The Path of Halakhah – The Totality of Commitment to Halakhah – Attitudes Toward Extra-Torah Values – Lecture 4

Table of Contents

• The discussion plan: change in Jewish law versus parallel loyalty and conflict
• Meiri as a model: attitude toward gentiles and changes in the validity of laws
• Logical introduction: the naturalistic fallacy and the need for a bridging assumption between fact and norm
• Clarifying the reason for disqualification from the sources: the example of a wicked person as a witness and women’s testimony
• Authority to change Torah law versus enactments: Maimonides, “when the reason falls away,” and the absence of a Sanhedrin
• “Sociological” introduction: a bathing suit, a duffel coat, two kinds of conservatism, and suspicion of motives
• Plain meaning and midrashic interpretation: conceptual blurring and the Vilna Gaon’s example on “If there is anxiety in a man’s heart, let him suppress it”
• Back to Meiri: a fourth implicit assumption, Modern Orthodoxy, and the default in cases of doubt

Summary

General Overview

In the next two meetings, a plan is presented to examine systematically when change in Jewish law is legitimate and what the relationship is to external values, including the possibility of adopting values from outside, overruling sources on their basis, or remaining loyal in parallel to two value systems and declaring the contradictions to be a conflict without changing either system. It is suggested that disputes such as Reform versus Orthodoxy, and Modern Orthodoxy, differ mainly in their attitude toward external values and toward the question of what counts as “change” as opposed to “correct application” or a conservative “midrashic interpretation.” As part of this inquiry, Meiri is brought as a possible model for halakhic-conceptual change regarding gentiles, and two introductions are developed: one logical, about the gap between facts and norms and the need for a bridging assumption; and one “sociological,” about two patterns of conservatism—sticking to past practice versus interpreting the principle behind it—and the dispute over what is “plain meaning” and what is “midrashic interpretation.”

The discussion plan: change in Jewish law versus parallel loyalty and conflict

A question is raised whether values from outside can enter inside and become binding also from the standpoint of Jewish law, and whether it is possible to override sources that contradict such a value “from the standpoint of the Chazon Ish’s fifth Shulchan Arukh.” A third possibility is suggested, in which there is no change in Jewish law and no change in morality, but rather a declaration that the contradiction is a conflict, followed by taking practical steps of conflict resolution. Saving life on the Sabbath is brought as an example of an internal conflict within Jewish law between two values that are not surrendered, and the concepts of “set aside” and “permitted” are described as the difference between a case where saving life overrides the Sabbath and an attempt to show that from the standpoint of Sabbath law there is no prohibition here. An example is brought of an actor who is required to smoke in a cigarette commercial and consults a doctor who forbids it “as a doctor” but encourages it “as a friend,” to illustrate a situation of loyalty both to medical considerations and to economic considerations without “changing the laws of health” or “the laws of economics,” but simply acknowledging the conflict and deciding.

Meiri as a model: attitude toward gentiles and changes in the validity of laws

An article by the speaker is cited on Meiri’s attitude toward idol worshippers, along with the claim that Meiri writes in dozens of places that many accepted halakhic attitudes toward gentiles are not valid regarding the Christians of his time because they are “restrained by the ways of civilized nations.” The apologetic reading that attributes this to fear of the censor is rejected, because of the large number of places and the decisiveness with which Meiri repeats the principle, and the claim is that Meiri meant it seriously. It is argued that Meiri removes the need for the apologetic explanations of other medieval authorities (Rishonim) on these charged topics, and holds that the laws were stated “only about the nations that once were,” and not about the nations with whom the Jewish people interacted in his own time. Meiri is presented as an example of a model through which one can examine what counts as change in Jewish law and what counts as application or interpretation.

Logical introduction: the naturalistic fallacy and the need for a bridging assumption between fact and norm

A common pattern of argument for halakhic change is presented through the example of women being fit to testify: a normative premise that the sages disqualified women, two factual premises about their past condition and their changed present condition, and a normative conclusion that they should now be deemed fit. It is argued that this is not a “Reform” argument at all, but can be an “ultra-Orthodox” argument if it really concerns a change in the definition of the application and not a change in Jewish law, because then the claim is that the women of our time are not the same women to whom the disqualification applied. After praising the argument as non-Reform, it is claimed that it is “simply invalid” logically, because the conclusion does not follow from the premises so long as an additional premise is missing—one that connects the factual plane to the normative plane—and the speaker calls this “the naturalistic fallacy.” It is argued that the hidden assumption required is that the reason women were disqualified from testimony stemmed from lack of education and social involvement, and that this assumption is sometimes concealed both for demagogic reasons and because it is hard to prove.

Clarifying the reason for disqualification from the sources: the example of a wicked person as a witness and women’s testimony

It is shown that in other areas one can clarify from the sources whether a disqualification is formal—“a personal disqualification,” “a scriptural decree”—or whether it stems from suspicion of lying, and the example is given of the disqualification of a wicked person from testimony and the discussion whether it is “because of suspicion of lying” or for another reason, such as removing the wicked person from “the legal game” in order to educate society. The example is also brought of a woman’s testimony to permit an agunah, where sometimes relatives are accepted as witnesses, and the discussion whether a robber is valid there depends on the question whether his disqualification is formal or because of suspicion of lying. It is argued that even if there is suspicion of lying, there are different degrees of such suspicion, and therefore later-authority arguments that base proofs on this are not necessarily decisive evidence. The speaker concludes that in principle one can try to validate the hidden assumption also regarding the disqualification of women, and if that assumption is validated, then the conclusion that women are fit to testify could stand “on the table of kings.”

Authority to change Torah law versus enactments: Maimonides, “when the reason falls away,” and the absence of a Sanhedrin

It is argued that regarding Torah-level laws there is a principle in Maimonides at the beginning of the laws of rebellious elders that a religious court in every generation has authority to change a Torah law, whereas the requirement to be “greater in wisdom and number” was said only regarding enactments, because “the sages were stricter with their own words than with Torah law” in order to reinforce enactments. It is therefore argued that “when the reason falls away, the enactment does not fall away” is an interpretive move that applies where there is no power to change, whereas change is a legislative move of repeal, and in Torah law there is no need to hang things on the cancellation of the reason. Regarding the absence of a Sanhedrin, it is argued that there is not necessarily a source saying that only ordained sages may expound the Torah, and it is claimed that any religious court of three can interpret by means of the thirteen hermeneutic principles and derive conclusions, and that one can reopen discussion even on claims about “a decree at the end of the sealing of the Talmud” not to dispute the Amoraim. The speaker concludes that the labels “Reform” and “Orthodox” are demagogic nicknames, and that the real test is the validity of the argument itself.

“Sociological” introduction: a bathing suit, a duffel coat, two kinds of conservatism, and suspicion of motives

A parable is brought about a group walking in the desert in bathing suits like their forefathers, and when the weather gets colder they split: one group continues in a bathing suit “with self-sacrifice,” and another puts on a duffel coat or changes clothes. Two possible justifications for the duffel coat are presented: disrespect for tradition (“I’m cold”) versus a conservative claim that continuing in the path of the forefathers means dressing according to the weather, and therefore changing the clothing is the true continuation. It is argued that the latter two models are both conservative, and that the question of how to decide is interpretive—what the guiding principle of the forefathers really was—and that there is a tendency to suspect someone who chooses the more convenient solution of hiding “Reform motivations,” but the speaker states that the discussion should be about arguments, not about people’s motives. The speaker presents a distinction between “plain conservatism,” which continues the act literally, and “midrashic conservatism,” which interprets the principle behind it and applies it differently, and argues that what distinguishes conservatism from Reform is the existence of a “midrashic interpretation” that grounds the justification.

