2019-04-22 – The Thought of Rabbi Gedaliah Nadel – Divrei Soferim – Lesson 4

This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.

🔗 Link to the original lecture

🔗 Link to the transcript on Sofer.AI

[Rabbi Michael Abraham] No. So this… there are people who want to say it that way; in my opinion that is not what Rashi means, and I’ll get to that in another moment. Okay? But his claim, basically, is that through… yes, he adds here, “through bills of divorce”; in another moment I’ll explain that. In the simple understanding, the way people explain Rashi, the intention is that you have to give a bill of divorce even when they do “the rabbis annulled it,” just for the sake of appearances. And there are halakhic decisors who say this in practice, many decisors, who say that even when there is rabbinic annulment and in fact the betrothal does not take effect, still give a bill of divorce so that people won’t think a woman leaves without a bill of divorce, they’ll start murmuring that she remarried without a bill of divorce, or they’ll think other women too can leave without a bill of divorce. So even when they do rabbinic annulment, give a bill of divorce. In my opinion that is not what Rashi means; I’ll come back to that in another moment.

And then he says: “Fine, you can say annulment in the case where he betrothed with money, because we can say that this bill of divorce uproots the betrothal and makes the money a gift from the outset.” Okay? What does that mean? Here he explains what “a religious court may declare property ownerless” means. Yes, fine, in a case where he betrothed with money. What does “fine, where he betrothed with money” mean? That they make the money into gift-money. So from whom did they take it away? From the woman or from the husband? From the husband. Huh? From the husband? Right, apparently it’s from the husband. What I said before, that “a religious court may declare property ownerless” means declaring the money ownerless away from the husband, not from the woman. If it were taken away from the woman, then it’s not a gift, it’s not hers, it has to be returned to the husband. “A religious court may declare property ownerless” means: this isn’t your money; it’s ownerless money. So if the woman takes it, fine, she took it as a gift, but it isn’t betrothal money. At least that’s how it seems. Okay.

“If he betrothed through intercourse, then what? What uprooting from the outset is there?” etc. There’s a problem here, because with intercourse the sages have no ability to expropriate anything. And then he says this: “The rabbis rendered his intercourse retroactively, by means of a bill of divorce which is of rabbinic force, an act of promiscuity, and they have the power to do so, since he made it dependent on them.” Since he made it dependent on them, they have the power to do that. Again, they explain here the mechanism of a condition. He made it dependent on them, so they can annul the betrothal.

“I heard all my teachers explain”—these are Rashi’s teachers, this famous Rashi—“I heard all my teachers explain that one who betroths with money, that betrothal by money is rabbinic.” Exactly what we saw in Maimonides, right? So these are all of Rashi’s teachers. “And it cannot be said so,” says Rashi. Rashi himself does not accept that. “And it cannot be said so.” First, because it is a verbal analogy: “taking, taking” from the field of Ephron. How can you say it is rabbinic? It’s a verbal analogy. Now I’ll remind you that Maimonides, true to his approach, holds that something learned through a verbal analogy or through any of the hermeneutic principles is of rabbinic status, and therefore we see here in Rashi’s teachers a source for Maimonides. “And everything learned from a verbal analogy, as explicitly written, applies in every respect; and furthermore, if it is rabbinic, how could we stone because of it?” The same thing people ask about Maimonides, right? How can it be that someone who has relations with this woman, who was betrothed through a rabbinic betrothal, is stoned? “Do we bring non-sacred animals into the Temple courtyard for his inadvertent sin?” If it was inadvertent, then he brings a sin-offering; how can that be? That’s non-sacred slaughter in the Temple courtyard. Okay?

“And in the end, when we answer that the rabbis rendered his intercourse an act of promiscuity, you are forced to explain it as I explained, that the betrothal is uprooted from the outset and not only from now on.” Okay? What is he really saying? There is a development in the Talmud here, a development that changes. At first they say that anyone who betroths does so subject to the rabbis, and the rabbis annul the betrothal from him, which sounds like “a religious court may declare property ownerless.” So to that the Talmud says: one minute, that works for money, but what about intercourse? The Talmud answers: “The rabbis rendered his intercourse an act of promiscuity.” And what about money? Did the understanding there also change? Or with money does it remain based on “a religious court may declare property ownerless,” while for betrothal through intercourse the mechanism is what we’ll soon see—“the rabbis rendered his intercourse an act of promiscuity”? Or once they said that, did the understanding of betrothal by money also change? Why do the rabbis annul betrothal by money? Not because “a religious court may declare property ownerless,” but because of the same principle by which they annul betrothal through intercourse, namely: “the rabbis rendered his intercourse an act of promiscuity”? So then they can do it with money too, and that also solves the problems of how you can declare something ownerless retroactively, what relevance “a religious court may declare property ownerless” has here, and so on. Rashi says that in the final conclusion of the Talmud, even betrothal by money is annulled not by what the Talmud originally said—that it’s “a religious court may declare property ownerless”—but rather by what the Talmud says at the end about intercourse; that applies to money too.

What? Usually they explain it, as I said before, also in Tosafot, as a condition. A person says: I betroth subject to the דעת of the sages—if the sages don’t agree, the betrothal is void. It doesn’t matter how he betrothed: with money, with intercourse, with a document, it makes no difference. He made the betrothal dependent on the sages’ approval; if the sages don’t agree, then it is void. But as I said before, the mechanism of condition here is very strange. The fact that there is no double condition, okay, fine—these are matters in his heart and in everyone’s heart, so there is a Tosafot in tractate Kiddushin that says you don’t need a double condition. Meaning, if the matter is well known, you don’t need to formulate a double condition. But as I said, not every person really makes such a condition, especially when he’s a sinner. So the whole business looks a bit problematic. Also, nowhere is the word “condition” mentioned. Not in Rashi, not in Tosafot, nowhere. They say that a person makes it depend on the sages’ view, but it doesn’t say that he stipulated: if the sages agree, then yes, and if not, then no. There is a term for that in Jewish law: a condition. And say that you don’t need a double condition here because it’s something in his heart and in everyone’s heart—but if this was supposed to be a condition, why didn’t they establish it in the sages’ formula: “Behold, you are betrothed to me if the sages of Israel agree, and if they do not agree, then you are not betrothed”? They already established a formula, so let them establish a corrected formula of a proper double condition, yes before no, condition before the act—let them set it up properly. Why, why don’t they do that? Why use this kind of wording, when they already fixed a standard formula? If a person happened to say it on his own, fine. But if you’re already instituting a standard formula, then institute a perfect formula. What’s the problem? You’re already fixing a standard text.

