the furrow—you only wanted to move the bench from place to place—still, if it is clear in advance that a furrow will be made, then you are liable.
[Speaker B] You should have anticipated it.
[Rabbi Michael Abraham] Yes, but “you should have anticipated it” is already a subtle point. Because even when the ground isn’t soft, but it’s likely that a furrow will come out, you should have anticipated that a furrow might be made. You don’t need one hundred percent certainty in order to anticipate, and still you are exempt. In order to be liable, it has to be certain, not doubtful, okay? If it’s doubtful, then it’s not an inevitable result. The expression “inevitable result” means cutting off the head—cut off its head, yes? Someone wants to give his son a soccer ball to play with on the Sabbath, so he takes a chicken, cuts off its head, and gives the head to his son to play soccer with. In the process, somehow, to his surprise, the chicken dies. It didn’t work out very well without its head. So he says: well, I intended to make a soccer ball here; I didn’t intend to kill the chicken. They say to him: cut off its head and it won’t die? In other words, if it is clear that the second action or result will happen as a result of the action that you did, then you are liable even though you didn’t intend it. And note: you still do not intend it. This does not turn you into someone acting intentionally. This depends a bit on what I said earlier. If an unintentional act means he didn’t know it would happen, then you can understand the inevitable result as turning you into someone who does know. You know. But if an unintentional act means: that’s not why I did it—I know it will happen, but I intended to move the bench, I didn’t intend to make the furrow—then what difference does it make if it will definitely happen? Why should that matter? After all, that’s not why I acted. It’s not a question of knowing or not knowing. So here, I think the way to explain it—Kovetz Shiurim wants to make this claim—is that on the first understanding of an unintentional act, namely that he doesn’t know, then the reason Rabbi Shimon agrees that in an inevitable result one is liable is because he does know. If it’s an inevitable result, then clearly it will happen, so he knows. But if we understand an unintentional act as someone who does not intend, not someone who does not know, then why does Rabbi Shimon agree in the case of an inevitable result? Yet the Talmud clearly says Rabbi Shimon agrees. So why? The answer is probably that the fact that you don’t intend is only a sign, not the real reason. Meaning, the fact that you didn’t intend something only says that the thing that resulted is not connected to you, because you didn’t intend it, and therefore you can’t attribute that action to you. In other words, it’s not that intent is required as an essential condition for liability; rather, if you didn’t intend it, then the action that was done is not considered your action in a full sense, at least. Okay? So here, if that thing definitely came out of what you did, perhaps that is enough to link the result to you, even though in terms of intent you still do not intend it. But if intent is only an indicator, not the essential thing required, and rather if there is intent then the action is connected to me, and if there is no intent then it is not connected to me, it could be that there is another mechanism that links the action to me even without intent—for example the mechanism of knowledge, or the mechanism of certainty, yes, of inevitable result. And then it could be that although in an unintentional act he is not intending—or rather, not intending is not the same as not knowing, on the contrary, he may know and still not intend—and yet if it is an inevitable result you will be liable, even though that does not turn you into someone acting intentionally. We’ll see later the implication of this distinction, but remember this: you can understand inevitable result as turning me into someone acting intentionally, and you can understand it as linking the action to me even though I still do not intend it. Okay, those are two possible ways to understand why Rabbi Shimon agrees in the case of an inevitable result that one is liable. Now, as I said, the later authorities (Acharonim) discuss a case of doubtful inevitable result. What does that mean? The Shulchan Arukh says as follows: anything that belongs to a species normally trapped—one is liable for it. In the prohibited labor of trapping, if I trap a living creature that people normally trap, that is called a species normally trapped, and one is liable for it. If it is not of a species normally trapped, one is exempt but it is forbidden. If there is a living creature that people don’t normally trap, and you trap it, that is a rabbinic prohibition. Therefore, flies—even though they are not of a species normally trapped—it is forbidden to trap them. Flies are not something—I don’t know any British hunters who go out hunting flies, hunting flies.
[Speaker G] Trapping in order to kill?
[Rabbi Michael Abraham] No, that’s a prohibited labor not needed for its own purpose.
[Speaker G] Here trapping means only trapping in order to use it.
