Rav Gedalia Nadel’s Thought: Reasoning in Halakha – Lecture 7

Table of Contents

• Reasoning versus axioms and first intelligibles
• Logical inference, axioms, and the problem of explaining the rules of inference
• “The burden of proof rests on the one seeking to extract from another” as a form of reasoning one can disagree with
• A ruling or withdrawal, presumptive possession and presumption, and “whoever is stronger prevails”
• A critique of the idea that there is an “authorization from Sinai” to use reasoning, and a comparison to modern law
• The thirteen hermeneutic principles, a fortiori reasoning, and the difficulty of saying that tradition is needed in order to use logic
• The example of women’s testimony as a test case for interpretive decision-making and cost considerations
• The scope of reasoning, disputes, and works that were written on its details
• Reasoning as a Torah-level source: the Pnei Yehoshua, the Tzelach, and blessings over enjoyment
• Derashot, Maimonides in the Laws of Marriage, and Tosafot in Sukkah on fulfilling a Torah-level obligation through a rabbinic framework

Summary

General Overview

The passage defines what reasoning means in the language of the Sages by rejecting its identification with axioms or first intelligibles, and emphasizes that halakhic reasoning is a consideration one can disagree with, not a necessity that leaves no room to think otherwise. It explains that a law can rest on reasoning to such an extent that the Talmud says about it, “Why do I need a verse? It is reasoning,” and it illustrates this mainly through the rule that the burden of proof rests on the one seeking to extract from another, along with the discussion of its scope and the disputes surrounding it. It then challenges the claim that permission to use reasoning was specifically handed down through tradition from Sinai, and suggests that the use of logic is a general interpretive necessity even without explicit “authorization,” while comparing this to modern legal interpretation. Finally, it presents a fundamental dispute over whether reasoning can establish a Torah-level law, through the Pnei Yehoshua’s question about blessings over enjoyment and various answers to it, alongside a distinction between reasoning that creates a new law and reasoning that shapes a detail within an already existing biblical framework.

Reasoning versus axioms and first intelligibles

The passage argues that the reasoning being discussed in Jewish law is not a first intelligible, because wherever there is reasoning, one can also think otherwise. It distinguishes between formal logical necessity, where there is no possible way to think differently, and rational assumptions with content, such as the principle of causality, which people tend to assume but which is not itself a logical necessity; and it excludes those as well from the category of halakhic reasoning. It cites an attribution to Ibn Ezra that “whatever has no living spirit, refer to it in both the masculine and the feminine,” in order to illustrate the linguistic arbitrariness in the distinction between “axioms” and “first intelligibles,” without changing the main point: halakhic reasoning is not one of those necessities.

Logical inference, axioms, and the problem of explaining the rules of inference

The passage cites Evron Polkov’s book, Introduction to Logic for Thinkers and Computers, in order to show that someone who accepts the premises but does not accept the conclusion that follows from them poses a difficulty: you cannot really “explain” the rule of inference to him without assuming another rule of inference. It suggests formulating such an argument as one based also on a third premise, namely the inference pattern itself, and shows that this leads to a regress of adding further premises in response to an “alien” who challenges them too. He clarifies that he does not think this is the author’s intention regarding first intelligibles; he is only using it to sharpen the distinction between formal logic and halakhic reasoning.

“The burden of proof rests on the one seeking to extract from another” as reasoning one can disagree with

The passage presents the rule that the burden of proof rests on the one seeking to extract from another as a classic example of reasoning: someone who asks the religious court to change the existing state of affairs has to move it to action by means of proof, similar to “one who has a pain goes to the doctor.” He emphasizes that this law is not necessary in the strict sense, and proposes possible alternatives, such as depositing the item with the court or dividing it when both sides are upright, in order to show that one really can think otherwise. He quotes the claim that the tradition of the Oral Torah received by Moses our Teacher at Sinai says that if reasoning is accepted by the Sages, one may rely on it and issue a halakhic ruling accordingly, and he raises the question whether this very “authorization” is from Sinai or is itself just reasoning.

