Intuition in Halakha – Lesson 7

[Rabbi Michael Abraham] The research aspect of intuition. And last time I described a bit what that means in terms of halakhic thinking, where mainly, when we think for example about intuitive ruling as opposed to some other kind of ruling, it usually stands opposite ruling by rules. Am I working with intuition, or am I working according to rules? Now, I also tried to show last time, and I defined it and tried to demonstrate it as well, that when you work with intuition, obviously there are still rules too, but the question is what your basic motivation is. In the end, you interpret sources and you do the usual analyses the way people always do, maybe sometimes even more so, but the basic motivation starts from intuition. Meaning, it’s clear to you that here the Jewish law ought to be such-and-such, or that it cannot possibly be such-and-such, and then you approach the sources. If you begin from the point that it’s obvious to you that the Jewish law is not like that, and therefore you say no—that’s not serious. Meaning, but what you can do—this is what everyone is afraid of when they say don’t work with intuition but with rules—they’re afraid that you’ll simply take the intuition and it’ll be biased. Right? Meaning, then what comes out is that the need itself becomes the ruling. In other words, you see an agunah, terribly miserable, okay, so you’re permitted. Nobody does that. Meaning, true, there are many leniencies regarding permitting agunot, but it still has to pass a halakhic test. Meaning, the motivation to search for different paths comes from the desire to find a way to permit her, but it has to hold water. Meaning, in the end you still have to do the halakhic work. It doesn’t work otherwise; the need in itself is not sufficient reasoning. And the same here too, in the intuitive context: nobody is talking about ruling intuitively—this seems permitted to me, therefore it’s permitted, or this seems forbidden to me, therefore it’s forbidden. By the way, intuition can lead both to leniency and to stringency, another point that for some reason often disappears from people’s awareness. Rather, once I have an intuition, then I look for paths, or I examine additional interpretive possibilities, or if there are several possibilities, then I choose the one that fits my intuition—but in the end, in the end, it’s supposed to hold water. I brought, maybe not in the last lecture but before that, this example of Gilat’s book on the development of Jewish law. I think I mentioned it—that back in my cheerful Bnei Brak period the book came out, I assume maybe at the end of the 1980s or the beginning of the 1990s, I don’t remember exactly. And then the whole world was in an uproar. A yeshivah bochur from Hebron comes out with such an heretical book, and so on. And of course I bought the book, because obviously there had to be interesting things there.

[Speaker C] What did he write?

[Rabbi Michael Abraham] The development of Jewish law. He tried to show how this is basically a collection of his articles, in my opinion. But chapter by chapter, each time on a different topic, he tries to show that halakhah develops over time, and that in a certain sense at least, the circumstances shape the halakhic result. And of course that harms the model according to which everything came down from Sinai and has nothing to do with us; everything is exactly as Moses our teacher thought, and that’s exactly what we do.

[Speaker D] And is the emphasis there that all this is a chain of transmission and not development?

[Rabbi Michael Abraham] He was trying to glorify it.

[Speaker D] Right, but the guys who think a Sabbath hotplate was given at Sinai, yes—

[Rabbi Michael Abraham] There are many. Ask them—they’ll tell you of course, what kind of question is that. Not to mention that Moses our teacher had already invented electricity long ago, so he also knew what a hotplate was and everything else, he just didn’t reveal it to anyone.

[Speaker B] So how did Moses sit in Rabbi Akiva’s study hall and not understand anything?

[Rabbi Michael Abraham] I think leave the midrashim aside. The midrashim speak about it; look in the Talmud itself and you’ll see that it’s not true. Meaning, look at how halakhic discussion is actually conducted—you can see how laws are formed in the Talmud. You don’t need midrashim that talk about the matter; just look at the matter itself. Anyway, in short, that book came out, so I read it. For example, there’s a chapter there on the Sabbatical year in our times being rabbinic. He shows that this idea essentially developed around the destruction of the Temple. Because there was severe distress, they found an outlet for it: that the Sabbatical year nowadays is rabbinic. And what they described in Yated Ne’eman and all the newspapers back then, all the angry people there, was that basically he was saying that the sages do whatever they want. They decide there’s distress, okay, so we’ll now move the Sabbatical year into the rabbinic category. It doesn’t work that way, and he didn’t say that either. When you actually read it, that’s not what he said. He said that once there was distress, people searched, shook out their toolbox a bit, turned over every stone, to look for ways—and in the end they explained why, in their view, the Sabbatical year nowadays is rabbinic. If there had been no distress, it could still be that the truth is that the Sabbatical year nowadays is rabbinic, only nobody would have bothered to think about whether that was really so.

[Speaker E] If they hadn’t wanted a way out, it would have remained Torah-level.

[Rabbi Michael Abraham] Yes. And if they hadn’t found one?

[Speaker E] How often does it happen that there’s distress and they still don’t succeed? What? How often is there really distress and still no solution?

[Rabbi Michael Abraham] Plenty of times. What, are there not rulings where you search for a permission and don’t find one? Ron Arad—his wife still didn’t remarry. No, even though it was entirely clear to everyone that he had died and the distress was obvious, in the end I think she lived with someone without… with a Muslim, from all the waiting around for all these people. Again, I don’t know, maybe that was fine, I don’t know the circumstances there, but what do you mean? There are lots of cases where you very much want to find a permission and you don’t. What can you do? Need is not sufficient justification. Need is a trigger to search, but after you search, you need a halakhic argument. Now true, you can somewhat choose minority opinions or offer this interpretation or that one, but it has to hold water.

[Speaker E] Were there rabbis who permitted her? Surely there were some who considered it.

[Rabbi Michael Abraham] There are also cases where they won’t permit. I don’t think there is anyone who automatically, the moment there’s distress, permits. So why sit down—

[Speaker E] By the way, I—

[Rabbi Michael Abraham] —knowing there’s distress, I can already say: you’re permitted. Why does she have to go to rabbis at all? By the way, in permitting an agunah, in principle this isn’t even a ruling of a religious court. In the case of an agunah they simply inform her that she is not a married woman. That’s the fact. True, usually judges are needed because they’re the ones charged with doing this, they’re the experts at doing it, but it’s not that the religious court makes her permitted; the religious court instructs her that she is permitted. In principle, I could also have instructed her that way. So if distress were enough, then she wouldn’t even need to come either to me or to a religious court—she could just go get married. Because she knows she’s in distress; that she also knows. You don’t need an expert for that. Clearly, that’s not how it works.

[Speaker D] But again, there is a difference between some concrete case involving one particular woman and things like prozbul or heter iska or a Sabbatical-year leniency. When it’s something sweeping, when the distress is general, then suddenly it’s more… the trigger is more…

[Rabbi Michael Abraham] Prozbul is probably rabbinic altogether. Meaning, either that or it’s based—there are Tosafot who say that it’s based on handing over one’s debts to the religious court, so there’s such a mechanism.

[Speaker D] The Sabbatical year that Rabbi Yannai permitted—they permitted people to work during the Sabbatical year. Distress, it says so explicitly.

[Rabbi Michael Abraham] There are situations in which the distress is more halakhic in a straightforward sense. Saving life overrides the Sabbath—that’s an example too. Yes? When there is danger to life, suddenly it becomes permitted to desecrate the Sabbath. That’s a halakhic rule: there are laws that are set aside in the face of distress. Not always danger to life; even rabbinic laws in a case of great need or major financial loss or something like that. But here we’re talking about a situation where the law itself says that where there is distress, this thing doesn’t apply—then there is no problem.

[Speaker D] But prozbul is…

[Rabbi Michael Abraham] Prozbul is an enactment. He found a way for debts nevertheless to remain in force because there was a need. Because there was a need, he searched for a way, but in the end he found—or if he hadn’t found—

[Speaker D] Or he made—

[Rabbi Michael Abraham] —an enactment, or it relies on handing one’s documents over to the religious court, but he found an option for how to do it. You can’t work in a… Now, there are also rabbinic enactments—the sages sometimes enact and uproot Torah law. Obviously, that is the authority of the sages; they are allowed to. But today we do not have an institution that can do such a thing. Never mind various reasons at the moment; it doesn’t necessarily have to be specifically the Sanhedrin, but in practice there is no agreed institution today that can do this, and therefore the tools we have today are only interpretive tools. Today sages do not generally make enactments in order to solve a problem, because the feeling is that we lack the authority, or there is no consensus—never mind exactly why—we simply don’t do it. So what they do is interpretation. But interpretation has to hold water. Interpretation has to be straightforward; you can’t make a joke of the whole thing. So distress causes me to keep looking for more and more interpretive routes. And that is perfectly fine. Everyone has motivations, and motivations drive them—as long as in the end the halakhic argument holds water. Meaning, the question is whether it works or doesn’t work. Therefore, when I speak about distress as a motivation, there is no problem with that at all. When I speak about distress as a halakhic consideration, that starts becoming problematic. Now, often the fear is that we’ll reach the point where the distress itself will be enough to permit; we won’t even search for the legitimate path. So people say: forget it, there’s no such thing, we work by the rules. Or if we move from distress to intuitions: I have a certain intuition that a certain act ought to be permitted or forbidden or something like that. They tell me, forget the intuition, let’s see the rules, we work by the rules. Why? What’s the fear? The fear is that we’ll take the intuition and I’ll bend—or I’ll skip altogether the stage of looking for a halakhic argument and I’ll just go with the intuition, period—or I’ll twist the…

[Speaker E] If it’s strong enough, you can go with it, no? Isn’t that what they did? If the intuition is strong enough, if it’s absolutely clear to you, clear as day, that this is what ought to be.

