Objectivity and Subjectivity in Halakha and in General – Lesson 7

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[Speaker C] that there are experts like that who can do it on the Sabbath too, and say maybe also in practice… what do you mean?

[Rabbi Michael Abraham] One more thing: it also has to be a practical possibility to check, not just a theoretical possibility.

[Speaker C] Practically possible.

[Speaker D] Better to give up moving the bench.

[Rabbi Michael Abraham] Maybe that’s—

[Speaker C] Let’s say, it could be that this dialogue is practically possible, it doesn’t matter.

[Rabbi Michael Abraham] But all of those are just criteria. They’re still only criteria for what I’m saying. A certain thing will be called an ontic doubt even though it’s epistemic, in a case where it can’t be checked, or can’t be checked practically, or there are no experts, or whatever you want — those are the criteria. But beyond the criteria, it’s clear that there is some distinction here between two doubts that are both epistemic in principle, but one of them is perceived by us as an ontic doubt, or considered an ontic doubt, even though in fact it’s epistemic. A criterion could be that I don’t have an expert, or that they can’t be brought on the Sabbath, or whatever — those are all just criteria. Okay? And that’s why I called it a pseudo-ontic doubt. It’s pseudo-ontic. It’s not really ontic, but it’s as if it were ontic. That’s how we see it. And I brought an example of this from evolution. I said that there, the accepted view among biologists or evolution researchers is that in biology, in evolution, there are all kinds of random components. I don’t know — if a lion decided to get to some place, and it got there, and that particular monkey happened to be there, then it devoured it. And that way the monkey didn’t survive. If the lion had decided something else, then that monkey would have survived. Or I don’t know, this or that weather condition. There was hot weather and certain plants or certain animals didn’t survive. If that weather hadn’t happened, they would have survived. Meaning, it depends on accidental circumstances. Okay? And therefore the assumption is that evolution basically involves components that are random components. Now, from the perspective of physicists, that’s not true. When the lion decided to go there and devour the monkey or not devour the monkey, that’s an entirely deterministic process. It’s just complicated, and because of that we treat it as if it were random, like rolling a die. I gave that example. When you roll a die, you use statistical tools. A result up to two is one-third, and so on. Now, there’s nothing random here. Rolling a die is a totally deterministic process — it’s Newton’s laws. Okay? So why are we using probability here? What does probability have to do with it? Because from our point of view it’s a pseudo-ontic process. We see it as a random process, even though in the professional view, in the view of a physicist, there’s nothing random here. But since it’s complex, and since we have no way to check what the result will actually be, we use tools of probability. And now I’m broadening this further: we basically see it as if it were a random process. That’s what reflects the fact that we use probability tools. Okay? So in fact we see that not only in the halakhic context, but also in everyday contexts and in scientific contexts, very often there are situations where what’s really missing is just information, but we treat them as though there is vagueness in reality itself. And that’s what I called pseudo-ontic doubt. Okay? Those are basically just small additions to what I said last time.

[Speaker D] Can that be valid only in the laws of the Sabbath? Meaning, in the laws of kashrut you can’t relate to this pseudo-ontic thing as something meaningful. Why not? Because in the laws of the Sabbath you go by the person’s intention — purposeful labor.

[Rabbi Michael Abraham] First of all, unintentional action is not only on the Sabbath. Unintentional action applies throughout the Torah.

[Speaker D] No, I mean when we talk about purposeful labor, then in the laws of the Sabbath there really is significance to—

[Rabbi Michael Abraham] Unintentional action is not purposeful labor. Some say it is, but plainly speaking, labor not needed for its own purpose is what has to do with purposeful labor, not unintentional action.

[Speaker D] No, fine, I mean more generally that in the laws of the Sabbath there is halakhic significance to what a person thinks. So if a person now thinks that here there is—

[Rabbi Michael Abraham] That’s not true. It’s throughout the Torah. I’m saying again: unintentional action is a rule throughout the Torah. What I just said about trapping flies — that’s true in the laws of forbidden foods as well, in principle. There too you have unintentional action and an inevitable result; it all exists there. The Talmud in Menachot talks about someone sprinkling wine onto the fires. That’s one of the examples of an inevitable result. Someone sprinkles wine on the fire, actually on the fire on the altar, and in effect violates the prohibition of extinguishing — not on the Sabbath, but extinguishing is forbidden: “the fire on the altar shall not be extinguished,” “it shall burn on it; it shall not be extinguished.” So he violates the prohibition of “it shall not be extinguished.” Right? So they say no, it’s unintentional — he intends to sprinkle the wine, not to extinguish the fire. Okay, but it’s an inevitable result. This discussion also exists with regard to the prohibition of extinguishing the fire on the altar. Why only in the laws of the Sabbath? Throughout the whole Torah there is unintentional action. Forbidden foods — that’s a question; there are those who want to claim it applies there too. For example, someone eating worms, say. There are halakhic decisors who want to say that this is unintentional action. And this connects directly to Rabbi Akiva Eiger and the Taz, because if you don’t check, for example, for the worms inside the fruit you’re eating, okay — the question is whether you have to check. There is a doubt whether there are worms or not. If it’s unintentional action, then you’re eating it, you don’t want the worms, you’re eating the fruit, but in the process if there are worms then it’s an inevitable result. But I don’t know if there are worms. The question is whether you have to check. That’s his claim. Maybe when there’s a near-certainty concern, then maybe yes — then it starts becoming all kinds of distinctions — but in the simple sense he applies it also to laws that are not the laws of the Sabbath.

[Speaker D] Even though those are differences between object-status and person-status? Meaning that there are laws that are in the object, and laws that are more in the person.

[Rabbi Michael Abraham] No, but even with laws that are in the object, intention can still be a condition. Without intention, you don’t violate it, even though it’s a law in the object. As a condition, not as the definition of the prohibition. And once the condition isn’t met, there is no prohibition.

[Speaker E] So what’s the point of dispute between them? In a case where I can check, basically? Between whom? The Taz and Rabbi Akiva Eiger.

[Rabbi Michael Abraham] Whether one has to check.

[Speaker E] What’s the reason the Taz prefers not to check? After all, it’s a really, really simple action.