A ruling or withdrawal, presumptive possession and presumption, and “whoever is stronger prevails”

The passage presents a dispute among later authorities (Acharonim) over whether the rule that the burden of proof rests on the one seeking to extract from another is an actual ruling or a withdrawal from intervention, and it distinguishes between two components of presumptive possession: the convenience of leaving the current state untouched, as against the presumption that whatever is in a person’s possession belongs to him. It illustrates a case of presumptive possession without that ownership presumption through “those goats that ate husks,” where the goats are found in the courtyard but that does not prove ownership, and it connects this to questions of seizing property after the doubt has already arisen. It also notes that in the rule “whoever is stronger prevails” there is a dispute among the medieval authorities (Rishonim) as to whether this is a positive ruling or a withdrawal by the court, and it mentions Netivot Yehoshua by Rabbi Yugel and his discussion of the contradiction between the Rosh and a responsum of the Rosh, together with his conclusion that all agree this is a ruling.

A critique of the idea of an “authorization from Sinai” to use reasoning, and a comparison to modern law

The passage presents the view that the use of reasoning does not require authorization from Sinai, because human beings always act according to what seems more reasonable, and the alternatives—choosing what is less reasonable or refusing to decide—are not really acceptable. He compares this to legal interpretation: a court interprets laws through decisions that involve reasoning one can disagree with; no one expects interpretation to be purely logical in some formal sense; and there is no law granting “permission” to use logic, because that is simply a necessary assumption of the system. He argues that any hierarchical system always begins from a foundational point that cannot be justified infinitely, and he illustrates this through the question of the authority of the Sages, Maimonides’ interpretation that rabbinic laws derive from “Do not deviate,” and the circularity that results if someone who does not accept their authority also does not accept their interpretation of the verse.

The thirteen hermeneutic principles, a fortiori reasoning, and the difficulty of saying that tradition is needed in order to use logic

The passage points out that it is accepted among medieval authorities (Rishonim) that the interpretive principles by which the Torah is expounded are a law given to Moses at Sinai, but a fortiori reasoning and analogy from a paradigm case are tools that every person uses in everyday life, so it sounds strange to say that one needs “authorization” in order to employ them. It suggests two possibilities: either there really are contexts in which their use is not straightforward and therefore tradition is needed, or they were simply included in the list as exegetical principles even though they do not depend on Sinai. It presents a further claim that the authorization itself cannot solve the foundational problem, because even accepting the authorization rests on reasoning—that one accepts words of command.

The example of women’s testimony as a test case for interpretive decision-making and cost considerations

The passage gives, as a conceptual example, the possibility of validating women as witnesses “today” on the basis of changed reality, and explains that behind the Sages’ derashot there is always some reasoning, as in the exposition of “You shall fear the Lord your God” to include Torah scholars. It sets out two interpretive possibilities: one is that the disqualification had a social-historical reason, while the other is that it had some other, unknown reason. It argues that even when there is no certainty, deciding according to the more plausible option is a natural move that does not require authorization. It adds that preserving the status quo is not cost-free, and illustrates this through women’s testimony concerning murder and the price of refusing to accept their testimony, and through Rabban Gamliel’s words at the end of the first chapter of Makkot that multiplying doubts “increases bloodshed among the Jewish people.”

The scope of reasoning, disputes, and works written on its details

The passage emphasizes that reasoning in Jewish law is not just some “basic rule,” but a basis for developing an entire detailed system of laws and questions, including ramifications and disputes. It mentions the dispute between Sumchus and the Rabbis over whether money whose ownership is in doubt should be divided or whether the burden of proof rests on the one seeking to extract from another, and the amoraic disputes in cases of certainty versus uncertainty. It notes that entire books were composed on the scope of this law, such as the book Takfo Kohen by the Shakh, and presents this as proof that reasoning, even when it is not strictly necessary, can serve as a central source in Jewish law.

Reasoning as a Torah-level source: the Pnei Yehoshua, the Tzelach, and blessings over enjoyment

The passage cites the Talmud in Berakhot 35, which concludes regarding blessings over enjoyment: “Rather, it is reasoning: it is forbidden for a person to benefit from this world without a blessing, and anyone who benefits from this world without a blessing is as though he has misappropriated sacred property.” It presents the Pnei Yehoshua’s question that if reasoning is a source at the Torah level, then in cases of doubt concerning blessings one should have to be stringent, and it suggests a possible answer that the obligation to bless is Torah-level, but the formula and the mention of God’s name and kingship are rabbinic, so in a case of doubt there may be room to avoid the full formula while still expressing thanks. It presents the Tzelach’s objection, who argues that there is no such thing as “Torah-level reasoning” when the reasoning creates a halakhic law out of nothing, and proposes a distinction according to which reasoning can be Torah-level only when it interprets and shapes a law within a halakhic framework whose source is a verse.