In my opinion, this whole business is not a condition. It’s a mistake to explain it as a condition. I’ll say again: there are medieval authorities (Rishonim) where it is written explicitly, so there I can’t say otherwise—they say it’s a condition. But here Rashi and Tosafot do not mention the word “condition”; in my opinion most of the medieval authorities (Rishonim) do not mention the word “condition,” and they also weren’t thinking in terms of a condition. It is not a condition in the usual sense; it is similar to a condition. What do I mean? To understand that, let’s go back for a moment to “a religious court may declare property ownerless.” Why indeed do the sages have authority to declare property ownerless? Because the laws of ownership in property are the result of society’s agreement. Meaning, the fact that I own something is because society recognizes that thing as my property. If society does not recognize it as my property, my ownership has no meaning at all. It’s a social stamp of approval, that this is how we manage ownership and acquisition. Right? Rabbi Shimon Shkop elaborates on this; I won’t go back to it again, I think I already spoke about it. Rabbi Shimon Shkop argues that this does not even derive from a command of the Torah—it comes even before… civil law? Yes, exactly. It even precedes the Torah’s command “do not steal,” and so on. First of all there are the laws of acquisition—what he calls the doctrine of legal relations—that there is natural law, a kind of law in which the whole thing works even without legislation; what the public agrees to is what determines ownership. So whatever the public does not agree to, you do not own, since the whole concept of ownership is based on the agreement of the public.

Once I wrote an article about monetary law in the Kovno Ghetto, where in that ghetto there was a Jew named Rabbi Gibraltar whose son relates—later he was a rabbi somewhere in Italy—the son says that he had… he dealt with monetary law and wrote some learned article explaining why all this is incorrect. Fine, he was in the ghetto, he didn’t quite understand, but it isn’t correct. Now it’s obvious that it is correct, and the fellow who wrote that didn’t understand very much. I mean, what happens in a situation where you are in a ghetto is that ownership of property has no meaning at all. If any gentile kid can come and shoot you in the head or take your money and you can’t go to the police or to court and stand up for your rights, that means society there is not functioning in an orderly way that recognizes a person’s rights, then a person has no rights. In other words, property ownership depends on there being a society that recognizes those rights, enforces them, protects them, that has courts and police, and that life can be conducted. In Sodom and Gomorrah there is no ownership. Because ownership is the result of society’s agreement.

Now, if society does not agree, as I said before, then there is no ownership. Who are society’s representatives? The sages. From our perspective, the sages are the legislators or the judges—it doesn’t matter; in Jewish law there is no difference. The Sanhedrin is both the judges and the legislators. There is no separation of powers there. The governing institutions are the sages, the Sanhedrin. The moment the Sanhedrin does not recognize your ownership over something, it isn’t yours. Because the whole concept of ownership depends on society viewing that thing as your property. If it does not view it as your property, then it is not your property. And therefore the concept that “a religious court may declare property ownerless” does not emerge from a verse in Ezra. The verse in Ezra is just a scriptural support. They cite there “whoever does not come to the elders,” there is some verse from Ezra they bring as the source for “a religious court may declare property ownerless.” It doesn’t come from there. How could a Torah-level law come from a verse in Ezra? The verse in Ezra only teaches us that there is such an idea, that this is the conception: monetary law depends on society’s agreement. We see that in the verse in Ezra, but it isn’t that the verse in Ezra innovates this idea. It is a law derived by reason; it even precedes the Torah. It is part of our legal conception.

Now, if that is really so, then it seems to me that personal status is the same thing—not only money. We know that every legal system in the world tries to deal with retroactivity. What?

[Speaker D] Wait, just one second, one second.

[Rabbi Michael Abraham] We know that every society in the world—or its legal system—deals with two subjects: personal status and monetary law. Right? Basically these are the main topics, what in our terms are Even Ha-Ezer and Choshen Mishpat. That’s why with us it is called adjudication. Those two sections of the Shulchan Arukh. Why is it called adjudication? Because that is the legal part of Jewish law. How do I know it is the legal part? Because every legal system in the world also regulates matters of personal status and property ownership. Not like the Shulchan Arukh, that’s not the point, but these are subjects that by their nature are social matters. If you betroth a woman and society does not recognize that woman as your wife, then she is not your wife. Exactly like money. Marriage too is a social institution. If society does not recognize you as a couple, then you are not a couple. Very current today. So marriage, exactly like ownership of property, is a social institution. Or the reverse. What do you mean, the reverse?

[Speaker D] If society does recognize you,

[Rabbi Michael Abraham] even though you didn’t do it according to the law of Moses and Israel? Then we’re back to what I noted before, like commercial custom. Is there commercial custom in betrothal? According to his view, yes. I think not. Let’s say, it’s clear the halakhic decisors would not agree with him. Yes, Torah-level, there, Torah-level, fundamentally. It could be that the sages would annul it, would use their authority to annul it even though in principle it ought to be valid. But maybe it should have been valid. In any case, so what does that really mean? It means that both personal status and monetary law, since they are legal matters—matters that depend on society’s recognition—and if society does not recognize them then they do not exist, then it means that just as the sages can declare property ownerless, they can annul betrothal. And if they do not recognize the betrothal, then the betrothal does not take effect. It does not fail because of a condition—because somebody stipulated it, and if he does not stipulate, does not intend to stipulate, then they can’t annul it. It does not depend on him at all. It is the concept of betrothal. The concept of betrothal depends on society, not on him. Society is what conditions it, not him. It isn’t a condition, he says—that is what Tosafot means in my opinion, and Rashi too. When he says that that is why we say “according to the law of Moses and Israel,” Tosafot means to say that we express it this way: by betrothing a woman we express the idea that the creation of the couple is founded on society’s agreement. “According to the law of Moses and Israel.” That is not a stipulation. Even if he did not say it, that is how it is. If he said “Behold, you are betrothed to me” and did not say “according to the law of Moses and Israel,” she would still be betrothed. If he says it and is not thinking of a condition—

[Speaker J] That’s another question about the mechanism of condition. He isn’t thinking of stipulating anything at all. What, ask some random groom—does he understand that he is making a condition in the betrothal?

[Rabbi Michael Abraham] Does he understand that he’s making a condition in betrothal because he says, “Behold, you are betrothed to me according to the law of Moses and Israel”? In order to stipulate, you have to intend to stipulate. He doesn’t understand it; he isn’t intending that at all. But this is not a change in outlook; the sages are already relating to this here. It’s not a change in the conception of the institution of marriage. How does it work here in betrothal? No, society means its representatives. Say the Knesset decided that my betrothal is not a betrothal—what difference does it make that the whole public thinks it is? The Knesset is the authorized legislative institution; it is the public’s representative in this matter. The sages are like the Knesset. The moment the sages expressed a position, that is the public’s position. Now, they did not say something general about the institution of betrothal as such; they said: your betrothal—we do not recognize it. That is enough. That too means it will not be a betrothal.