[Rabbi Michael Abraham] Yes. In the Talmud on page 3 in tractate Shabbat, there regarding trapping a snake—trapping a snake is a prohibited labor not needed for its own purpose. In order that it not bite me, he doesn’t want to kill it, but it’s not really that he needs the snake; he trapped it, killed it, whatever. So that’s a prohibited labor not needed for its own purpose. So this is forbidden by rabbinic law; it’s not of a species normally trapped. Now Rema says there as follows: therefore one should be careful not to close a small box or stop up vessels containing flies on the Sabbath. If you close some kind of box—why does it need to be small? Because if it’s a large box, that doesn’t count as trapping. Trapping means it is under your control, and that’s only when the enclosed space is small, okay? So if there is a small box and you close it, if there are flies inside then you are forbidden to close it, even though you do not intend to trap the flies, you only want to close the box. But this is an inevitable result, because the flies inside will necessarily be trapped if you close the box. Therefore he says: “or to stop up vessels containing flies on the Sabbath, because this is an inevitable result that they will be trapped there.” And there are those who are lenient where, if one opens the vessel, they will rush out from there and flee. There are some who are lenient, who argue that if in order to get to the fly you would have to open the vessel—how would you use the fly? Let’s imagine you wanted to use the fly: how would you use it? You have to open the vessel; once you open the vessel it will fly away. So why do you care that the box is small? This is a conceptual question, and there are some who are lenient; it’s a dispute. Why is it a dispute? Because clearly what I said earlier is exactly the point. The question is whether trapping is trapping for the sake of use. If so, then clearly the question is how you use the fly. If in order to use it you open the box, then you haven’t done anything. But if trapping is for use, then it makes no difference whether the box is large or small. In any case you’re not using the fly while it’s inside the box; you use the fly when you take it out, right? But when you take it out, once you open the box it will in any case fly away. Regarding the rabbinic prohibition of species not normally trapped, one might have thought that there is a rabbinic prohibition even if you are not going to use the thing, because in any case this is the kind of thing people don’t use. Why are flies classified as species not normally trapped? Because people don’t use them; there’s no use for flies, except for those who hold strange competitions with them. Right? There’s no use for flies. But since it is still rabbinically forbidden even for something not normally trapped, one could say that they forbade it even where you trapped it although it is not intended for your use. If so, then perhaps the criterion of opening the box is irrelevant, because that criterion says that if you want to use it, then you would have to open the box, and when you open it it will fly away, so that doesn’t count as something trapped and standing ready. But if the rabbinic prohibition for something not normally trapped is really a prohibition even when it is meant to stand available for your use—since in any case we are speaking here about something not normally trapped—then why should I care that when we open the box it will fly away? Bottom line, I confined it into a small space and trapped it. It doesn’t matter that it is not currently ready for my use. That, simply speaking, is I think the dispute here—
[Speaker B] In the typical case, where you close the box so the fly won’t bother you too. You want to keep it inside; you’re not going to use it.
[Rabbi Michael Abraham] You’re saying that this is another possible way to explain those who don’t take into account that if I open the box. Fine. It depends, yes—an act of labor not needed for its own sake in a rabbinic prohibition: there is the Terumat HaDeshen who permits that. Here, moving it aside is an act of labor not needed for its own sake in a rabbinic prohibition. Fine. In any case, that’s what the Rema says. Now the Tur, who is really the source for this Rema, brings the words of the Ba’al HaTerumot—that’s the source—so he writes as follows: Anything of a kind that is commonly trapped—one is liable. If it is not of a kind commonly trapped—exempt, exempt but still forbidden. Therefore, flies, even though they are not of a kind commonly trapped, it is forbidden to trap them. Therefore the Ba’al HaTerumot wrote that it is forbidden on the Sabbath