Plain meaning and midrashic interpretation: conceptual blurring and the Vilna Gaon’s example on “If there is anxiety in a man’s heart, let him suppress it”

It is argued that the question of who is the plain conservative and who is the midrashic conservative is parallel to arguments about what “plain meaning” and “midrashic interpretation” are: whether plain meaning is sticking to the wording and midrash is reasoning, or the other way around. The speaker argues that there are tools for clarifying plain meaning and midrashic interpretation, even though he does not spell them out here, and he brings an example in the name of Rabbi Menashe of Ilya in the book Binat Mikra in the name of the Vilna Gaon on the verse, “If there is anxiety in a man’s heart, let him suppress it,” where the sages expound it as “let him distract himself from it,” while according to the plain meaning, in the Vilna Gaon’s view, it means “let him bow down,” that is, let him become bent over from great anxiety, with support from the context of the continuation of the verse. It is argued that the fact that there is a hint supporting the midrashic reading does not make the midrash into the plain meaning, and the speaker uses this to maintain the distinction between plain meaning and midrashic interpretation even when there is room for midrash.

Back to Meiri: a fourth implicit assumption, Modern Orthodoxy, and the default in cases of doubt

It is argued that Meiri’s reasoning is built on a pattern of three premises and a conclusion: laws regarding gentiles, the degraded moral state of the gentiles of the past, and a change in the moral status of the gentiles of the present, who are “restrained by the ways of civilized nations,” and from this follows the cancellation of certain laws. It is argued that the argument is not “Reform” but rather conservative-midashic, because it assumes a fourth implicit premise according to which the reason for those laws was the gentiles’ moral condition, but Meiri does not explicitly justify that premise. The speaker connects this to the distinction between Orthodoxy and “Modern Orthodox,” where in a case without decisive evidence for the reason behind a given law, the tendency in “non-modern” Orthodoxy is to leave the law in place, whereas in Modern Orthodoxy the tendency is to ground the law in a rational explanation when possible and to require someone claiming irrationality to bring proof. The speaker raises the question of what counts as “passive omission” in situations of doubt, and argues that in certain cases a “stringency” may actually mean validating rather than disqualifying, because refraining may leave money in the hands of a robber or lead to severe outcomes. He brings the example of refutation of testimony by relatives to illustrate that not accepting testimony may lead to the execution of an innocent person, and argues that “study-hall conclusions” are not accepted that way in practice. In the end, it is argued that the whole debate returns to the question of what appears to be the “plain meaning” and what the “midrashic interpretation” is, and that is where it will be decided how to create “today’s halakhic tradition of rulings” in relation to new realities.