[Rabbi Michael Abraham] Exactly. Because this is not a leniency based on duress. That’s what I said. If it were a leniency because of duress, then this isn’t duress — check, what’s the problem with checking? But it’s not duress; it’s a permitted act. So what’s the problem? Why would you need to check?

[Speaker E] It’s a permitted act. And Rabbi Akiva Eiger — why can’t—

[Rabbi Michael Abraham] Can you say that to him? Because Rabbi Akiva Eiger said that this is a doubtful prohibition, and of course you have to check. Since if there are flies, then it’s an inevitable result, so it’s a doubtful prohibition. A doubtful prohibition — obviously you have to avoid a doubtful prohibition. And the Taz doesn’t understand there to be a doubtful prohibition here? No. The Taz thinks this is not a doubtful prohibition. It’s not an inevitable result, so it’s permitted. Unintentional action, when it’s not an inevitable result, isn’t a doubt — it’s permitted. Not permitted because of doubt; it’s not prohibited at all. That’s really the point. Okay. Now this point — that my way of looking at things can change their status — again brings us back a little to quantum theory. Meaning, my view of reality as though there were vagueness in reality itself, even though the truth is that it’s only my lack of information. So that means there is something subjective in the definition of Jewish law. In the halakhic definition of the situation there is something subjective. I as a person see this as vagueness in reality itself even though that’s not true. In reality itself there is no vagueness. And because I… I see it as a vague reality, Jewish law also sees it as a vague reality. Meaning, my subjective perspective here — now we’re getting into subjective and objective — my subjective relation to it basically determines the halakhic status of the matter. Now I want to show you this in some other places that aren’t exactly like this — there’s room to discuss that, they’re not exactly alike — but there is a similarity. There is a Talmudic passage in Pesachim regarding concealed impurity, in several places. In Pesachim 81 the Talmud says there: “And concealed impurity itself — where is it written?” We’re dealing with a person walking in some field, and there may be pieces of a corpse under that field, and assuming there isn’t a handbreadth above them that blocks the impurity, then you passed over the corpse and the impurity bursts upward to the heavens. If you passed over the corpse then you are impure, and you don’t know it. That is concealed impurity, okay? So the Talmud says: “Concealed impurity itself — where is it written? Rabbi Elazar said: Scripture says, ‘If a dead person dies upon him’ — it must be clear to him.” If he knows there is impurity, then he is impure; if he does not know there is impurity, then he is not impure. I’m not getting now into the connection to doubtful impurity in the public domain and in the private domain; there’s a big dispute among the medieval authorities (Rishonim) whether this is connected to those laws or not. “We found this for a Nazirite; from where do we know it for one bringing the Passover offering?” It is said regarding a Nazirite. With regard to the Passover offering, from where do we know that there is a law of concealed impurity? Rabbi Yohanan said: Scripture says, ‘on a distant road, for you’ — it must be clear to you. Meaning, only when the impurity is clear to you are you considered impure regarding the Passover offering. Rabbi Shimon ben Lakish said: ‘like a road’ — just as a road is in the open, so too impurity must be in the open, and so on. Now the Talmud says: they raised an objection — what is concealed impurity? Anything that was not known by even one person from one end of the world to the other. But if one person at the end of the world knew of it, this is not concealed impurity. Meaning, if someone in the world knows that in this field there are parts of a corpse, even though I, the one who passed there in the field, don’t know, but there is someone in the world who does know, then this is not concealed impurity. Concealed impurity is when no one in the world knows. You can already see the connection to our discussion — whether there is an expert or not. It’s exactly the same distinction. According to Rabbi Elazar, who said “it must be clear to him,” it would mean he himself has to know. That is, it depends on what the source is for the law of concealed impurity. If he says “clear to him,” then the meaning is clear to him himself; I don’t care if someone else knows; he himself has to know. According to Rabbi Yohanan, who said “for you” — “clear to you” — two people have to know; “for you” is in the plural. According to Rabbi Shimon ben Lakish, who said “like a road” — just as a road — then everyone has to know. It has to be something publicly known, that there is impurity there. Rather, concealed impurity is a received law, and the verse is only a mere support.

[Speaker E] According to Rabbi Yohanan, where it says two, then I should be included among the two, right?

[Rabbi Michael Abraham] I don’t know, I don’t remember — two.

[Speaker E] Why does it matter that I think there is concealed impurity here?

[Rabbi Michael Abraham] It doesn’t matter — you don’t have to think that. We’re talking about a case where it became known to you afterward. Now the Talmud goes on and says: Mar bar Rav Ashi said, “They taught this only when it became known to him after the sprinkling, for when the blood was sprinkled, it was properly sprinkled. But if it became known to him before the sprinkling, it does not atone.” You bring an offering, and you were impure with concealed impurity, and afterward it became known to you that there really was a corpse in that field where you had passed. There really was a corpse there. So it depends when it became known to you. Mar bar Rav Ashi says: if it became known to you after the sprinkling, then there is no problem. The sprinkling is the stage that effects atonement for the offering. So if at the stage of the sprinkling you didn’t know you were impure, you thought you were pure, then it’s fine. Even though later it turns out you were already impure then — it only became clear later, but you were impure — no matter, it’s fine. But if it became known to him before the sprinkling, it does not atone. But if it became known to him before he sprinkled, then at the stage when he sprinkles he already knows he is impure, so it doesn’t help. Then they bring an objection — not important — they raise various objections. In the end he says: Don’t say that only if it became known to him after the sprinkling does it atone, but if it became known before the sprinkling it does not atone; rather, even if it became known before the sprinkling, it still atones. Meaning, in the end Mar bar Rav Ashi’s conclusion is that even if it became known before he sprinkles — when he sprinkles the blood he already knows he is impure — even then it atones. A person impure with ordinary impurity, not concealed impurity, then it does not atone. Only with concealed impurity — that is a special law of concealed impurity, a received law, a received law. What does “a received law” mean? There is a dispute between Rashi and Maimonides. Rashi says that everywhere they say “a received law,” it means a law given to Moses at Sinai. But with Maimonides — the Netziv, in Kedmat Ha-Emek, says that this is where Maimonides disagrees. Maimonides claims that “a received law” means: this is a law accepted by us; it could have emerged from some verse and we lost the source, but it is a law accepted in our tradition — it is not a law given to Moses at Sinai. That resolves a great deal, because with a law given to Moses at Sinai there was never a dispute. Yet there is the Chavot Yair, in responsum 192, I think, where he brings many examples of disputes about laws given to Moses at Sinai. So the Netziv says that some of those examples are in fact not laws given to Moses at Sinai according to Maimonides; they are “received laws,” but not laws given to Moses at Sinai — something else. In any case, for our purposes, what do we see here? We basically see that the person’s status — and once again this is a subjective perspective — the person’s status is determined by the question of what he knows, not what the reality actually is. After all, the actual reality is that he was impure. So what difference does it make when it became known to him? If it became known now, later, in two weeks — bottom line, once it became known, it turned out that he was impure at the time he sprinkled the blood. So what difference does it make whether, when he sprinkled the blood, he didn’t know, or sometimes when he did know — but earlier when he slaughtered he didn’t know? What difference does it make? In reality he was impure. Since the person’s knowledge is what determines whether the offering atones or not. Not reality itself — whether he is impure — but your knowledge that you are impure is what determines whether the offering atones or not. Meaning, it is not the disqualification of impurity — at least with concealed impurity — the disqualification of impurity is a subjective disqualification, not an objective one. So even if we know he is impure, it doesn’t matter. Let’s say I’m sitting on the side and I know he is impure, but he doesn’t know. It doesn’t matter; the offering has atoned for him, even though I already know right now that he is impure and that the one who sprinkled the blood is an impure person. But that doesn’t matter, because what determines things here is not reality but the person’s own perception of reality. And again, it’s that same subjective perspective I spoke about earlier, the pseudo-ontic one, which says: from my point of view, if I don’t know that I am impure, then I have the status of someone who is not impure.