[Rabbi Michael Abraham] That’s the question. It’s clear to you that it’s right, clear to you that this is how things ought to be—but I’m not sure that everything that is clear to me as how things ought to be fits halakhah.

[Speaker E] But that’s what the medieval authorities (Rishonim) did, no?

[Rabbi Michael Abraham] That’s what the Geonim did. Not in every situation, not in every situation. Listen, it’s clear to me—it’s clear to me that it’s wrong to kill an Amalekite baby. So now because of that we don’t kill an Amalekite baby?

[Speaker E] It’s obviously true morally, not halakhically.

[Rabbi Michael Abraham] Right, but that’s exactly the point. What does it mean that it’s clear to me halakhically?

[Speaker E] There are halakhic intuitions, but the Rabbi is arguing that…

[Rabbi Michael Abraham] Halakhic intuitions are subject to the sources. So that is exactly the point: you are operating within the halakhic field. So if you can anchor it in the sources, or at least show that it doesn’t contradict them—

[Speaker E] But the Rabbi says there is such a thing as halakhic intuition, not moral intuition—halakhic. What does God want, right? What does God want in Jewish law.

[Rabbi Michael Abraham] Yes, but that comes from studying halakhah.

[Speaker E] It’s not that you’re born with halakhic intuition. Fine, it comes from that, but now I have an intuition, right? Now I have a very strong intuition that it is forbidden to kill this Amalekite, that this is the halakhah. Why isn’t that enough?

[Rabbi Michael Abraham] It isn’t enough. Because the sources say he has to be killed. The verse says he has to be killed—women and children. What do you mean? Why would that alone be enough? So if I have an intuition, I’ll try to look for maybe an interpretation, maybe this opinion, that opinion.

[Speaker E] So interpretation has force? Because if it were strong enough, even if the sources were against it…

[Rabbi Michael Abraham] Absolutely not. Absolutely not. That’s wrong. Intuition can at most allow me to choose a perhaps somewhat more strained interpretation. By the way, I don’t even agree with that. On this point I’m actually stricter. I don’t think it’s right to adopt a strained interpretation because of distress.

[Speaker E] It says in the sources six days of creation, or I don’t know, all kinds of things written in the sources. But it is very, very clear to me that it wasn’t six, let’s say—it doesn’t matter—things like that. Or “the finger of God.”

[Rabbi Michael Abraham] So what if it says that there—but it’s clear to me that that’s not what it means. If I find an alternative interpretation, then fine. If I don’t find an alternative interpretation, then you need interpretation. Interpretation can always be done. No, do you agree with me that to come out in a very—I don’t know—very, very creative and twisting way…

[Speaker E] Interpretation can’t always be done.

[Rabbi Michael Abraham] Not crooked interpretation. No, not always—I don’t agree.

[Speaker E] What’s more interpretive than seeing “finger” written and saying it’s not a finger?

[Rabbi Michael Abraham] Or it says… it says finger—it’s a metaphor.

[Speaker E] What’s the problem? That’s completely reasonable. So give me something that can’t be interpreted that way, where for example it’s not a metaphor.

[Rabbi Michael Abraham] There is no such thing as something that cannot be interpreted. That’s not true, I don’t agree. It’s simply not true. Give an example. “You shall not murder.” Well then, what will you say about “you shall not murder”? The soul, this, that, I don’t know, the… You’re waving your hands, but that doesn’t make it reasonable. “The finger of God” is a metaphor; that’s obvious. What’s the problem with that? Fine.

[Speaker E] It’s not forced at all.

[Rabbi Michael Abraham] “The finger of God” is not… “An eye for an eye.”

[Speaker D] That’s obvious to you.

[Speaker E] A thousand years ago it was…

[Rabbi Michael Abraham] What difference does that make? Right now it’s obvious to me.

[Speaker E] Fine, so here—eye…

[Rabbi Michael Abraham] That person a thousand years ago—what made you decide that a thousand years ago it wasn’t obvious? Now you say it’s obvious to you because that person a thousand years ago did it even though it wasn’t obvious.

[Speaker D] If it was also obvious a thousand years ago—

[Rabbi Michael Abraham] —a thousand years ago it was obvious, and now it’s obvious too.

[Speaker D] So “an eye for an eye” is exposition.

[Rabbi Michael Abraham] “An eye for an eye” means money—that is exposition. “An eye for an eye” is exposition; it is not distress. Exposition—there is the verbal analogy of “under” and “under.” What does that have to do with it? No, I’m saying that is exactly the point. You need a halakhic tool that tells you this is not interpretation, this is exposition. It’s not the same thing. “An eye for an eye” means an eye; there is no other interpretation. It means a literal eye. The exposition, the verbal analogy of “under” and “under,” says that instead of an eye, you take monetary compensation. There is no other interpretation of “an eye for an eye.”

[Speaker C] What’s the difference between interpretation and exposition?

[Rabbi Michael Abraham] Exposition does not have to meet the tests of interpretation. Exposition does not have to fit the plain meaning of the verse. “You shall fear the Lord your God”—to include Torah scholars. The verse says “You shall fear the Lord your God.” Does the verse mean Torah scholars? No. But the exposition says that one must also fear Torah scholars. Why? Because there is another toolbox, which is the midrashic toolbox, and it tells you how expositions are made. Again, toolbox not in a completely formal sense, but never mind.

[Speaker C] It’s the same thing, it takes…

[Rabbi Michael Abraham] But on two different planes, with two different toolboxes. Still, exposition has rules. So if the word “et” comes to include, then it comes to include. But if I want people to fear Torah scholars, I can’t just invent a rule that “et” comes to include. Meaning, the “et” is a basis. Beyond that, it would just be games. I don’t think people should be playing games. Someone who plays games is really not acting properly. More than that, I say: even an interpretation that is clearly more strained—it won’t help. If it is more strained, then it’s no good, even in a time of distress. Why?

[Speaker E] Because for me what matters is what the verse says. And if that interpretation is more strained, then it’s obvious that that’s not what the verse says, so what do I care that I’m in a time of distress? If I’m in a time of distress, can I do something against the verse? But Rabbi, you’re talking about distress. Distress is usually over against morality. Distress is when there is… But I’m not talking about that. I’m talking about halakhic intuition, which is something you described, and I don’t understand at all what it means. Meaning, halakhic intuition—it seems right to me because what? Because that’s how I’m able to walk through it?

[Rabbi Michael Abraham] No, because within what I’ve studied, I understand that the halakhic mindset works like this. As distinct from moral intuition, which I’m born with, or I don’t know, I develop it, but it’s not necessarily connected to study. In every field. What do you mean? In every scientific field, in mathematics—isn’t there intuition that leads you in a certain direction? Someone talented has intuition; he knows how to advance.

[Speaker B] Most things are born from intuitions.

[Rabbi Michael Abraham] What’s the problem?

[Speaker D] It’s hard for me to disconnect from the fact that when reading responsa and all sorts of halakhic answers, it’s hard for me—the arguments are not always fully convincing. If the arguments aren’t convincing, then everything can be explained from the other side too, and in the end there will be halakhah like one person. Why? Just because.

[Rabbi Michael Abraham] No, no—but you have to distinguish between two things. Once there are several interpretive possibilities, then you can choose one of them even though they are equally weighted. You can choose one because that’s what your intuition tells you. On the contrary, intuition is a decision-making instrument. Wait—but you need to distinguish that from a situation where there is one interpretation that is the most reasonable one; it’s fairly clear, and there is another interpretation that is less reasonable. But because I am in distress, or I have this intuition or that intuition—that, no. No. Because the more reasonable interpretation is probably what the verse says, or what the Talmud says, whatever the case may be. So that is the interpretation; that is the Talmud’s meaning. I don’t go against the Talmud.

[Speaker D] Yes, but Rabbi, I agree that it can’t be that because of distress they permit, or that we change the rules of the game, but the toolbox has so many varied tools in it that I can explain almost anything in the exact opposite way and it will sound completely reasonable. So what happens? The pressure of the distress pushes you so strongly toward that second “reasonable” option that you won’t be able to say you didn’t choose it because of the distress.

[Rabbi Michael Abraham] You’re asking a different question. The second part of what you said contradicts the first part. Because once you say there are very many rules, you are basically saying: I can actually do anything. Then afterward you said no, but I’m biased.

[Speaker D] But bias—you’re not objective, okay? You’re not objective, and now that there’s pressure you’ll explain and convince with all your might that it’s correct.

[Rabbi Michael Abraham] Obviously, but the claim—the concern about bias—is a completely different argument. The concern about bias simply says that the interpretation I am adopting is not correct. So check. If you tell me it’s not correct—then I’m not persuaded.

[Speaker D] But the problem is that we keep saying there’s no feedback. Against what do you check it?

[Rabbi Michael Abraham] Against what? Check whether it seems right to you. It seems very right to me personally—you, as a halakhic decisor, if it seems very right to you, then that is the halakhah. What do you mean? So what’s the problem? A judge has only what his eyes can see. I don’t need feedback from the Holy One, blessed be He, when I issue a halakhic ruling.

[Speaker C] But in general civil law too—a judge, if he thinks justice or logic requires going in a certain interpretive direction, he’ll find the way within the law. Of course he won’t do it unless he finds that way. There were two approaches in contract law—Barak’s, and now it has changed completely—on the very same contract law, on the same chapter, totally different interpretations, with a different policy, and they found the way.

