The Way of Halakha: What Is Halakhic Expertise? On Halakhic Rulings and Practical Questions – Lesson 3

Table of Contents

• [0:54] Introduction: the relationship between Jewish law and reality
• [3:33] Example of a halakhic ruling on handing over territory
• [6:43] Internal criticism: who is authorized to determine danger
• [9:31] The example of the rabbi and the warning about oranges
• [10:34] A dispute about building an electrical circuit
• [12:32] The second example: traffic laws and speed
• [19:49] The conflict between norms and reality
• [22:42] The process of setting a permitted speed on a road
• [32:44] Risk assessment and adding a value judgment
• [33:49] The information gap between the chief of staff and rabbis
• [36:28] Choosing one graph from among several expert graphs
• [42:49] The authority of the halakhic decisor in determining reality
• [47:47] Limiting the doctor’s authority in determining death

Summary

General overview

The text presents a practical view of the relationship between Jewish law and reality by breaking down the simplistic model of “the rabbi and the doctor,” according to which the expert determines the facts and the halakhic decisor merely applies norms to them. It argues that this approach creates confusion and mistakes, because a normative decision requires not only data but also a value-based determination of the threshold and significance of that data. Therefore, the halakhic decisor is involved not only in deciding what to do “given danger,” but also in defining what counts as “danger.” It goes on to say that this confusion is not unique to Jewish law but exists in every system of values confronted with reality, and it demonstrates that assigning value-based authority to “experts” in areas such as security, medicine, psychiatry, and education is a fundamental mistake.

The goal of the discussion and the practical framework

The lecturer says that the discussion is not about ideal planes of the connection between Jewish law and reality, or questions of how to learn, and it is not focused on Rabbi Soloveitchik’s perspective in Halakhic Man. His goal is to clear away ambiguities that lead to mistakes at the seam between Jewish law and reality through practical questions about how things actually work. As a point of departure, he presents the familiar model of the rabbi and the doctor, which in his view has expanded to security, political, and medical matters wherever there is an “interface” between Jewish law and reality.

First example: a rabbis’ proclamation about handing over territory and saving life

The lecturer describes a proclamation defined as a “halakhic ruling,” signed by around three hundred rabbis, claiming that handing over territory from the Land of Israel to Arabs involves danger to life. He distinguishes between criticism “from outside” about the very involvement of rabbis, and criticism “from within” that accepts the rabbi-and-doctor model but argues that here the rabbis are exceeding their authority. He formulates the internal criticism as follows: determining the fact that this “causes danger” is a factual determination, not a halakhic ruling, and therefore the ones authorized to make it are security experts, not rabbis. So, accordingly, there is no reason the public should be more bound by rabbis’ assessment of reality than by its own.

Second example: traffic laws, protecting life, and the law of the kingdom is law

The lecturer cites Rabbi Nebenzahl and other halakhic decisors who hold that someone driving above the speed limit violates a Torah-level prohibition because he is endangering his life, and there is a Torah-level commandment to protect life. He rejects this and argues that the legal threshold does not determine the halakhic threshold of protecting life, separating the question of obeying the law from the question of how risk is defined in Jewish law. He adds a side note against an unreasonable expansion of “the law of the kingdom is law,” arguing that a democratic government defines from the outset a system of obligations that also includes spaces for criticism, protest, and common social deviations, and therefore “the law of the kingdom is law” does not turn every tiny violation into a Torah-level transgression.

Generalization: the problem is not Jewish law versus reality, but norms versus reality

The lecturer argues that the tension between a normative determination and a factual determination should also trouble a secular person who is subject to moral norms alongside a legal system. He illustrates that a person who sanctifies the “sanctity of life” can ask whether driving a bit above the speed limit is a moral prohibition or only a legal offense, because the law sets a legal threshold and not necessarily a moral or halakhic one. He presents this as a general problem of overlap between different normative systems, where each system may set different thresholds even when they rely on the same reality.

The graph model: what an expert can determine and what a norm must determine

The lecturer argues that experts cannot answer the question “what speed is dangerous”; at most, they can provide a graph of risk as a function of speed. He says that the choice of where to cut the graph—that is, from what percentage of risk it is already considered “dangerous” and forbidden to take—is a value-based determination of the normative authority, not of the expert. He concludes that the normative authority intervenes at two stages: both in determining the threshold of risk that is defined as “danger,” and in determining whether it is permitted or forbidden to enter that danger in a particular situation. So the rabbi-and-doctor model misses a crucial stage.

Returning to the security discussion: the authority of the halakhic decisor and limiting expert authority

The lecturer applies the graph model to security questions and argues that even a chief of staff can at most draw a “multi-dimensional graph” of risks with respect to different options, but cannot determine where the line passes at which the risk is defined in halakhic terms as no longer permissible. He argues that the internal criticism of the proclamation is a “mistaken Mishnah-level assumption,” because the question is not professional but value-based and halakhic, and therefore it is indeed within the authority of the halakhic decisor. He adds that the rabbis may well be mistaken because of missing information, but the possibility of error does not negate the basic authority to determine the threshold of “danger.”

Ambiguity among experts and halakhic decisions about facts

The lecturer deliberately complicates the speed model and presents a situation in which different experts offer different graphs, so that one must also choose which graph to adopt. He argues that even if “which graph is correct” is a professional question, the decision about which graph is acceptable for the purpose of a halakhic ruling is itself a halakhic decision, similar to discussions about following the majority of doctors in tractate Yoma and rules such as “follow the majority.” He argues that since every ruling relies on a factual foundation, halakhic authority necessarily also includes authority to decide under factual ambiguity; otherwise, all halakhic authority is emptied of content.

Examples of authority to determine a factual foundation: “do not make yourselves disgusting” and the religious court

The lecturer brings the prohibition of “do not make yourselves disgusting” in order to argue that the sages do not merely establish a general principle that “disgusting things are forbidden to do,” but also determine what counts as disgusting within the parameters of the prohibition. He compares this to a religious court that decides the facts of a murder for the purpose of ruling and execution, arguing that there is no “Jewish law without assessing reality,” and that this is “almost the entirety of what a religious court’s role is.” He presents “Torah wisdom” as one possible interpretation of the idea that sages have a better grasp of reality, but says that this is not necessary in order to ground the argument, because the main point is the necessary authority to decide facts for the sake of a normative ruling.