[Speaker K] But without a survey? What? Yes, without a survey. It’s like agreements about land, the land registry, and the registration in the land registry actively determines whose it is. Right, personally.

[Rabbi Michael Abraham] Since every such thing

[Speaker K] is conditional on society’s agreement, if society does not recognize this particular couple as a married couple, they won’t be married.

[Rabbi Michael Abraham] Not only in a particular type of betrothal, but even in the personal betrothal of a specific couple. If society does not recognize it, it is not betrothal, because the whole concept of betrothal means that society is willing to see you as a married couple. That is also why you need testimony for the existence of the matter; that’s how the Pnei Yehoshua explains it, I think that is what he means. Why do you need witnesses for the existence of the matter in betrothal? That is a puzzling thing. You need two witnesses because without two witnesses there is no betrothal—not that we don’t know there was betrothal. These are not witnesses for clarification; they are witnesses who are a constitutive part of the betrothal. Why do you need that? And they even derive it by analogy—“matter, matter”—from money. Yes, illicit relations are learned from money, “matter, matter” from money. In money, the witnesses are not for the existence of the matter. So how is it that in matters of forbidden relations the witnesses suddenly are for the existence of the matter? That is what the Avnei Miluim asks; many ask it. In my opinion, witnesses for the existence of the matter in betrothal are simply two people who come to express society’s agreement that you are married. That is what witnesses for the existence of the matter are. Instead of bringing a court here—you can’t have every betrothal before a court, it’s too cumbersome, too unwieldy. Okay, so we take two Jews qualified to testify; if they can testify before a court, it is as though the court itself were here. And the court was here and gave its stamp of approval to the betrothal. That is called witnesses for the existence of the matter. Therefore if there are no witnesses here, or the witnesses are invalid, then there is no betrothal—not that we don’t know there was a betrothal. Why? Because betrothal is conditioned on society’s agreement. If society, or its representatives, or whoever comes in its name, did not give that agreement here, there is no betrothal.

[Speaker D] Isn’t society something holistic? If a woman whose betrothal was annulled in a Religious-Zionist court wanted to marry, say, a Satmar Hasid?

[Rabbi Michael Abraham] Look, that is a question. It really is an artifact of our society, because in the simple sense everyone agrees that any court can do this. If a court does something unreasonable, then maybe other courts would intervene and say, no, here you acted outside the line of law—but not disqualify because of the person himself or because of the color of the kippah on his head. Today, since such a thing exists, I don’t know—maybe today you really can’t do it, since today there is no agreement. But the Haredim also won’t be able to do it in exactly the same way, because so long as you don’t have agreement from the public at large, you are not the public’s representative. But the assumption of the sages of the Talmud, and that is why in practice only they annul betrothal, is that the Talmud has a kind of stamp of approval from the whole public. And when the Talmud did it, it did it in the name of the whole public.

That’s an interesting point, since you asked. Menachem Finkelstein sent me some time ago a decision from the High Rabbinical Court, from a while back—around 2000, I think, something like that. There were Rabbi Sherman, Rabbi Daichovsky, and another rabbi, I don’t remember anymore who the third was. And there Rabbi Sherman was in the minority; afterward his view became the majority view regarding conversion. They were examining the issue of conversion. Rabbi Sherman objected; he said they’re all wicked people, it isn’t conversion—apropos what you said. All those conversions of Druckman, Rabbi Druckman and the whole conversion system—not the judges, the conversion system. The judges yes, those who were in the conversion system, not the judges who cooperated with him. Yes, and therefore it’s not conversion, and he invalidated it. The other two did not agree—Rabbi Daichovsky and the other one, I don’t remember who it was. So Rabbi Sherman pulled a very amusing move there. He said: they were discussing in court whether the conversion is a valid conversion or not. He said: I don’t know. “I do not know.” When one of the three judges says “I do not know,” they add two more. You understand? He wanted them to add two more, so that they would deliberate in a panel of five, not three. Now what did he know? He stated his opinion, so what do you mean he didn’t know? He knew very well. But he was in the minority, so he made a move: he said, “I do not know,” and therefore they had to add two more judges. He brought sources for his position—sources meaning that you can say “I do not know” just in order to add judges even though you do have a position. He cited Shevut Yaakov; there are such sources.

Now Rabbi Daichovsky went crazy there, you can see it in the way he writes there—he’s usually very moderate, sounds very mild—but he writes there angrily: what do you mean, “I do not know”? You write your opinion, so you clearly do know; what are you telling me that you don’t know? And he has a substantive argument. He says: this does not count, even formally, as saying “I do not know,” because you said that you do know; you said what your opinion is. After that you write, “yes, and I do not know,” but you wrote your opinion—so that doesn’t count as saying “I do not know.” Fine, that’s on the formal plane. What?

[Speaker H] He should have remained with “I do not know.”

[Rabbi Michael Abraham] No, no. In a panel of five he can… he was persuaded afterward. Right now he didn’t know; the other two taught him understanding. Meaning, with the new arguments he suddenly came to an insight. Otherwise there would be no point in bringing three new ones and having him leave.

[Speaker H] Three is fine; with two they can’t beat those two who are already saying the opposite.

[Rabbi Michael Abraham] No, they’ll bring three and he’ll withdraw. If he has to say “I do not know,” then all the more so from the outset—so why does he stay there at all? Let him go and let them bring three new ones, not two new ones. No, that’s not it. He stays there and he can change his mind. No, they bring two more, they deliberate anew, maybe now he understands. Yes, he has a position now.

So there they were very upset, never mind; also the people who sent me this decision were very upset. In my opinion he was one hundred percent right, Rabbi Sherman. Not because I agree with him also about the conversions—I agree with him that these conversions are not good; I do not agree that they should be invalidated wholesale because the judges are wicked, that’s nonsense—but it is true that they were doing very problematic conversions there. I don’t think it is right to convert in that way. In any case, I mean regarding the procedural point, not the substantive issue. I think he was absolutely right. And they were upset, and afterward they went to Rabbi Amar; Rabbi Amar did not accept it, and that was that—two against one, and they recognized the conversion. Rabbi Amar was not willing to add two more judges. He was then the head of the chief rabbinical courts.

[Speaker H] The decision about conversion, no?