Derashot, Maimonides in the Laws of Marriage, and Tosafot in Sukkah on fulfilling a Torah-level obligation through a rabbinic framework

The passage connects this distinction to the discussion in Maimonides at the beginning of the Laws of Marriage, where he wrote that betrothal by money is of rabbinic origin, even though one who has relations with another man’s wife is liable to death even when the marriage was effected by money, and it presents the disputes over the textual versions and how to understand his words. It suggests a plain reading according to which “rabbinic” in Maimonides refers to a derashah that generates a new law, whereas a derashah that interprets an existing biblical passage yields a Torah-level result. It cites Tosafot in Sukkah on “you have never fulfilled the commandment of sukkah in your life” regarding the law of one whose table is inside the house, in order to show the possibility that someone who does not act in accordance with the Sages’ rules may fail to fulfill even the Torah-level obligation, and it compares this to the question of prayer according to Maimonides and to the Talmud’s statement in Berakhot that “he has the reward of prayer; he does not have the reward of prayer in its proper time.”

We’re on the topic of reasoning. In the first section of the chapter, from page 16 to 17, he deals with what it is not, what is not called reasoning in the language of the Sages, and he talks about axioms or first intelligibles, and his claim is that that is not what is usually called reasoning. Last time I devoted the session to dealing with these things: what axioms are, first intelligibles, where they come from, comes from, come from. Strange, if you say axioms, then “they come” in the feminine, and if you say first intelligibles, then “they come” in the masculine, so they’re the same things—decide whether they’re male or female, what difference does it make what you call them? Which shows that Ibn Ezra, I think, writes somewhere: anything without a living spirit, refer to it in the masculine or the feminine. Meaning, something without life—whether you refer to it as masculine or feminine is arbitrary. What difference does it make whether a table is masculine or feminine? Is it having marital relations with a female table? What is this thing? In what sense is it male or female? And in different languages, by the way, those very same things—there are languages where they’re masculine and languages where they’re feminine. It’s just an arbitrary decision. Here, this is a wonderful example of the point. What? With things it’s one way, with women there’s a car. Exactly. If you call them first intelligibles, then “they come” in the masculine, and if it’s axioms, then “they come” in the feminine. It’s the exact same thing. Okay, in any event, so what is reasoning? If it’s not first intelligibles—we talked about this, that if we understand that they have real substance and it’s not just a subjective agreement, not something conventionalist as the result of convention, of agreement, then that means there has to be some external anchor to ground it. Meaning, to say there is some objective claim there, and that involves a different type of observation—not with the eyes but with the eye of the intellect. All that we discussed last time. Now I move on, on page 17, to: “So what is reasoning, then?” So first intelligibles are not it—so what is? Let’s return to our issue. The reasoning we are speaking about in Jewish law is not a first intelligible. Everywhere there is reasoning, one can also think otherwise. First intelligibles for him are something where you cannot think otherwise. Again, maybe just one more point that I think I mentioned—but there are first intelligibles on the logical level, where it’s clear that you can’t think otherwise. Two quantities equal to a third quantity are equal to one another; or a thing and its opposite cannot both be true; or if every X is Y and A is X then A is Y. It’s obvious that we can’t think otherwise. He doesn’t mean that either—he means, for example, intelligibles. It’s not axioms. He means axioms. Yes, although you could perhaps also relate to that. It’s not axioms. You can relate to logical inference, the schema of inference, as a kind of axiom. And there’s a book by Evron Polkov, Introduction to Logic for Thinkers and Computers. He taught at Ben-Gurion, I think, once, I don’t know, and that’s the first book in logic I ever knew, so I’m sentimental about it. So he writes there—think of a person that you come to and say to him, and this is parenthetical, think of a person that you come to and say: “Every X is Y and A is X,” and then you say to him, “therefore A is Y.” And he says, “I accept your two premises but I don’t accept the conclusion.” So what do you mean you don’t accept it? The conclusion necessarily follows from the premises. How would you explain to him why? How do you explain it to someone who doesn’t understand? Someone who does understand—it’s self-evident, okay—but someone who doesn’t understand, what are you supposed to do with him? There’s no way to explain it. What can you do? Therefore his claim is that in fact an argument of that sort is built on three premises and not two. But by definition you can’t explain a logical rule. What