Okay. In the next two meetings, according to the plan, we’re supposed to talk a bit about changes in Jewish law and about the attitude toward external systems—obviously, problems that are connected to one another. Can values be adopted from outside? Can outside values enter in, replace certain values that have prevailed until now? So that’s a question that obviously comes up in different shades, and it seems to me that it’s very current, certainly in the last generation. And it seems to me that it gets very little systematic treatment. There are lots of gut arguments, or arguments from who-knows-where, that try to urge us to freshen things up a bit, but there really isn’t an orderly analysis of how a system like Jewish law can actually be refreshed. What kinds of refreshment are legitimate and what kinds are not. Can I adopt values that have become common recently, say in the world around me, and that I also identify with, and say that from the standpoint of Jewish law they are also binding? That’s one question. Can I say that if in Jewish law, or in the Torah—not דווקא in Jewish law, these are two somewhat different questions—there are sources that go against this matter, can I set them aside because of that value, from the standpoint of the “fifth section of the Shulchan Arukh” of the Chazon Ish? To what extent is it possible to change Jewish law at all? These are all different formulations that circle around the questions of changes in Jewish law. Reform versus Orthodoxy, Modern Orthodox, all kinds of things of that sort, are basically divided according to different attitudes toward external values. It seems to me that this is the focus that distinguishes here between the different groups. And what I’ll try to do in these two meetings is really to examine, first, the concepts of changes in Jewish law: what change is legitimate and what is not, if any; whether every change is invalid, whether every change is welcome; how one makes such a change, when conditions require such a change, when they allow it, when they forbid it. And also alternative mechanisms to the very concept of change. There can also be a situation in which I remain faithful to two systems of values in parallel, without changing either of them. For example, I can be faithful to Jewish law and faithful to universal morality as understood, say, by any person, even a secular person or a non-Jew, without changing either of those two systems, but simply understanding that each of them dictates its dictates to me independently. And what that can cause is that sometimes I may enter a state of conflict, one that may be very hard to get out of, but it is possible. If from the standpoint of Jewish law I am commanded to do a certain thing, and from the standpoint of morality I am committed to a principle that forbids it, or the other way around, then I’m in trouble. That does not mean that Jewish law has to be changed, and it also does not mean that morality has to be changed—not necessarily, at least. It may be that I can declare this state to be a conflict and act by the means that I use when I’m in a conflict. And such conflicts are not unique only to parallel systems; even within the halakhic system there are conflicts, and we have all kinds of more or less creative ways to solve them. Saving a life on the Sabbath is also a kind of conflict. I have two values—I do not give up the value of saving life, and I also do not give up the value of the Sabbath—but there are situations, situations in which those values clash. Since those values clash, I now have to decide what to do. So at least according to the side that says the Sabbath is merely overridden, this comes very close to the pole I described earlier, which says: I cannot change the laws of the Sabbath, but I can only understand that I am obligated to both this and that, and I have no choice—I cannot fulfill both obligations—so I have to choose which of them I want more. The concept of “completely permitted” moves more in the direction of: okay, let’s prove that even from the standpoint of the laws of the Sabbath there is no prohibition here at all. It’s not only that the laws of saving life override the laws of the Sabbath, but I can supposedly change the laws of the Sabbath, or adapt the laws of the Sabbath, so that it comes out that I also did not violate the laws of the Sabbath. An example I once saw in some article: he brings an example of an actor who was offered a role in a cigarette commercial. He came to consult his physician friend. He said to him: should I go into this project or not? It will require me to smoke a few cigarettes, and that’s unhealthy—what do you say as a professional opinion? So his friend says to him: listen, as a doctor I forbid it to you absolutely and completely; certainly you must not do it. And as a friend I tell you: go for it, and big time. Why? Because if you judge only from the standpoint of medical considerations, physical health and not mental health, then fine, lose a million dollars—what difference does it make? The main thing is that you remain completely healthy and don’t put a drop of smoke into your body. Clearly, medically speaking, when I compare these two situations, the situation of smoking a few more cigarettes is a little less healthy. So from a purely medical standpoint I would tell him not to do it. On the other hand, fine—but there is another system that in this case I am not obligated to, but interested in; namely, the economic system. I would be very happy to have an additional million dollars. So the question is: what do I do in such a situation? So what, now I’m going to change the laws of health and prove that health-wise too it’s better? For example, if we insert mental health into the system of considerations? Not sure—maybe not. I’ll just say that I am committed to both situations, to both values, sorry—in this case, let’s call them values for the sake of discussion—and I’ll give a tithe and donate a lot to yeshivot from the million dollars too, so those are values as well and everything is fine. And the question is, of course: okay, now what do I do? I’m in conflict. So I need to solve it the way one solves a conflict. How does one solve conflicts? Excellent question—but somehow they have to be solved. So I’ll solve it as a conflict. That means I don’t need to change either the laws of health or the laws of economics. But I do need to decide what to do. Okay? That is the third position, which says I declare such a contradiction to be a conflict without resorting to problems of changes in Jewish law. Okay, so maybe, God willing, I’ll get to that next time. I want to begin a bit with situations in which I do make changes in Jewish law itself—what are the patterns of change, how does it happen, what counts as a change and what doesn’t, when is it legitimate, when is it not legitimate, and so on. I’ll use for this purpose an article I wrote not long ago on the Meiri’s attitude toward idol worshippers. The Meiri, as is well known, in many dozens of places throughout the Talmud—mainly Tractate Avodah Zarah, but also in Beitzah, Bava Kamma, Yoma, and several other places—the Meiri writes that many of the standard halakhic attitudes toward non-Jews do not apply to the non-Jews of his own time and surroundings. He’s talking about Christians who lived around him. Why? Because they are bound by the norms of the nations and all kinds of things of that sort. There are those who read this apologetically, or attribute everything to fear of the censor, as we often tend to do. But with all due respect to the censor, his hand still wasn’t in everything. And it seems to me that here it is very hard to attribute this to the censor. The number of places in which this appears, and the decisiveness with which the Meiri writes it—he doesn’t write it as some little disclaimer on page one and then forget it for the rest of page one because that’s the only place the censor reads. So he would have had to write on page one: everything written here refers to the non-Jews of old, not the non-Jews of today, and no practical Jewish law is to be derived from it. And everything is fine. And from there on he could go off into elaborate dialectics about whether one should kill a non-Jew in an unusual way or not in an unusual way and what to do with it. He does not do that. In every place where there is some discussion—almost every place where there is some discussion—that touches on charged issues of this sort, he repeats this point again: that this does not concern at all the non-Jews of our time, and all the answers that the other medieval authorities (Rishonim) gave are null and void, unnecessary and nonexistent, not valid and nothing at all. Rather, clearly this whole business simply does not exist here. It applies only to the nations that existed once, not to the nations that—we’re talking with, interacting with. So therefore my simple assumption is that the Meiri meant it seriously. Now, in order to understand this, for me it serves as a kind of pattern or model on which one can test the concepts of change in Jewish law. This is ostensibly a classic change, one of the kinds of changes also proposed in our time in various discussions of this type. In order to try to organize this a bit more systematically, I’ll preface with two introductions, which are really the main thing. The application to the Meiri is really just— The first introduction is a logical one. Usually, when criticism arises in favor of or supporting some change in Jewish law, the pattern of the argument is built roughly like this: say, the status of women—declaring women eligible as witnesses, okay, for the sake of discussion. So the pattern of the argument is built like this: the Sages disqualify women from testimony—that’s premise A. Premise B: women in the time of the Sages were not educated, not involved in social life, mostly at home and not out in the street, not in business, not in— That’s premise B. Premise C: women in our time have changed in these parameters—they are more educated, more involved in business matters, things of that type, better understand what is going on and can weigh events properly. And the conclusion is that Jewish law needs to be changed; in other words, women should be declared eligible as witnesses. That is more or less a common pattern of argument. Now, the first thing I would want to say about an argument of this sort is actually