[Speaker E] Is there any point in informing such a person? Is there an obligation, as it were?

[Rabbi Michael Abraham] The same question as I asked earlier. Seemingly not. Since here this is not an exemption because of duress; otherwise it wouldn’t have been said specifically regarding concealed impurity — it would have been said regarding all impurity. This is not an exemption because of duress. Since it’s not an exemption because of duress, it is permitted; and if it is permitted, there is no need to work around it even if one can. And that is exactly the distinction I stated at the beginning of the lesson. Now basically the point is that we see here a situation, a special kind of doubt, that is determined by the person’s subjective view of the situation and not by reality itself. You have to understand that this is not like what Jewish law calls a provisional guilt-offering. A provisional guilt-offering is a situation where a person committed an offense whose intentional violation incurs karet and whose unintentional violation requires a sin-offering, and he doesn’t know whether he committed it or not — he is in doubt whether he did or didn’t — so he brings a provisional guilt-offering. If afterward it becomes known to him, he brings a sin-offering. But there it is clear that when you bring the provisional guilt-offering, you bring it because you really don’t know. It’s not pseudo-ontic; it’s completely epistemic. Once it becomes known to you, you really do bring a sin-offering, because the action you performed was really a prohibited action. The fact that you didn’t know changes nothing. That is not the same as here. Here we are saying that even if it becomes known afterward, it changes nothing retroactively. Because what determines things is your mode of perception at that moment. That’s not the same thing as a provisional guilt-offering. Here the innovation is much greater. A provisional guilt-offering means: look, I don’t know whether I transgressed the prohibition or not, so just to be on the safe side, bring a provisional guilt-offering. Fine — you don’t know, so you do that. After it becomes known to you, obviously you’re liable for a sin-offering — bring the sin-offering. Fine, that’s something else. With concealed impurity, even if something becomes known to me, it won’t change anything. I do not revise my view of the past because of what became known to me. Even though what became known to me is information relevant to the past. It’s not information only from now on. We spoke in previous times about from-now-on versus retroactive effect; this is exactly the same thing — sorry, exactly not the same thing. Here it’s not from-now-on retroactively. No, it’s from now on, period, without retroactivity. Even though what becomes known to me is information about the past. And why? Because what determines things is not the question of whether I was impure, but my awareness that I was impure. And if I was not aware that I was impure, then what difference does it make that in fact I was impure? So what if I was impure? That’s not what determines things. What determines things is awareness of the impurity. Now this is an agreed-upon example; it’s written explicitly in the Talmud. But it turns out that there is such a conception regarding all doubts. And that’s interesting — or at least regarding a certain group of doubts. The medieval authorities (Rishonim) dispute whether a Torah-level doubt is ruled strictly or leniently on the Torah level. The Rashba and those in his camp say that a Torah-level doubt is ruled strictly by Torah law, while Maimonides says that a Torah-level doubt is ruled leniently by Torah law, and only the rabbis said to be strict. In practice, a Torah-level doubt is ruled strictly, but the obligation to be strict is rabbinic. By Torah law one could be lenient even in a Torah-level doubt. By Torah law in the first instance. Yes. So this is a dispute between Maimonides and the Rashba. Now, in Shema’ata there, in Shema’ata 1, he challenges Maimonides from the case of a doubtful mamzer. The Talmud in Kiddushin brings: “The Merciful One said a definite mamzer, not a doubtful mamzer,” and therefore by Torah law one may marry a doubtful mamzer; they imposed higher standards regarding lineage, but that is all rabbinic.

[Speaker G] So isn’t that the source for Maimonides?

[Rabbi Michael Abraham] That’s how the Shema’ata raises the difficulty.

[Speaker G] Now—

[Rabbi Michael Abraham] In a responsum — apparently he didn’t know the Shema’ata — Maimonides brings this Talmudic passage as a source for his view. This passage about mamzer is the source for his view. And what’s the difference? It’s what I’ve already told you a number of times: in yeshivot they’re used to saying that if there’s a verse, the verse always says the opposite of what’s written in it. Meaning, if there’s a verse saying that a doubtful mamzer is treated leniently, that means that a Torah-level doubt is generally treated strictly. Therefore you needed a verse about a mamzer to tell you that here this is an exception, here you need to be lenient. It follows from this that a Torah-level doubt is generally treated strictly. And Maimonides holds — he wasn’t a yeshiva bochur — Maimonides says: no, if the verse says that in a doubtful case we are lenient, then apparently a Torah-level doubt is treated leniently. That’s what it says. So doubtful mamzer is the source that a Torah-level doubt is treated leniently.

[Speaker E] But then what does that mean? That he makes from it a general model?