does it mean to explain? Explaining is logic—how can you explain logic with logic? I agree, but I’m saying: what he’s really saying is that on the formal logical level one needs to present that argument as based on three premises. One premise is that every X is Y. A second premise is that A is X. And the third premise is that if every X is Y and A is X, then A is Y. Conclusion: A is Y. Meaning, the schema itself is also one of the premises. Fine, and then of course you can keep going. Now some alien from another planet comes along, and once again you tell him the three premises, and then—wait, I don’t understand why, who says the conclusion is correct? Then you need to add a fourth premise, which is the broader schema, and so on, and of course this never ends. That’s where we got to. Yes. So how did we get to all this? Maybe axioms and first intelligibles. Yes, yes. Meaning, first intelligibles—I’m saying this is not, I don’t think he means logical schemas, but for example, that everything has a cause. That too is something that I think no one would challenge, but it’s not a logical necessity. It could also have been that things happen without a cause. Meaning, maybe—there are those who will say that this is just a fact. It’s not—there’s no necessity here, we simply learn it from experience. I’m not sure that’s true; I think it isn’t true, but at least some people claim that. Here it certainly isn’t some logical statement that everything has a cause, but it is an assumption of reason. It’s an assumption of every person—I think every rational person assumes that things don’t happen without a cause. That, for example, is something he calls a first intelligible. Meaning, it’s not a logical necessity; logical necessities are empty of content, they’re just structures. An assumption of the type that everything has a cause, the principle of causality—that’s an assumption that has content. It isn’t an empty logical tautology, but it’s clear that we all assume it. Meaning, you can’t think otherwise, let’s call it that in his language. Now he comes to exclude even that. As for logic, there’s nothing to discuss at all. Clearly, even those principles that he calls first intelligibles, like everything has a cause—even that, even that isn’t what we’re talking about. That’s obvious. So what are we talking about? We’re talking about reasonings where one could have thought otherwise. Meaning, it seems right to us, but someone could come and say it’s not right. He brings an example here. Everywhere there is reasoning, one can also think otherwise. For example: “the burden of proof is on the one who seeks to extract from another.” The Talmud says that “the burden of proof is on the one who seeks to extract from another” is reasoning, because if something hurts you, you go to the doctor. If it hurts, go to the doctor. So basically, you—and we discussed this too, right—you want to cause the court to act. Meaning, when I’m holding the money, as far as I’m concerned the court doesn’t even need to convene, I’m happy with the current situation. You’re suing me; that means you want the court to intervene, to do something, to take money from someone and give it to you. To change the situation. Yes, exactly. So if you want to motivate them to act, give them a reason. Meaning, you’re the one who has to move them, not me, so bring evidence. Is this a first intelligible? Is it impossible to think otherwise? Of course it’s possible. One could have said that if so-and-so, who is known as an upright person, claims that what is in so-and-so’s hand is his, then the rule should be that the burden of proof is on the one who seeks to extract from another—we should begin an inquiry and in the meantime deposit the object with the court, for example. Or one could also say they should divide it. Meaning, both sides claim it, both are known as upright people—why favor the one holding the object? Let them split it, half and half. It is not necessary that every person think the law should be “the burden of proof is on the one who seeks to extract from another.” But the tradition of the Oral Torah that Moses received at Sinai tells us that if there is a reasoning that is acceptable to the minds of the Sages, one may rely on it and rule Jewish law accordingly. A reasoning that is acceptable to them, even if someone can come and say it’s not right. It doesn’t have to be something necessary or universal for us to treat it as self-evident. Even something one can argue about—the Talmud still says about it: why do I need a verse? It’s reasoning. Why do I need the verse? There’s reasoning. Why do I need the verse? There’s reasoning—not necessary. Doesn’t matter—even non-necessary reasoning makes the verse superfluous. Even non-necessary reasoning is enough. There’s a very interesting point here in one sentence I just read. He says: the tradition of the Oral Torah that Moses received at Sinai tells us that if there is a reasoning acceptable to the Sages, then we use it. Meaning, did we receive that from Sinai? Or perhaps that itself is also reasoning? It seems to me that that we received from Sinai. Yes, I’m saying—he says we received this, that the permission to use reasonings, or reasonings of this kind, we received from Sinai. Meaning, suppose we hadn’t