to lock a box that has flies in it, unless one places a knife or some other object between the lid and the box in such a way that they can get out from there. Meaning, leave some gap so the flies can get out, because otherwise you violate the prohibition of trapping. And it seems to me that one need not be so exacting about this, because the flies are not trapped in the box, since if one comes to open the box and take them, they will flee. And it is not comparable to bees in a hive, where it was taught that one may spread—never mind, in short that’s something else. So what does it mean, that one need not be so exacting about this, because the flies are not trapped in the box, since if one comes to open the box and take them, they will flee? That is the second opinion in the Shulchan Arukh. For some reason, some of the later authorities want to claim here—and in my opinion it doesn’t begin to fit the language of the Tur at all—that “one need not be so exacting” means a case where I do not know whether there are flies in the box. I don’t need to be exacting and check inside the box whether there are flies or not. One can ask the question: what happens if there is a small box here, say for the sake of discussion, and I don’t know whether there are flies inside. If there are flies inside, then there is a trapping prohibition, according to the view that there is a trapping prohibition, okay? Now I don’t know whether there are flies. So it’s a doubt, right? So what is the law in such a case? Here the Taz writes as follows: “Therefore one should be careful about this. The Tur in the name of the Ba’al HaTerumot wrote to forbid it, and he wrote about it: ‘And it seems to me that one need not be so exacting about this.’ And it seems to me that the words of the Tur are correct,” says the Taz. “And first let us analyze the wording: he wrote, ‘And it seems to me that one need not be so exacting about this,’ and he did not write, ‘And it seems to me that it is permitted.’ Rather, he too holds that it is forbidden when one definitely sees flies in the box. But when he says that one need not be exacting, after that it means to investigate whether there are flies there.”
[Speaker B] It simply doesn’t start from the language of the Tur, it’s—
[Rabbi Michael Abraham] It’s a baseless inference, but that’s what the Taz says. The law itself is an interesting law; it has to be examined, it has room, but the inference from the wording of the Tur, in my opinion, just doesn’t begin. But that’s what he writes. And then he says—and regarding the Tur’s second difficulty, never mind—he brings certain difficulties of the Tur there, and he says: “First, even if there definitely are flies, this is not called trapped like bees. And further, even if you say that if there definitely are flies it is an inevitable outcome and therefore forbidden, still in a case of doubt whether there are flies there, it should be permitted, for there it is not an inevitable outcome, because it is a doubtful inevitable outcome, and that is an unintentional act, which is permitted.” So what is he saying? He is saying: why need one not be exacting about this? Because you are in doubt whether there are flies inside the box or not. You do not need to look inside before closing the box to make sure there are no flies. At worst there are flies—not terrible. Why? So he says, because if you didn’t—let’s say you weren’t exacting—now you’re in doubt whether there are or are not flies, right? Since you are in doubt whether there are or are not flies, this is not an inevitable outcome. An inevitable outcome is only where an act will certainly cause a prohibition when you do it. If you close the box, you have certainly violated trapping, right? Like with the bench and the furrow. But here, since you do not know whether there are flies in the box, it is not certain that a prohibition will occur, right? If there are flies, a prohibition occurs; if there are no flies, no prohibition occurs. So since this is unintentional—you are closing the box not in order to trap. If you were closing it in order to trap, then it’s a doubtful prohibition. But if you are closing it not in order to trap, then as far as trapping is concerned this is entirely unintentional; you are closing it in order to close it, not in order to trap. The trapping comes about unintentionally. And if it is not certain to happen, then it is unintentional without—And if it is not certain to happen, then it is unintentional without an inevitable outcome. So what’s the problem? Why must one be exacting? Says the Taz: obviously it doesn’t begin.
[Speaker B] Yes, but you created the doubt by not checking.