[Rabbi Michael Abraham] Yes, yes — a source. So fine, that’s a question, because the source — there’s a lot to discuss on this issue — because there really is no source there. For this law that a doubtful mamzer is treated leniently there is no source. The Talmud says: “The Merciful One said a definite mamzer and not a doubtful mamzer.” But in the verse all that’s written is “mamzer.”

[Speaker C] So it doesn’t seem to contradict the yeshiva-style approach the rabbi mentioned, does it? Meaning, because there’s no source for it and the Talmud takes it for granted, we understand that it’s general and not specific to mamzer.

[Rabbi Michael Abraham] That fits Maimonides. Because there is no source here, basically. There’s no source in the sense of some extra wording in the verse or a special form of expression. It says “mamzer.” So the sages say: if it says “mamzer,” then apparently it means a definite mamzer and not a doubtful one. Maimonides says: why? There’s no hint in the verse that I need to read it specifically as definite and not doubtful. Rather, clearly there is a general principle that every law the Torah states applies only in certainty and not in doubt. And therefore this is not a general model built from one case. It’s a sign. If there had been an actual source here and I learned from it a general model for all places, then it would be a general model. Here it’s not a general model; on the contrary. From the fact that the sages said it here, it’s clear they would say it everywhere else too — not that we learn it from here. There is no source here teaching that a doubtful mamzer is treated leniently; rather, just as here there is no source and we go leniently, in every other place too we’ll go leniently. Why? Because apparently the assumption is that with doubts one may be lenient. Meaning, when the Talmud said “a definite mamzer”—

[Speaker G] “the Merciful One said” — “a definite mamzer and not a doubtful mamzer” — that wasn’t a derivation, but rather a… yes.

[Rabbi Michael Abraham] Like everywhere else. Completely rational.

[Speaker E] Completely rational.

[Rabbi Michael Abraham] Everything is rational; it depends what you assume.

[Speaker E] No, yes, but not as a result of something — in the understanding, in the understanding…

[Rabbi Michael Abraham] You mean rationalistic — coming from thought and not from the text. Yes. By reasoning. By reasoning or tradition; I don’t know what the source is for the fact that one may be lenient in doubts. I don’t know. It always depends, after all. What’s the difference? My favorite example in this context is when they tell a person that he has to listen to his wife because it says, “Whatever Sarah tells you, listen to her voice.” Now, you won’t catch a yeshiva bochur with something like that. He’ll tell you: well, then obviously one should not listen to his wife, and therefore Abraham our forefather needed the special novelty that he should listen to Sarah; otherwise why would he need to be told that? So clearly one need not listen to his wife. But where really — after all, there are examples of this sort and examples of the other sort in the Talmud. Sometimes it really is as they say in the yeshivot, and sometimes not. Where’s the difference? I think the difference is the question of what the plain reasoning says. If the plain reasoning says it, then when there is a revelation in a verse, the verse apparently says that the reasoning is not correct — otherwise why would the verse need to reveal it? And because of that, you can learn from here that that reasoning is not correct and that here it is an exception. But if the ordinary reasoning is not like that, then the verse comes to tell you that this indeed is the law. And because of that, you can learn from it a general model for all the other places. So the verse is needed, and from the fact that the verse is needed — a general model. Of course, you can also say the opposite. Exactly. You can also say the opposite. You can say that where the ordinary reasoning points one way — if I have two possibilities, I go with the ordinary reasoning and say that that is the general law. If it doesn’t fit that reasoning, then fine. You can play with these things here. In any case, where was I? So regarding mamzer. Maimonides sees in doubtful mamzer a source. Now there are other laws, several laws, in which in cases of doubt we go leniently. Torah-level laws where in doubt we go leniently. For example, doubtful orlah outside the Land of Israel, where the law given to Moses at Sinai says that doubtful orlah outside the Land of Israel is permitted. Doubtful impurity in the public domain is also ruled leniently. Doubt regarding mourning — since the first day of mourning is apparently Torah-level, at least according to some positions it’s not all rabbinic — there too we go leniently in doubt. Doubtful firstborn — the Talmud in Bekhorot calls it that — doubtful firstborn is also treated leniently. Tithing: “a definite tenth and not a doubtful tenth.” And more; there are various doubt-laws in which by Torah law one goes leniently. And this is agreed on by everyone; even the Rashba agrees, although the Rashba holds that a Torah-level doubt is ruled strictly — in these places we go leniently. More than that, these places are usually taken as proof for the Rashba, because from the fact that there are exceptional cases where the Torah says one should go leniently, we see that the sweeping general rule is that one must go strictly in a Torah-level doubt; only these are exceptions, and each has its own source. If it really is a source — as I said, for mamzer apparently it isn’t a source, and with tithing by the way it’s the same thing; “a definite tenth and not a doubtful tenth” — I think that’s what Maimonides would answer there. But those who usually understand it that way take it as a source, and then it is proof for the Rashba. Why indeed in all these places does the Torah say to go leniently in doubt? Say according to the Rashba — why does the Torah really say in all these places to go leniently? There is a Ran in Kiddushin. The Ran says there that the law given to Moses at Sinai says doubtful orlah outside the Land of Israel is permitted, even though orlah outside the Land of Israel is Torah-level, because it is a law given to Moses at Sinai. Plainly speaking this is Torah-level; Maimonides says that a law given to Moses at Sinai is words of the scribes, but the straightforward understanding is that it’s Torah-level.

[Speaker C] Maimonides writes that things learned through the thirteen hermeneutic principles too.

[Rabbi Michael Abraham] Both that and that. Anything not written explicitly in the Torah is words of the scribes. More than that: with things learned through the thirteen hermeneutic principles, a doubt is ruled strictly; with a law given to Moses at Sinai, a doubt is ruled leniently according to Maimonides. So that’s doubtful orlah outside the Land of Israel. The Ran claims — and he has a startling halakhic novelty, a very famous one — that you can take definite orlah outside the Land of Israel and feed it to your friend who doesn’t know about it. Give it to him, host him in your home, serve him definite orlah and say bon appétit, eat — just don’t tell him that it’s orlah, obviously. If you tell him that it’s orlah, then he already knows, so from his perspective it’s no longer doubtful orlah, and then it is forbidden for him to eat. But if he doesn’t know, then it’s doubtful orlah.

[Speaker E] What’s the difference between that and serving him pork? Both are prohibitions.