received that permission from Sinai—then what would we do? Search only for verses. And the verses say nothing about “the burden of proof is on the one who seeks to extract from another.” You made all the efforts. Fine, I did. I didn’t find anything. So what do we do? I very much hope we’d go to reasoning. Exactly. So what, then, why do we need a tradition from Sinai? After all, we use our reasoning in every interpretive context of this kind; obviously in legal matters we’d do it. There could be people who would say that where there is no solution in the verses, then you don’t solve the problem. You don’t solve it? And then what? “The burden of proof is on the one who seeks to extract from another.” We don’t know what to do. That’s called not solving the problem. “The burden of proof is on the one who seeks to extract from another”—we leave the money with whoever has it and go home. That’s called “the burden of proof is on the one who seeks to extract from another.” No, no, “whoever is stronger prevails,” whoever is stronger prevails. “The burden of proof is on the one who seeks to extract from another” means he cannot take it from him. The court compels that he cannot take it from him. “Whoever is stronger prevails” means we leave. That’s an interesting comment, what you just said. What? Tosafot’s question at the beginning of Bava Metzia. But that’s an interesting point, what you just said—it’s not entirely clear. There’s a dispute among later authorities about “the burden of proof is on the one who seeks to extract from another”: is it a ruling or withdrawal? Is it a ruling or withdrawal? No, grabbing is forbidden. Grabbing is forbidden. Do we take it away from him? Yes, yes, yes. If he has no evidence at all and I’m the possessor, do we take it from him? But there are situations where it’s perhaps less clear. For example, there are situations where I am holding something, and when I hold something there are two aspects. One aspect is “as it stands it stands,” meaning I’m happy with the current state; you want to change it, bring proof. Alongside that there is a presumption: what is under a person’s hand is his. Meaning, if a person is holding something, presumably it is his. Meaning, he has proof. Exactly. Either proof or a legal presumption; meaning, it’s not clear to what extent that is a claim about reality—that what is under a person’s hand is his—or whether it only means that legally we should assume this. Meaning, that’s a major question. But there are cases where only the first element exists and the second does not. The Talmud talks about those goats that eat peeled barley. Meaning, goats go wandering around and eating in various places, and now they’re in my yard, wandering around. Now I’m the possessor of them. Someone comes to claim them and I say they’re mine—right now they’re in my yard. Meaning, he wants to remove them now from my yard, but here there is no presumption that what is under a person’s hand is his, because these goats wander around, and we know how they got to me. Meaning, this doesn’t indicate in any way that they were mine before; before they were with him. Fine, there’s no proof that they’re mine. But there is the point that right now they’re with me, and I’m comfortable with the current state. If you want to change it, bring proof. In such a case there is possession without presumption. I am the possessor, meaning it is with me, but the presumption that what is under a person’s hand is his does not exist. Okay. Now in such a case there may be room to discuss what happens if someone grabs it. So I now change the possession—it’s with me now, what’s the problem? After all, there’s no proof here. So here perhaps there is room for what Yossi noted earlier, but only parenthetically. And this also relates to the court: what if one grabs from the other, takes from the other, takes from the other, and now they come to court? Then the last one who grabbed is the one it’s with, so what? No, if the grabbing was after the doubt arose, it doesn’t help. That’s Tosafot at the beginning of Bava Batra—or not the first one, on the first page, “therefore.” Hm? Did he bring witnesses that he grabbed it from him or what? Yes, if the grabbing is after the doubt arose, then it helps nothing. But if yes—right, if it really happened before, and now they come before us and that’s the given state, then the last one who grabbed, yes. So regarding “the burden of proof is on the one who seeks to extract from another,” it’s not entirely simple whether it is a ruling or withdrawal. And also regarding “whoever is stronger prevails,” what Shmuel said earlier—also there, at least in the yeshivot it is accepted that there is a dispute among the medieval authorities (Rishonim). Is “whoever is stronger prevails” a ruling or a withdrawal? Does “whoever is stronger prevails” basically mean the court does not intervene, do whatever you want, or no—is it a positive ruling? Some connect it to the question of what happens if someone grabs it now in the course of the race, yes? Someone managed to grab it—“whoever is stronger prevails.” Now the other comes and takes it from him by force. Is he allowed to or not allowed to take it from the one who grabbed it? So if it is a ruling, there are those who say he is not