[Speaker G] There are also many cases where judges say: it’s obvious to me that justice says to do it this way, but what can I do, the law doesn’t allow it. That exists too. Right.

[Rabbi Michael Abraham] And in Jewish law it works like that too. I think people give Jewish law a bit of an unfair bad name, in a certain sense, as if everyone just does whatever they want, basically. You rabbis can permit anything anyway. What do you mean—how can it be that you don’t care? How is it that you don’t permit it? We don’t permit it because it’s impossible. I care, but it can’t be done. People don’t accept that argument of “it can’t be done,” because what do you mean—you people do whatever you want anyway. But it’s not true that people do whatever they want. Now, I think I told this once: I was at the Israel Democracy Institute, there was some conference there of rabbis and jurists. This was during the Aharon Barak period, I think, and there was harsh criticism of the Supreme Court, that it was basically this kind of judicial imperialism, that they do whatever they want. So we were sitting there at that conference, and Engelard was there. Not Anker—Engelard, not Anker, Englard. Yes, Englard, who was then a Supreme Court justice, and he said: what do you want? This is all completely professional work, worldview doesn’t enter into it at all, it doesn’t play any role. Englard was a positivist—the last of the positivists—he translated Kelsen into Hebrew, he was sort of, yes, captive to positivism. So from that perspective he said: what do you mean, we work with the rules. There are disagreements, fine, there are disagreements, but it has nothing to do with worldviews; worldviews don’t enter in there. He really said it very strongly. I believed him, at least that he believed it. Never mind whether it’s true or not. But then it got me thinking—of course too, what we’re talking about is maybe a tenth of a percent of the cases they discuss there; in most cases it probably really doesn’t involve worldviews. But in those cases that make headlines and stir controversy—then yes. But I’m saying, it sparked a very interesting thought in me about what I said earlier. Because people often accuse halakhic decisors of exactly the same thing: you too just do whatever you want. You obviously do whatever you want. And then I thought to myself: why don’t I agree with that accusation against decisors? I don’t agree with that accusation. It’s not true that people do whatever they want. Why? Because there I’m inside the discourse. And inside the discourse, many times you understand what can be done and what can’t. There’s some set of rules that maybe nobody knows how to formulate, but you know—there are things people do and things they don’t do. There are certain modes of thinking, a certain interpretation of principles or concepts that is reasonable, even if I don’t agree with it, but it’s still within the legitimate range, and there are things that are outside the range. That’s just not relevant now. Someone looking from the outside doesn’t have that sensitivity; he doesn’t understand how this whole business works. You’re just doing whatever you want. This one says this, that one says that, you decide that it seems this way to you, it seems that way to him, so I can also say it seems this way to me. Anyone can say what seems right to him. When you’re outside, that’s really how it looks. And then suddenly I realized that someone who is outside the legal system may in fact be seeing exactly the same thing. In other words, I look at the legal system from the outside, not as a jurist, so it seems to me that they do whatever they want. At least in that period, they did whatever they wanted. Okay, then a jurist comes from the inside, and I really do believe him—he genuinely thought that way. Now again, the truth is probably somewhere in the middle.

[Speaker B] But there are insiders, and there are insiders who have exactly that criticism.

[Rabbi Michael Abraham] No, fine, that’s not the point, but I’m just trying to say: obviously I think there’s something to that criticism, and maybe there’s also something to that criticism when directed at Jewish law, and I share it too—but it’s not the whole picture. Meaning, you have to understand: it’s not the same thing. There is something to the fact that when a person is inside this field and is already accustomed to the discourse, and all kinds of things have developed around it—not just the written texts, which I can also read, but someone who works in the field, it’s already a kind of discourse. People already know what one interprets, what one does not interpret, what is right, what is not right. There are things that aren’t written. And there are things you just know—there are things people do and things people don’t do. I spoke to some jurist, and I told him: I don’t understand, what’s the difference? You can say this, you can do that. And then he tried to explain to me why among jurists it doesn’t work that way. That’s not an option. There can be arguments, but the option I suggested is simply not an option. And there were times when I understood—I mean I understood that I was outside the discourse. And again, you can decide: fine, I’m outside the discourse, who appointed you? I want a different discourse. Okay. But I’m saying: the halakhic tradition is a tradition that is not only what is written. There are things that surround what is written, how one thinks about it. And there is right and wrong within this whole business. Even though it looks completely open and free and as if everyone does whatever he wants, that is not true. There is an internal right and wrong, and someone on the inside knows when what you’re saying is maybe wrong but still legitimate, and when you are simply outside the fence. And someone outside says: wait a second, if everyone is legitimate, then why not the Christians? Why not the Reform? “These and those are both the words of the living God,” everybody, everything is fine. They don’t understand that unwritten boundary, where you have already gone beyond the borders of the discourse. Okay? Because in truth it’s hard to formulate. And I insist on this: despite all the criticism I have of decisors and of how Jewish law behaves today, that way of looking at it is simply wrong. It’s just wrong. There are some rules for how this business works. And sometimes I have criticism even of those rules, but they exist; people do not do whatever they want. They do not do whatever they want—that’s not true. On the other hand, of course, the moment I have some motivation, some intuition telling me this is right or this is not right—morally, halakhically, whatever it may be—obviously first of all I will look for ways within the framework of the discourse, maybe it really can also be done this way. In other words, maybe it can be shown that this approach is either called for or at least legitimate. Once there are several options that are more or less equivalent, all within the bounds of what is possible, all more or less at the same level of halakhic plausibility, then there is no problem. Here I am perfectly willing to go with my intuition and say: I choose this—not because it is more correct, but because my intuition tells me this is right. Not because it is more correct based on considerations unrelated to what I myself accept. It is right because that is what my intuition says, among options that are all on the table. But I’m not going to take something that isn’t on the table, and because my intuition says so conclude that I’m going with it. That is not the correct interpretation of the verse, or the Talmudic passage, or Maimonides. And therefore, with all due respect to my intuition, that doesn’t work. So I’m saying: I go far with intuition, but it is always within the rules. Intuition is a motivation that tells me to keep searching, to try to see from another angle, to turn over every stone. Many times I do find something, and then I always get slapped down for “forcing the sources” in the name of my intuition. And I don’t think I’m forcing them. And when I try to ask people: give me reasons—what exactly is wrong? There is no “wrong.” No—I at least don’t manage to be persuaded. They’ll tell me again: you’re still captive. Fine, I don’t know, maybe.

[Speaker C] Were there cases where the intuition said one thing and you didn’t find anything?

[Rabbi Michael Abraham] Yes, yes, of course there were, certainly there were, yes. The articles I write are in the cases where I succeeded, so in the articles it always comes out that way. I mean the halakhic articles. The halakhic articles—for example, there were four or five, I wrote articles in Techumin, from volume 25 to 34 or something like that, almost every volume, maybe one not, I don’t remember anymore, I wrote an article in almost every volume. On all of them I got the same criticism. In some of them I wrote in advance what my intuition was. My intuition is such-and-such, and it goes against everything accepted among the decisors, and I’m trying to show that nevertheless it is correct, or at least possible. Sometimes it was really correct, sometimes at least it was a possible route, and if it is possible then for me that is good enough. Okay? Now everyone says I’m forcing it, and then I try to explain: not true, I’m not forcing it, that was a motivation to search. Tell me what is wrong with what I said; don’t tell me I’m forcing it, tell me what is wrong with what I said. And when I get to that stage, people say, yes—who was it that said it? I don’t remember anymore—Even HaEzel, Rabbi Isser Zalman said.

[Speaker B] I thought that was the Raavad in Ketubot. No—who says “rapist, seducer”?

[Rabbi Michael Abraham] He said that Rabbi Chaim, Rabbi Shimon, and the Or Sameach are “rapist, seducer, and slanderer,” but I don’t remember what he said about whom. I really don’t remember anymore. I think Rabbi Shimon was the seducer, Rabbi Chaim was the rapist, I think, but I’m no longer sure. Anyway—and I don’t agree with him, by the way. No, I really mean it: this is the kind of criticism I meant earlier. In my opinion Rabbi Isser Zalman is mistaken about this. It’s true that they went with their own agenda, each with his own analytical agenda—Rabbi Chaim, Rabbi Shimon with his conceptual reasoning and so on, maybe the Or Sameach too is a bit of a seducer, we could discuss a bit how to match them one-to-one, it doesn’t always work that neatly. But still—that’s not right. They went with their own direction and presented structures that, I think, many of them at least are structures that hold water. In other words, this is exactly the same point. The fact that you are driven by some worldview or agenda or intuition or something like that does not invalidate what you are doing. Check what I did. It’s like in philosophy of science, where they talk about the context of discovery and the context of justification. The way I discover a theory could be in a nighttime dream—my grandmother appeared to me and told me that this is how the paths of the stars look. Who cares? Nobody cares at all. Check what I’m saying. Does it stand the test of experience or not? That is the context of justification. The context of discovery is not open to criticism; it doesn’t matter whether it came from my grandmother. The question is what I’m saying—does it stand the test or not? Check whether it is justified or not. It is not relevant where it came from. And the same thing when I examine a halakhic argument: I don’t examine the motivation of the one saying it. I examine the argument—does it work?

[Speaker B] And also not who said it.