[Rabbi Michael Abraham] And that is exactly the difference: doubtful pork is ruled strictly, and doubtful orlah is ruled leniently. Wait, so with rabbinic doubts, say, unrelatedly — all rabbinic prohibitions?

[Speaker C] Seemingly it should be the same thing; we’ll see in a moment. Seemingly it should be the same thing. With all rabbinic prohibitions you can—

[Rabbi Michael Abraham] serve it to a person, since for him it’s doubtful and therefore we rule leniently. Since you already brought this up, there is the well-known Netivot in section 234. The Netivot says there:

[Speaker E] But isn’t there “do not place a stumbling block before the blind” here?

[Rabbi Michael Abraham] No, because he is not violating a prohibition, so it’s not a stumbling block. It’s the same question you asked earlier, from a different angle, but it’s the same question. The Netivot in section 234 says there: what if someone ate a rabbinic prohibition of benefit unintentionally? So he says that one does not need to do repentance for that. If unintentionally, yes — then one does not need repentance for it. And his proof is from the Talmud, which says that if a person sees his rabbi standing and about to violate a Torah prohibition, he has to stop him politely and say, “Did you not teach us, our rabbi, that such a thing is forbidden?” so that he notices; maybe he didn’t pay attention. Fine? But with a rabbinic prohibition, first let him do it and afterward raise the objection — first do the act and afterward raise the objection. You first let him do it and only afterward ask him. What do you mean, the person is about to violate a prohibition? A rabbinic prohibition is also a prohibition. So why not ask him first? Say to him, “Did you not teach us, our rabbi, that this thing is forbidden?” The Netivot says that when you ask him, it’s not in order to prevent him from a prohibition; you ask him in order to learn what the law is. You don’t need to prevent him from a prohibition, because there is no prohibition. Since he does not know there is a rabbinic prohibition here, then from his perspective it is a rabbinic doubt, and therefore he may eat it. According to this Netivot, it really comes out that I can apparently cause him to stumble, I can even cause him to stumble in a definite rabbinic prohibition. He says you do not need to stop him if he is eating. Seemingly. In terms of his mode of thought, it also says that maybe one can even cause him to stumble. What’s the difference? You’re not causing him to stumble because I’m not causing him to stumble. Yes.

[Speaker G] Isn’t it not because it’s doubtful from his perspective… but because there’s no concept of unintentional violation? He proves from here that there’s no concept of unintentional violation. Right. No, but that’s because a rabbinic doubt is ruled leniently.

[Rabbi Michael Abraham] No, not because of the doubt — because of the unintentionality. Ah, maybe I should have added one more step. Right, he’s talking about unintentionality and not about doubt. He’s talking about unintentionality. He says that a rabbinic transgression done unintentionally is not a transgression. And why? What’s the logic behind that? The logic behind that is that a rabbinic prohibition in its essence is not a prohibition in the object. When you eat poultry with milk, there’s no real problem in poultry with milk. The Torah does not forbid it. There is an obligation to obey the sages. But if he is unintentional, he doesn’t know that this is poultry with milk, or he doesn’t know that the sages forbade poultry with milk, then there is no problem — he is not rebelling against the authority of the sages, so he has not violated a prohibition. Okay? Maybe that’s a bit…

[Speaker E] That’s crazy — like, if I want to eat meat and milk I can tell my wife to make it for me without my knowing and then I’ll eat it. Poultry and milk. Poultry and milk, yes.

[Rabbi Michael Abraham] Yes.

[Speaker C] No, if you tell her — no, if you tell her, then you already—

[Speaker E] Where—

[Rabbi Michael Abraham] Doesn’t matter — if you tell her, then already—

[Speaker C] If you tell her, then you’re already initiating it; that’s not—

[Rabbi Michael Abraham] She’s not doing it… but what if I initiate it?

[Speaker C] So what?

[Rabbi Michael Abraham] What if I initiate it? I tell her, but don’t reveal to me when you’re doing it, of course. Because if I know, I know. But if not, why not? That’s what comes out of this. I claim that this is true regarding unintentionality, but… what? If not…

[Speaker F] If he’s unintentional… he knows that it’s… like someone who doesn’t know today is the Sabbath, like someone who doesn’t know that this thing is forbidden. Why? What’s the difference?

[Rabbi Michael Abraham] Both of them… those are two kinds of unintentionality. The Mishnah in Klal Gadol: two types of unintentionality — someone who doesn’t know today is the Sabbath, or someone who doesn’t know that this is forbidden on the Sabbath. What’s the difference? Both are unintentional. There’s only the Maharik regarding a woman; there he makes a distinction between those two types of unintentionality. If she doesn’t… if she thinks… commits treachery with a woman. So the Maharik says: if she doesn’t know that it’s not her husband, then she is unintentional; but if she doesn’t know that it’s forbidden to do this even though it’s not… but she does know that it’s not her husband, then she becomes forbidden. Ah, never mind, that’s another discussion, but that’s a specific case. Generally, unintentionality means either unintentional with regard to the law or—

[Speaker G] unintentional with regard to the facts; both are unintentionality.

[Rabbi Michael Abraham] It’s true that the Netivot speaks about unintentionality, but that same reasoning also comes up in the context of doubt. Rabbi Shimon Shkop says the same reasoning regarding doubt. He says: what, why is a rabbinic doubt ruled leniently? For the same reason as the Netivot. Because in every rabbinic prohibition, it’s about the obligation to obey the sages, and if you’re in doubt, then you don’t know that this is something the sages forbade, or at least you don’t know it with certainty.

[Speaker A] So no, then you didn’t obey the sages?

[Rabbi Michael Abraham] So it’s not correct to say here that you rebelled against the command of the sages. Now here the innovation is a bit greater. Because here you do know… you’re in doubt, unlike unintentionality. With unintentionality, he doesn’t know there is a prohibition here. He truly is not rebelling; there’s no aspect of rebellion at all. He wants to claim — and Rabbi Shlomo Zalman says this about the first Shema’ata — that even if you are in doubt, doubtful rebellion is not rebellion. Meaning, if you do not know with certainty that there is a command here and you go against it, that is not rebellion. One can argue about that, but the reasoning is the same reasoning as the Netivot, only even more far-reaching. Okay? Therefore the claim is that you can — I’m returning now — you asked whether according to this Ran I can also feed someone a definite rabbinic prohibition? Seemingly according to the Netivot it appears that yes. It’s the same thing as the doubtful prohibition of doubtful orlah outside the Land of Israel.