allowed, because the court ruled that “whoever is stronger prevails.” Once you prevailed, it’s yours—that’s the ruling. Others say no, it’s withdrawal. Meaning, we’re not saying anything—do whatever you want. If it’s “do whatever you want,” then go on fighting forever. So for example there’s an article by Rabbi Yugel in Netivot Yehoshua, and he discusses an apparent contradiction between the Rosh and a responsum of the Rosh on this matter of “whoever is stronger prevails,” and there he says people don’t understand it correctly. I think his conclusion is that everyone says it’s a ruling and not withdrawal. Even the Rosh, whom people usually cite as holding that it’s withdrawal—even he doesn’t hold that way; he shows it from a responsum of the Rosh. Doesn’t matter. In any event, without getting into the question of the nature of “the burden of proof is on the one who seeks to extract from another” or of “whoever is stronger prevails,” I’m not sure I agree with him here that the use of reasoning is founded on a tradition we received from Sinai. We received permission from the Holy One, blessed be He, to use reasonings. I assume that itself is reasoning. Meaning, you don’t need permission from the Holy One, blessed be He, to use reasoning. Reasoning says one should use reasoning. Meaning, everywhere in the world we use our heads and so on. We think and reach the conclusions we reach. If we don’t know anything, I’m saying—and again, this too is logic—but you’ll say logic is reasoning. Plain common sense says: if we know nothing, we have no tradition from Sinai, and we have one option that is more reasonable and one that is less reasonable, then I assume we would choose the more reasonable one, no? Why do I need permission from Sinai in order to choose? After all, what’s the alternative? The alternative is to take the less reasonable option? No, one could have claimed there is no religious command regarding the act, but that’s unreasonable. It’s unreasonable because then you leave anarchy; then everyone will grab and there will be fights. But in matters where there is no religious command, do whatever you want… The court can determine whatever it wants, but it won’t have the… It’s the same thing. That’s what happens here. There is no religious command—“the burden of proof is on the one who seeks to extract from another.” It won’t be considered… The court determined whatever it wanted; it said “the burden of proof is on the one who seeks to extract from another.” That’s exactly what they did. That’s called—it’s not a religious command. When you seek to extract from another, you bring proof—you aren’t fulfilling a commandment by that. These are laws of evidence. Meaning, if you want, the court is considered like a Torah court, no? Of judges who are… So one could have said these things are not from the Torah; they are things people… I think not only could one say that—it’s really true. It’s really true, and even today it’s true. Today it’s true. These are the laws of evidence that the Sages established. I don’t think they received any mandate from Sinai on this matter. What? But if I say they don’t have… I could also have said that there would be no halakhic obligation to obey them. That halakhic authority too comes from reasoning. Maimonides says the authority of the Sages, even regarding rabbinic laws, comes from “do not deviate.” Right, so once someone asked me: who interpreted “do not deviate” in that way? Who said it comes from “do not deviate”? Maimonides. And if I disagree with him? The Sages are the ones who interpreted the verse “do not deviate” as giving them authority to interpret or to enact, whichever kind of authority. Fine? And if I do not accept their authority, then I also don’t accept that this law derives from the verse. At the beginning of every hierarchical system there is always some circle; meaning, it always hangs in the air. A hierarchical system always starts somewhere. You can never continue the chain of justifications or validation to infinity. Meaning, at some point it starts. And this is always the problem, for example, with the authorities that Aharon Barak took for himself when he was president of the Supreme Court. The sense was that he was a legal imperialist, meaning that he basically took authority for himself instead of having the legislature grant it to him. I think there is almost no way out. Meaning, it’s impossible otherwise. Meaning, there is no escaping the fact that the court will define its own authority in one way or another, even if the legislature stated its will, because the one who interprets what the legislature said is the court. Now interpretation, as you know, is often determination. Okay? One can also interpret in a… But that act of interpretation is a result, if we’re talking about reasonings of the kind Rabbi Gedaliah Nadel speaks of—not interpretation on the level of logic but interpretation on the level of reasoning, where one could also have said otherwise. And nobody disputes this, I think, in the legal world: if the court performs this kind of interpretive reasoning, not the type of necessary logic, that is certainly its authority. Meaning, it is the one that determines what the Knesset’s law actually says. We don’t go to the Knesset and conduct a survey, even