[Rabbi Michael Abraham] And also not who said it, yes. Does it work? If it works, then fine. As for motivations—we all have motivations. Is a conservative motivation not a motivation? A conservative motivation is also a motivation. A motivation not to deviate from the rules is also a motivation. Okay? I could easily have shown you that this rule applies here and not there, but you have a motivation not to deviate from the rules, so you choose the interpretive option that says this rule applies everywhere. That too is a motivation leading to interpretation. Conservatism too is a motivation. Which of us is free of motivations? So in the end, just like in science, by the way, you have to examine the arguments.

[Speaker B] Aharon Barak—he

[Rabbi Michael Abraham] after all

[Speaker B] wouldn’t agree to choose a religious female judge because she has an agenda.

[Rabbi Michael Abraham] Yes, exactly. He has no agenda—famously. So these accusations come up a lot, and they are simply not true. And that’s what I’m saying: the role of intuition in Jewish law has to be located properly. It has an important role, but one has to be careful not to exaggerate it. In other words, as motivation, this intuition is a motivation to search for a path, and it is a motivation to choose one option among several existing options, but it does not stand on its own. And intuition is not an alternative to the sources and the rules and what has developed. Okay, that’s the big picture. The rules too—again, there are rules people just made up, and then obviously there is no point in obeying them because it’s nonsense. All the rules of the Shulchan Arukh, or I don’t know what, all the nonsense floating around this whole thing—it’s utter vanity from beginning to end. But from that there developed an extensive literature of rules about how to deal with the Shulchan Arukh. Where do those rules come from? Did Rabbi Yosef Karo hallucinate them? I don’t know what. Various people decided on rules, and now it starts to take on a life of its own.

[Speaker G] But isn’t that what appears with “some say” and an anonymous ruling—that the anonymous ruling is accepted?

[Rabbi Michael Abraham] Yes, yes, of course, but that’s nonsense, it’s all nonsense. There are certain rules that are logical, so you don’t need the rule, you just understand it. If he says “some say” and then gives an anonymous ruling, then apparently he means that the anonymous ruling is the Jewish law. He says “some say,” maybe in pressing circumstances one can rely on them, or I don’t know exactly what.

[Speaker G] And what about when “some say” appears before the anonymous ruling?

[Rabbi Michael Abraham] Exactly. So it’s nonsense, all kinds of things that I don’t know where they invented from, really—it’s just absurd. And there are decisors who actually work with these rules and feed these rules as if, I don’t know what, they descended to Moses at Sinai. The Shulchan Arukh didn’t descend to Moses at Sinai, so the rules about the Shulchan Arukh did?

[Speaker B] Put it into “Poskite,” stick it into a computer and get out a responsum.

[Rabbi Michael Abraham] Anyway, so I’m saying that the role of motivation is, in a certain sense, as though it were an alternative to rule-based thinking—but that’s too simplistic a description. “Alternative” means: according to which rules will I work—not an alternative. Intuition tells me which path to choose, but the path has to hold water. And we talked about how explanations are always given in general terms. When you explain something, it’s always rules; explanation means—

[Speaker E] Unless you’ve reached something that isn’t an explanation but a basic assumption. What? Unless you’re claiming a basic assumption.

[Rabbi Michael Abraham] Even an assumption is a kind of rule.

[Speaker B] Unless you just say “like this.”

[Speaker E] Just

[Rabbi Michael Abraham] you arrive

[Speaker B] at that.

[Speaker E] Yes,

[Rabbi Michael Abraham] if your intuition told you that, then that’s the rule. Always. And when you work by rules, then there is no “just because”; the question is why is this rule correct? Because that’s the rule. Fine. Now I’m creating a rule. Okay, never mind. But I’m still saying it’s a route that overall is very similar, but the fact is that motivation can ultimately take you to completely different places. Did I say motivation? Intuition. It can take you to completely different places. That’s the fact. And therefore people often slander it. And I think they slander it too much. They slander it because they fear it. They fear it because there are people who really do use it improperly. I remember we even learned this once, when there was a period when we studied responsa, I think, right? There was some year. I don’t remember when anymore, a few years ago. So we talked about Rabbi Mashash’s responsum on head covering for women. A truly vapid responsum. Really. I mean, the motivation is obvious: he wants to speak favorably on behalf of Jewish women who were not careful about it and so on, all kinds of things like that. There isn’t a single line there that holds water. Not one line. I have never in my life seen such a responsum. Never. Really—it’s unbelievable. There is no such responsum in all responsa literature, in my opinion. There isn’t one line that holds water. I wrote an article now with a student in our study hall—not now, actually years ago. We’re not publishing it because a woman signed it, and you can’t publish an article signed by a woman. That annoys me too; I’ve only discovered this in the last couple of years. No Torah journal publishes an article signed by a woman. No journal. Not Tzioni, not Beit Morasha—well, I mean a Torah journal, not Hakdamot. You know, with Torah articles. Hakdamot is something more open, a bit academic like that. Not yeshivas or things of that type, or HaMaayan, or Tzioni—not Tzioni, no journal accepts articles by women. At least so far I haven’t heard of a single one. Academic journals, yes of course. Fine. Anyway, so we wrote an article criticizing that responsum. Just going through it line by line. What is his proof? What is his assumption? How did he learn Rashi? What is the initial assumption in the Talmudic passage? What is the proof he brought from there? There isn’t one thing that is correct in that article. Not one. I’m not talking about not one correct one—there isn’t one even possible one. There isn’t a single argument there that is even possible, not just correct. It’s simply nonsense. Now, the man was apparently a Torah scholar, I don’t know, people say so; I don’t know him well enough, but people thought highly of him, Rabbi Ovadia thought highly of him. Meaning, the man was no lightweight.

[Speaker G] On that specific responsum, Rabbi Ovadia also came out strongly against it.

[Rabbi Michael Abraham] No, no, of course. Fine, many come out strongly because of the bottom line. The bottom line being that he says women don’t need head covering. Okay.

[Speaker B] But in Jerusalem or in Haifa?

[Rabbi Michael Abraham] Not in Haifa—in Jerusalem. Yes. So that is an example, for instance, of a responsum where after you read it you say: forget intuitions altogether. That’s the fear of the people who are afraid of intuition, and therefore indeed, yes, one has to be careful in using intuitions. In the end you have to present arguments that hold water. And there, there are none. And that responsum is always quoted, of course, by all those who like the idea that women shouldn’t have to wear head coverings. I’d also like that, if there were a good reason for it. I don’t know of any good reasons on that issue.

[Speaker G] And in the article there, about modesty—

[Rabbi Michael Abraham] What? About modesty? Whether modesty is meant not to arouse the men?

[Speaker G] And on that point too he—

[Rabbi Michael Abraham] I don’t remember. Fine, we’ll look, I don’t remember. Okay, never mind. In any case, in that article—well, in his responsum—there isn’t a single argument that holds water. In any event, what I’m saying is: this is an example of that same concern that causes people to recoil from intuitive halakhic rulings. Because that basically means you’ll force anything that comes to hand just to reach the conclusion. And one really does need to be careful about that. Completely true. And maybe a person can never know whether he has been careful enough. You’re trapped inside yourself—how would you know? And if someone disagrees with me, maybe truly it’s because he isn’t biased and I am. But what can I do? All I can do is try to think again. I don’t know what else to do. So what—should I automatically accept what the other person says? That’s also out of the question. I can try to think again, as honestly as I can, and see. So I’ll give you a few examples.

[Speaker E] In that responsum about head covering, if a decisor came and said: look, it seems to me that today it’s different. That’s what it says in the Talmud, it says it in Rashi, but that was then. He would need to explain why. I think that apparently what they said then was because— I can’t show it from their words, but it’s so clear to me that today it’s different.

[Rabbi Michael Abraham] No, but you need to see where the source is from. As reasoning in that context, I have no problem—arguments like that I’m willing to accept. But you have to show the source.

[Speaker E] For example, they didn’t find their own explanation there for why—

[Rabbi Michael Abraham] If there is a verse or an exposition from a verse saying that a woman needs to cover her head, okay? “And he shall uncover the woman’s head”—in that case, whether that is an exposition or not isn’t clear; it really is a somewhat uncertain source. That’s what the Talmud brings. Okay. So you have to say: what do we do with it? If you can manage to say something, fine, I’m willing to accept it.

[Speaker E] Fine, until the Talmud—I don’t know what exactly it understood from the verse, but it brought it.

[Rabbi Michael Abraham] So are you proposing a different exposition from the verse? Then tell me—what are you deriving from it?

[Speaker C] Maybe you don’t need to, you don’t need to find a different exposition; you just don’t need to interpret this exposition.

[Rabbi Michael Abraham] No, what does that mean, you “don’t need to interpret it”?

[Speaker C] No, if you took from the section about the suspected adulteress, “and he shall uncover her head,” and suddenly go to all these directions—that doesn’t even seem connected to me.

[Rabbi Michael Abraham] No, no, if—two things. If I were steeped in the methods of exposition, then I could enter the argument; there are disputes among the sages in the Talmud about how to expound a verse. No problem. But since we really don’t fully understand how exposition works today, I say my assumption is that if the Talmud expounded it, apparently it saw that it needed to be expounded. Now what—I can only say, fine, but they expounded it in a certain way because then they thought that indeed a woman ought to cover her head, or that then this was the standard of reasonable modesty, and so on, and today not. Fine, so today I need a different exposition—go ahead, suggest one to me. That, for example, is the kind of reasoning I’m willing to accept, that kind of reasoning I am willing to accept. But I’m saying: you always have to check the sources, the reasoning. It’s not just that they said it, so they thought it, and that’s it.