[Rabbi Michael Abraham] No, no, this is not Rabbi Sherman’s ruling, no no, this is earlier. I’m talking about much earlier. I said that then Rabbi Sherman was still in the minority on the High Rabbinical Court; later it became the majority view. In any case, why was it okay? Here I come to your question. Why was it okay? Look, what for—what does Shevut Yaakov say there, and other decisors, that one can say “I do not know” as a procedural device? It says that the pure-minded in Jerusalem would check who sat with them at a meal. They bring that about judges. When you sit on a panel of judges, you have to make sure that even if you are in the minority, you are willing to sign the ruling. Meaning, you trust the other two sitting with you—or those sitting with you—that it’s fine: if they think differently, then you are prepared to accept that they are right, they are the majority. You are prepared to sign a ruling together with them even if you are in the minority and you do not agree with it. That is something you have to check before you even sit in judgment, before you have an opinion, before you heard the sides and reached a conclusion. Okay?

Now he checked and concluded that he was willing to sit with them. Fine, they argued with him. But there can be a situation where, after hearing the matter and forming an opinion, the position of his two colleagues appears to him blatantly unreasonable. If I am in the minority in a place where I think they are mistaken, but I understand that they have another view and they are the majority, then I sign with them. That is when I think they are mistaken. But if I think they are saying something illegitimate, outside the bounds of legitimacy altogether in my opinion—maybe I’m wrong, but that is my view—that is what this device is meant for. About that Shevut Yaakov says you can say “I do not know” procedurally, in order to add two more judges. Because after all, what will happen? They’ll just add two more judges, so now five are sitting. If indeed it is a reasonable ruling, no problem, there will be a majority of four against one. Here too it won’t help him to say “I do not know,” because within the four there are already three—that means it won’t help, so there it will end. At most, what he is really saying when he says “I do not know” is: friends, look, we have a disagreement. I trust you; you are decent judges, everything is fine. Here, in my opinion, you missed it badly. Meaning, this is something completely unreasonable. I ask you to add two more judges here. Let’s sit as five; if you convince two more besides me, fine, then you are the majority, finished. What do you care, if you are so right? Add two more judges and that’s it. But maybe it will turn out that you really missed something here. I can’t convince you; I want two more to come. In my opinion that is a completely legitimate claim.

[Speaker K] What if it splits—three against two—what happens then?

[Rabbi Michael Abraham] Three against two is the majority; the majority rules. Yes. So therefore, in a place where—I think that in a place where you see that the judges sitting with you are saying something that in your eyes is beyond the bounds of reasonableness, that is exactly the place to use a formal procedural move. Actually you don’t even need to get to a formal procedural move if there is mutual trust among you. So if he tells them, listen, gentlemen, here it seems to me you’ve gone too far; I mean, it is blatantly unreasonable, not a disagreement where you may be right and may not be right. Now they stand by their view; they do not have to concede to him. Fine, let’s add two more judges just to see that we really convince them. Five—and not just these two who happen to be sitting here. Now that is a completely legitimate argument. People see it as some ugly trick, as though it imposes the minority opinion on the majority. In my opinion it is the opposite: it is imposing the majority on the minority. Because here there are two against one, and he says to them: gentlemen, I object—not just that I disagree. I object. Bring two more. If there are two more who are persuaded, then fine, then you are the many and Jewish law follows you. A completely legitimate argument.

[Speaker H] That’s why I’m saying there is someone using something in a way it was never intended to be used at all.

[Rabbi Michael Abraham] True, but you know, in legal systems—

[Speaker H] You can always make a rule that if he thinks it is blatantly wrong, he may force…

[Rabbi Michael Abraham] That is the meaning of this rule, that is the meaning of the whole matter; it just wasn’t stated that way in the Talmud. So Shevut Yaakov says: then use a formal procedural trick to do it. That is basically what he says. Therefore Rabbi Daichovsky’s claim, as though, what do you mean “I do not know,” you do know, you wrote your opinion—correct, but the point is not whether he says “I do not know” or not; he is asking them: add two more judges. That is what he is asking. Entirely legitimate. I think the opposite: here there was tyranny of the majority—not the minority imposing itself on the majority, but rather the majority decided it was not willing to put its opinion to an additional test, and that’s that. It denies the minority opinion. To my mind that is very problematic.

[Speaker C] Fine, but you trust him. What happens if there is a judge who, in every ruling where he is in the minority, asks for…

[Rabbi Michael Abraham] No, then simply they won’t sit with him in judgment. That’s what “the pure-minded of Jerusalem” means. Then there is no point; you shouldn’t sit together in judgment, because you don’t trust one another. That is why I said beforehand: we are talking about three who in principle are willing to sit together in judgment; they trust one another. But there can be a case where one person says, listen, the other two totally missed it here. I trust them, they’re fine, but there is a case where this just doesn’t work.

[Speaker C] Yes, but they sit there on the understanding that they are sitting as a rabbinical court in the State of Israel. Right. So just as there are rules in the State of Israel, in Israeli law, that only the president of the court can determine the panel, okay, so here too the one who can determine the panel is—as Rabbi Amar was—

[Rabbi Michael Abraham] the president of the court.

[Speaker C] And it has nothing to do with whether

[Rabbi Michael Abraham] he is proper or not proper. I didn’t say it wasn’t procedurally valid. Fine, Rabbi Amar had the authority, he determined it, and that’s that. I accept that. I am only saying whether he acted properly.

[Speaker C] Then that’s not authority, so he wasn’t proper.

[Rabbi Michael Abraham] No, the question is whether he acted properly when he did it, not whether he had authority. Whether he acted properly. I think it was not proper; he should not have made that decision. I am not claiming that because of that his decision is void. Fine, he did it within his authority. But I can still criticize what he did; I think what he did was not right. He should have added two more—what’s the problem? What was he afraid of? He was afraid that if two more judges were added, a majority would be created in Rabbi Sherman’s favor; that is obvious. So what do you care? Add two more judges, let them deliberate, let them reach a conclusion—why not? Why make such a big deal out of it? He was afraid that yes, meaning, that the two additional judges might indeed not be persuaded.