in its favor. It begins with praise and ends with criticism. Namely, this is not a Reform argument. It is not a Reform argument; it is an Orthodox argument in the fullest sense. A Reform argument is an argument that says: this doesn’t fit today; women are the same, but today moral values are different—I don’t know exactly what—and one must equalize the status of women with that of men, and perhaps even advance it by these means, even if not exactly this way—affirmative action and so on, maybe declare only women eligible as witnesses. And therefore one must essentially abolish what is accepted in Jewish law. That I might call a Reform argument. Again, by the way, the fact that I call it a Reform argument does not yet mean that it is not correct; every argument has to be examined on its own merits. But that is what would be called a Reform argument. The argument I’m talking about now is not a Reform argument, and I say this only to neutralize various feelings, antagonisms, that may arise here against Reform arguments. It is not a Reform argument because if this argument is really valid, then what’s the problem? From a halakhic standpoint, if indeed the women who were disqualified from testimony are women who truly were not familiar with the ways of the world, were not educated, and so on and so forth, and if indeed that has really changed, then it is indeed true that the women of today are merely homonyms—it is simply someone, something else. These are not the women whom the Sages disqualified. I am not changing anything; this is not a change in Jewish law, it is simply a more correct application of Jewish law. And therefore what is called today “women” is something eligible for testimony and not something disqualified from testimony, and I am changing nothing. One can continue writing that women are disqualified from testimony and spin out analyses on that from now until kingdom come and recite the blessing over Torah study for it—just know that today there is also another creature, maybe not called “woman,” maybe called “Deliverance of the universe.” Doesn’t matter right now. But it is eligible as a witness. Okay? It has many signs that the Sages give for a woman, but the signs relevant to testimonial eligibility are not present here—or to testimonial disqualification. Fine. So that is first of all, just to remove the negative charge from this argument. But that was the beginning with praise. Why do I end with criticism? Because this argument deserves every praise except for one point—it is simply invalid. It is invalid for the simple reason that its conclusion does not follow from its premises. On the logical level, it is simply invalid. Why? Because even if I accept all three premises—after all, this argument is built out of three premises from which the conclusion is supposed to be derived—even if I accept all three premises as true, I can still deny the conclusion. There would be no logical contradiction in that. I can accept the claim that the Sages disqualified women from testimony, and it is even reasonable to accept that claim. I can accept the premise that women in the past were not educated, were not involved in the ways of the world; that too seems to me a reasonable premise. I can also accept the premise that women today are educated and are involved in the ways of the world; that too is a fairly reasonable premise. And still not accept the conclusion. Right? There is no logical contradiction in this. Why? That is only a sign that the conclusion does not follow from the premises. In other words, a sign that the argument fails. Why? What is missing? What is missing is a principle that connects cause and effect. Or if I put it more generally, I’d say it this way: the premise that women are disqualified from testimony is a legal, normative premise—that the Sages disqualified women from testimony. The premise that back then women were not educated and were not socially engaged is a factual premise. The premise that women today are educated and socially engaged is also a factual premise. But from those three premises there cannot emerge the conclusion, the normative conclusion, that women today are eligible as witnesses. That is not a factual conclusion; it is a normative conclusion. Why? Because from factual premises one can never derive a conclusion of judgment—a normative conclusion, a value conclusion, a judgmental conclusion. Even an aesthetic judgment—it doesn’t matter. If one says that the sky is blue, one cannot infer from that that the sky is beautiful. “The sky is blue” is a fact, and “the sky is beautiful” is a judgment. A judgment never comes out of a fact. If you see an argument whose premises are factual premises and whose conclusion is a judgment or a norm or a value, that is a sign that the argument is invalid. Even if many times one can miss why and it is hard to see it, still such an argument is always invalid. What is missing is a premise that connects the factual plane to the normative plane. That is to say, if we return to the aesthetic example: the sky is blue—that is the premise—and the conclusion is that what is blue is beautiful. In order to validate that conclusion, the factual premise that the sky is blue is not enough; one must add another premise that connects the plane of facts to the plane of values. For example: everything blue is beautiful. What kind of premise is that? It’s a premise that connects values with facts, right? What is blue—the fact—is beautiful—the judgment. Okay? That is to say, when I have a factual premise, I cannot derive from it a judgmental conclusion unless there is another premise, and usually—or in this case—it will be implicit, connecting the plane of facts with the plane of judgments. By the way, often this is a common demagogic trick, because the real problematic point in these arguments is usually found in that very premise that connects facts with judgments. And therefore it is very convenient to present such an argument as one in which you basically agree with all its premises—so how can you not agree with the conclusion? If I present you with a collection of facts that are very hard for you to dispute, then clearly you cannot deny the conclusion. So why do you deny the conclusion when you check yourself again and do not get carried away by all this? Because in fact you do not agree with some premise that was implicit, that wasn’t even stated, wasn’t put on the table—a premise connecting facts with judgment. That is exactly where the mine is planted, and that is what must be argued about. The dispute is usually there. Usually people do not argue about facts. What does this mean in our context? This is what philosophers call the naturalistic fallacy: deriving a judgmental or normative conclusion from factual premises alone. If so, what is missing in our argument too, in the argument I presented in favor of a change in Jewish law, is precisely the connection between the norm and the fact. The connection between disqualification from testimony and education, or being socially involved—in commerce and so on, in public life. In other words, what is missing is a premise that was implicit in this argument—it is usually implicit, by the way, in these arguments for two reasons; I’ll return to that in a moment—which says that the Sages’ disqualification of women from testimony stemmed from the fact that they were not educated or not socially involved. A premise which, by the way, is entirely possible. But it is a premise in this argument, meaning one has to be aware that this too is a premise that must be assumed in order to reach the conclusion. Without this premise, the conclusion is not valid; it does not follow from the premises. Why do people hide this premise? For two main reasons, which are connected to one another. First, because that is where the argument is, and why raise a premise and tee it up for the other side—in other words, let him say: there, that’s exactly what I don’t agree with. I agree with the facts, but not with that. So that’s for demagogic reasons. But beyond that, perhaps also for somewhat more substantive reasons, namely that it is very difficult to prove such a thing. How, indeed, would you discover that the Sages disqualified women from testimony because they were not educated or not socially involved? It is very difficult to prove something like that. Although it is not impossible. It is not impossible because we know, for example, with regard to the disqualification of a wicked person from testimony. We know—and some connect this to the dispute between Abaye and Rava, whether he is a wicked person because of monetary violence or not a wicked person because of monetary violence—that there too the whole discussion revolves around the question whether this disqualification is what people call an inherent disqualification, or a scriptural decree, or whatever each person wants to call it—though these are not parallel terms, but they are often used interchangeably—or whether this disqualification stems from suspicion of falsehood. If he is wicked, then he also will not be afraid to lie, and therefore I do not accept his testimony. And proofs are brought for this. For example, if we were to validate a wicked person or a robber as a witness in the testimony concerning a woman—namely, to permit a woman to remarry by saying that her husband has died, to free her from being chained as an agunah—for after all, one witness is sufficient to free a woman from agunah status; some say that is Torah-level, some say rabbinic-level, but one witness is enough. Can that witness even be a disqualified witness? The answer is yes—even a disqualified witness. Meaning, even a relative can testify concerning a woman; even her mother can testify about her. Yes, “it was written in my presence and signed in my presence”—I think that’s in the Tosefta—that even her mother can come and say: it was written in my presence and signed in my presence. What about a robber? Here it is not clear; there are differing opinions among the medieval authorities (Rishonim). Why? Because that is exactly the point: if a robber is valid as a witness regarding a woman, then clearly the disqualification of a robber is a formal disqualification, an inherent disqualification. And therefore, in testimony regarding a woman, where formal requirements were waived because of agunah considerations or whatever the reason may be, we waived those