[Speaker E] I didn’t understand. They thought it was needed, so they brought the exposition, so now I can find another exposition because today it isn’t needed for modesty? I didn’t understand the—how can one do that?

[Rabbi Michael Abraham] I don’t know. You’re making a claim, and I’m asking what the claim would be. They derived an exposition from a verse—so what are you going to say now? You’re going to say that they derived that exposition because they thought that in such situations a woman needs to go with— in the situations of their time, that was what—

[Speaker E] Yes, fine, and then I say okay, I accept that, but—

[Rabbi Michael Abraham] Now the question is what you do with “and he shall uncover the woman’s head.” Same thing—it remains that in their situations there needed to be head covering. There? In the Talmud’s situation? In the Torah’s situation, women in a situation where it would arouse people—but in the Torah it says “and he shall uncover the woman’s head.”

[Speaker E] So is that passage nullified? I don’t know, wait, I don’t know.

[Rabbi Michael Abraham] No, so that’s—

[Speaker E] exactly the point, that’s exactly what I’m talking about, that when, in the days when it’s written, that verse was speaking—

[Rabbi Michael Abraham] But the sages knew that too. Again, the sages also knew that, and they said no.

[Speaker E] Because it was still relevant in their time.

[Rabbi Michael Abraham] It was relevant in their time, but there are places where yes and places where no.

[Speaker C] Right, but they felt a need to make an exposition. So I’m saying: feeling a need to make an exposition is not enough.

[Rabbi Michael Abraham] You see “and he shall uncover the hair of the head”—no, feeling a need to make an exposition is not enough. And again we’ve returned to the point that need is serving as a substitute for reasoning. No. Need can exist in any exposition; we’ve discussed that more than once. In exposition there is the trigger that says: here something needs to be expounded—for example, two identical words as in a verbal analogy, or “et” that comes to include something, or things of that kind, a general principle and a specific detail. And after that there is the reasoning that tells you where to take it. Okay? So I’m saying: the reasoning has changed, or reality has changed, and today that reasoning doesn’t apply. Now what do you do with the trigger? There are two words here that require a verbal analogy to be made between them.

[Speaker E] Do you have another verbal analogy? The trigger with their interpretation—no, theirs, what they said. The trigger together with the reasoning and the interpretation of what they said. I don’t now need to do something else with it. They already interpreted it, that when there’s a problem in a reality of, I don’t know, men’s desire, then one can’t go— they already interpreted it, I don’t now need to do something else—

[Speaker H] They didn’t say “at a time when men have desire”; they said that all the time a woman needs to go modestly.

[Rabbi Michael Abraham] So the claim is, as it were, that even what they themselves said is true today only if there is a situation today corresponding to what existed then.

[Speaker G] According to local custom… okay, in a society where they customarily covered their heads, she is obligated to cover her head.

[Rabbi Michael Abraham] Okay, that’s a possible interpretation. Now let’s check the Talmud and see. The Talmud, for example, speaks about Jewish practice and Mosaic law. That’s exactly the issue. If you propose something like that, let’s check it in the passage. Now there is Jewish practice and Mosaic law. Jewish practice depends on custom; Mosaic law does not depend on custom. No—Jewish practice is the custom, that is the definition of Jewish practice.

[Speaker G] You could also make the same thing Mosaic law, meaning that we’re talking about two levels of modesty, meaning that there is—

[Rabbi Michael Abraham] But then what is the difference between Mosaic law and Jewish practice?

[Speaker G] The explanation is this: in the nineteenth century all women wore long sleeves, and someone dressed only up to here was not okay, but here it can’t be, so that’s Jewish practice.

[Rabbi Michael Abraham] So Mosaic law says it’s not dependent—it cannot be regardless of—

[Speaker G] Not today and not—

[Speaker I] No, the assumption is that Mosaic law—

[Rabbi Michael Abraham] When you read the Talmud and the commentators, you see that “Jewish practice” means custom, taking into account what is reasonable under the given circumstances, but it is contrasted with Mosaic law. So I’m saying: if the whole matter of dependence on custom enters under Jewish practice—

[Speaker G] Why is it contrasted here? It could be that these are two references to custom.

[Rabbi Michael Abraham] The stringent custom and the lenient custom? Meaning, someone on the more extreme margins—that’s Mosaic law?

[Speaker G] There is behavior— that’s not what it says.

[Rabbi Michael Abraham] But again, I’m saying this argument is a specific argument and there is no point getting into it. What I’m saying is: check that itself in the Talmud. If you manage to fit it into the Talmudic passage, then you have checked it. For me, that is called reasoning. Do you understand? That’s the point. I’m saying: but you have to give reasons. You can’t just say “it doesn’t seem right to me” or “it doesn’t apply today”—that isn’t enough. To say “it doesn’t seem right to me” or “it doesn’t apply today.” Check whether that is a possible interpretation of the Talmud. Perfectly fine, no problem.

[Speaker E] Suppose my intuition is such that—

[Rabbi Michael Abraham] You could say that the Talmud has authority, such that even if it is mistaken—if it is mistaken about facts, that is something else—but in Jewish law we have accepted it, like

[Speaker E] the Great Court, meaning… in Jewish law?

[Rabbi Michael Abraham] Quite a few say that. In Jewish law? In Jewish law. There are quite a few places where the intuition is clear that they were mistaken. But we accepted upon ourselves that this is the Jewish law; the Talmud is the Jewish law. Facts are something else—if they made a factual error, that is a different issue. Anyway, so I’ll bring one example. Those articles there, essentially, all the articles I wrote in Techumin—they are all simply illustrations of this. So one of them, which I photocopied for myself here, is an article on organ donation. And there is an article on the Shai Dromi law, on killing a burglar. And there is one article on intellectual property, yes, on copyright.

[Speaker G] Copyright and Jewish law, intellectual property.

[Rabbi Michael Abraham] And I wanted to argue that it has a Torah-level source—not custom, not the law of the land, and not like everyone wrote—

[Speaker G] everybody—that it’s an empty vacuum from a halakhic perspective.

[Rabbi Michael Abraham] Of course, that’s the accepted view—that’s why I wrote the article. And it’s an article against what is accepted. Usually I write that way, because otherwise why write? I don’t summarize opinions, I disagree. No, but I think I brought very good proofs there, and I’d be happy if someone read it and told me what is wrong with those proofs. That’s exactly the point.

[Speaker B] You won’t be happy if they tell you it’s wrong.

[Rabbi Michael Abraham] No, I would be happy—why not? I learned something new, what do I care? In this case I don’t even have—fine, so let it be, what difference does it make? The moral issue of copyright—fine, I’ll solve that through the law of the land, or a rabbinic enactment, or custom, or whatever. In the end I’ll be able to establish copyright in the bottom line. I don’t care that it specifically be Torah-level; I just think it’s true that it’s Torah-level. So if it isn’t, it isn’t. Now, in all these places, basically, it really does begin with some kind of intuition. The intuition is that intellectual property—given our conditions today, apropos conditions—it cannot be that there is no ownership over such a thing. It cannot be. It’s unreasonable. Okay? But again, if I don’t find a route, then no—then there isn’t one. The intuition is not the end of the road; it’s the beginning of the road. Or Shai Dromi—I said once already, I mentioned that I have an American intuition on this issue: if someone is on my property, I shoot him in the head. Meaning, nothing else interests me. Whether he endangers me or doesn’t endanger me, I don’t care; he shouldn’t come in. Just now someone sent me something—David Assaf sent me, for my opinion, some responsum he says is bizarre. What was the responsum? Someone writes—there was, for some reason this came to me some time ago, I saw that someone once sent it to me, I don’t remember. A story that happened in the United States, I think. There was some boy who was a good student but didn’t fit in socially, and the guys abused him during class, in the classroom, I don’t know exactly what. Now every time he brought sandwiches, somebody stole his sandwiches as part of the abuse—not because they wanted them, just to abuse him. At some point he couldn’t take it anymore, it drove him crazy. So he—he was a talented boy, a good student and talented—he concocted poison and put it into the sandwich. Fine? Now, somebody ate the sandwich, stole it from him and ate it as usual. And at some point he started writhing there in class—I don’t know if it was a deadly poison or not, because I didn’t see the whole responsum, but something that at least had to cause serious harm, okay? And then he realized that this boy was the one who had been taking his sandwich—that’s how he found out who took it—and his disgrace was exposed publicly. And then they asked whether this is permitted or forbidden. And Menashe Klein from Ungvar—yes, the Mishneh Halakhot, “the little Menashe”—yes, exactly—he also wrote about it, and afterward there was some newer figure, I don’t remember, some judge, Rabbi so-and-so Dayan, Binyah, something, Beit Binyah, I don’t remember exactly, something like that—and in his responsa, there are some thirty volumes, I don’t know how many, he also discusses it. And the claim was that some decisors say this is permitted; there is no prohibition of murder here. He said to me, “It’s bizarre, because what do you mean, you’re causing his death,” so I even wrote back to him and said that one must distinguish between two planes of discussion. There is the moral plane of discussion, and there is the halakhic plane of discussion. In Jewish law, murder is discussed in a very formal way. Things like indirect causation, constricting someone, bringing the item to the fire, bringing the fire to the item, all kinds of distinctions of that sort. Now from a moral perspective there is no difference at all. In the end the person certainly died as a result of your act. So you did it with your left hand, blindfolded, and by indirect causation—so what? What you did certainly killed him.