[Speaker K] The game was probably fixed anyway; it’s not that they’d really persuade one another. They come with positions…

[Rabbi Michael Abraham] Not true. What do you mean? You can raise arguments; it’s not exactly like that. It’s like the way we look at it—like the way we look at the Supreme Court. I once told this story, that we once sat in the Israel Democracy Institute. They invited me to speak there in some fairly broad forum of rabbis and judges and all kinds of people, and we talked about the Supreme Court. There was very sharp criticism from the rabbis sitting there in the forum against the Supreme Court—that each one there, really, just does what he wants ideologically; it has nothing to do with the professional legal aspect, and so on. Judge Englard was sitting there; at the time he was a Supreme Court justice. He said: what do you want? All the decisions of the court are professional. And he’s a religious judge; he understands the problem, he knows the public in which he lives. He said: what do you want? All the decisions are completely professional, and everything is fine. People didn’t understand; they thought he was just feigning innocence. And I suddenly thought—I heard his words, because my own feeling had been like that of the critics—I heard his words, and something clicked for me. Maybe there is something to what he says. We from the outside look at it differently from how it is perceived from the inside.

Think about how people look at the activity of halakhic decisors. There are many people in the public—I meet them every day—who are convinced that halakhic decisors can do whatever they want. Whatever you decide, that’s what you’ll do; after all, it’s all just ideology, there is nothing here that really has to do with halakhic judgment based on sources; you just do whatever you want. Now when you ask the decisors, they’ll tell you that isn’t true. Obviously ideology affects rulings, but you are still bound to sources; there is a discourse, you have to bring proofs. Okay, your values do enter the picture, obviously, but there can also be a situation where I am persuaded, or where I persuade; there is a discourse, yes, a kind of halakhic conversation within which the whole thing operates. Now someone looking from the outside is sure that it is all ideology: if he is a rabbi with a knitted kippah, he’ll say this, and if he is a rabbi with a black kippah, he’ll say that. That isn’t always true. Sometimes there are quite a few surprises in this matter. Sadly too few, but still there are quite a few surprises. And also in the Supreme Court, when you examine all that they say, you see that it isn’t so one-dimensional as people think. Usually the really striking cases—the really ideological ones—grab all the attention, and then it comes out that the Supreme Court is totally one-dimensional. And again, I am not claiming that it really represents the whole public, but in my opinion it is less so than people outside think. There are more disagreements there than people think, and it does operate in a way where people can persuade and be persuaded by each other. That can happen. It is not true that everyone comes with an opinion from home and that’s what comes out in the end. That is how it looks from outside, because we are exposed only to the very vivid cases, the very strong ones, the ones that capture public attention. And when does it capture public attention? When it really is decided according to positions—when the religious judge says this and the secular judges say that—then we understand that that is what is going on there. But that is not really what happens there day to day. There really is professional work there, just as among halakhic decisors there is professional work and it is not all ideology.

So how did I get into all this? Right, Rabbi Sherman. So here too, I don’t know, let two other judges come, talk among yourselves; persuasion may also happen. That can happen. Today we paint it as though it is all politics: he comes with this from home, he’ll leave exactly as he came, there’s no way to penetrate him—every direction, everyone as he came. I don’t think that’s true. I mean, not necessarily true.

[Speaker H] So Rabbi Sherman didn’t make it kind of disconnected from who the two that would be added were?

[Rabbi Michael Abraham] What do you mean? How would he know which two would be added? Rabbi Amar can add two. What’s the problem? Let him add two balanced ones, fine. If there are suspicions that there are really biased people there, then put two balanced ones, or one from each direction, fine—but add two more. Once a majority is formed among the five, you’re finished in any case. What’s the problem? Add two and that’s it, let it be a ruling by five.

[Speaker H] Do they relate to this in court? There’s no such thing.

[Rabbi Michael Abraham] What do you mean, in court?

[Speaker H] But this is Jewish law—they follow the majority.

[Rabbi Michael Abraham] But Jewish law works with halakhic rules, not with the civil court.

[Speaker H] But here he says “I know”—

[Rabbi Michael Abraham] Really, if one says “I know”? Shevut Yaakov is also Jewish law, right? But Shevut Yaakov says no—

[Speaker H] also—

[Rabbi Michael Abraham] even “I do not know” when he doesn’t really mean it—they add two more. That is what Shevut Yaakov says, or what other decisors say, not only Shevut Yaakov; that’s what I remember at the moment. Fine, that is also Jewish law. So what’s the problem? Add two more, and then it will be a ruling by five judges. That’s all. What is bad about that? Fine, never mind, I only drifted because of the previous question.

[Speaker H] If you put yourself in the minority, try that again.

[Rabbi Michael Abraham] So I’m saying, if it happens every time, then obviously you shouldn’t do it, and in fact they won’t do it. But I assume it didn’t happen every time; the proof is that only this reached me by email. Meaning, it’s not that every time Rabbi Sherman is in the minority he does it. Apparently this was an issue where he thought the majority opinion was really very problematic, not just that they disagreed with him. According to him there was something very problematic here. They don’t have to agree with him; they don’t have to concede to him. No problem—just add two more judges, that’s all. Let those five sit instead of those three. What’s the problem with that? Fine.

So, apropos courts that do not recognize one another: if I come back here, then basically the point of “the rabbis annulled the betrothal from him,” what the Talmud says, that “the rabbis rendered his intercourse an act of promiscuity”—that is what it means. That is the plain meaning of the words. “The rabbis rendered his intercourse an act of promiscuity” is not a condition. It does not say condition there. If it said condition, what does that have to do with intercourse? Forget intercourse. It would say there is a condition that cancels the betrothal. True, that also makes the intercourse an act of promiscuity. But the fact that it makes the intercourse an act of promiscuity is a result, because the betrothal is not valid; the result is that the intercourse was an act of promiscuity. In the Talmud it appears as a reason, not as a result. The rabbis turned the intercourse into an act of promiscuity, and therefore it is not a betrothal. The Talmud asked why it is not a betrothal, and the Talmud answers: because “the rabbis rendered his intercourse an act of promiscuity.” That is the reverse. If it were a condition, then the Talmud should have said: there is a condition here, and the rabbis canceled the betrothal because the betrothal was conditional on their approval; consequently the intercourse is an act of promiscuity. But the fact that the intercourse is an act of promiscuity is not a reason for annulling the betrothal; it is a result of annulling the betrothal. According to what I am saying, it is not like that. The rabbis turned his intercourse into an act of promiscuity; they do not recognize this intercourse as intercourse for betrothal, and therefore it is not a betrothal.

[Speaker D] But that’s already less consensual than ordinary betrothal, because it depends on his intention at that moment?