[Speaker G] And there it’s a definite Torah-level prohibition to feed him? Plain orlah outside the Land of Israel is forbidden by a law given to Moses at Sinai. Right.

[Rabbi Michael Abraham] And nevertheless it’s permitted to feed it to him?

[Speaker G] I’m asking — so regarding the Ran I don’t understand why he… why yes…

[Rabbi Michael Abraham] The Ran claims that since the eater is in doubt—

[Speaker G] then from his standpoint it’s a Torah-level doubt. Right.

[Rabbi Michael Abraham] But the eater is in… no, doubtful orlah outside the Land of Israel is permitted. The law given to Moses at Sinai that forbids orlah outside the Land of Israel — which is Torah-level — also says that its doubtful case is permitted. It’s the same law, two sides of the same law. So once you feed it to him and he doesn’t know, then he is in doubt, and the law given to Moses at Sinai says that in doubt we are lenient. This is one of the examples where there is a source saying that although it is a Torah-level doubt, we still go leniently.

[Speaker G] So there is no commandment at all to inform someone else in order to keep him away from prohibition? That’s what the Ran claims, that’s what the Ran claims, yes.

[Rabbi Michael Abraham] A prohibition for which the rule is leniency, that is.

[Speaker G] What? He’s not in doubt; he just doesn’t know about the prohibition. Any person who doesn’t know about a prohibition — why with a Torah prohibition too can’t I say, he doesn’t know, let him go on not knowing? He’s only violating unintentionally; what’s the problem? I don’t understand. Meaning, a person who comes to eat pork…

[Rabbi Michael Abraham] Because a Torah prohibition is a transgression — what do you mean?

[Speaker G] Because it’s more an object-based prohibition?

[Rabbi Michael Abraham] Yes. It’s a transgression; you committed a transgression. And even in doubt one must be strict. But I’ll explain now, I’ll explain better. There is… I once heard this orally from Rabbi Hershel Schachter in a lecture. I didn’t find the article by Rabbi Elchanan… he quoted there an article of Rabbi Elchanan from many years ago, an article by Rabbi Elchanan in Higdil Torah, I think. It was a journal he edited in Baranovich. Higdil Torah?

[Speaker F] Ah, “Higdil Torah.”

[Rabbi Michael Abraham] Higdil Torah, yes. So there’s supposed to be some article there… I didn’t find it. There are a few issues in Otzar HaChochma; I checked a bit but I didn’t find it. And he claims there is an article of Rabbi Elchanan in which Rabbi Elchanan argues that all doubts for which there is a law that we go leniently are all in the category of the Ran — not only orlah. The Ran didn’t say this only about orlah. All such doubts — I brought several examples earlier — all Torah-level doubts where there is a source telling us to go leniently, one may definitely cause another person to stumble in them. For example, look at the implication: there is a doubtful mamzer; by Torah law it is permitted, though rabbinically they imposed a higher standard in matters of lineage. But by Torah law it is permitted, right? So can I take a definite mamzeret and arrange a match for her with a fully valid Jew and dance at the wedding and say mazal tov?

[Speaker C] What? Isn’t she violating a prohibition? Is the prohibition only on him?

[Rabbi Michael Abraham] Say that she also doesn’t know about the prohibition. Never mind — I’m speaking only on the conceptual level. Or she is violating a prohibition, but I’m asking about him. If he is willing to violate the prohibition, am I allowed to cause him to stumble?

[Speaker C] The answer is yes, I’m allowed to cause him to stumble—

[Rabbi Michael Abraham] because I’m not causing him to stumble.

[Speaker C] No, she wants to get married. Never mind, that’s not… I’m not speaking now about the practical situation, but that’s the meaning. Or doubtful impurity in the public domain—

[Rabbi Michael Abraham] you take someone through definite impurity in the public domain; since for him it’s doubtful, there’s no problem. Again, there too it’s not exactly a prohibition, so it’s a little… there’s no prohibition against becoming impure. Maybe afterward to enter the Temple or something like that, I don’t know, after he may have become impure.

[Speaker D] According to this, is there some point in not registering mamzerim in the Chief Rabbinate?

[Rabbi Michael Abraham] Yes, but they imposed a higher standard in matters of lineage, and rabbinically they are indeed strict with a doubtful mamzer, and that whole issue is complicated. In any case, Rabbi Elchanan’s claim is that in all these examples where a Torah-level doubt is ruled leniently, they are all in the category of the Ran. And what is the category behind this? His claim is that this is a subjective prohibition. Meaning that with orlah outside the Land of Israel — not a doubt, but orlah outside the Land of Israel, which the law given to Moses at Sinai forbade as Torah law — what is forbidden is not the orlah. What is forbidden is the experience of eating the orlah. When you eat orlah with awareness that this is what you are eating, that is what is forbidden. Not the mere fact that it is orlah and that you’re eating it, but only… You see, it’s like concealed impurity, like all the examples I brought earlier. Rather, only if you know that you are eating orlah outside the Land of Israel — that is what is forbidden. It is a prohibition subjective in its very essence.

[Speaker A] So it’s not in the object?

[Rabbi Michael Abraham] Right. It is forbidden to eat orlah with awareness that it is orlah. The awareness is part of the definition of the prohibition. It’s not that if you’re not aware, you become merely unintentional. If you’re not aware, it’s not a prohibition. It wasn’t forbidden at all. In every other prohibition, if you don’t know, you are unintentional; it’s a lighter form of the prohibition, you bring an offering or whatever — but you did violate a prohibition; it just mitigates it. Here, if you don’t know, there is no prohibition.

[Speaker E] And if it comes to my knowledge after I’ve already done the eating? Because after I performed the prohibition, seemingly? You did it, what can you do. So is that also considered that I did not violate a prohibition?

[Rabbi Michael Abraham] Because you did not violate a prohibition. What difference does it make? At the time you did it, you were not violating a prohibition.

[Speaker E] No, I mean in terms of whether I want to atone for it, let’s say that I need to.

[Rabbi Michael Abraham] Same thing. I told you: you do not need to atone for it, because you did not violate a prohibition.