A note about practical authority today and the question of being obligated to listen to a rabbi

The lecturer says that today there is no rabbinic authority that one is obligated to obey in a binding sense, because there is no Sanhedrin, and he distinguishes between a principled discussion of authority and a practical discussion of obedience. He rejects the claim that consultation with experts is a binding condition for having to listen to a rabbi, and argues that even if a rabbi did consult, there is still no obligation to obey him, whereas if there were an authoritative institution like the Sanhedrin, such an obligation would exist. He notes that examples like meat and fish and circumcision are connected to a different question that can be discussed another time.

Criticism of “rule by experts” in value questions: death, abortions, homosexuality, and education

The lecturer argues that there is not “a single value decision in the world” that has ever been a matter for experts, from then until now. He presents medical claims against rabbinic involvement in determining the moment of death as nonsense, because a doctor can describe biological states but is not authorized to define normatively “who counts as dead.” He presents the 1977 DSM claim as proof in the opposite direction of professional authority, arguing that removing homosexuality from the list of illnesses reflects a change in norms, not a scientific discovery that defines “illness,” because the definition of illness depends on a value judgment about “undesirable behavior.” He applies the same principle to abortions, arguing that doctors can provide data about fetal development but cannot determine “from when it is a human being,” and regarding education he says that a committee deciding how to teach cannot be composed of education experts alone, because many of the decisions are value-based, even if experts can assess functional outcomes.

General conclusion about normative authority, the absence of public discussion, and intellectual honesty

The lecturer concludes that the one who decides the threshold is the authority of the relevant normative system, such as the Knesset in the legal system and the Sanhedrin in the system of Jewish law, not the professional expert. He argues that the public has become used to an “absence of public discussion,” in which value decisions are pinned on “experts” in order to make it easier to attack or justify positions, but that this reflects a lack of understanding. He ends by saying that science ought to aspire to objectivity, and that when value decisions disguise themselves as professional decisions, that should set off “very, very bright flashing red lights” for anyone to whom science and intellectual honesty matter.