[Speaker F] It could be that killing a person by gunshot is also indirect causation,

[Rabbi Michael Abraham] because you only caused it. So in Jewish law—we see that the prohibition of murder, or at least the death penalty, the severe level of the prohibition, is judged in some formal way. The question is whether you performed an act of murder. Here I completely agree that there was no act of murder. In my own sandwich I can put whatever I want, and nobody can tell me what to do. And if I put in poison, that’s my right, and if he steals it, that’s his problem. That’s the American intuition. I spoke about my American intuition—I have no problem with it. Fine? Now that’s on the halakhic level. On the moral level, at first I thought I also had no problem with it—the same American intuition. But at some point I said to myself: no, there is a question here of proportionality. In other words, the person is abusive, true, but he doesn’t deserve to die for that. So morally, really—okay, if you put glass in there maybe yes, or stones, I don’t know exactly, maybe yes. To kill him seems to me a bit excessive, but fine, I don’t know. It’s possible—listen, the boy was apparently in terrible distress according to the descriptions there, those kids were making his life miserable, so it wasn’t a simple situation. In any case—but it isn’t bizarre. It simply isn’t bizarre. It’s a reasonable halakhic argument. You can debate it a bit, because even among the decisors there were some disagreements. By the way, the disagreements were mainly slippery-slope arguments: if you permit this, then what, how can that be? So are you basically saying it’s permitted, and it’s only a question of punishment policy? What?

[Speaker J] Is it different from a guard dog? Someone comes to steal from me at home, I have a dog inside the house.

[Rabbi Michael Abraham] In the law, I think—I don’t know if the law actually says this—you need to post that there is a dog in the house.

[Speaker K] Even if you post it and a thief comes in, you’re liable. Right?

[Rabbi Michael Abraham] There’s some urban legend.

[Speaker K] If you put a weapon

[Rabbi Michael Abraham] inside my house?

[Speaker K] Yes. If you put a weapon facing the door so that if a thief opens it, it shoots him—you’re liable.

[Rabbi Michael Abraham] Okay.

[Speaker L] You’re not allowed to electrify the bars

[Speaker K] and so on.

[Rabbi Michael Abraham] Ah, right. So there’s some urban legend in the United States about a story where someone put glass on the window and a thief came in, got injured, and sued the homeowner in civil court and won. Really? There’s an urban legend like that, I don’t know whether it’s true or not. There’s such a story; I’ve never checked it. My inclination on this matter is unequivocal—morally and halakhically: put glass there, chop off his legs, go right ahead. There is no problem at all. That’s my intuition.

[Speaker B] That’s actually not an American intuition. What? The ruling that he gets compensation? No, no, that’s what I’m saying.

[Rabbi Michael Abraham] It’s some story, I don’t know if it’s true. There are all kinds of stories floating around, and besides, you know, in America today there’s no one intuition anymore.

[Speaker B] There’s an opposite American intuition.

[Rabbi Michael Abraham] Yes, Obama. Is his intuition Democratic or Republican? That’s a Republican intuition. Yes, exactly. Though actually—well, the United States has 200 million courts in all kinds of villages; sometimes the judge is the local sheriff, there are crazy things there. It isn’t organized like here, with all due respect to the United States. Yes, like O.J. Simpson.

[Speaker I] Yes, when they acquitted him. Simpson, Simpson.

[Rabbi Michael Abraham] In any case, it’s possible. There are bizarre court rulings there, that’s clear. So maybe that was some insane town.

[Speaker C] I didn’t quite understand. The question was whether he is allowed to do it, and then if it isn’t murder but it just kills him—not as murder—

[Rabbi Michael Abraham] So there I wrote—I’m not getting into all the details—I wrote there that maybe there is room to discuss whether there would be a prohibition here even though one wouldn’t incur the death penalty for it. Or perhaps even the prohibition “you shall not murder” would apply, only there would be no death penalty. Or maybe not the prohibition “you shall not murder” but “whoever sheds the blood of man,” or something else. Maybe. But I’m saying: it isn’t bizarre. This is a discussion that needs to be had. It’s really not bizarre. Yes? Now again, one has to distinguish. Many times these criticisms come from not distinguishing between the halakhic discussion and the moral discussion. You have some moral intuition and you think that’s what Jewish law ought to be. I’m saying that’s not true. Jewish law has its own rules, morality has its own rules, and it may be that Jewish law permits something and I will still say: but morally it is forbidden to do that, or the opposite. Therefore one need not subordinate Jewish law specifically to moral intuitions, though again, if one can, then one can. If not, then fine, then not. The halakhic discussion sometimes stands on its own. That’s apropos this American intuition. And then I start digging and searching and so on, and I gave the example last time about the attitude toward causing a secular Jew to stumble in a transgression—the discussion I did, and that was in Tzohar, actually. And there too, the same thing. And in the end I really do discover that one can definitely establish such a view as at least possible, if not even something that—ah, there’s also the Siamese twins article. About separating Siamese twins. That too was there. I heard a story on the radio, something was in the news, that at Sheba Medical Center two Haredi Siamese twins arrived, and the hospital requested permission from the parents to perform a separation surgery. Siamese twins means, say, there is only one heart or one head, depending on where they’re joined, yes, and the claim is that in fact within a not very long time both will die if they don’t intervene. And the question is whether to do surgery and sacrifice one for the sake of—one head or something like that, one brain or something like that. What? So there’s a question whether this is a case of a pursuer; I deal with that a bit in the article.

[Speaker B] Who is pursuing whom?

[Rabbi Michael Abraham] So it’s mutual pursuit.

[Speaker I] Usually one is stronger.

[Rabbi Michael Abraham] No, so it depends—not that it’s stronger, but the heart belongs to him naturally. Fine, there are a few distinctions there; I don’t want to get into all the details here. But I heard this on the radio, and they described there that the halakhic decisors had told them it was forbidden. The halakhic decisors said it was forbidden, that you have to leave both children to die. Forbidden, because you are sending a person to his death—that’s murder. Okay? So you can’t do such a thing. Now I was outraged. I was outraged not only morally, but also from a halakhic intuition, by the way. I said, it can’t be, it simply can’t be. And then I did some checking, I started writing an article, I sent it to Mordechai Halperin, whom I’m in contact with; he knows everything that has been said in these areas completely. So I can get from him an authoritative survey of everything everyone says in these areas. He tells me: wall-to-wall consensus that it’s forbidden to do this. There is not a single halakhic decisor who permits it. From all the important decisors—he checked all of them—not one permits it. And I say: there is no side to forbid it at all. It is unequivocally permitted; there’s no doubt that it’s permitted. No doubt that it’s permitted. After the discussion I did there as well, I think overall I showed the point.

[Speaker B] If it’s permitted, then—

[Rabbi Michael Abraham] Then you’re obligated, yes. If it’s permitted, then you’re obligated to do it—not only is it permitted. Okay? So here is an example of intuition. He tells me all the halakhic decisors say otherwise—fine—but I say: I examine the material, and it comes out to me that this is indeed the case, and you must do it. Not only that it’s an option. Because once it’s an option, then you also have to do it. And all the arguments they raise there are arguments that don’t even get off the ground. The only source they bring there in this context—I brought a few examples here—the only source they bring in this context is the Jerusalem Talmud in Terumot. The Jerusalem Talmud in Terumot says—the only really solid source—that if gentiles surrounded a city and said, “Give us one of you,” right? So it says in the Jerusalem Talmud that you do not hand him over. You do not hand him over even though if you don’t give him, they will kill all the residents of the city. Okay? So ostensibly this is really parallel, because the argument is basically that you are sending someone to death—but that someone is going to die anyway in a moment. After all, both of them are going to die if you don’t do the separation surgery. You’re sending someone to death, but it’s someone who is in any case already about to die; at most it’s a brief extension of life, something like that. So sacrifice the brief life of one in order to save at least the full life of the other. Okay? So at least to me it sounds very reasonable that you can do it. To my mind it sounds very reasonable that you can do it. They tell me: in the Jerusalem Talmud, Terumot, it doesn’t say that. It explicitly doesn’t say that. Because in the Jerusalem Talmud in Terumot it says that if gentiles surrounded a city and say, “Give us one of you, and if not we’ll kill all of you,” it is forbidden to give one over. That’s how Maimonides rules in Jewish law. The dispute between Reish Lakish and Rabbi Yohanan about the circumstances—whether he is liable to death by the government or not liable to death by the government—doesn’t matter. But in the simple case, it is forbidden to hand him over. Everyone has to die. That is what the Jerusalem Talmud says. Okay? Fine, that’s a decisive proof. Meaning, with all due respect to intuitions, there is an explicit Jerusalem Talmud here against it.

[Speaker E] There could be so many other considerations in such a situation. It could be a collection of many, many considerations. It’s a different situation, I don’t know, there’s a war here, there’s a number of people here, there’s what will happen in other such cases.

[Rabbi Michael Abraham] The number of people is the opposite—it means so many will die, so it makes more sense to hand over one.

[Speaker E] I’m saying there’s this—how can you compare one-to-one and say that it’s—

[Rabbi Michael Abraham] All the halakhic decisors compare it. All of them. All the halakhic decisors of our time.

[Speaker E] You can compare, obviously.