[Rabbi Michael Abraham] Fine, so what? I didn’t create it—I was in doubt; I just didn’t resolve it. It’s not that I created the doubt. Okay, fine. You’re saying that in a place where one can clarify it—this is a major question among the halakhic decisors. In a place where one can clarify it, the question is whether I can apply the laws of doubt, or whether in a place where one can clarify it, this isn’t even called a doubt at all—go clarify it and then you won’t be in doubt. From this Taz it appears—I said that the inference from the Tur isn’t right—but according to how the Taz reads him, it appears from him that one need not be exacting. Meaning, if you are in doubt, then conduct yourself according to the laws of doubt. Okay. So regarding that—and so it seems to me in practice, concludes the Taz, I’m skipping the proofs he brings—practically speaking, if one sees flies there, let him first drive away what he can drive away, but he need not search for this. Meaning, if you see the flies, shoo them away, but if you don’t see flies—no, no—close the box; you don’t need to be exacting about it. Now on this Rabbi Akiva Eger disagrees. Rabbi Akiva Eger argues that this is forbidden. He says that this is called a doubtful prohibition in the case of an inevitable outcome, and it is not an unintentional act without an inevitable outcome. And that is his claim. Rabbi Akiva Eger actually is found in Yoreh De’ah, not in Orach Chayim, not in the laws of the Sabbath. There it says as follows: the Rema there brings, “There are those who say that it is forbidden to stir the fire under a pot belonging to a gentile, because they cook in them sometimes milk and sometimes meat, and one who stirs the fire under their pot may thereby come to cook meat and milk.” Meaning, if you light or stoke a fire under a gentile’s pot, a non-Jew who is not careful about meat and milk, then absorbed in the pot there is meat or milk or something like that, and you can reach a situation where you are essentially cooking meat with milk. We know that in the laws of the Sabbath and also in the context of cooking meat and milk, the one who cooks is the pot and the fire—what does that have to do with me? When is a person called a cook? I’m only indirect causation; I put the fire there, the fire cooks. Lighting the fire is called cooking. Meaning, lighting the fire under a dish is what is called cooking. And that is the prohibited labor of cooking, even though the actual cooking itself is done by the fire, not by me. They compare it a little to winnowing; there are all sorts of interesting questions.
[Speaker C] And even though if he did it before the Sabbath, it would also be a cooking prohibition.
[Rabbi Michael Abraham] That is exactly the discussion of the Rashash, the Minchat Chinukh, the Eglei Tal—the comparison between winnowing and cooking. What happens when you light the fire before the Sabbath and it cooks into the Sabbath? And what does it mean that you winnow before the Sabbath and it, say, takes effect during the Sabbath?
[Speaker J] So then would that be considered a cooking prohibition by strict law if you put it there beforehand?
[Rabbi Michael Abraham] In the Talmud it says no, but the question is why, because in winnowing it might be yes.
[Speaker J] Meaning if I winnow an hour before the Sabbath and it—
[Rabbi Michael Abraham] takes effect on the Sabbath, then the Minchat Chinukh discusses this, and the Eglei Tal, whether yes or no, and there may be a dispute among medieval authorities on this. The question is what the difference is between winnowing and cooking, and so on. One of the claims, by the way, that comes up there is that in winnowing the prohibition is really on the taking effect, and the placement on the ground is simply the practical setup—if you placed it on the ground, you are liable for the taking effect. In cooking, the prohibition is on the very act of lighting the fire.
[Speaker K] Meaning even without you it would happen—
[Rabbi Michael Abraham] It happens without you; the fire cooks. But the definition of the prohibition is not the resulting cooking—the resulting cooking is a condition. The prohibition is to light the fire under the dish; that is the prohibition. There is a difference in definition between the labor of cooking and the labor of winnowing, and so on.
[Speaker L] And is there a side to say that if one winnowed before the Sabbath there would be a prohibition?
[Rabbi Michael Abraham] The Minchat Chinukh talks about that, yes.
[Speaker L] No, I thought he was talking about if he winnowed on the Sabbath and it came out after the Sabbath, or he removed it.
[Rabbi Michael Abraham] As far as I remember, they discuss both cases. At least that’s how I remember it. Fine, never mind—there this whole issue comes up, this indirect causation that you do in winnowing and in cooking.
[Speaker M] But for our purposes, he’s placing the pot on the fire—isn’t that on the side of cooking? Same thing.
[Rabbi Michael Abraham] Whether I put the fire under the pot or the pot on the fire—yes, it’s the same thing, bringing the fire.
[Speaker M] But if he puts the fire there, he doesn’t need the cooking prohibition—he already violates the prohibition of kindling, doesn’t he? Huh?
[Rabbi Michael Abraham] If he lights the fire, does he also violate the prohibition of cooking? By the way, it could be that the kindling itself is permitted for him because he needs the fire for the sake of seeing. The sick person sees there, needs the light in order to see, but he does it under the pot. Fine, a novelty of the Minchat Chinukh.
[Speaker F] Did he speak with you about a pot used within the last day? What? Or even about the absorption of the meat in general?