Today, according to the plan, the topic is supposed to be the relationship between Jewish law and reality. Right now I don’t mean to discuss this on the level of ideals, or the question of how to learn—whether to connect things to reality or not connect things to reality—or in the contexts Rabbi Soloveitchik talks about in Halakhic Man, where the halakhic man brings these halakhic categories and imposes them on reality. Maybe it’s a little related, but that’s not the angle I want to take. What I want to deal with is much more completely practical questions. To understand how this whole business works, and through that to try to remove some ambiguities that lead to mistakes in dealing with this problematic seam between Jewish law and reality. I’ll start perhaps with the most basic source we think of when we talk about the seam between Jewish law and reality—the model of the rabbi and the doctor. Right, that’s what’s accepted in Talmudic passages in Yoma and elsewhere: the doctor determines the factual situation, and the rabbi is supposed to decide what to do from a halakhic standpoint given that factual situation. That’s the model that is usually applied. Today it’s already invaded many other areas, but that’s generally the model that stands before the eyes of almost everyone who deals with this issue, whether in security contexts, political contexts, medical contexts, all kinds of strange and varied areas today—whether the experts in them are really experts or not. Anywhere there’s some kind of interface, some kind of connection, between Jewish law and reality, this example of the rabbi and the doctor is always there in the background. I’ll bring two examples now that may sharpen both the fact that it’s true that this is how it works, and also the problematic side. A few years ago some halakhic ruling came out—that’s how it defined itself—signed by around three hundred rabbis, and it gets republished from time to time, saying that handing over territory from the Land of Israel to Arabs involves a danger to life. Naturally this stirred up a lot of criticism, agitation, anger, as is customary in our parts. Every Tom, Dick, and Harry explained his opinion under every leafy tree about what exactly ought to be done and what ought not to be done, and what the role of rabbis is and what the role of politicians is—everyone knew everything terribly well. And the bottom line was that of course this thing has no basis whatsoever, and the rabbis have nothing to look for in those realms—at least according to how it appeared in the public discussion, or non-discussion. That’s what it looked like. Usually here it’s a non-public-discussion in this country, in every direction. And what exactly was the main claim? There were claims that came from outside, from outside the religious world or the world committed to Jewish law—I don’t know if those are always the same thing—and such claims said that it’s unhealthy for rabbis to intervene, that it disrupts the democratic process, that we don’t care at all what they say. Those are outside criticisms. Right now I’m not—actually the first two aren’t necessarily from outside. Criticism of those who even listen to rabbis on such questions and don’t decide on the basis of their own broad judgment or their shriveled brains. But all that is criticism from outside. I mean the criticism that came from inside, and it seems like more serious criticism, and worth discussing. That’s why I said that when there’s a non-public-discussion, it’s not that there isn’t public discussion—there’s anti-discussion. Meaning, what takes place is anti-discussion. These criticisms basically made the following claim, according to the model of the rabbi and the doctor. If generals had really come and told us—assuming they are military experts, a rather optimistic assumption—that in a given situation making such-and-such an agreement or handing over such-and-such territory could lead to danger, and then a halakhic decisor or several halakhic decisors came and said that one may not enter into danger because it says “and live by them,” and there is a commandment to preserve life, and so on and so forth—then fine. Meaning, that would have been acceptable. The outside criticism, of course, would have continued; it doesn’t care whether this is done according to halakhic patterns or not. It doesn’t want to see Jewish law in the public square at all. So I’m talking now about the criticism from within, not the criticism from outside. The criticism from within would have accepted that. What bothered the internal critics—and what also bothered me when I first saw it, which is what got me thinking about all this—was: who appointed them? Meaning, why exactly are they the ones determining this? Even before the question whether this is a halakhic ruling—and saying that something borders on danger to life is a factual determination, that it causes danger. The halakhic ruling is that it is forbidden to do it. But the factual determination that this thing causes danger—that is a fact, not a halakhic ruling. What does that have to do with a halakhic ruling? But more than that, beyond terminology—let’s not talk only about semantics—the determination here is a factual determination. And even if it were a halakhic determination, it would belong to the halakhic sphere, but who is authorized to make it? Are we really talking about the question whether it is dangerous or not dangerous? Then the one who is supposed to express an opinion on that is the person qualified in matters of security. And even if we accept the more realistic and less optimistic assumption that generals also are not qualified for this, that still doesn’t mean rabbis are qualified. It only means that I’m also qualified, exactly like them—despite the senior-private rank that I have, I too am qualified exactly like all the generals. But rabbis are no more qualified than I am, and no less. They can express their opinion that it is a danger or not a danger. Why do I need to listen to their determination? In that sense, why is this a halakhic ruling—not in the sense of whether this question belongs to the field called Jewish law. That’s another question; I’m not talking about that right now. I’m talking about a different question. Suppose this does belong to the field called Jewish law—but this determination, who is authorized? About whom was “according to what they instruct you” said in relation to a determination like this? Why rabbis? What, do they understand security better than I do? Why is the fact that they determine that this is a risk supposed to obligate me—at least in their view—to accept that position that it really is dangerous? And if I think it isn’t dangerous—I, as a layman, exactly as they are laymen, consult whomever I want to consult, think however I think, and arrive at some conclusion, and I arrive at the conclusion that it isn’t dangerous—why do I need to accept their position? This is a factual determination. That’s one question, and it’s a serious question. This is not criticism from outside, this is criticism from within. It’s criticism from people who are loyal to Jewish law, and it’s a real question. I’m loyal to Jewish law, “according to what they instruct you” applies even nowadays without a Sanhedrin and without anything, and anyone who has a rabbinic cloak I bow down flat to the ground and do everything he says—even what the person opposing him says, I do everything. But all of that is in a realm where he really has some kind of authority, where what he says is what the Torah says. But what he says here is an evaluation of reality, and if I have a different evaluation of reality? A rabbi comes and tells me, you know what, eating oranges isn’t healthy. That’s what he said—a halakhic ruling: eating oranges isn’t healthy. And from the inquiries I’ve made, or just ordinary thought, or simply because it doesn’t sound logical to me, it seems that eating oranges poses no problem whatsoever—and is even a little tasty, which perhaps raises suspicion that it really isn’t healthy—but fine, there are arguments both ways, at least I’m doubtful. Maybe “danger is treated more stringently than prohibition,” so maybe one should be stringent anyway. What, does he have the authority to decide, to impose his authority on me in a determination that is a factual determination? Why? By what right does he do that, even if we say this is a halakhic problem and belongs to the realm of Jewish law? Fine, it belongs to the realm of Jewish law—but the one who is supposed to determine this is a factual expert, an expert in the relevant field. Like rulings about electricity on the Sabbath or in other contexts. They too require some scientific understanding or some technological understanding of one sort or another. So the rabbi claims that in his opinion building a circuit of a certain type is considered building. There are certain dimensions here that relate to the Talmudic topic of building. A certain important Jew even said this, although it really is quite an astonishing midrash. And there are also many aspects of understanding what is happening, how it really works. That same important Jew, when he said it was