[Rabbi Michael Abraham] No, and that is why I’m saying: they did not transform his intention. He intended marriage, he did not intend promiscuity. But the moment the rabbis view it as an act of promiscuity, the rabbis make it an act of promiscuity. Because the relevant intention is the intention of the rabbis, not that of the man who had intercourse—or not only his intention. Because every betrothal is conditional on the sages’ agreement; if the sages do not agree, it is an act of promiscuity. It doesn’t matter that he sincerely intended it; that is exactly what I’m saying—he does not need to stipulate it; they stipulate it, they determine it. It is enough, after all also—

[Speaker H] the witnesses, right? What? Also there, witnesses who see him enter or something like that. Say they disqualify the witnesses, the witnesses are disqualified and that’s it.

[Rabbi Michael Abraham] Fine, but it doesn’t say that here. How would they disqualify the witnesses? What did the witnesses do wrong? Why do you need to disqualify them? Why are you disqualifying the witnesses? What did they do wrong?

[Speaker H] As if they were emissaries of the rabbis, basically?

[Rabbi Michael Abraham] The rabbis are unhappy, so they disqualify the witnesses? That’s it? No, it’s not disqualifying the witnesses, they—

[Speaker H] they don’t recognize, they remove the witnesses, the witnesses were as if…

[Rabbi Michael Abraham] It’s the same thing. Meaning, they say if the witnesses represent the—

[Speaker H] the witnesses don’t bring here

[Rabbi Michael Abraham] our view.

[Speaker H] If someone betrothed through intercourse without witnesses, is she betrothed? No. And that’s exactly the point. So then what kind of intercourse is it?

[Rabbi Michael Abraham] Yes, but I’m saying it’s not because of the intercourse itself.

[Speaker H] She isn’t betrothed—

[Rabbi Michael Abraham] because there is no agreement from the sages, therefore she isn’t betrothed. So if that’s the case, then when the sages do not agree, even if there are witnesses, there is no betrothal. It’s the same thing. So also when there are no witnesses, the whole reason she is not betrothed is because the sages did not agree to it.

[Speaker H] So likewise it is easier to say that if the sages do these annulments retroactively and all kinds of things that seem not logical—no, the witnesses they send are on such a condition that it gives them the option to cancel them.

[Rabbi Michael Abraham] Exactly, and that’s what they did. To invalidate under Persian law, that’s easy. So I’m saying: that is exactly what they did. Annulment. Yes, that is exactly what they did.

[Speaker D] So why with money don’t they say, as Rashi says, that the rabbis defined his gift as a gift and not as betrothal?

[Rabbi Michael Abraham] That is what they say.

[Speaker D] No, Rashi says that—but then why isn’t that the language in the Talmud?

[Rabbi Michael Abraham] What do you mean? That’s what… when? At the beginning? Because at the beginning they really didn’t hold that way—quite the opposite. The Talmud said that with money it is because “a religious court may declare property ownerless.” But then I have a difficulty—what about intercourse? Then the Talmud says, “the rabbis rendered his intercourse an act of promiscuity.” Once the Talmud says “the rabbis rendered his intercourse an act of promiscuity,” the conception of money changes too. Rashi writes this explicitly. The conception of money changes too. Because the whole business works the same way; it has nothing specifically to do with intercourse. That is exactly the point.

[Speaker L] Why do you need retroactively? If everything depends on agreement, the agreement stops now.

[Rabbi Michael Abraham] Oh, that’s an excellent point. In fact, for a large number of the medieval authorities (Rishonim), it’s written that this works retroactively. So that’s not such a problem, since there is basically an implicit condition here. But it’s not a condition made by the man who betroths; it’s a condition made by the Sages. We agree to the betrothal on condition that something else won’t happen later, so it can go backward. That’s not so terrible. But it turns out there are some later authorities (Acharonim) who infer this even from the medieval authorities (Rishonim), though it’s more explicit in the later authorities (Acharonim). Avishalom Westreich once wrote an article about this. It sounds from them that the annulment is really prospective, not retroactive. The annulment is from now on. And everyone wonders how that could be, because it operates through the mechanism of a condition, a mechanism of “on this understanding.” So the betrothal should be null retroactively. What does it mean to cancel a betrothal that was in force until now without a bill of divorce? Suddenly it stops existing—not retroactively, but from now on. It makes more sense in one way—why should it suddenly work backward?—but mechanistically, how does that happen? According to what I’m saying now, that’s exactly your point. Since the Sages’ consent is a condition for the betrothal, the moment they stop consenting, the betrothal is no longer a betrothal. At that point they stop being a married couple. It’s not that the earlier betrothal was retroactively voided.

[Speaker M] But then the intercourse was promiscuous intercourse—whatever happened there, happened there. Why do they mention that they made his intercourse…

[Rabbi Michael Abraham] No, no—here it really is pretty clear that it goes retroactively, because as you say, the intercourse becomes promiscuous intercourse. You can say that his acts of intercourse are acts of promiscuity even now—they turn his acts of intercourse into promiscuous intercourse, not the original act of betrothal-intercourse. In any case that will be difficult, but for the later authorities (Acharonim) who say this, that’s not really my issue. Those later authorities (Acharonim) who say that it works from now on—so what do they do with “the rabbis rendered his intercourse promiscuous intercourse”? Maybe they’ll say that refers to the intercourse from this point onward.

[Speaker K] But we want to solve the problem of mamzerut, and there’s a child here who needs a solution. What mamzerut? No mamzerut at all. The child exists, and now the child exists today, in the year 5775. Now they go and annul the marriage, and that automatically solves the problem. So then it’s not only from now on; it’s not from the day—the day the condition was fulfilled.

[Rabbi Michael Abraham] It depends—depends what you’re talking about, depends on which situation. Are you talking about annulling a betrothal in order to save children from mamzerut? First of all, they don’t do that. There’s no such thing—they don’t annul betrothal in order to save children from mamzerut.

[Speaker K] If there were marriages…

[Rabbi Michael Abraham] Depends—there are different circumstances. For example, one who betroths a woman against her will. No, what I’m saying is: in practice, the three cases that appear in the Talmudic text concerning “the rabbis annulled his betrothal” are not for the sake of saving mamzerim, or preventing mamzerim. Once he canceled the agent, I cancel the betrothal. Now even if I cancel the betrothal from the moment of the agency, not from the moment of the actual betrothal, it doesn’t matter. Since once the betrothal is now void, when she marries, the children won’t be mamzerim. Not that they were mamzerim and I’m saving them. Nowadays there are all kinds of religious courts—not only nowadays, throughout the generations—there are religious courts that do annul betrothal when we get into a mamzerut tangle. These are artifacts; these are side phenomena. The cases of annulment of betrothal in the Talmudic text are not to save mamzerim—maybe to prevent mamzerut going forward, but not to save mamzerim. It’s for various reasons why they don’t want there to be a valid betrothal.

[Speaker C] By the way, when they annul a betrothal, is she permitted to a priest, for example?