[Rabbi Michael Abraham] But if you’re looking for something, then let’s look for whether there is something reasonable. So I say: I looked, and I found it. I found something reasonable. By the way, not mine. Anker once suggested in some article—he published an article on, I think, this Jerusalem Talmud, I no longer remember what the subject of the article was—and there he suggests an interpretation that solved a lot of things for me in Maimonides as well, because I had difficulty with Maimonides on this issue. Because in the end this Jerusalem Talmud is very difficult. Very difficult, because the prohibition against killing one person to save another—yes, one must be killed rather than transgress murder—“Who says your blood is redder?” It is forbidden for me to kill someone else even if I would pay with my own life. That is basically the fundamental source. But what reason does the Talmud give? “Who says your blood is redder?” Right? Meaning, who are you to hand over his life in order to save your own? But in the case of the Jerusalem Talmud, both of us are going to die anyway. What does “Who says your blood is redder?” have to do with it? Instead of both of us dying, one dies. What does that have to do with anything? On the contrary—so first of all, from the Talmud itself it seems clear that this Jerusalem Talmud is not clear at all. It simply doesn’t fit. It doesn’t make sense. And by the way, the Kesef Mishneh asks this, the Lechem Mishneh asks this, all the commentators on Maimonides are shouting: how can this be? And they throw out strained answers from here to eternity. One of them says: because it is not certain they will kill everyone. Only in a situation where it is not certain they will kill everyone. Because if they will kill everyone, then obviously you could hand him over. But who knows—maybe they won’t kill, maybe—I don’t know exactly what. And therefore it is still forbidden. Fine, that is not the plain meaning of the Talmud there or of Maimonides. Never mind. Someone—the Kesef Mishneh actually made an astounding innovation there. He says that “Who says your blood is redder?” is not the reason at all for “be killed rather than transgress” in the case of murder. That’s what he writes there. It’s just to give it some flavor, but it’s a tradition, a law given to Moses at Sinai, I don’t know exactly what—some tradition that for murder one must be killed rather than transgress. It’s not because of “Who says your blood is redder?” What do you mean, because of “Who says your blood is redder?” The halakhic decisors bring it, and there are ramifications from that phrase as well. There are discussions whether in the case of a mortally wounded person one may or may not, because a mortally wounded person’s blood is less red than the other’s blood, so maybe him it would be permitted? They do a whole lot of work with that rationale; it’s not just some flavor text. But he has no choice—he’s in distress, there is a contradiction between Talmudic passages. Now, I have a simple solution that I arrived at only because intuitively I was unwilling to accept that ruling. I arrived at it—meaning, I came to Anker’s article; it’s his solution, not mine. And he says as follows: in Maimonides, this law appears not in the Laws of Murder and Preservation of Life, but in the Laws of the Foundations of the Torah. Why? After all, it belongs in the laws of murder. In the laws of murder you should say when it is permitted to kill, how one preserves life, at what cost one preserves life—that all belongs there. The law of the pursuer, everything appears there in the Laws of Murder. What does this have to do with the Laws of the Foundations of the Torah? In the Laws of the Foundations of the Torah, the discussion is of sanctifying and profaning God’s name—that’s the chapter there in the Laws of the Foundations of the Torah. And then it’s clear—the obvious explanation is that the reason it is forbidden to hand him over has nothing to do with the Laws of Murder and Preservation of Life. It’s because of the laws of profaning God’s name. When gentiles besiege us and we hand over one of our own to them as a sacrifice so that we may be saved, that is a profanation of God’s name. So for that reason we depart from the ordinary law so there will not be a profanation of God’s name, and we give our lives for the sanctification of God’s name. That is what this law says. He calls it surrender to terror; I don’t think it is specifically surrender to terror, but rather profanation of God’s name. Okay? Now, suppose that is the explanation—and I think in Maimonides that explanation is called for, because it appears in the Laws of the Foundations of the Torah and not in the Laws of Murder. Meaning, I have an indication that this is the explanation. All the difficulties on Maimonides disappear on their own, of course. There is no difficulty, nothing is difficult. The “Who says your blood is redder?”—everything is fine, everything falls into place, there is no need for all the forced readings and no need for anything. But no one said this. No one said this—not among Maimonides’ commentators, not anyone I know at least, neither medieval authorities nor later authorities—no one said it, no one explained the matter this way. The assumption of those who dealt with it is that it really is a law in the Laws of Murder. But in Maimonides there is a not-bad argument for this, because with Maimonides the location of the law is one of the rules: the location of a law indicates its nature. So if it is located in the Laws of the Foundations of the Torah, it apparently belongs to profanation and sanctification of God’s name, and not to the Laws of Murder and Preservation of Life. What is the practical implication? The practical implication is with conjoined twins. The implication regarding conjoined twins is basically that here there is no issue of profanation or sanctification of God’s name. It’s not that someone is threatening me and I am surrendering to the wicked or something like that. This belongs to the Laws of Murder and Preservation of Life. In the laws of preserving life, certainly one may hand over this one in order to save another, and certainly in order to save many others. There is no doubt one may. That’s all. It’s a very good argument, and there is no problem with this argument, except that no one says it. And it is simply true. There is no doubt it is true. It resolves the difficulty in a very simple way; there is no need for any strained reading. Everyone struggles with this difficulty—not that I invented the difficulty—and there are strain upon strain. Fine, but everyone… So what do I do now in such a situation? I don’t know. I think one has to go with what one thinks. Yes, I write an article, but if they asked me a halakhic question I would also rule this way in practice.

[Speaker C] Were there criticisms of this article?

[Rabbi Michael Abraham] What? Of this article? Yes, Rabbi Mordechai Halperin never fully agreed.

[Speaker C] No, what does he do with your explanation, if it’s with my explanation?

[Rabbi Michael Abraham] My explanation—he says it’s wrong, that’s not the correct explanation; no one interpreted it that way. He’s a collector, so to speak. No one interpreted it that way, so it’s not correct.

[Speaker E] If we go with what should be done there in sanctifying God’s name—what? Then if everyone has to die, that’s pretty far-reaching.

[Rabbi Michael Abraham] Fine, but we find things like that even over a shoelace. Even over a shoelace. But that is a very—

[Speaker E] Positive—about something else.

[Rabbi Michael Abraham] Fine, but it sounds much closer to my intuition.

[Speaker E] It isn’t necessarily more lenient.

[Rabbi Michael Abraham] I didn’t say more lenient, but I said it’s much more—

[Speaker B] Closer to my intuition than the second interpretation. The second interpretation is really strange, it’s—

[Rabbi Michael Abraham] Against the Talmud. It simply cannot be. They also said once regarding Maimonides that one shouldn’t make too much of location in Maimonides. Not true. The location in Maimonides absolutely teaches about the nature of the law. I don’t know whether I would build skyscrapers on that alone, but when it also resolves difficulties—not that it creates difficulties—then what’s the problem? The location says it, and it also resolves the difficulties, so what’s the issue?

[Speaker B] Fine, in the Talmud too it doesn’t appear in the context of—why not? In the Talmud there is no context.

[Rabbi Michael Abraham] In the Talmud there is no context at all, no context there. It states the law. Now what do you say—why is the law this way? I don’t know, decide whatever you want. No, nothing is written, I don’t know. For example, think of a situation—I said there more than that—I said, after all, in the end, they asked me afterward: and how would you decide who? In a symmetric situation. If the situation is not symmetric, there are other decisors who permit it too, but that is also disputed, and there are decisors who permit it. In a symmetric situation, the heart belongs to both of them equally more or less, you can’t assign it naturally to either of the twins. What would you do in such a situation?

[Speaker F] No one can judge his own case.

[Rabbi Michael Abraham] Yes, no one can judge his own case. Let’s draw lots. What, don’t they draw lots over lives? There is a Sefer Hasidim that says you don’t draw lots over lives. Well, I was just stunned. Fine, Sefer Hasidim in general contains some strange things, and to take from it—I wouldn’t build anything on it. But when you check Sefer Hasidim, you see that that is not at all what it says; it says the opposite. And that too all the halakhic decisors bring: Sefer Hasidim says you don’t draw lots over lives—and it simply says the opposite. There are two passages in Sefer Hasidim, both dealing with a case like Jonah, traveling on a ship, there is a storm, and the question is whether it is permitted to throw him into the sea in order to calm the storm. The midrash already—it starts with a midrash; he brings a midrash. Now in one place he writes that it is permitted, in another place he writes that it is forbidden. Sefer Hasidim. So you ask yourself: what is the difference? They’re in completely different places—again, it’s a very confused book and it isn’t clear what its original editing was and what… so I don’t know, maybe once these two sections were adjacent, but in the versions before us they are in two entirely different places. When you look at the description, the description is different—the description of the case he is speaking about. When you look a little more closely—by the way, Rabbi Ovadia writes this; afterward I found it—Rabbi Ovadia writes this. The description is different. In one place he is talking about when there is a storm at sea and you want to throw someone into the sea, and you want to draw lots and throw over whoever is selected in order to calm the sea from its rage. That is forbidden. But elsewhere he says: what if there is a storm only around your ship, while the other ships—and this is a midrash on Jonah saying that this was the situation there. Okay? You see ships all around you with no problem, but there is a storm around you, only by you. There it is permitted to draw lots. Why? So the explanation—I think the simple explanation, and as I said, afterward I found Rabbi Ovadia also writes this—the explanation is very simple. It has nothing at all to do with not drawing lots over lives, all that nonsense. Of course you do. You draw lots over anything, when necessary. So what? What’s going on is that if there is a storm at sea, what good does it do to throw someone into the sea? Who told you that will save the ship? Are you an idiot? Why should throwing someone into the sea save the ship? That’s insane. Meaning, those idol worshippers there in Jonah decided that, so what does that prove? But—