considered building—that it is forbidden because of building—said that he plugs the electricity into the wires. Therefore it is building. That statement does not inspire great confidence in me regarding the scientific understanding behind the ruling. So why do I need to listen to that? Why, regarding the factual components too, does the halakhic decisor assume for himself the authority to decide and demand that I obey him? Meaning, not specifically him—it doesn’t matter—so he’ll discuss it with the other halakhic decisors, they’ll reach some conclusion, the Sanhedrin will decide. Fine, there’ll be an authorized institution that decides and everything will be fine. Still, why do I need to listen to them? Not today’s Sanhedrin, of course. So that’s one question—or one case, not one question. One case that clarifies the meaning of the model of the halakhic decisor and the doctor, or the rabbi and the doctor. According to the model of the rabbi and the doctor, ostensibly these things are completely devoid of logic. Now regardless of what I really think about the content of that proclamation, I don’t think I would relate to it in such a sharp way—it simply presents those 300 as complete fools. As if they simply don’t understand what a halakhic ruling means, what this means according to that conception. I’m not inclined to think that’s the case, and it really made me think: what is actually happening here? Ostensibly, the criticism is justified. A second case: traffic laws. A favorite subject. Regarding traffic laws, I once heard in the name of Rabbi Nebenzahl and other halakhic decisors, that someone who exceeds the legal speed on a certain road commits a Torah prohibition, because he endangers his life, and there is a Torah commandment to preserve life. So although this too is a determination of halakhic decisors, here I allow myself to argue—I disagree. Unequivocally, it means nothing. That doesn’t mean it’s permitted to do it—decide what you think about obeying the law. I’m not discussing law-observance right now, whether there is an obligation to obey the law or not. I’m discussing the question what the threshold or definition is for preservation of life from the standpoint of Jewish law, the obligations of preserving life in Jewish law. By the way, regarding the law too I won’t refrain from one remark, an anarchistic remark, that in our circles there are all sorts of self-styled statists who are meticulous in law observance down to the last jot, because otherwise you violate dina de-malkhuta dina and all sorts of severe prohibitions are involved. If you go through a red light at night when no one sees and there isn’t a single car around—all the classic Bnei Akiva activities—then you violate a Torah prohibition, and therefore you are exceedingly stringent and do not exceed the speed limit on the road by even one kilometer, because otherwise you are simply violating a Torah prohibition. I’m speaking now about dina de-malkhuta dina, not about the prohibition of preservation of life. Parenthetical discussion. So here I say one needs to calm down a bit, because I think drawing conclusions from what the Sages say about dina de-malkhuta dina to what happens today also means that Ariel Sharon can cut off my head if he wants. Or not Ariel Sharon—who’s the clown today? I don’t know, Olmert. So in fact one may not call him a clown according to the concept of dina de-malkhuta; one shouldn’t say it, one has to keep it inside. So he can cut off my head if he feels like it, so long as—he can maybe try, but he can’t, because the king we have today is a democratic king. And the obligations toward him—and not because he isn’t a king, one can discuss whether he is a king; I’m talking now about a non-Jewish king, leave aside a Jewish king. Not in the sense of whether this is Jewish rule or non-Jewish rule; with non-Jewish rule there is dina de-malkhuta dina. On the contrary, maybe only there. Let’s talk in those terms. So when we talk about a king, there is a certain standard of conduct toward a king, and what he says you have to observe and obey and so on. But when we talk about a democratic king, then your obligations are the obligations dictated by the democratic system. Meaning, it does not mean that one may not insult him, humiliate him, or demonstrate against him, as perhaps one was once forbidden to do against kings. Because that would be an affront to the honor of the king, a severe prohibition. One is supposed to run before his chariot and sing hallelujah, as Elijah did before Ahab. So it’s not like that. It’s not like that because then it was a king, and today it is a democratic king. And a democratic king—part of the rules of kingship, so to speak—is that one may also make fun of him, laugh at him, demonstrate against him, cut corners, and drive 92 kilometers per hour instead of 90 on the road. And if every normal, reasonable citizen does that, there is no reason for us not to do the same. Meaning, dina de-malkhuta adds nothing beyond the ordinary human, moral—whatever I should call it—obligation that every faithful, reasonable, decent person is obligated in. That’s all. Dina de-malkhuta comes to anchor that obligation in Jewish law. It does not come to turn every extra meter per second or hour above 90 kilometers per hour into a Torah prohibition. That is simply a clearly unreasonable conception of the term. Therefore, sloppiness is Torah-permitted. Fine. So I’m closing the parenthesis. I’m speaking now about the laws of preserving life and not the laws of dina de-malkhuta. Actually, before I go on to analyze these two examples a little more, I want to say something else: in fact this claim, or this problem, that I’m dealing with now—the relation between a normative determination and a factual determination—shouldn’t concern only people who are loyal to Jewish law. This is really a problem that ought to trouble every person, every person who has at least some values guiding him, who has blood in his veins. Why? Take a secular person, believes in nothing—not in Jewish law and not in anything else. But he has some norm that it’s very important to preserve life; they sometimes call it the sanctity of life or something like that. It’s very important to preserve life. From his standpoint, is driving 92 on a road where 90 is permitted, or driving 100 on a road where 90 is permitted, a moral prohibition? He can ask himself. Is that a moral prohibition or not? Is it only a legal prohibition? You violate the law, but you do not necessarily violate the duty to preserve life, because the law does not determine the standard for preservation of life. And here I’m saying now: look at exactly the same problem and see that it has nothing to do, in general, with questions of Jewish law and reality. It is really a question of norms and reality, or values and reality. And actually anyone should be troubled by such questions if he is subject to several parallel systems of values. Say, the legal system and the moral system; the legal system and, I don’t know, the rules of the Bar Association, or any other gang of gangsters. Any two systems that have norms dealing with overlapping or intersecting areas—you can enter the same situation and ask yourself: when one system sets a threshold, is that also the threshold from the standpoint of the other system? Apparently not. When the law determines that one must drive only up to 90 kilometers per hour on a certain road, does that determine the halakhic threshold of what counts as preserving life? It determines the legal threshold. But it doesn’t determine the halakhic threshold. Maybe preserving life from the standpoint of Jewish law starts at 50 and above, or at 150 and above. It could be more lenient or more stringent; that’s not the point. Why should the law determine the halakhic threshold? It depends on what standard Jewish law sets. So why do people in fact mix up these two planes? Again—the model of the doctor and the rabbi. Because after all, who determined the legal speed on the road? Apparently some transportation experts from the Technion. They determined that driving at such speed is dangerous, and therefore the legislator came and put a legal stamp on it. But the factual determination that it is dangerous is a determination that is supposed to be given over to experts. So if they really are experts, then what difference does it make whether I approach this from the legal system, or from the system of Jewish law, or from the system of the Bar Association? If I’m interested in the question whether it is dangerous or not, ostensibly I should go to the expert and ask him. And if he says that 92 is dangerous—it doesn’t matter right now how he determines that; there is no way to determine it absolutely. Fine, assuming there is some way to determine a threshold here, and he says between 90 and 100, okay? Not 92—between 90 and 100. Then apparently there shouldn’t be any difference. And from this, it seems to me, comes the notion that the legal threshold is in fact valid also on the halakhic plane. And whoever drives over 90 kilometers per hour is not only a legal offender, but also a halakhic offender—not only regarding dina de-malkhuta, but