[Speaker E] So basically I didn’t violate a prohibition?

[Rabbi Michael Abraham] Yes, even if it becomes known to me afterward.

[Speaker A] Right, so now you don’t need to—

[Speaker E] sit…

[Rabbi Michael Abraham] It could be that you’d have to divorce her, say, if it became known to you afterward that she is a mamzeret — you can’t continue living with her. That’s something else. But you did not violate a prohibition in marrying her, or in any of the acts of intercourse until that stage. Fine. But from that point on, you already know.

[Speaker E] That depends on kiddushin and so on.

[Rabbi Michael Abraham] So the claim, basically, what Rabbi Elchanan is really saying, is that the idea of a Torah-level doubt being ruled leniently in all these examples stems from the fact that these particular prohibitions are, in essence, subjective prohibitions. They are prohibitions on my awareness when I violate the prohibition, not on the very act of doing the prohibited thing. As opposed to every other prohibition, where in a case of doubt we rule stringently. In all ordinary prohibitions, doubt is treated stringently, and if it was done inadvertently then you bring a sin-offering, or whatever it may be; you need atonement even for an inadvertent violation. Why? Because there intent is a condition of the prohibition, and if you didn’t intend it or didn’t know, that means the prohibition is less severe, but the prohibition is still defined as a prohibition regardless of intent. The definition of the prohibition is objective. In these particular prohibitions, intent is part of the definition of the act of prohibition itself. It is not a condition for the prohibition to be violated in full or in full severity; rather, it defines the essence of the prohibition. And if the awareness is absent, then there is no prohibition. That’s a huge novelty. It’s a huge novelty, but on the other hand it’s hard to understand the Ran without it. What did you ask earlier? Why, all of a sudden, would it be allowed to cause someone to stumble in something that is definitely prohibited? So what if he doesn’t know? But the reality is that it is definitely prohibited—how can you cause him to stumble? So what if he doesn’t know? If you feed someone pork and he doesn’t know, according to everyone it is forbidden to cause him to stumble, right? That’s obvious. If he does know, it’s also forbidden to cause him to stumble, but even if he doesn’t know it’s still forbidden. Okay? That’s obvious. Why? Because with pork, the prohibition is the very act of eating pork. The fact that you don’t know maybe means the prohibition is less severe—it’s only inadvertent and not deliberate—but the prohibited act is defined as prohibited even without your knowing. By the very fact that you ate pork, you committed a prohibition. But in these particular cases, awareness is what defines the prohibition. Meaning, without awareness, it’s not that something is lacking in the severity of the prohibition—you did not violate the prohibition at all.

Let’s maybe bring another example. We also talked about this once. Rabbi Yitzchak Hutner discusses this—he says, he writes, that once a certain sage asked him a difficulty on Maimonides. Maimonides writes that we do not count commandments that contain no novelty compared to another commandment that is already counted. Something that adds nothing beyond another counted commandment is not counted separately. So he says: Maimonides counts the commandment to love the convert, and the commandment to love a fellow Jew, love of one’s fellow—yes, “love your fellow as yourself.” He asks: why? Why is that needed? After all, a convert is just another kind of Jew, and the obligation to love him is included in the obligation of “love your fellow as yourself,” so why count separately the commandment to love the convert? So he says: let’s try to think about someone who has a neighbor who is a convert and he’s a very nice person and he likes him very much just because—or he simply thinks he’s Jewish and loves him very much because he’s Jewish. Okay? The claim is that he has not fulfilled the commandment to love the convert.

[Speaker C] He didn’t fulfill the commandment—but did he also neglect it?

[Rabbi Michael Abraham] What do you mean? He didn’t neglect it in the full sense, because he doesn’t know that this person is a convert. To neglect it means when you know that he’s a convert and you do not love him. The question is what you mean here by neglecting it.

[Speaker C] It’s like, for practical purposes, do you have to inform him of it if he—if you know—if you’re trying to save him from, according to the Ran, no.

[Rabbi Michael Abraham] Not according to the Ran. It depends on this. But I’m saying on the conceptual level, what he says is that if I love someone who is a convert, but I don’t know that he is a convert, I love him because he is one of the Jewish people or because he’s just a nice person, then I have not fulfilled the commandment to love the convert. The commandment to love the convert is to love the convert because of his being a convert. And therefore, Rabbi Yitzchak Hutner says, the commandment to love one’s fellow and the commandment to love the convert are not overlapping commandments. When you love the convert because he is one of the Jewish people—you don’t know he’s a convert, or you know he’s a convert but you love him as one of the Jewish people, not because of his conversion—you have not fulfilled the commandment to love the convert. You fulfilled the commandment to love a fellow Jew. If you love him, that’s love in the general sense.

[Speaker E] He’s saying even if I know he’s a convert and I love him only because he was a human being, then I still haven’t fulfilled it? No, no. It’s already difficult—I’m trying to understand—wait, wait.

[Rabbi Michael Abraham] Here there is a lot of logic to it, by the way. There really is a lot of logic here. Because what is the commandment to love the convert? Sometimes the Litvaks are right. What is the commandment to love the convert? Sometimes. The commandment to love the convert means that you essentially have to attach importance to someone who did something worthy of appreciation. Right? Love of the convert is not to help the convert. Helping the convert, or not oppressing the convert, that is something else. That’s simply because his situation is difficult—you need to help him or not hurt him. Love of the convert is something else. Love of the convert is not meant to help him because he’s miserable. Love of the convert is some kind of appreciation due to someone because of something he did. Right?

[Speaker E] I don’t know, I would see it from another angle, because God knows what goes on among people when someone foreign comes from outside, so He imposes on you an obligation to resist your inner desire not to relate to outsiders. No, it’s the same thing. Why is it the same thing? Still, you have to appreciate him. No, still—but you have to love him because he is a convert.

[Rabbi Michael Abraham] Don’t laugh—grab him like a lulav and shake him.

[Speaker E] But you—

[Rabbi Michael Abraham] You need to love him because he is a convert. Still, even according to that definition. What difference does it make? The fact that you just happen to love him doesn’t say anything. The moment it becomes clear to you that he is a convert, you’ll hate him. Because there is a natural tendency to hate converts, right? So no—you have to love him because he is a convert. The fact that you love him in general and he also happens to be a convert does not yet mean that you fulfilled the commandment. Okay? Meaning, the… I think here too the logic of the commandment is, I think, sound logic. Meaning, even though it looks like some terribly technical definition. I once wrote—we talked about this once—I once wrote an article about all the commandments of emotion. All the commandments of emotion, I claim that all of them are of that kind. They are not commandments about emotion.