requirements. So then there is no problem; a robber too would be valid. But if the robber is suspected of lying, no one in the world can tell me that I would validate a robber as a witness regarding a woman. Why? Because I am being lenient? What does it mean that I am lenient? That I am lenient in permitting the woman even though she is a married woman? If that robber is a liar, then I cannot accept his testimony regardless of whether I want to be lenient or not. Of course, that is only the first stage of the lecture. In the second stage of the lecture one has to know that suspicion of falsehood too has different levels. After all, it is not certain that he is a liar; there is only some suspicion that he is lying. It may be that I am lenient and say: I am willing to accept testimony that is only seventy percent reliable and not testimony that is one hundred percent reliable. So even suspicion of falsehood is not necessarily decisive—although many later authorities (Acharonim) do indeed reject the whole issue of suspicion of falsehood because there are certain medieval authorities (Rishonim) who validate a robber as a witness concerning a woman, or the other way around. In my humble opinion, that proves nothing. But I mention it only as an example. In other words, we often do have tools to determine, from the Talmud, from medieval authorities, from halakhic sources, what the reason for the disqualification is. That a wicked person is disqualified—that is clear. But when I ask myself why the wicked person was disqualified—was it because they feared he would lie, or because it is some formal disqualification, they simply did not want anyone to relate to him? By the way, one can explain it this way too; it does not have to be some abstract scriptural decree. They did not want to give legitimacy to a wicked person by letting him take part in the legal game, by recognizing him as a human being whose words are taken seriously—simply in order to educate society. Therefore they disqualified the wicked person. In other words, it doesn’t mean there are no explanations; there are explanations of another type. Not because he is suspected of lying, but because I want to educate the public that one who is wicked is outside society. They are not willing to give him legitimacy, to relate to him as someone who can take part in the legal game, in the social fabric as expressed in the religious court. So now I return to the issue of a woman’s eligibility as a witness. If so, one should not dismiss this premise outright either. It can be examined; one can try to examine it and ask whether there are sources in the Talmud, in the medieval authorities, whoever it may be, that indicate that the woman’s disqualification truly stemmed from lack of education. If that is so, then this argument can indeed be put on the table in full force, including that additional premise, if we really succeed in validating it or corroborating it, proving it; and then the conclusion really would be that women can be eligible as witnesses today, and one should not reject that conclusion outright. In my humble opinion, if you ask me personally, it is very hard to reject this premise—but I’m not getting into that; this is only an example. But Rabbi, here we’re talking about halakhic authority to change, even though— This is not a change at all. Is this a change? Of course not. If a woman from 2,000 years ago came, I would disqualify her as a witness—I’d stone her too if you want to be extra pious, I don’t know, crucify her. Fine. But this is something else; this was never said about that. What do you want? It’s something else. Maybe that’s the reasoning—that you can say that a woman today does not fall under the definitions under which they were disqualified. And of course they disqualified a woman; they did not disqualify only those who were uneducated. If you take Beruriah 2,000 years ago, she too is disqualified. It is forbidden to study Greek wisdom, right? That’s what it says in the Talmud. It is forbidden to study Greek wisdom because of an incident that occurred. Now suppose a great Greek sage comes and teaches me something very intellectual in economics, I don’t know exactly in what—am I permitted to study his wisdom or not? In my opinion, yes. Why? There is no reason to assume that the prohibition on studying Greek wisdom has to do with the geography of Greece. So it seems to me, in my humble opinion. I don’t think that’s a bad argument. It seems to me that almost all halakhic decisors would agree with me on this point, I think—unlike perhaps the previous issue. Okay? I’m trying only to show that this argument in itself is a legitimate argument. In other words, it is not something that can be rejected out of hand. But one has to be aware that it has to be presented in full. In other words, the three premises I stated earlier are not enough; the additional premise has to be added and examined: does the disqualification of women from testimony indeed stem from those parameters that changed? And once a certain parameter in the feminine profile changed, one has to examine whether that really was the parameter that caused the disqualification of women. Because if not, then why do I care that it changed? Why is that relevant? There, in the place where when the reason ceases, the ordinance does not cease? That’s not an ordinance; this is Torah law. Doesn’t matter—but even with ordinances we see— Only with ordinances, not “even” with ordinances. Only with ordinances. That is explicit Maimonides at the beginning of the Laws of Rebels. There is no need for a court greater in wisdom and number or anything else. A court today can come and decide today that there are three primary categories of labor on the Sabbath. No problem at all. If there were a Sanhedrin today—Sanhedrin is a loaded term today—but if there were a Sanhedrin today, it could sit down to deliberate and decide that it does not accept all the derivations from wherever they got that there are thirty-nine primary categories of labor; in its opinion there are only three: to stand up, to turn on electricity on the Sabbath, and to burn. Fine, that’s it. Those would be what is prohibited, and all the rest—you could cook, insulate food, bake, and do everything together, and you would incur no liability for any of it. You’d be allowed to do it. Maimonides writes this explicitly at the beginning of the Laws of Rebels. Not about primary categories of labor—there he does not write it about primary categories of labor, because in his view that is simply a law given to Moses at Sinai, the whole thing. But he writes the principle explicitly: that any Torah-level law can be changed by any court in any generation. It does not need to be greater in wisdom, nor in number, nor anything. Everything said about “greater in wisdom and number” applies only to things that are ordinances. The Sages were stricter regarding their own words than regarding Torah law, in order to strengthen the standing of the ordinances. Only with an ordinance is there a requirement that there be a court greater in wisdom and number; and therefore “when the reason ceases, the ordinance does not cease” is irrelevant. Because “when the reason ceases, the ordinance does not cease” applies only where I have no power to change it. If I have no power to change it, then I can only say, fine—but if the reason ceased, then the ordinance no longer exists; I’m not changing it. So they tell me no: if the reason ceases, the ordinance still does not cease. And that too, as is well known, is a dispute between Maimonides and the Raavad. But that is only with ordinances. With Torah law I have the authority to change it—not because the reason ceased; I simply repeal it. That’s all. Not because— “when the reason ceases, the ordinance ceases” is an interpretive consideration. When I change the ordinance, that is a legislative consideration: I simply do not accept it; I repeal it. That’s all. No, that is not interpretation. So this simply has nothing to do with concepts of Torah law. Fine. But today, when there is no Sanhedrin, who is qualified to change things like that? I’m not sure that one needs a Sanhedrin for this. Not at all. The sages of the generation, if there were agreement—even without Maimonides, who says that if there is agreement of the sages of the Land of Israel, and so on—even without that. If the sages of the generation—say there were some institution accepted by the whole public as the institution from which Torah comes forth—and even if we say we don’t follow Maimonides and this would not be ordination for things like flogging and all those matters, unless they also announce that ordination is not needed for flogging; that law too they can change. But in principle, then they would not have ordination, but I’m not sure that they cannot—I know of no law that says only ordained judges can expound the Torah. Where is that written? Is there some hint somewhere in the words of the Sages? I know of no such hint. Any court of three ordinary people—learned, understanding, whatever you want—any three can expound the Torah by the thirteen principles and derive from it any conclusion they want. Huh? Why need three? Fine, even not three. I’m speaking because Maimonides refers to a court. Why? Need? What is there—“you shall not turn aside” from the court that existed then? I’m not at all sure of this. How can that be, in periods of changes that changed us in the generations? Why? Let’s not get into those nuances; I’m not at all sure of it. But there is one more thing that got stuck in my mind in all of this: the reason one cannot disagree with the Amoraim is that there was a decree at the end of the sealing of the Talmud not to disagree with the Amoraim. The Kesef Mishneh writes this. No, there was an acceptance, which could be only— They agreed among themselves not to— But that is not— And if it is a decree, then decrees made even by a smaller court can be disputed. A court greater in wisdom and number—why not? If it is a decree so that the Torah should not be uprooted— Okay, fine. So it turns out there is another reason not to disagree with the Talmud. One can disagree that this was a decree. Who decided it was a decree? Who decided that there even was such a decree? Fine. Where were we? Okay, so that is basically the logical introduction. In other words, in order to offer a valid argument for change in Jewish law—there