also regarding the commandment of preserving life. So here is another implication of the model of the doctor and the rabbi. Right. A short answer about the two examples—traffic rulings and doctors running freely through the avenue of halakhic decisors also in Jewish law, so on the face of it the rabbis… No, obviously, but I don’t care right now. Both examples are meant to show what the implications of the model of the doctor and the rabbi are. In the first case, the implication was that the ruling of those rabbis appears completely devoid of logic. And in the second case what it means is that the legal threshold is also the halakhic threshold. Or alternatively, if we present it parallel to the first example: if someone says, as I do, that really in some cases even up to 120 is permissible, then that’s not correct. That can’t be, because that too is not handed over to you as a halakhic decisor; it is handed over to professionals in the field of transportation. So in fact I could also have presented it in a completely parallel way. Okay, no matter, I just presented it the way it really came up, so it’s not… Why is the model of the doctor and the rabbi really too simplistic, and why does it lead to so many mistakes? Because it misses one very important point. And for that let us go back to driving speed on the roads. When I want to determine—now I’m speaking without any connection to Jewish law at all—let’s try to follow the process by which the legal speed is determined on a certain road, a given road. So the legislator is supposed to determine that this is forbidden, and the expert is supposed to determine that this is dangerous, right? The expert is supposed to determine that from 90 this is dangerous, and the legislator says okay, if it is dangerous then I put a normative stamp on it. I say okay, then it is also legally forbidden, not only that it’s not good to do it, it is also legally forbidden. Or the moral thinker will say it is also morally forbidden, or the man of Jewish law will say it is also halakhically forbidden. All right? That’s the model of the doctor and the rabbi. Let’s enter a bit more into the guts of this process of determining the permitted speed on the road. After all, when you go to the Technion and find yourself some experts, and you seat them on some committee and tell them please find for me what the speed should be—determine what speed ought to be forbidden on road X, on a given road—what are they supposed to do? The best thing they can do—and even that with very, very limited reliability—but let’s say they are supreme experts and know all the data and know how to do all the calculations and there is no problem, everything is spread before them like a cloth. All right? I don’t currently mean to challenge the question whether they are experts at all and why. I’m speaking on the assumption that we have ultimate experts. What do they actually do? All I can expect from them is a graph. A graph of risk as a function of speed. They can’t tell me 90 is dangerous, or 100 is dangerous, or 150 is dangerous. That sentence simply has no meaning. What they can say, at most—again, in the case where they are ultimate experts and everything is calculable and so on and so on—is give me a graph that plots risk as a function of speed. Speed 70, the risk is half a percent that you’ll die; speed 80, the risk is 0.6 percent that you’ll die; speed 90, 0.7, and so on. Some graph—I’m not sure it’s monotonic, it could be that it’s, I don’t know, wavy. I don’t care. Some graph of risk as a function of speed. Fine, so now we have a graph. A Potocki graph. So we have—is there a marker here or something? Is there? The markers will go wild southward. That’s all, does it start here? Is it inside here? Fine. Let’s say the experts gave us some graph. At speed zero the risk is zero, it passes through the origin. What do you say? In my opinion at speed zero it’s actually one. Okay, okay. So no matter, some graph, it doesn’t matter. All right? So this is the graph, say. Speed between zero and two hundred. There are already cars—I no longer have objections at those speeds, but there are already cars at all kinds of speeds. Now, and let’s say that the value one sits here, say, risk one is somewhere around here, somewhere around 0.2, just for zero and so on. Let’s say this is the… And I’m talking about the chance of dying while driving on this road along its entire length, for simplicity. Now the legislator comes and asks the expert, okay, so now tell me what speed to put. What do I write on the sign? What do you say? You know what, I’ll give you an easier question—not that this is hard for you. It’s a monotonic graph. Okay. A monotonic graph. What do you say? What? A compromise between the risk and the… There is no way to ask the experts from the Technion for an answer to that. Whoever asks simply doesn’t know what the Technion is and what experts are. There is no way. The experts cannot answer that question. What they can do is give me the graph. That’s all. What do I now need to do in order nevertheless to decide on something that will be written on the sign? Ask the… No, the philosophy department won’t help either. You just need a head, which they usually don’t have. Hm? Common sense. What does common sense mean? What is common sense supposed to determine? Judgment. Judgment that determines what? What are we looking for? From what percentage of risk… Exactly. What we’re looking for is: what percentage of risk is called dangerous? Right? From what percentage of risk, from what risk, is one forbidden to take? Okay? So let’s say that the percentage of risk one may not take is 0.17. From here on, anyone who goes beyond that risk is, in my opinion, an offender. It’s not okay. It’s already a halakhic, moral, legal violation—whatever you want, no matter whom you ask. What do we do in such a situation? We go to the graph, right here, drop down here, and arrive straight at the simple answer that the permitted speed is 200. Up to 200 you can drive. Does anyone have any objection to that? There’s no problem. If you really think that up to 0.17 percent that’s a reasonable risk—I think in some contexts 0.17 percent, not 17 percent, right? 0.17 percent—then I don’t know if that’s so absurd. In some places we even take bigger risks than that sometimes. Fine. 200 is a reasonable speed, what’s the problem? Why not? Now I don’t care at the moment whether yes 200 or no 200; the process is what’s important. The process at the Technion stops with drawing the graph. That’s all. From here onward, this is the work of the normative person—the legislator, the moral thinker, the individual himself, the halakhic decisor—depending on which system we are talking about. If I myself think that a risk of 0.12 is reasonable and beyond that not, then I’ll arrive at a speed of 150, say. Fine. Someone else will think it’s 0.05, so he’ll arrive at much less. It doesn’t matter at the moment. Assuming the graph is not monotonic, it doesn’t matter. So who determines the threshold now? If so, we have a problem. The committee of experts has finished its work, and what I received is a graph. Assuming there are 0.17 percent of members of Knesset who know how to read graphs, what are they now supposed to do with that graph? They are supposed to determine what risk, what risk they think ought to be forbidden by law. Right. But unlike other systems, here my behavior on the road doesn’t affect only me, so maybe one has to take into account the judgment involving other people. Of course, you take that into account. I don’t care right now how you reach the decision. You are the one who has to make the decision. All right? By the way, taking other people into account—that’s not the prohibition of preserving my own life, but the prohibition of harming them. The prohibition of “you shall not murder,” not the prohibition of preserving life. Fine. That’s also a graph. So that’s why I say—prohibition… Fine? It may very well be that there are different thresholds here, by the way. There is no reason to assume not. What this actually means is that the normative person intervenes in the decision-making process in two places and not one. Contrary to the simplistic model of the doctor and the rabbi, which naively assumes that the doctor presents reality and then the rabbi applies to that reality the halakhic determination, or the legislator applies to it the legal determination, or the moral thinker applies to it the moral determination—it doesn’t matter, this is not only a discussion about Jewish law—that is a naive approach. It’s not correct; that’s not how it works. The legislator or the halakhic decisor—let’s speak about the halakhic decisor now because that’s our topic, though it is true in all realms—intervenes in this process in one more place. He doesn’t only determine that it is forbidden to enter into danger; he also determines what danger is. The determination of what danger is is not a determination of a professional, not a factual determination. It is a value determination. So the halakhic decisor does two things. First, he has to determine what is dangerous—what is the percentage of risk, say, in this