[Rabbi Michael Abraham] Ah, I think so.

[Speaker C] Ah, but that’s the question. If you annul retroactively, then she’s permitted. If you annul from now on, she’s forbidden.

[Rabbi Michael Abraham] No, but even from now on she isn’t divorced.

[Speaker C] She was a married woman.

[Rabbi Michael Abraham] She was a married woman—so what? If she’s a widow, is she permitted to a priest? She was also a married woman then. Only a divorcee is forbidden to a priest. To a high priest, a widow is forbidden, but to an ordinary priest, a widow is permitted. So what if she was a married woman? The problem is that together with this annulment, as I mentioned earlier, they give a bill of divorce as well—according to many halakhic decisors, at least. Once they give a bill of divorce, there may be what’s called the “scent of a divorce,” and the scent of a divorce disqualifies a woman from marrying into the priesthood, at least rabbinically. Apparently—there’s an opinion that says it’s Torah-level / of biblical origin—the moment she received a bill of divorce, she becomes forbidden to a priest. At the moment it doesn’t matter whether she’s really an actual divorcee. But that already depends on the circumstances—depends whether she actually received a bill of divorce, depends whether one even has to give a bill of divorce at all. In these situations not everyone agrees that one has to give a bill of divorce. So for our purposes, what the Talmudic text says there about “they annulled” — I think that’s basically the claim that betrothal is a social institution. The moment society doesn’t agree to it, then the woman is not the husband’s wife; there is no betrothal here. And therefore, the fact that the rabbis can annul the betrothal—Rashi’s teachers say that this is because betrothal by money is rabbinic / of rabbinic origin. And since betrothal by money is rabbinic / of rabbinic origin, then the rabbis instituted it and they can also annul it. To that, Rashi himself asks—and this is also what they ask about Maimonides—then how can someone who has relations with her be liable for death if this betrothal is only rabbinic / of rabbinic origin? Okay? So Rav Gedalia answers in the name of Rashi’s teachers, and also as an interpretation of Maimonides, that once there is full intent, even if that full intent was created by a betrothal that was in essence founded by the Sages, still, in the end full intent was created. Once full intent was created, the betrothal is Torah-level / of biblical origin. Therefore someone who has relations with her is liable for death, just like in any betrothal; their halakhic validity is Torah-level / of biblical origin. So he explains the position of Rashi’s teachers, okay, and following that also the position of Maimonides. But Rashi himself, or Tosafot, or most of the medieval authorities (Rishonim), who say that there is annulment even though betrothal by money is not rabbinic / of rabbinic origin but Torah-level / of biblical origin—for them, I think the explanation is what I said before. It’s not a condition; it’s the essence itself. Now the interesting question, of course, is the proof from the Talmudic text here. After all, the Talmudic text here says: “That works fine when he betrothed her with money.” So that means that with money we understand why the Sages can annul the betrothal, okay. What about intercourse? Then the Talmudic text says: “The rabbis rendered his intercourse promiscuous intercourse.” From here Rashi’s teachers, and apparently also Maimonides, learned that betrothal by money is rabbinic / of rabbinic origin, right? But in the end, even betrothal by money is annulled not through that mechanism of “property declared ownerless by the religious court is ownerless,” but through the mechanism used for betrothal by intercourse. It changed, didn’t it? In the initial assumption they thought they annul betrothal by money because it’s rabbinic / of rabbinic origin, okay—but in the conclusion, no. So what’s the problem? So once again, there’s no proof from the Talmudic text for Maimonides and for Rashi’s teachers, and you don’t need to say that betrothal by money is rabbinic / of rabbinic origin. I think the proof still remains, because the Talmudic text never backed away from the idea that betrothal by money is rabbinic / of rabbinic origin. It only said that you don’t have to get to that point in order to effect an annulment. But the fact is that the Talmudic text said that in betrothal by money you really can annul it and there’s no problem, even though in betrothal by intercourse maybe there was a problem at that stage of the Talmudic text. What do you see? That the Talmudic text understood betrothal by money to be rabbinic legislation. Afterward, when we understand that even Torah betrothal the Sages can annul, as in betrothal by intercourse, then with betrothal by money they’ll also annul it through the same mechanism, so you no longer need the point that betrothal by money is rabbinic / of rabbinic origin. But that doesn’t mean the view changed, that the conception that it’s rabbinic / of rabbinic origin changed. From the fact that the Talmudic text raises that possibility, you can definitely learn that the Talmudic text understood betrothal by money to be rabbinic legislation, and that remains true even in the conclusion.

Okay, so that’s regarding the end of chapter 7. Maybe let’s start chapter 8; we have a few minutes. On page 34, and this is about a law given to Moses at Sinai. Earlier we spoke about rabbinic law, about derivations, rabbinic teachings, about things that are explicit in the Torah, and now this is about a law given to Moses at Sinai. At the beginning of our discussion we mentioned three sources of Jewish law: Scripture, reason, and a law given to Moses at Sinai. Of course, that’s regarding Torah-level law; enactments and decrees are a separate whole topic. What is a law given to Moses at Sinai? The Sages use this term for laws that have no source in Scripture and not in reason either. So if there are laws that have no source in a verse and we have no reasoning for them, that’s what is called a law given to Moses at Sinai. Maimonides says this too, by the way—that’s Maimonides’ definition. Maimonides says: not every law that was transmitted to Moses at Sinai is called “a law given to Moses at Sinai.” Things written in the Torah were also transmitted to Moses at Sinai. That isn’t called by that name. It is a law given to Moses at Sinai, but it isn’t called that; the term “a law given to Moses at Sinai” is used to describe laws that do not emerge from a verse and do not emerge from reason, but were transmitted in some oral tradition, okay? Laws learned from Scripture or from reason can be developed into an entire system. By contrast, laws given to Moses at Sinai are narrow, isolated laws from which you can’t develop a system, as the Talmudic text says: “one does not derive an a fortiori argument from a law,” in tractate Nazir. By the way, that’s a tannaitic dispute. But that’s one of the opinions: that one does not derive an a fortiori argument from a law given to Moses at Sinai. Why not? “A law” there means a law given to Moses at Sinai. An a fortiori argument we make from a verse: there’s a law in the verse, and from it we derive another law a fortiori. But if I have a law given to Moses at Sinai and I want to derive an a fortiori argument from it—that, no. There’s no a fortiori argument from a law given to Moses at Sinai. Why not? Because if there’s a law whose logic you understand, then you can say: all the more so. You understand that if this is so, then certainly in the more severe case it will also be so. But in a law given to Moses at Sinai, you don’t understand its logic, because it doesn’t emerge either from a verse or from reason, so how will you make an a fortiori argument? If you don’t understand the logic of something, you can’t make an a fortiori argument. It’s like… well, never mind, that drifted somewhere else. In short, an a fortiori argument assumes some premise regarding the law from which we begin. We assume that this law is based on such-and-such a principle, and if so, then under other circumstances all the more so such a law should apply. But if I don’t understand the original law, how can I make an a fortiori argument to apply it in other circumstances? I don’t know what counts as more severe and what counts as less severe in this context. Therefore he says that with laws learned from Scripture or from reason, you can develop a system from them—that is, extend them, build a structure from them. But from a law given to Moses at Sinai, these are uprooted, detached laws, so to speak. It’s a law that stands on its own. You can’t expand it or interpret it in any way, because we have no understanding of it.