is such a thing—not every argument for change in Jewish law is automatically illegitimate or invalid; I don’t understand that at all, yes? Every valid argument is also legitimate, and every invalid argument does not interest me even if it is legitimate—it’s invalid. In other words, all these labels simply don’t matter to me—whether it is Reform or not Reform. These are labels that are mere demagoguery. We need to discuss arguments on their own merits: either it works or it doesn’t work. All these labels are used only when one does not know how to say anything else, anything more intelligent. One has to discuss things on their own merits. It doesn’t matter who raises the argument; the question is whether the argument is correct or not. Are there no correct arguments raised by Reformers, or incorrect arguments raised by Orthodox Jews? There are plenty of both—don’t hold back your hand. Fine. That is the first introduction. The second introduction—this one can be called sociological. A friend of mine once gave me a very interesting example. I collect examples. I also have replacement examples for anyone who wants. Examples are a nice thing; you should collect them. It doesn’t matter for what, that’s not important. There are things that are an example, and it doesn’t matter for what; it’s clear that this illustrates something very well. Later on one thinks about why; it is worth storing it in a database. No, really, it’s true, I’m not joking. Because he brought it for something a bit different, and I want to use it. Two people are walking in the desert—two people, a group of people, walking in the desert in swimsuits. Their fathers also walked in the desert in swimsuits, and their grandfathers and great-grandfathers too. They walk and walk, and gradually the weather gets colder. Then the group splits into two subgroups. The first group—not in order of importance, just alphabetically—says: we continue the path of our fathers and continue walking in swimsuits, even though it is already cold. We will walk in swimsuits with self-sacrifice. We know such groups. The second group, alphabetically, says that we put on a parka—or put on a parka, not change clothes; it isn’t modest to change. Over the swimsuit they put a parka. Why do they put on a parka? They can do so for several reasons. First reason: what do I care what my fathers did? All due respect to them, but I’m cold. You know the story about Rabbi Berl Schechter from Yeshiva University? That too is an example; worth keeping. There is some book of his—he wrote some collection of essays, I no longer remember what it was called. I saw it here a few years ago in the office when it arrived; I just flipped through it. So he brought there a story that once during the War of Independence there was a rumor that the Brisker Rav wanted to flee Jerusalem. They were shooting there and so on. Rabbi Herzog was afraid of the demoralization it would create, so he went to the Brisker Rav and said to him: listen, we have a tradition that the Third Temple does not fall, and so on. You picked the right man to say that to. The Third Temple does not fall, and so on and so forth, and there is nothing to fear; one must remain and so on. So the Brisker Rav said: and I have a tradition from my father that if they’re shooting, I run away. And I suspect, by the way, that both of them meant it seriously. In other words, this is a humorous way of presenting it, but he meant it seriously. How did I get to that? Right. That belongs to those who say: okay, with all due respect to my fathers who walked around in swimsuits, I’m cold. So when I’m cold, I put on a parka. A very deep story. It has two sides. The earlier “I” sometimes— It’s not good that I cut it this way, because people think one spoke seriously and the other told a joke. But no. Two worldviews. In my humble opinion, actually the Brisker Rav’s is more correct. But that is another matter. Fine. In any event, another possibility is to say: we switch to a parka because we too are continuing the path of our fathers. Just as our fathers wore clothing appropriate to the weather, so we too wear clothing appropriate to the weather. They were in hot weather, so they wore swimsuits. We are in cold weather, so we will wear parkas. Thus we are the true continuers of the path of our fathers. If you know, there are claims like this among the Reform: that we are actually the true continuers. After all, were the Pharisees not greater Reformers than they? And the Sadducees were ultra-Orthodox. To a large extent that is true. And essentially some Reformers claim: what do you mean? We are the true Pharisees. Fine, that is part of the mix of claims, of course. So who is really right? Who is the true continuer of the path of our fathers? Let’s go back to swimsuits and leave the current charged questions aside. Let’s now talk about swimsuits. Who really is the true continuer? On the face of it, the true continuer is the ones who walk in swimsuits. No—they are doing exactly what their fathers did, with tremendous self-sacrifice. They don’t care that it’s uncomfortable and unpleasant; they pay a price for it. Good for them, really dear Jews. If they were Jews, I don’t know—some Eskimos. Jewish Eskimos, dear people. In any event, why indeed is the initial tendency to say that these are more continuers than those? There is such a tendency, it seems to me. Why indeed? On the face of it, it’s not—I don’t think it is very hard to justify this. This is one kind of continuation and that is another kind of continuation. Both continue the path of their fathers. Where is the dispute? The dispute is in the interpretation of what my fathers did. One thinks that the principle guiding my fathers was that one must walk around in a swimsuit, that one has to care for the livelihood of the swimsuit manufacturer, regardless of the weather. So if that’s true, then the continuation of that principle is to keep going even when the weather turns cold. But if the other one says: what are you talking about? What our fathers really did—there is no sacred principle that one must go in a swimsuit. Our fathers simply wore clothing suited to the weather in which they lived. So what’s the problem? That is the true continuation of the path of our fathers. You’re the sinner here, a Torah-level offender. The true way to continue the path of our fathers is to wear a parka. Truly, that is the real continuation. Whoever does not go that way is a sinner. Then he is right too—he too is continuing. So who is the true continuer? I have no idea. Both are continuers, right? The question is who is right in the interpretive dispute about our fathers. Did our fathers do this, or did our fathers do that? It is an interpretive dispute. It is not a question of who is conservative and who is not. Both are conservative. Both are conservative, and both—unlike the one who puts on a parka because he doesn’t care what his fathers did—he is certainly not conservative. But these two models are both models of conservatism. Why is there a tendency to say that the first is more conservative than the second? Because he is willing to pay a price. The second does what is comfortable. And ultimately it is also more comfortable to wear a parka, right? In this example—I’m talking about this example right now. In this example there is a tendency to say: I actually suspect that behind your words you are introducing something that is convenient for you. And if we try to broaden this further, “convenient” can be understood in many senses. Convenient because I am cold, or convenient perhaps in order to fit into society, to find favor in the value sense. They’ll say “sanctification of God’s name”—which is often very beautiful and can rise to very important values. But even that is some kind of convenience too, one might say. And then, in fact, there is a kind of suspicion among the first type of conservatives; they often suspect the second type that behind the supposedly conservative arguments there stand Reform arguments and not conservative ones, and it is only a presentation. But leave the people aside for the moment. I’m not talking about the people; I’m talking about the arguments, and the argument is conservative in the fullest sense. Of course, as for the people, it may well be that sometimes a conservative argument hides Reform motivations behind it. Fine. But let’s talk about the arguments, not the people. The arguments are—the argument is—an argument that must be weighed and examined. One must examine whether our fathers—you can now see how this connects to the previous introduction—one must examine whether the fact that our fathers wore swimsuits, the connection between norm and fact, whether the fact that our fathers wore swimsuits was because there is a principle that one must always wear swimsuits, or because that is what fit the environment. That’s all. So the one arguing for change—let’s return now to the logical argument—what is he saying? Then it was hot, so they wore swimsuits; today it is cold, so one has to wear a parka. What will I say to him? There is another premise missing here. What is the additional premise? That the reason they wore swimsuits then was because it was hot and not simply because there is value in wearing a swimsuit. But if you prove that, then fine—I too accept your approach. That is true conservatism. In other words, indeed the second kind of claim is also a conservative claim. Again—not that the claimant is conservative. The claimant may very well be a cheat. He is really a Reformer hiding away, God forbid. He is only concealing himself behind a conservative cloak. Fine. I’m talking about the arguments, not the people. The argument is a conservative argument. And if that argument is correct, what do I care who is hiding behind it? If the argument is correct, then it should be implemented. Fine. So we have, then, two patterns of conservatism. Let’s call them literal conservatism and interpretive conservatism. Literal conservatism says: what my fathers did—they wore swimsuits—so I too wear a swimsuit. That is a literal conservative. An interpretive conservative is a conservative who says: I take what my fathers did and I make an interpretation of it. And I say: ah, they wore swimsuits, but they didn’t just wear swimsuits for no reason. They wore clothes appropriate to the weather. It’s just that then it was hot, and a swimsuit was the clothing