[Rabbi Michael Abraham] It doesn’t matter. In the parameters of meat and milk—wherever there is a prohibition of meat and milk—leave aside for a moment those questions. So that is what the Rema says. Because with the prohibition of meat and milk, there is a prohibition on the very act of cooking; afterward you do not also have to eat it or something. The cooking of meat and milk itself is the prohibition. So Rabbi Akiva Eger asks there: this is difficult for me, for he does not intend to cook it, only to stir the fire, and it is not an inevitable outcome, for perhaps the gentile did not cook in the pot both meat and milk. I don’t know that the gentile cooked meat and milk there; there is a concern, right? But I do not intend to cook; I intend to stir the fire. So why should this be forbidden? It is unintentional, and it is not an inevitable outcome.
[Speaker K] Maybe there there’s a presumption? What? Maybe there’s a presumption. What presumption? That he cooked meat and milk? That’s what they usually do?
[Rabbi Michael Abraham] What are you talking about? He has fire, he has many pots—not everything is meat and milk. What presumption? There’s no relevant presumption here. There is a presumption that he isn’t careful, but there is no presumption that every pot contains meat and milk. You cannot decide that there is no mixing of meat and milk for a gentile—that there is a presumption against—but not that there necessarily is mixing. And what if he’s vegetarian?
[Speaker N] If there were a situation where there was enough of a mixture, or the question was whether at some point both had been cooked in it?
[Rabbi Michael Abraham] Absorbed in the pot. What? Absorbed in the pot.
[Speaker N] Absorbed in the pot—apparently if it’s a pot that’s been around a long time, apparently if not—
[Rabbi Michael Abraham] if twenty-four hours have passed, what Oren asked earlier, then the taste is spoiled.
[Speaker N] If it’s not going by the twenty-four-hour rule—
[Rabbi Michael Abraham] we are assuming there is some possible setup here for a meat-and-milk mixture; the laws of mixtures in this context aren’t important right now.
[Speaker H] If it were like he said, say most gentile pots had had meat and milk cooked in them, would that be called an inevitable outcome?
[Rabbi Michael Abraham] There is room to say maybe not.
[Speaker H] Right, it’s enough that it isn’t certainty.
[Speaker F] Why? It’s like the presumption that most people do not pay before the due date.
[Rabbi Michael Abraham] Never mind, but for an inevitable outcome you need certainty. We follow the majority, no problem. If I had to decide whether there is meat and milk here or not, I would follow the majority, but to turn something into an inevitable outcome you need certainty; the law of majority won’t help here. But a presumption? The later authorities discuss it. Does a majority count as doubt? For example, what happens with doubtful impurity in the public domain. Say in a situation where there is a majority—doubtful impurity in the public domain is pure; in the private domain it is impure. What happens when there is a majority, when most likely there is impurity in the public domain? There is a claim—I don’t remember in which dispute among medieval authorities—that even in such a case it is pure, because even a majority is still a state of doubt. After all, majority is just a rule that tells us how to act in a situation of doubt; it does not say there is no doubt. You don’t really know. It only tells you how to behave in a situation of doubt. Therefore the laws of doubt apply here.
[Speaker F] But with a presumption the laws of doubt don’t apply—they treat it as certainty. They stone and burn based on presumptions. So he says that a presumption is like certainty.
[Rabbi Michael Abraham] No, that means that if you ask me whether it happened, the answer is yes. That does not mean it happened with certainty; those are different things. For an inevitable outcome you need a definition not that it happened, but that it happened with certainty. When I dragged the bench, a furrow was made. The question whether a furrow was made—well, it was made, look. But if it was not clear in advance that it would happen, then it is not called an inevitable outcome. So in order for it to be clear in advance, it needs certainty; majority won’t help here. Let’s go back to the topic of fixed location—throwing a stone into a group. You throw the stone there; in the end a Jew is killed. But the prior question is whether you could know that the stone would kill a Jew. There too the discussion is about intention, not about what happened in practice—but there it seems that the laws of majority do in fact turn you into one who acted intentionally. That’s interesting; we need to think about it, because there it seems—I mean there it’s fixed location, but were it not for the law of fixed location, meaning if there they would follow the majority, then the majority would turn you into one who acted intentionally. Meaning, if there is a majority of Jews in that place to which you threw the stone, and a Jew was killed, then you are executed—you are a murderer.