if they’re right here before us and they are the ones who legislated it, all of them are still here, and we could ask them what they meant. Nobody cares. You wrote something, and from here on the ball is in the court’s hands. The court now interprets it, and many times interprets it in a controversial way. We know that. Many times it brings values from home, foundational assumptions from home. There’s no escaping it; there is no alternative—we are all human beings. Now if we were to cling only to purely logical interpretation, meaning the judge as interpreter would basically be a hollow pipe—he just takes the legislature, and anything that can be derived from it logically is fine, and anything that is not pure logic, meaning anything one can argue about, sit and do nothing, meaning you say nothing, it’s left open—that system would collapse immediately. Impossible. No legislator can cover all cases through pure logic. Meaning, give me a collection of rules and from here on only logic, and I’ll find the answers to all the interesting or relevant questions—or most of them, if not all of them, most of them—no chance. No such thing. Now this of course raises the question of the Foundations of Law Act, for example: what is a lacuna? Right, that one must fill lacunae from Jewish wisdom, justice and fairness and all that stuff. So the question is: what is called a lacuna? That’s a terribly difficult question. Because anything that can be derived by analogy is not a lacuna. Now what is analogy? Whatever seems reasonable to me is analogy. So what… so what is a lacuna? When is there a lacuna? Then there are no lacunae. Whatever the judge thinks, that’s what he does. What is a lacuna if you really accept analogies of that sort as legitimate interpretive tools? But here I’m showing you that even without permission from the legislature, the Supreme Court didn’t receive permission from the legislature to use reasoning. It uses reasoning because—not only the Supreme Court, every court. Why? Because it’s impossible otherwise. What do you mean? Human beings work with their reasonings, and that doesn’t mean it isn’t debatable. Many times there is disagreement. Inside the court there is disagreement; there is a minority opinion and a majority opinion, and we follow the majority. So what does that mean? The existence of a minority opinion means one can also think otherwise—unless he made an explicit legal error. But not every minority opinion is an explicit legal error; usually it’s some disagreement in reasoning. And still the majority decides. What does that mean? That even reasonings one can argue about are within the interpreter’s authority. Now this whole business, I think—you probably know—is it grounded in statute? That the interpreter can do this? Yes, for example I wanted to tell you that in the area of statutory interpretation, Knesset debates, which express what the legislator said he wanted to legislate, that is, you see his intention— No, in the discussions beforehand. In the earlier discussions, yes, that is sometimes used. Yes, but one may not use Knesset statements as the basis for interpreting the law. Because I saw that they use it sometimes. If you don’t know where to go, you can definitely give an interpretation that doesn’t match what that member of Knesset said he wanted the law for, and they’ll go with the interpretation. No, but I’m asking whether in the law, in the law books, is it written that the court is allowed to use reasoning to interpret statutes? After all, the legislator said that in the law book. When there is a lacuna they may not, but they can decide whether it’s a lacuna or not, and there are judgments where the judges disagree whether it’s a lacuna, and some say it is and send it back to the legislature, and some say it isn’t and solve the problem from comparison to… No, but there’s no law that says exactly. No, no, I’m asking: can they interpret—what is a lacuna? Who said if it’s a lacuna or not? And if they say it’s a lacuna they can’t. No, it’s not connected to a lacuna. Let me say it again. There’s a law, Basic Law: Human Dignity and Liberty, okay? Now a case comes before the court—does, yes, let’s say minimum wage meet that standard? Or the right to a livelihood, okay? Does minimum wage meet that standard? There was such a High Court petition, okay? And now the High Court has to decide. According to what will it decide? There is no way to decide this; you decide based on what sounds reasonable to you, right? Now, did the High Court need to justify the fact that it uses criteria of reasonableness in order to decide whether it’s right or not? Meaning, does the law book need to say that when the court approaches statutory interpretation it is permitted to use logic? Is that written there? I think not. There is an Interpretation Law, but I don’t know, I’m not familiar with it, but I don’t think that’s what it says there. It’s a simple assumption. No need to say any such thing. So by the same token, I’m saying, in our context too—the lacuna is a somewhat different story—by the same token, in our case too, Rabbi Daniel Nadel assumes that permission to use logic, logic of this kind, not pure logic, but the kind of logic one can also argue about, was given to us at Sinai through