context. And after he determines what is dangerous, he asks: fine, is it permitted to enter into risk in the given situation? When there is a countervailing value or something like that, or whatever, or if it just interferes with life and not every risk is supposed to paralyze us. So the halakhic decisor is supposed to decide: okay, this is dangerous, and now there is an additional question he has to address—is one permitted to enter such danger, or forbidden, in such a situation? Or obligated? It doesn’t matter, in whatever situation. I now return to that halakhic ruling about handing over territory. The ruling in which they decide that handing over territory is something dangerous. We said that on the face of it this looks absurd, because it is a factual determination, a determination of experts—assuming there are experts in these areas, as I said. Why is it not absurd? Why is this actually correct? Because in the end, determining what is dangerous—no chief of staff can do that. In the ultimate case, which never exists, but let’s say theoretically it did—that doesn’t exist on a road either, but the road is still a simpler case than political-security reality; there it doesn’t exist at all—but still, let’s say yes. Even let’s say there is authority vested in all sorts of generals and chiefs of staff and the like, and they know more than any other layman—which I’m not at all sure of, not in the sense of knowing how to fight, but really in evaluating risks—I’m not sure they have added value; still, let’s say they do. Still, what they can do is draw me a risk graph, where the graph now is of course not only a function of speed, but a function of a collection of many political-security options; for each option they’ll tell me what risk is involved in it, some multidimensional graph like that, all right? Then they will say what risk is involved in each situation. Okay, now the rabbi comes—what does he do? He has to determine two things: first, is it permitted to take a risk, say, for the sake of peace; and second, is this even a risk at all? Is such a thing called dangerous or not? Where do you put the line? Where do you cut the graph and determine that such a percentage of risk is not taken? No chief of staff can do such a thing. That is a halakhic determination par excellence, only halakhic. The expert has nothing to say about that at all. So all those internal criticisms I spoke about earlier are simply an obvious mistake. Simply a mistake in something elementary; it’s simply a misunderstanding of reality. The difference is that the chief of staff or the security people have a lot of classified security information that the rabbis do not have. There is a lot of information that the rabbis don’t receive, and on that basis they decide A, whereas if they had known the security information the security people have, they would have decided B. Therefore their decision may be wrong. Okay. But that doesn’t mean they have no authority in this. I agree that after they investigate the matter they should perhaps consult with various people who possess the information. That’s all. But they don’t have all the data; they didn’t examine everything. Who told you? Maybe he did examine all the data. But he doesn’t have it. There is a great deal of data that only very senior security people possess. But it may be that those very senior security people update, at least to the degree sufficient for decision-making, those who are making the decision. Now I’ll say more than that: I’m only saying this to push away your point because what you’re saying isn’t important to me. Because even if you are right, what you are saying does not mean they have no authority to determine. They do have authority to determine—perhaps they were simply mistaken. Fine, it may be they really were mistaken; that’s not my point. It may be that whoever says it is 0.17 is mistaken; it’s really 0.19. It doesn’t matter. I am only asking whether a determination of this kind is one entrusted to the authority of the halakhic decisor or the expert. Is a determination of this kind entrusted to the authority of an expert, or to the authority of a normative person? Am I obligated to listen to its content? That’s another question. Again, maybe you will decide he is mistaken because he does not have full information. That’s a different matter. I’m talking about the principled criticism—that you don’t even have authority over this type of decision. Can you even express a halakhic position about it? The question whether he’s mistaken or not—you know, people choose their rabbis according to the seriousness they attribute to them, if at all. So you say, fine, if you follow a certain rabbi, and assuming he seems to you like an angel of the Lord of Hosts, then you can assume he considered this issue too and nevertheless thinks this is the best assessment he can produce. But under that assumption, it is within his authority. And you cannot say it is within the authority of experts. On the principled level, not in the sense that maybe he errs because he doesn’t have the information, but on the principled level this is not a professional determination. It is a value determination. Or let me say it differently: even someone who has all the information in the world has no authority at all in this matter. I’m speaking now of the lack of authority of the generals, not the authority of the rabbis. On that both of us will agree. Not because maybe they’re wrong and maybe not, but because this is not a factual question. They are completely correct in the graph they drew—but where do you cut the graph? No chief of staff can cut the graph anywhere. He has no tools for cutting the graph, at least no more than I do. He may have a position just like mine, but he has no added value by virtue of being a general. All right? Isn’t there a principled difference between the first case and this one? Here he gets a straight and simple graph and just cuts it at a certain point. In the first case he gets many graphs—one told him one way, one told him another—and he created his own graph. There it’s even worse; there it’s choosing a graph—is that in his authority? So let’s really complicate things even more, and say it relates to the speed allowed on the road. This graph is just the summary of the committee’s discussions. But there were all kinds of voices on the committee, right? Expert A on the committee actually drew this graph, the third thinks it’s this, and someone else thinks the same risk at every speed, all right? Now there are several graphs. So now what? Now not only do you need to set a cutoff, you also need to choose which graph determines the halakhic issue or the legal issue or something like that. Who will do that? The experts from the Technion? That’s already a dispute; it depends on the opinion of the other doctors, or the majority opinion, or one has to understand what to do. It requires expert examination, or “follow the majority,” or the Talmud in Yoma regarding a majority of doctors, whether we follow the majority or not, whether two are like one hundred among doctors or not—but you notice, that is a halakhic discussion. In the end, Jewish law determines which graph to choose. It may tell me choose the graph of the majority of experts, fine. But in the end, the one who determines which graph to choose is again Jewish law, again the halakhic decisor. Why? Is he more of an expert than the guys from the Technion? Here it’s even worse—here he is really making a decision that is professional, since which graph is correct is a professional decision. Correct—and nevertheless, the one who will choose which graph we should follow will be the rabbi. And why? Because the result of that choice is a decision that belongs to the field of Jewish law. How one may drive and how one may not drive in matters of risk to life. Anything connected to the field of Jewish law—even if there is factual ambiguity about it—the one who decides that factual ambiguity is the halakhic decisor. For example, the halakhic decisors said that there is a prohibition of “do not make yourselves detestable,” such as holding in one’s bodily functions or various other things. Things that are disgusting, repulsive. Doing repulsive things violates “do not make yourselves detestable.” What, were the Sages some Emily Post? Experts in manners and etiquette? I am no smaller an expert than they are in manners and etiquette—and believe me, I’m no great expert. Once I accidentally held the fork in my right hand. So why do they decide what counts as “do not make yourselves detestable” and what does not? Let them tell me that disgusting things are forbidden. What counts as disgusting and what doesn’t? Send a query to Emily Post and she’ll tell you what is polite and what is disgusting. No, the Sages also determined what is included in this prohibition. Why? Because when you issue a halakhic ruling, you are also the one who is supposed to decide the factual aspects underlying the Jewish law. Now sometimes you consult, no problem; you don’t have to be an expert in the matter. But the authority to decide is entrusted to you as a halakhic decisor. When a religious court decides a certain