[Speaker E] And what about the issue of intention though? What do you mean the issue of intention? It’s an issue of the act. Why not? In the end it turned out that in practice you killed a Jew—
[Rabbi Michael Abraham] After all, the act from the outset was an act—
[Speaker E] It depends. Why? Like the thing with double doubt. You didn’t intend.
[Rabbi Michael Abraham] In plain language, it’s because you didn’t intend; you couldn’t have known. Intention in the sense of knowing at least—at least in the sense of—after all, with intention there are two possibilities, as I said earlier, but at least intention in the sense of “I didn’t know.” I didn’t know, so you didn’t intend. Intended to kill this one and killed that one, or intended to throw two cubits and threw four, intended—
[Speaker E] to kill—
[Rabbi Michael Abraham] a gentile and hit a Jew—that is an exemption of unintentional action. This act is—
[Speaker D] an act directed toward that place.
[Rabbi Michael Abraham] I understand. There was an act, not in intentions and knowledge. Why? That is exactly “intended to kill a gentile and killed a Jew,” right? After all, that is what happens there—it’s really unintentional. But if the majority there are gentiles and in the end I killed a Jew, then why—so too your intentionality there is considered intending to kill a Jew. It’s actually very similar to what is happening here; I need to think about it. It just occurred to me now.
[Speaker F] Why don’t we say “anything fixed is treated as half and half” even in a case of a majority of Jews?
[Rabbi Michael Abraham] No, we do say fixed location. I’m saying, were it not for the law of fixed location, why do they need the law of fixed location there? Because without fixed location, if majority applied, then yes, we would follow the majority. Even though the majority there—yes, they say there is no law of fixed location; on the contrary, from there we learn the law of fixed location. Throwing a stone into a group. In any event, Rabbi Akiva Eger says as follows, and it must be said—yes, so he asks: then why do you need to be careful not to stir under the pot? After all, you do not really know that there is meat and milk there; this is a doubtful inevitable outcome, right? Exactly like a doubtful inevitable outcome—it is unintentional; it is not an inevitable outcome. Just as the Taz wrote. He brings the Taz. He says: “And it must be said that specifically in a doubt about the future, perhaps it will not happen through his act—like dragging a chair or bench, where the doubt is whether by dragging it he will make a hole. But in a doubt about the past, like here, where if there is absorbed meat and milk in the pot, then by stirring it is certainly cooked—only the doubt is whether there is no absorption of meat and milk there—that is a case of inevitable outcome.” Now the formulation here is interesting, and it can be explained in several slightly different ways—different nuances, but different formulations. It seems that in the simple understanding—and this can be sharpened further, and there is a long Bi’ur Halakhah on these matters, and the question here involves a dispute among medieval authorities between Tosafot and Nachmanides; it needs a lot of precision—but it seems to me that what he means is what I am saying now. What difference does it make whether it’s about the future or the past? When you drag the bench and create a furrow, the question is whether there is ground such that a furrow will not necessarily be created. You are basically asking yourself now whether to drag the bench or not. Right? So you say: the question is what will happen in the future—will a furrow be created or not? If it is not certain that a furrow will be created, then drag the bench. Okay? But here the question is not whether trapping will occur or not occur. The question is: what is the current state? Are there flies inside the box or are there no flies inside the box? As a result, of course, I will violate trapping if I close the box or not. And then he says: in such a case this does not leave the category of inevitable outcome; this is called a doubtful inevitable outcome. There is such a thing—almost an oxymoron—there is such a thing called a doubtful inevitable outcome. Even though ostensibly if it’s doubtful then it’s not inevitable outcome—that’s the whole idea. No, there is such a thing called a doubtful inevitable outcome. Why? He says: in the case of the furrow, where the doubt is about the future, then basically you are telling me that the fact that it is not certain to happen is exactly what means it is not an inevitable outcome, because it will not certainly happen. But with the flies, by contrast—after all, if there are flies inside the box, then if you close the box they will certainly be trapped. If there are no flies inside the box, they will not