appropriate to the weather. That is my interpretation. And once I make that interpretation, the conclusion is that today I can wear a parka. So I am conservative; I am still conservative. Only I am a conservative who must bring an interpretation in his favor. Right? Without the interpretation I am just a Reformer, a heretic, whatever you want to call it. What distinguishes the conservative from the Reformer? The existence of an interpretation. Right? The interpretation is what says: I will now show you, by interpretation, a justification for the fact that I am actually conservative. I’m not Reform. I’ll show you that you too should do this. But one has to make an interpretation. One cannot simply see the fact that they wore swimsuits at face value. Let’s interpret it. Or in the case of women, one cannot simply take at face value the fact that women were disqualified. Let’s examine why women were disqualified. Let’s interpret. Here by “interpret” I do not mean biblical midrash; I mean interpretation as a type of argument. I’m trying to explain why they did this, and that interpretation, if it really makes sense, shows me that this is a conservative argument and not a heretical or Reform argument or whatever. And the first example also should prove a bit what our fathers did and specifically with a swimsuit, because if one does not prove it, then they were wrong to wear swimsuits. So it will also be with women: if we do not prove that women were not disqualified because they were ignorant, then today perhaps we would permit, because if we do not prove— Right. So indeed, if we return to the swimsuit example, you are really jumping me ahead to the end already, but that’s actually good, because looking at the clock I really do need to get there already. The truth is that one really could argue about this labeling or this definition of literal conservative and interpretive conservative. Why is this called literal and that called interpretive? Maybe the interpretation is that they wore swimsuits for no reason? That seems less logical. It seems to me that the plain meaning is that they wore swimsuits because it was hot, because that was the clothing suited to the weather. If I disqualify women, then the plain meaning is that they disqualified them not just for no reason, and the interpretation is that they are disqualified for some rational reason? I would say that “they are disqualified for a rational reason” is the plain meaning, and the interpretation is that they are disqualified for no rational reason. That is the interpretation. So now the question of who is the literal conservative and who is the interpretive conservative is no longer clear either. Right? That too is now no longer clear. Fine. I really will jump to the end now because I don’t have time here to develop this any further. There are also intermediate models and more nuances and shades that would have to be entered into. Broadly, what we see here in principle—without right now asking what the way is to identify them, because that is the question, how does one identify the literal conservative as opposed to the interpretive conservative—is entirely equivalent to all these worn-out debates about what is plain meaning and what is interpretation. Right? That is basically the question here. Whenever people discuss verses, all the articles and discussions today about what is plain meaning and what is interpretation, this is exactly the— The question is whether plain meaning is attachment to the verbal layer and interpretation is attachment to reason, or the reverse: perhaps reason gives the more plausible plain meaning, and a technical attachment to the verbal layer is actually less plain meaning than attachment to reason. Therefore I am presently ignoring the question of how to identify the literal conservative and the interpretive conservative, but I think we all agree that there are two such kinds of conservatives. The literal conservative is the conservative who preserves the principle that seems to us more obvious. I don’t know how to identify what is obvious and what is not—leave that for now; that’s the same question as how I identify plain meaning and interpretation in the Torah or in the words of the Sages, doesn’t matter. And the interpretive conservative is someone who says: look, I’m making an interpretation; I’m not going with the plain meaning, and I preserve things according to the result of the interpretation and not according to the plain meaning. But what difference does it make if in any case no one initially will really be able to connect it? So what difference does it make who is plain meaning and who is interpretation? No, no, no, not that no one can. I said only that here I am not discussing the question of how one identifies each of the two conservatives, but I think we use the terms plain meaning and interpretation. And if you adopt this fogginess at face value, then you are basically saying we should stop using the concepts of plain meaning and interpretation. As people always say: interpretation is your plain meaning; plain meaning is my plain meaning. That’s the principle. But that is not true; clearly it is not true. There is plain meaning and there is interpretation, and we have some tools to determine what is plain meaning and what is interpretation—without now entering the question of what those tools are; that’s not important to me right now. Isn’t the plain meaning more correct? I didn’t say more correct; I said it is the starting assumption. Fine, so that can be refuted—and then there is no problem. Refuted? Why refuted? If no one has an advantage. I’ll give an example, because that really takes us into another world. I no longer remember whether in one of the coming sections we are supposed to discuss plain meaning and interpretation or not. The Vilna Gaon writes—not the Vilna Gaon; Rabbi Menashe of Ilya, a student of the Vilna Gaon, in his book Binat Mikra. That book discusses the meaning of the cantillation marks, how to interpret the cantillation marks, and his basic thesis is that the cantillation marks always relate to the plain meaning and not to interpretation—that is the basic thesis of the book. Now in the introduction to the book he brings an example in the name of the Vilna Gaon—he was a student of the Vilna Gaon—he brings an example in the name of the Vilna Gaon to explain what is plain meaning and what is interpretation. “If there is anxiety in a man’s heart, let him suppress it”—the Sages interpret: let him remove it; some say let him remove it from his mind, some say let him tell it to another. And the Vilna Gaon says both of these are interpretation, and the plain meaning of “if there is anxiety in a man’s heart, let him suppress it” is that he becomes bent over from the anxiety. That is the plain meaning, says the Vilna Gaon. Doesn’t matter right now. And the proof is from the continuation of the verse, because it says—and joy, I no longer remember exactly the continuation—and joy raises his stature, something like that, I no longer remember exactly. In other words, one sees that the opposite of raising his stature is stooping, so his claim is that the plain meaning is “it makes him stoop.” So why did they interpret? There are those who learn in Binat Mikra—it was once a debate in Midbar Matana, I argued with Henschke on these matters, someone even mentioned this Menashe of Ilya; he was wrong about that too, I think. The claim there is: why— So the Vilna Gaon explains there: then why did they interpret? Because otherwise it should have said, “if there is anxiety in a man’s heart, it will make him stoop,” not “let him suppress it.” “Yashchena.” If it had been with a yod—whether “let him suppress it” or “let him remove it,” doesn’t matter—if it had been with a yod, then that would not have been interpretation; it would have been plain meaning. But it is written with a tav. So the Vilna Gaon says like this: that is probably a sign that it should be interpreted. But still, the plain meaning is stooping; that is the plain meaning. It’s just that even the plain meaning is not written here in the regular way, so there is some hint that interpretation is called for. So that means one should look for interpretations here, but that does not turn them into plain meaning. They are still interpretation, because that root with the tav is the root of stooping, not the root of speaking or removing. Okay? So that is the plain meaning. The interpretive argument does not turn the interpretation into plain meaning. Okay? That is what I wanted to say. Fine. For our purposes, the basic claim is the following: changes in Jewish law can come not only from a starting point that denies the authority of Jewish law—Reform, heretical, whatever. Not only from such a starting point. Changes in Jewish law can also come from a conservative direction, except that at their base—if we call it change, again—there stands an interpretation. It doesn’t matter right now what I call plain meaning and what I call interpretation; let’s leave that aside for now. At their base there stands an interpretation. Fine. How would we relate to someone who raises an argument without the interpretation? An argument for change without the interpretation? Without an interpretation grounding it? It seems he is Reform, right? The argument I gave earlier—declaring a woman eligible as a witness with only the three premises and without adding the fourth. The fourth is, as it were, the interpretation, yes? Without adding the fourth. Ostensibly that is an improper argument. Illegitimate. You are not continuing Jewish law. The Meiri—when we return, I just need to finish, so I’m skipping in big strides to the end—the Meiri, when one examines all the sources he brings, his argument is of this type. He brings no proof anywhere that all the laws the Sages imposed on us—or even the Torah; he is talking about Torah-level laws—imposed on us regarding non-Jews are connected to their moral level. He brought no such argument, no reasoning establishing such a claim. He simply assumes it as self-evident. He says, in effect—if I lay out his argument—it is exactly the pattern of argument I mentioned earlier. The Sages disqualified the non-Jews or told us to treat non-Jews in a certain way. The non-Jews of then were immoral; the non-Jews of today are indeed bound by the norms of the nations, or at least sufficiently bound by the norms of the