case—just an ordinary court before which people came, whether between two people or generally in a matter of prohibitions and not monetary law—right, so the court decides something, and underlying that decision stands an assessment of reality. The religious court assesses that in reality Reuven did in fact murder, and as a result it executes him. But what, am I less of an expert than the court in evaluating reality? I think he didn’t murder. What, are courts experts in evaluating reality? No, but they have the authority to do it. Why? Because there is no halakhic ruling without determining the factual, real substrate. Every halakhic ruling contains factual layers too, and there is no escaping it. There are those who think this is what is called da’at Torah. Meaning, that the Sages have some sort of vision even regarding reality that leads to truer results than others. Maybe, perhaps. But I say there is no need to get there. First and foremost there is a question of authority. The Sages have the authority to do it, because if not then who will do it? For every halakhic ruling they tell me I can always say, wait—but at its basis there is some factual determination, and I don’t agree with the factual determination. So what? In facts he is no more expert than I am. Then in no area. Selecting on the Sabbath—this looks to me like selecting, it doesn’t look to me like selecting. And to me it does look like selecting, so what? Are you more expert in what looks like what and what doesn’t look like what? Are your eyes sharper than mine? In every most banal field you can arrive all the time at evaluations of reality. There is no meaning to halakhic authority if I do not allow the person who has that authority to decide reality too. If he is responsible, then of course he will do this through consultation, clarification of facts, and so on. But the principled authority is entrusted to the one who decides the Jewish law. Always. It cannot be otherwise. One second. Regarding, I don’t know… by contrast, they come to the Supreme Court with some problem about how things are being run in some governmental authority or another. Again one can come and say—the Court says this is unreasonable. What does unreasonable mean? I am the professional and I tell you this is how it should be run; I think it should be run this way. Is the Court a bigger expert? And if it brings an economist against me who says that’s not the right way to do it, then he is an economist and I’m an economist—so is the Court a greater economist that it should decide which of us is right? So true, it doesn’t intervene except in extreme cases, it shouldn’t intervene, only in extreme cases or in cases going in the wrong direction. But on the principled level, the authority is entrusted to it. Nothing will help; there is no other escape. Because if we do not accept authority since on the factual plane we will always say that we are no smaller experts, then nothing will remain of the authority of the rule of law. Exactly as nothing will remain of the authority of Jewish law. Therefore it is clear and self-evident in the halakhic system that all halakhic authority includes within it also the authority to determine the factual circumstances needed in order to determine the Jewish law. That too is entrusted to the halakhic decisor. And if there is a dispute between experts, he will decide which expert is more acceptable. And if there is one expert, then he will set the line, and so on. In the end, in other words, the halakhic decisor does not only determine the norm—whether one may or may not take a risk—but also determines the reality. What is called dangerous and what is not called dangerous. He determines both things. Look, if the rabbi says, just regarding the speed graph on the road, that it’s a value question what percentage of risk a person may take—that is a value question. And there’s what the rabbi says: a court or a rabbi can also decide reality and choose the correct graph. And that claim follows simply from the fact that otherwise you emptied all halakhic authority of content. Just as someone else can come and say I am no less intelligent than this court, and I tell you that according to my assessment Reuven did not murder Shimon. By what right do you execute him? After all, in assessing reality I’m no less of an expert than you. So what if you’re a judge? You’re an expert in Jewish law, you know who is liable to death and who isn’t, in all that you’re an expert. But the assessment of reality—first of all, at the base of every legal decision stands an assessment of reality. Whose authority is it to assess reality? And that is almost the entire role of a court—to assess reality. That is its authority. There is no Jewish law without assessing reality, there is no such thing. Right. In a place where you go to speak with an expert on some matter, and you can point to a rabbi who did not consult experts and ruled based on his own factual assessment—are you still obligated to listen to his Jewish law? You’re not obligated to listen to him even if he did consult. No, truly not. There is no rabbinic authority today that you are obligated to listen to. There is no Sanhedrin today. Assuming there were, you would have to listen. Right. Here are some examples—for instance, meat and fish. Today every doctor will tell you it isn’t dangerous, and yet you’re forbidden to eat meat and fish because the rabbis of earlier generations ruled that it is… Fine, that’s already a different question. Circumcision, all kinds of examples. That’s another question, but perhaps we’ll talk about it another time. Yes. A question: this is true on the plane of halakhic ruling, but when we are dealing not with halakhic ruling but with reality on the ground of rabbis, it’s not… The reality in the cemetery is not a question of overriding, but a question that in fact their reality presents two possibilities. One possibility is more dangerous, and therefore we will defer. It’s not that they are really overriding the overridden value; the overridden value wasn’t there, but their statement basically says that we have several options here. Which option do we choose? This option is too dangerous for the moment, therefore we defer. If you understand it that way then you’re right, but I don’t think that’s the situation there. When the question is binary—which is more dangerous than what—that is indeed a matter for an expert. Is it more dangerous to drive on this road, or more dangerous to drive on that road? That’s a yes-or-no determination. Just calculate the average here, calculate the average there, and see. But that usually isn’t the situation there. Maybe the situation is that the leaders of Israel are in danger of life and… Okay. And about each such option there are also disputes as to which is more dangerous or less dangerous. And in fact the statement is that this is forbidden because of danger to life, because it is dangerous. Choosing a graph. It is choosing between several graphs. That’s why I brought in that addition. Is there also a moral decision coming in here from the side? What? Is there also a moral decision coming in here from the side? I don’t know, not necessarily. No, it’s choosing a graph. It means that sitting still and doing nothing is the least dangerous—not because passive inaction is preferable. It doesn’t matter; one can interpret it this way or that way, it’s not important. But in both cases, in principle this is the authority of the Sages. Again, I am not saying everyone has to listen to those three hundred; I don’t even remember who they were. I’m speaking on the principled level. Suppose this is the Sanhedrin and it has clear halakhic authority. I’m speaking now only on the principled level. I want for a moment—I simply have to finish—I want just another three to five minutes so that we understand more clearly what’s being discussed here. In fact, there is not one value judgment in the world that is a matter for experts. From the creation of the world until today. Meaning, there is no such thing. There are so many things floating around in the air in the framework of that discussion I mentioned earlier. Starting with abortions, where they explain that the doctor knows better than everyone else. Continuing with determining the moment of death—right? Is it cardiac death, brain death, organ donation, and so on—where the doctors… Just in the last few days there’s been some protest by doctors: what are rabbis even deciding there, it’s not their field, it’s a professional matter. There is no greater nonsense than that. It’s simply something—I don’t know, anyone who says such a thing I would fire from the hospital. He apparently doesn’t understand what he’s talking about. There are many such doctors, unfortunately. No, even those who understand their professional field—when they get to somewhat broader questions, just don’t come near, don’t come near. It’s simply nonsense, of course. No doctor can determine the moment of death. He can determine what happens at every stage when there is cardiac death, what happens when there is brain death. He cannot determine who is dead. Who is dead is a normative determination, not