be trapped. But right now only one of those two possibilities is true; you just don’t know which one. You can already see the epistemic doubt. You just do not know whether there are flies in the box or not, right? So since that is so, if there are flies in the box, closing the box certainly traps them. So what if you don’t know? Notice, I’m not talking about knowledge; I’m talking about intention. Right? If the relevant dimension is the dimension of intention, then why should I care what you know or don’t know? If there are flies in the box, then if you close the box you will certainly trap them. That is not what happens with the bench. Therefore he says: here it is a doubtful inevitable outcome. Because there is doubt whether there are flies in the box. If there are flies, then it is an inevitable outcome that they will be trapped, and closing the box will trap them whether you like it or not. If there are no flies, then they will not be trapped. So you have a doubt—a doubtful inevitable outcome. A doubtful inevitable outcome requires stringency. Now of course this is also a rabbinic doubt, because this is something not commonly trapped. A rabbinic doubt—even just from the ordinary laws of doubt—would seem to allow leniency. Indeed, the Bi’ur Halakhah here discusses this and says he does not really understand what the discussion is about, because the prohibition is a rabbinic prohibition. So even if it is a doubtful inevitable outcome and not as the Taz says, still one should have gone leniently, because in a rabbinic prohibition one may be lenient in a case of doubt.
[Speaker I] And the furrow—how is the doubt structured differently there? There’s no certain side? What? There’s no certain side in—
[Speaker B] If it’s soft ground, there is a certain side.
[Rabbi Michael Abraham] Yes, if it’s certain, then fine. But if it’s a place where the ground is not definitely—because with the ground we are talking about ground of the kind where a furrow will not definitely result—
[Speaker I] not certain.
[Speaker F] But there too it’s an epistemic doubt. Why? You don’t know whether a furrow will be created or not. Yes.
[Rabbi Michael Abraham] What do you mean you don’t know? The ground itself is such that either a furrow will be created or it won’t—two possibilities. Or maybe that whole thing is an illusion. Why? There are two possibilities. With such ground, there can be a case where a furrow is created and a case where a furrow is not created. With the flies, it’s not two possibilities. If there are flies, you certainly trap them.
[Speaker F] Yes, but apparently if I knew enough about this ground—
[Rabbi Michael Abraham] That’s my next step. But that is the simple understanding of Rabbi Akiva Eger, and I say there is a long discussion of these matters, and I think this is the accepted distinction. There is even—look—Rabbi Shimon Shkop brings this in Sha’arei Yosher. He says as follows: “And the reason for this, it seems to me in my humble opinion, is that the matter of Rabbi Shimon conceding in a case of inevitable outcome is not because wherever there is an inevitable outcome it is considered intentional, on account of the fact that he certainly knows it will be so, it is considered intentional.” The liability for an unintentional act in a case of inevitable outcome is not because inevitable outcome turns you into one who intended—exactly the two possibilities we discussed earlier. “And according to this, where there is a doubtful inevitable outcome, it should really be permitted.” Rabbi Akiva Eger, who makes this distinction, clearly understood that an unintentional act in a case of inevitable outcome does not turn the unintentional into intentional. Because if inevitable outcome had to turn the unintentional act into an intentional one, what would be the point of distinguishing between this doubt and that doubt? In both cases I don’t know, right? It doesn’t turn me into one who intended; it doesn’t turn me into one who knows. Therefore it is clear that Rabbi Akiva Eger did not hold that inevitable outcome turns me into one who intended, one who knew, yes? Rather—what I said earlier—it attaches the action to me even though I did not intend it. Okay? He says, “For in such a case, where the matter is doubtful to the doer, and in truth a doubtful inevitable outcome is a doubt concerning a Torah prohibition.” He goes with Rabbi Akiva Eger. This was in tractate Shabbat 95a. It’s wonderful. Rabbi Akiva Eger’s logic is wonderful. Afterward I gathered several more examples like this. Look: “And in Tosafot, where Rabbi Eliezer and the Rabbis disagree regarding sweeping.” Sweeping means sweeping the ground. You take a branch and sweep the ground with it. Now this sweeping can detach leaves from that branch—that was their broom. Okay? So in the course of sweeping, it may detach leaves on the Sabbath.