nations. Therefore all the laws of the Sages—the laws he is speaking about, not all of them, yes? He does not say it is permitted to marry a non-Jew—those laws are void. It is prohibited—not just unnecessary—those laws are void. This is an argument that is ostensibly Reform. He does not present, he does not even write, the premise that the disqualification instituted by the Sages stemmed from the fact that the non-Jews were immoral. But of course that is just feigned innocence. Clearly he is saying it, because that is exactly what he means. He says that since the status of the non-Jews changed, then in fact—the Sages—clearly—and this is so obvious to the Meiri that he did not even find it necessary to say it, because otherwise the argument is simply invalid. It is not a Reform argument; it is just an invalid argument. If you don’t say this, then it isn’t an argument. Rather, clearly he took it for granted that anyone reading his words understands that he is also saying that all these laws applied to the non-Jews because they were immoral. One thing, however, is true: a justification for this does not appear in the Meiri. There really is a dispute about this among the medieval authorities; a justification for it does not appear in the Meiri. He assumes it as self-evident. How should one relate to such a thing? He does raise the fourth premise; he does not suffice with the first three. Fine, he raises it implicitly, but he does raise it. But he does not bother to justify it. So look: this is really the distinction between Orthodoxy and Modern Orthodoxy in broad terms. The distinction between a literal conservative and an interpretive conservative. Yes, that is basically the distinction. And all the suspicions toward the Modern Orthodox are always suspicions stemming from the fact that the argument on the surface is ostensibly a conservative argument, but behind it there are Reform motivations. In my eyes that is below-the-belt and irrelevant. What should be examined is whether the argument is valid or invalid, and that’s all. There is no need to examine the question of why the argument is being raised. Each of us has many motivations that drive what he does. No one is free of all sorts of other motivations. One has to examine the arguments themselves. So what is it then? This is basically the difference between Modern Orthodox and Orthodox. And the basic claim is that the Meiri was simply Modern Orthodox. Not Reform—Modern Orthodox. What does that really mean? Let’s say I have no proofs as to why the Sages disqualified women. This relates to the question he really asked earlier, the one that jumped me ahead to the end. I have no proofs; I cannot resolve the question, as with the robber. I do not know whether it is disqualified because of suspicion of falsehood or as an inherent disqualification. So what does one do then? The simple assumption in non-modern Orthodoxy: if so, women remain disqualified. But in Modern Orthodoxy the assumption is the opposite: the interpretation is really the plain meaning; it is not the interpretation. If so, then women are eligible. You have no proof that it is clearly an inherent disqualification—so why assume that it is irrational? Why assume that there is something in—if you have no proof—then why assume that a certain law in the Torah is irrational if you have the option of construing it in a way that is rational? What Maimonides says regarding the reasons for the commandments. What does Maimonides say? There are those who think that if they say the commandments have no reason, that makes the Holy One, blessed be He, greater. He says: what? It makes Him smaller. Every human being acts rationally, and the Holy One, blessed be He, acts foolishly? That makes Him greater? Yes. After all, those arguments that the Meiri brought—in all the medieval authorities we can see it, and it seems to me that ninety percent of what the respondents say is basically just omission of the fourth argument. And we see—I don’t know—if in the basic distinction we make between medieval and later authorities, we usually expect that among the later authorities there will not be this omission. Yes, but I don’t know on what basis. It seems to me that there is another point here. What is the point? That I don’t understand. What is the difference? I understand. I now have two possibilities. No, one has to understand this: if I disqualify a woman from testimony, we always think that disqualifying a woman from testimony has no cost. I’m not talking now about equality of women. A legal cost. There is a woman who is the only witness that you robbed me. I disqualify her testimony—what does that mean? That the money stays with you. Leave women’s equality aside for now. Good Lord, I have no proof whatsoever that the woman’s disqualification is an inherent disqualification. So because of my fears, “better to sit and do nothing”—but what does “sit and do nothing” mean? In my eyes, “sit and do nothing” means to validate the woman, not to disqualify her. And that is the default. If I have no clear proof, then I say that the woman is presumably valid. What do you mean? Because of that I’m going to leave the money in his hands? It’s like the disqualification of relatives—I talked about this, right? In one of the previous times I mentioned it. There is here—not relatives, whether disqualification of relatives or conspiring witnesses, doesn’t matter—that is a scriptural decree. A scriptural decree to disqualify relatives or to disqualify conspiring witnesses. Fine, we pass over it, make our analytical distinctions as to whether it is a scriptural decree or not, and sail on our way. A case comes before us where two valid witnesses testify that Reuven murdered Shimon, and then two related witnesses come and refute the first two. We always think that the first ones are the relatives. If the first ones are the relatives, what happens? At most we won’t execute the murderer; we’ll lock him up in a cell in the worst case. Fine, there are ways to deal with him even without testimony. I— Think of a situation where the refuting witnesses are relatives. What will you do now? We disqualify relatives as witnesses, and therefore what? We will execute him as a murderer, even though he is as innocent as snow and those two first witnesses are wicked villains—we should execute them, the two first ones. But scriptural decree. No cat would rule that way, I’m telling you festively. Anyone who sits on a court would never rule that way, never, and anyone who does should be thrown out. Such things can be said only in the study hall. There is no such thing. “Better to sit and do nothing”—the great question always is: what counts as sitting and doing nothing? There is an article I wrote about separating Siamese twins. Again, a dispute: all the halakhic decisors forbid separating Siamese twins in a certain situation. The first question, before the substantive discussion of whether that is right or not, is the first question, which is perhaps even more important: what is called sitting and doing nothing? Suppose I am in doubt—am I allowed to separate them or forbidden to separate them? Better to sit and do nothing; this is murder; God forbid, one must not touch. And therefore what? Leave both to die. That is “better to sit and do nothing.” But if I intervene, I kill one and save the other. If I do not intervene, both die. So what counts as sitting and doing nothing? What do I do when I have no proofs in either direction? So I say that if I have no proofs in either direction, I intervene. Besides the fact that I do have proofs, but that is another matter. But even if there were no proofs, I would intervene. Here too, same thing: if there are no proofs, then what? Then I validate the woman. Why? Because in my eyes it is more obvious that it has a rationale. Whoever wants to claim that it has no rationale, the burden of proof is on him. One second—just to claim that later authorities have no authority, so he says what? Fine, then later authorities should sit and do nothing. Even if I accept that, although it has neither root nor branch, but let’s say I accept it. Fine, then what should later authorities do now? Leave money in the hands of a robber? I have no arguments; I did not find them. I have none, none, I didn’t find any. You didn’t find any either; you and the other one—nobody found any. We have no arguments. So what now? That is exactly what I’m talking about. So I say: in a situation where I have no proof in either direction and nobody can bring proofs, with regard to a woman’s disqualification, in my humble opinion there are no proofs either way. In the words of the Sages there are no proofs either way. That really is a hard claim. There are hints in the medieval authorities, more so in the later authorities, but these are all just their assumptions. So what does one do? I don’t know—what does one do? One does what is more obvious; that is what one should do, no? What do you say—to be stringent? What does that mean, be stringent? Is being stringent to disqualify her? Maybe being stringent is to validate her? What would count as being stringent? It depends on what the implication of her testimony is. And what should be done with it? I have no proofs in either direction now—what should I do? The halakhic tradition dealt with different women. I’m talking now about women like these. I am now creating the halakhic tradition of today; I want to know how to create it correctly. I do not want to change anything. I claim that the one who disqualifies these women is the one changing. He changes because he disqualifies a creature that was never disqualified. The burden of proof is on him; he is the one who wants to change, isn’t he? Also what I thought earlier, to act according to reason, is not simple. No, I am not asserting the actual claim itself, I am not arguing for women’s eligibility as witnesses; I am trying to show the logic in this way of thinking. It could be that with women there are also proofs; it doesn’t matter right now. I’m speaking on the principled level: where is this tested? It is tested on the question of what seems to you to be the plain meaning. The dispute over what is plain meaning and what is interpretation—that same dispute will play out here too. What is plain meaning and what is interpretation? That is what will play out here too, because we will turn the more obvious thing into the basic assumption.