Now here there’s already room to raise a question: what about laws learned from a verse? From reason I understand—I understand the reasoning, so fine. But what about laws from a verse? What’s the difference between that and a law given to Moses at Sinai? The difference is what he already said earlier—we’ve already seen this. Laws learned from a verse, he said, are laws that contain reasoning. Even laws learned from a verse contain reasoning.

[Speaker N] So then why do you need the verse? We talked about that. Maybe the reasoning isn’t strong enough; maybe it contradicts other sources.

[Rabbi Michael Abraham] I offered several possibilities for the need for a verse even though we have reasoning. But his claim—and we already saw this in him—is that even laws that emerge from a verse are laws we understand, laws that contain reasoning. So laws from a verse or from reason—both are understandable laws. Only a law given to Moses at Sinai is, apparently, a law that isn’t understood. So that one cannot be expanded, and you can’t base an a fortiori argument on it. It’s not something we understand. And we have the red heifer from Scripture, and we don’t understand it. What? There are such laws, fine. But that’s not the principle. So you won’t have an a fortiori argument. But if you do make an a fortiori argument from the red heifer, then there’s no problem, because that means you apparently did understand what the red heifer is about, and you’re making an a fortiori argument. If you don’t understand, fine, then in any case you won’t have an a fortiori argument, so you won’t make one. The question is what to do when I think I can make an a fortiori argument. He says: if it’s a law given to Moses at Sinai, then don’t do it, even if you think you understand, because you don’t understand, because there’s no reasoning in it. In a verse, in Scripture, you can make an a fortiori argument. But as you’d expect from Rav Gedalia, he of course doesn’t stop there. Certainly these laws too have logic—even a law given to Moses at Sinai. Something irrational cannot be part of what the Holy One, blessed be He, commands us. Maimonides writes that, yes, because “for this is your wisdom and understanding in the eyes of the nations.” How are all the nations supposed to recognize our wisdom and understanding if we do all kinds of things that have no logic whatsoever, or at least whose logic cannot be understood? Maimonides says even more than that: from here you see that the logic must even be understandable, not only that there is some logic. Because if the logic couldn’t be understood, then how would all the nations know that “this is your wisdom and understanding”?

[Speaker N] The gentiles don’t really understand.

[Rabbi Michael Abraham] But the gentiles do understand. Maimonides says it has to be something that even the gentiles are supposed to understand. That’s his proof. Any person who looks should be able to understand how wise it is. Okay, fine. Whether that stands the test of reality is another question. But that’s Maimonides’ claim. Maimonides’ claim is that it can’t be that there are laws we cannot even understand—not only that they’re not irrational in the sense of lacking any intrinsic logic, but it must also be possible for us to understand them. Because otherwise, what does “for this is your wisdom and understanding” mean? So he says: rather, these laws have no textual source, and there is also no reasoning that obligates us. For example, measures are a law given to Moses at Sinai. Right? “Measures, interpositions, and partitions are a law given to Moses at Sinai.” Measures meaning: what is the amount of an olive-bulk in eating, how much is a quarter-log in drinking, all these measures, right? One in two hundred in terumah, or things like that—there are various legal measures in Jewish law. Where did these measures drop on us from? Where did they come from? The Talmudic text says: “Measures, interpositions, and partitions are a law given to Moses at Sinai.” Okay? Three things that are a law given to Moses at Sinai, among them measures. The Talmudic text in Eruvin initially tries to derive the measures from the verse, “a land of wheat and barley, and vines and figs and pomegranates, a land of olive oil and honey.” The Talmudic text derives from each one of these a measure relevant to some other area of Jewish law. But afterward it rejects that. In the conclusion, the Talmudic text rejects this and says that the verse is merely an asmachta, and that it is not speaking about the measures of the commandments. Right, so in the end it does not emerge from the verse. Maimonides, in his introduction to the Mishnah, says that the asmachta here is just a mnemonic device. What does asmachta mean here? It means that through the verse you can remember the measures, because you have to remember that the Torah was transmitted orally, so they make asmachtot in order to remember the measures. But it could also be that here too, as in other places—and we already saw this—“merely an asmachta,” there was also a chapter on this in Rav Gedalia, we saw it, and Rav Gedalia argues that asmachta does not mean only a memory aid. Asmachta means that it really is anchored somehow in the verse, but it doesn’t necessarily derive from it; it’s the spirit of the verse or something like that. So that’s what he says. Here, regarding this asmachta, Maimonides says it’s an asmachta for remembering, but it doesn’t really emerge from the verse. But he continues: yet it may be that here too, as in the other places, asmachta means that there is some meaning in the text connected to the matter of measures, because these fruits are important in terms of eating—they really are considered significant fruits, the seven species—and then that means that the significance-thresholds of these fruits define the measures of what counts as significant elsewhere in Jewish law. True, that is still not enough to know in an obligatory way that these are the measures of the commandments. Therefore this is called a law given to Moses at Sinai—that’s basically his claim. That’s how it is connected to the verse, but it doesn’t emerge from there in a binding way, and the reasoning is also not clear and unambiguous reasoning. Therefore it’s called a law given to Moses at Sinai. Likewise, the measures—so it doesn’t emerge from the verse. Likewise, the measures are not a matter of reasoning. You can’t say that the simple logical reasoning is that an olive-bulk is the measure of eating that incurs lashes and not an egg-bulk, and so on. There’s no simple reasoning. It’s not a verse in a clear sense, and it’s not reasoning in a clear sense, therefore it’s called a law given to Moses at Sinai. But that doesn’t mean there’s no reasoning in it at all. Now here, this tension—so what is it, then? How much reasoning does there need to be in a law given to Moses at Sinai as opposed to a verse or pure reasoning? We’ll see that later in the chapter next time.