a medical determination. What does it have to do with medicine at all? Or another example: I once heard some argument on the radio between some Knesset woman and some Knesset member from Shas about homosexuality. And there she said, what do you mean, they always say that already in 1977 the American Psychiatric Association removed homosexuality from the DSM, from the list of psychiatric illnesses. And here of course all arguments come to an end, because after all there is a determination by experts—what can one do? And that too, of course, is again nonsense and absurdity beyond compare. It’s simply something that as a secular person I’m insulted to accept, not as a religious person. What does this have to do with psychiatry at all? I’m not talking right now about the question of what psychiatrists know on this issue—there are disagreements, and that’s legitimate; in many professional fields there are disagreements. It may be that psychiatrists know everything about the matter. What could they tell me? They could tell me what the source of it is—whether it’s genetic, acquired, this, that. They could tell me whether this tendency can be changed. They could tell me what an attempt to change it would involve, what crises the person would go through, what price he would pay. All of that could be professional questions. But what does that have to do with the question whether this is an illness or not? Tell me, is kleptomania an illness? What—he was born with it, it’s natural, what do you want? Yes, but it’s an illness. Why is it an illness? Because stealing is morally wrong; that’s why it’s an illness. Not because his DNA isn’t arranged properly. It’s an illness because stealing is morally wrong; that’s why it’s an illness. Not because it’s genetic or not genetic. What does this have to do with professional questions? The professional questions can help me with how to treat it, whether it can be treated, whether it is worth treating, or whether there are costs. Sometimes the costs are severe and it isn’t simple. Fine, all of that is professional questions. But what does that have to do with whether it is an illness or not? That is a purely normative question. What changed in 1977 that caused all these dear people to sit there and decide? What do you think? Were there new discoveries in research? Nonsense. The norm simply changed, that’s all. They reached the conclusion that this thing could no longer be seen as something flawed; consequently it left the DSM. Because after all, what is an illness? An illness is something that leads you to behavior that is undesirable. But what is undesirable? Undesirable is a value judgment. Once I decide that stealing is undesirable, then kleptomania is an illness. So who decided that? Me or the psychiatrist? Who removed it from the DSM? The psychiatrist or me? Or both of us together? The psychiatrist is no less authorized than I am; I only say he is also no more so. He too is a human being like any other person, entitled to express an opinion. But to say that the American Psychiatric Association, or the Swedish one, or the Caucasian one, removed it from some list—that simply has no taste or smell. It has no meaning whatsoever. There is not one value decision, one decision with value significance, anywhere in the world—I’m telling you again—from the six days of creation until today, that professionals can decide, that they have authority to decide. There is not one such case. And they keep selling us these bill-of-goods in the framework of anti-discussion—that these experts say this and you’re speaking against the experts, and the experts here and the experts there. They are always mistaken too, of course—that’s another issue—they’re not experts either. But fine, even let’s say they are experts. I’m speaking at the principled philosophical level: this is not a matter for experts, none of these questions are. An expert can tell me about a fetus, at each fetal age, what functions it has. Maybe. When it breathes, whether it has a pancreas, a heart, a liver, I don’t know what. That he can tell me. That is for an expert. He cannot tell me from when it is a human being. Can he tell me from when it is a human being? What is a human being? That is drawing a line on the graph. One has to decide: someone with a heart, pancreas, breathing and I don’t know what—that is a human being. But who determines that? A professional? What does that have to do with anything? Therefore questions like whether to abort or not abort—what does handing that over to doctors have to do with anything? What does it have to do with doctors? Let the doctors give the graph, that’s all. Let them give the graph and go home. They can also sit as part of the committee—they are human beings like everyone else. Maybe it even makes sense to put doctors on the committee; they understand the data better, they can explain, maybe they are the ones who will draw the graph. So if they’re already there, let them stay and sit on the committee too. Fine, I have no problem with that. But they have no added value whatsoever in the second stage after drawing the graph. Nothing at all, literally nothing. This is not a matter for professionals at all. There is not one field. We talk about educational problems. They gather all sorts of experts to discuss educational problems—like why there is a crisis in learning Talmud, which interests no one. So experts come from here and experts from there, and they explain that you don’t move your hands and you have no methodology and you don’t keep eye contact, like they probably teach here at the institute, and all kinds of things of that sort. There are many, many value issues here. Maybe keeping eye contact is a problem. Maybe teaching in the way you suggest, in a way that ties it more to life, say, maybe that is a value problem. Because the Torah ought not be enslaved to reality—or perhaps yes. Why on earth hand that over to an educator? You can tell me what you think—that is, factually, if I connect it more to life then will it arouse more interest or less? Fine, maybe you can express an opinion on that. It may even be that there are experts who can say something on that matter. Maybe. Big question mark. But maybe. But even if so, that still cannot tell us that this is really how one ought to teach. A committee that determines how to teach cannot be composed of educational experts. It simply doesn’t make sense. This is not an educational decision at all. It is a value decision. Not an educational decision in the sense of the profession of education, right? Let’s not say “the science of education” so as not to sin with my tongue, but the profession of education. So the claim is that there is some very general point here, and it has nothing at all to do specifically with Jewish law. Notice, I’m speaking now also from the standpoint of law, and from the standpoint of morality, and from the standpoint of the gang rules of Resh Lakish before he repented. It’s exactly the same thing. You have to decide what, from your standpoint, is the determining threshold, and the one who decides is only you—no other expert. It has nothing to do with it. You—the one who decides—is that authority accepted by the normative system within which you are asking the question. If it’s the legal system, then the Knesset. If it’s the system of Jewish law, then the Sanhedrin. If it’s the moral system, then I don’t know what—either I myself or whoever you accept as your moral authority, it doesn’t matter right now, each person and his own decision—but the moral authority. But in no case is it a professional. This is also one of the things that needs to be conveyed, even when I think one speaks with other people—one should get across to people: you are in exactly the same problem as I am. This is not my problem as a person loyal to Jewish law. What do you say as someone loyal to morality? What does that morality determine? What are the principles of morality for you? Do you really believe in it? What does this have to do with anything? You too cannot accept the determination of the American Psychiatric Association, not only I. Because that is a professional association, but that determination is not a professional one. What does that association have to do with the determination you are talking about? This has nothing to do with Jewish law, Judaism, Torah, and things like that. It’s simply a misunderstanding. It’s a misunderstanding that should trouble people not necessarily from the field of Jewish law. It’s just that in many cases it is very convenient to lean on experts, because then it is much easier to attack halakhic statements and halakhic rulings of various kinds and so forth. But fundamentally this is something that ought to bother anyone for whom knowledge and intellectual honesty matter. We cannot determine medical or psychological or professional definitions on the basis of an agenda, whether it is an agenda convenient for us or inconvenient for us. That is not how it works. Science is supposed to be something objective, at least in its aspiration. And if we see that decisions are being made in that way, that should set off very bright red warning lights for us.