[Speaker E] Huh? No, I read Jonah and I see that it worked. No, and ever since then everything—

[Rabbi Michael Abraham] No, so what does the midrash say? The midrash says there was a storm around the ship. What does that mean? No, that’s the midrash I’m talking about. What does that mean? Once there is a storm around the ship, you understand that the Holy One, blessed be He, is looking for us. For whom on the ship. Exactly. Here’s a ship with no storm, here’s a ship where only mine has a storm, so clearly this is something unnatural. Clearly the Holy One, blessed be He, is looking for a sacrifice—so to speak, never mind, to them that was obvious. Okay? So now apparently someone has to be thrown into the sea. Let’s draw lots, because we need to decide who it is. We don’t know who it is, whom the Holy One, blessed be He, is looking for. You draw lots on the assumption that the lot somehow reflects the will of the Holy One, blessed be He—which is also an interesting assumption—and then you throw him into the sea. That, Sefer Hasidim says, is permitted. But what is forbidden about drawing lots there is not because you don’t draw lots over lives. It’s because you don’t draw lots over childish things. But if you have two conjoined twins and you can save the life of one of them, “you don’t draw lots over lives,” so we’ll leave them both to die? Does that sound reasonable? It’s outrageous. So obviously you do draw lots over lives, because here it also makes sense that the lot would work. I mean, we say: if you do a separation surgery, the other one will survive, and if not, then within nine months they both die. In the typical cases, within nine months they both die. Okay? So here not to draw lots? Why not? There is no law not to draw lots; even Sefer Hasidim does not write that there is such a law. But what? Everyone keeps repeating: Sefer Hasidim, and you don’t draw lots over lives, and therefore there is nothing to do. I told them more than that: suppose they were adults, these people. Suppose they were adults, okay? Then if they were adults, they would do the lottery themselves, and one would waive his claim. He would say, listen, I’m willing to forgo it so that the other one will survive—or vice versa. Of course he waives it, and he has a fifty percent chance of being the one who survives. Each one enters that lottery in advance with a ticket. You have a fifty percent chance of surviving. If you don’t do the lottery, both of you die. Would one of them not agree to do the lottery? Of course they would do the lottery, right? If one could propose doing the lottery, he gains a fifty percent chance of surviving. True, if it comes out that he has to die, then he will have to commit himself to agree to hand himself over.

[Speaker B] In the same situation as—

[Rabbi Michael Abraham] Exactly. So he is going to die anyway, right? So you draw lots. So if they… that’s if they were adults. Now they are little, these poor children, so because they are little and can’t speak and can’t think, and have not yet reached maturity, so you leave them both to die? But the religious court is the father of orphans, or the father of minors, or their parents are the father of these minors—they weren’t orphans. Okay? Let them draw lots on their behalf. Let them draw lots and decide who yes and who no, because in the end they themselves would want to draw lots. That is a plain presumption about each one’s view, about what each one would want. So now I, as a religious court or whoever it may be, do it for them. I asked him afterward, tell me: suppose someone is standing—or is on—the fifth floor of a burning building, okay? Now if he jumps down, he has a fifty percent chance of breaking his neck, but there is some chance he survives, let’s say—or comes out without teeth but survives, stays alive. Is he allowed to jump? Meaning, he is sending himself to death. What, suicide is forbidden? But he will die in any case; the fire will kill him. Is he allowed? That’s a lottery, right? That jump is a lottery. Is a person allowed to make a lottery over his own life in that way? Obviously he is allowed, because if my option is to die for certain, and the lottery only adds for me the fifty percent chance of living—the fifty percent chance of dying leaves things exactly as they were; it only adds the fifty percent chance of living—so I’m forbidden to take that lottery? Obviously I’m allowed. So now if both of them decide to do a lottery, that is also allowed. And if both of them are minors and can’t decide, then I as a religious court will do a lottery for them. How can one even argue with this reasoning? It is obvious that it is correct. Yes.

[Speaker L] Can you see this as a kind of amputation?

[Rabbi Michael Abraham] So there was a case in Philadelphia, in—Philadelphia year seventy-six. That was there then. In seventy-six in Philadelphia, in the Philadelphia Inquirer, the newspaper, there appears a case description—again, two religious American Jews had the same story. They sent the question to Rabbi Moshe Feinstein, and the responsum does not appear in his responsa. I assume because he didn’t want to—he didn’t want people drawing conclusions; these are matters of life and death, and he preferred that people go ask rather than read it in the responsa and make decisions. But he sat there, and I think Rabbi Shabtai Rappaport was there, and from his report—the truth is I still haven’t fully checked it with him; now he’s with us so I can ask him—this is something I’m talking about from long ago—and Rabbi Tendler, who was his son-in-law, and so on, they sat there in a kind of council to think through this case. And there in the newspaper they describe the process that Rabbi Moshe Feinstein went through in order to reach a decision. It’s really fascinating. And at the same time, the doctors were also deliberating. Notice, this is seventy-six. Today it’s already simpler. But in seventy-six the doctors were very torn. The doctors were gentiles, of course, and they went to a priest, and the priest also considered it and asked himself what to do. The reasoning was so similar, Rabbi Moshe Feinstein’s and the priest’s—it’s amazing. Meaning, if I remember correctly, one of them—I don’t even remember which was which, you see how similar it is—one of them made the following calculation: there is a parachutist jumping from a plane, okay? Two parachutists jump from a plane. One of their parachutes does not open, okay? He grabs onto the other one’s leg. He hangs on the other one’s leg. Now the second one’s parachute is of course holding two people. The parachute cannot hold two people. Both will be killed. Is he allowed to kick the other one down? Is he allowed to kick the other one down? That is one example. But all this is in a situation where there is asymmetry, because the parachute is mine. We’re not talking about two people descending under one parachute. There it seems from Rabbi Moshe Feinstein that it is forbidden. But I say: there the parachute was mine, it’s asymmetric. Okay? The priest said: what happens if a mountain climber hangs on one of those—he drove in with a hammer this pick, this peg, into the rock, and then his friend grabbed his leg and hung onto him. It’s amazing—it’s the same story. And both of them thought of this thought experiment.

[Speaker E] Moral considerations—I could also have made that calculation. It doesn’t sound like they’re making halakhic considerations.

[Rabbi Michael Abraham] Exactly. No, and that was the halakhic consideration. That was the consideration according to which he worked. It’s moral. No, a halakhic consideration. That was Rabbi Moshe Feinstein’s halakhic consideration. And then they began discussing there whether this is basically under the law of the pursuer or not under the law of the pursuer, how to fit it into halakhic categories. One second. Now on the way, Rabbi Moshe Feinstein—the first question he said to ask the nurses, regarding amputation—who was it, Ido asked? Rabbi Moshe Feinstein asked the nurses, and this was the first question he asked: is this even two human beings? It may be—they were joined at the head, I think, there. So perhaps it’s really one human being with four legs and four arms. So what’s the problem? Then obviously it is permitted to do a separation surgery. A few extra limbs.

[Speaker J] Remove—

[Rabbi Michael Abraham] His leg so there won’t be gangrene that kills him. It’s only removing limbs from this one person. They were two people. That was the first question he asked, and he received an answer—and it’s an interesting answer. They told him: the two of these fellows even have different temperaments. They are two people. They’re joined at the head. I don’t know if it was one brain or somehow a double brain but connected, I don’t know what; they were newborn babies. But they had different temperaments in the sense that one was cheerful, one cried a lot, one woke up at night, one didn’t. Meaning, you can see that these are two human beings. For him, whether you accept that criterion or not isn’t important at the moment, but that is exactly the question he asked. Because if it really had been one human being, he says there, he writes there, if it really had been one human being, there would be no—there would be no problem doing it; it’s amputation. Once it is two human beings joined together, then it’s not amputation. Then you have to decide about separation surgery. Okay? Now here is an example of intuitive thinking—but what is intuitive thinking? After all, I can fit it into the rules: there is the law of the pursuer here, and there is this, and “Who says your blood is redder?” In the end everything is anchored in rules, and still it goes against all the halakhic decisors. Why? Because my intuition told me that obviously this is correct; this is how Jewish law ought to be, it is obvious to me. Okay? So it began with intuition, and it ended, I think, with entirely reasonable halakhic justifications—in my opinion compelling, not merely reasonable, but at least reasonable.

[Speaker G] But if you hadn’t agreed with the rationale of the law in Maimonides and this explanation, would you really have remained—

[Rabbi Michael Abraham] Then yes, halakhically I wouldn’t know what to do with it, right? Yes. Fine. What? No, it’s the Jerusalem Talmud, not Maimonides. Ah, Maimonides gave an interpretation to the Jerusalem Talmud. Maybe if I had arrived at this interpretation of the Jerusalem Talmud on my own, I might also have done it. No, I have no problem with that. It’s only proof for the interpretation, but one could have interpreted it that way even without the proof. I’m just saying: here I even have proof that Maimonides also interpreted it that way, so it’s more comfortable for me of course—I’m hanging onto his legs. Okay, fine, so let’s stop here. Again, I can bring more halakhic examples that are basically the same pattern. The question is whether we should move on to the next topic already.

[Speaker B] Fine, so let’s move on to the next topic, we’ll send a message.