[Speaker E] Did you touch on this regarding charity? Or regarding forgiveness?

[Rabbi Michael Abraham] Not charity—regarding hating evil, regarding loving one’s fellow, love of God, love of the convert, and “you shall rejoice on your festival.” All the commandments that are commandments about emotion—I showed, in what I think is a very systematic way, for each of them, at least according to certain views, not all views—that it is a commandment to behave in a certain way. It is not a commandment about emotion; it is a commandment about how one must act intentionally, coolly, so to speak. In any case, for our purposes, there too the claim is basically that a person’s awareness takes part in defining the act of the commandment. It is not some side condition for whether you are guilty or not guilty, or what degree of transgression or commandment there is here. Rather, the very definition of the commandment is founded on your awareness. And if you are aware that he is a convert, and because he is a convert you love him, then you have fulfilled the commandment. If he is a convert and you also love him, but the love is not because he is a convert, then you have not fulfilled the commandment. Meaning, awareness takes part in defining the commandment itself. In other words, there is really a whole set of commandments or halakhic rules in which awareness is not a condition for defining you as someone who violates or fulfills, or for what level you violate or fulfill at; rather, it defines the act itself. That is to say, the rule imposed on you—whether a prohibition or an obligation—is a prohibition on awareness of the act, not on the act. And therefore, the absence of awareness means that you did not fulfill the commandment or did not violate the prohibition—not that something is lacking in the degree of guilt or the level of fulfillment of the commandment. Okay? It defines the act itself.

There is something like this distinction in a whole series of—this too we once discussed—when I spoke about time in Jewish law, we gave a series about time, and there I brought a whole set of examples in which time defines the object of the commandment itself. For example, Rashba in Beitzah 30a. Rashba says there that the Talmud says one cannot make a stipulation regarding the wood of a sukkah concerning the holiness of the sukkah wood. To say, “I do not separate myself from it during twilight,” or to make some condition so that the holiness should not take effect on that sukkah wood—you cannot do that. Rashba asks: why doesn’t the Talmud bring from here a proof against Abaye in Nedarim? There is a topic there on 29a, a dispute between Bar Padda and Abaye, on the question whether inherent sanctity expires automatically or does not expire automatically. Abaye argues that it does expire automatically. What does that mean, that it expires automatically? Say I consecrate something with inherent sanctity for two days, and after two days it expires. Or I consecrate something on condition that some condition be fulfilled; if the condition is fulfilled, fine, and if not, then the sanctity expires. So Abaye claims that you can make a stipulation or a time limit for inherent sanctity, and Bar Padda says you cannot. And in practice, the law is ruled like Bar Padda. But Abaye says you can. Rashba asks about this: why not challenge Abaye from sukkah wood? Because with sukkah wood we see that you can make a stipulation regarding it—meaning, we see that you cannot make a stipulation regarding it—so we see that you cannot make a stipulation about something that has inherent sanctity. He assumes, of course, that sukkah wood has inherent sanctity, and that is a really completely implausible assumption, a very novel one, but that is what Rashba assumes. But the question is: why is Rashba not bothered by the fact that after the end of the seven days of Sukkot, the sanctity leaves the wood by itself? Either way, why do you need to get to stipulations? The inherent sanctity of the sukkah expires automatically in any case. After seven days it is sanctity for a limited time; after seven days the sanctity expires. And that directly contradicts the rule that inherent sanctity does not expire automatically. That is actually a proof for Abaye. Why does that not bother him?

[Speaker E] And my argument was that this was not done as a stipulation. It was not done as a stipulation.

[Rabbi Michael Abraham] But limited-time sanctity is also forbidden. Both stipulation and a fixed time limit—those are the two practical ramifications brought there in Nedarim. For inherent sanctity, you cannot make it for a fixed time and you cannot make it conditional. So with the condition, Rashba challenges Abaye—but what about the fixed time? Why do you ignore the fact that the sanctity of sukkah wood is for a fixed time? And the claim is that a sukkah is not a structure of wood properly built—that’s a pergola. A sukkah is a structure of wood properly built during the seven days of Sukkot and designated for the commandment of sukkah. Time is what defines the structure as a sukkah. It is not some side condition. It’s not that there is a sukkah, and during these seven days there is a commandment to sit in the sukkah. No. Only during these seven days is there such a thing as a sukkah. After the seven days, it’s not that the sanctity of the sukkah wood expires—the sukkah itself expires. There is no sukkah. There is no sukkah. Meaning, if for example a sacrifice were holy… it would be holy, and after two days it would evaporate—would that contradict the fact that inherent sanctity does not expire automatically? No, because the sanctity did not expire; it’s not that the thing remained without its sanctity, that the sanctity flew away. Rather, the thing simply no longer exists. As long as the thing exists, it is also holy; it just does not exist after two days. How can the prohibition of “do not add” apply with regard to a sukkah?

[Speaker F] Behavior, yes, exactly.

[Rabbi Michael Abraham] Say, virtually—I’m not sure—for “not in its proper time” you need intent. Why for “not in its proper time” do you need intent? Because that really belongs to the behavioral side, not the objective side. So the claim, basically—what I want to say—is that there is a difference between situations in which time is an external condition that defines the commandment of sukkah, and a situation in which time defines the object itself. And something like this distinction, I’m saying, applies regarding awareness in this series of examples of doubt, or hidden impurity in the depth, all these things. There too, awareness defines the halakhic situation itself. It is not a condition that I have to be aware in order to perform the commandment or in order to violate the prohibition. Rather, without awareness there is no prohibition here at all and no commandment here at all—it defines the reality itself. And this is exactly the same idea as the pseudo-ontic point we talked about regarding doubt: that here, my way of looking at the thing actually defines, halakhically, the character of the thing itself. If I see it as ontic, even though the truth is that it is epistemic—if I see it as ontic, then it is ontic. And that is the definition. It’s not exactly the same thing, because here the definition is a halakhic definition and there the definition is a definition of reality, but that is already…