tradition. In order that we expound verses, for example. Why—why is it called reasoning—but the tradition of the Oral Torah that Moses received at Sinai. You’re taking “that Moses received at Sinai” as referring to the tradition, not… The Oral Torah that Moses received at Sinai. Maybe. Listen, what is the tradition? The Oral Torah that Moses received at Sinai—the tradition of the Oral Torah that Moses received at Sinai tells us such and such. Not that at Sinai we were given permission to use… Fine, maybe. I don’t know, really. It doesn’t matter, because it doesn’t matter right now what he meant; the question is what’s true. As I see it, the truth is that no permission is needed. No permission is needed, yes exactly. And more than that: what matters is that one can use reasoning, whether it’s from Sinai or not from Sinai. No, I’m saying more than that: the truth is that you don’t even need it to be from Sinai in order to be able to use reasoning, regardless of what he says. I don’t know what he intended to say, this way or that. Yossi, did you want to say something? But there’s a verse against this. No, if there’s a verse against it that’s something else. About that—that’s something else. If there’s a verse that says, then there’s nothing to be done. “Why do I need a verse? It’s reasoning,” and we look for other things. I didn’t understand. You mean there’s a verse that contradicts the reasoning? Not contradicts, but that can be used now for something else because there’s reasoning. Fine. Or a verse because of which one must derive something from it. Okay. We say “why do I need the verse?” because there’s reasoning, so now for the reasoning to have authority from Sinai too. Otherwise, otherwise they give a verse, and maybe you wouldn’t arrive at that reasoning—who says you would arrive? After all, every reasoning has its… That’s exactly his claim, exactly his claim—that even reasonings that are not necessary, the Talmud says about them that the verse is superfluous if there is reasoning. Right. Why? Maybe you wouldn’t arrive at the reasoning? They were told from Sinai to do it that way. Ah, so I think you don’t need to get to Sinai. It’s not reasonable—he doesn’t think so. Obviously, because that’s what the reasoning says. If I have two possibilities, then I choose the more reasonable one—what do you mean? Take a verse now—take a verse here. But with the verse I don’t know what to do, it can be interpreted this way and it can be interpreted that way. No, I assume “why do I need the verse if there is reasoning”—ah, where there is overlap. Yes, exactly. So what difference does it make? Take the verse and use it for something else, obviously. There it’s not interesting. When there is a verse, the verse wins. And there was no tradition from Sinai to use reasoning. What would I do? I wouldn’t use reasoning? I assume I would use reasoning. And this expression “reasoning—why do I need a verse?” often comes to say: don’t search so much for a verse. Why are you running to look for a verse? It’s reasoning, leave it alone. No, that’s when they ask. Sometimes they ask “why do I need a verse? It’s reasoning,” and sometimes they say, “if you wish, say a verse; if you wish, say reasoning.” Fine, but that’s usually brought after a verse is brought, unlike when the commentators go searching for the verse and then he says the verse. By the way, this doesn’t happen much in the Talmud at all, only in a few places. But it’s not—when there’s a verse then… By the way, I’ll give you an example. In the list of interpretive principles by which the Torah is expounded, the first principle is a fortiori. Fine? Now the principles—it is accepted by the medieval authorities (Rishonim) that the principles are a law given to Moses at Sinai. That’s very strange. Because a fortiori—if it hadn’t been a law given to Moses at Sinai, wouldn’t we use a fortiori? A fortiori is something we use in every area of our lives. What do you mean? So there it really is a big question: why do we need a tradition from Sinai at all? General and particular I understand. The other principles I understand. Verbal analogy. But a fortiori? Even a paradigm case, which is analogy. We make analogies and a fortiori arguments all the time. So why do I need permission from Sinai to use basic principles of thought that I use in every context whatsoever? That really is problematic. And I think one probably has to find situations where a fortiori and paradigm analogy are used even though maybe by plain reasoning it wouldn’t have been so simple to use them, and therefore some tradition from Sinai is needed. Otherwise I don’t know. That’s one possibility. A second possibility: actually yes, these first two principles, these first three principles, were added to the list because they too are principles of exposition, but they really did not come down from Sinai; one can know them even without Sinai, because they are obvious. I need authorization. Why authorization? Why do you need authorization to use logic? Logic can even vary geographically? No, logic is something else entirely—no, logic here and logic in the Congo are the same. You’re talking about logic; you’re talking specifically about the kind of reasoning that isn’t hard-core logic. So that authorization I received at Sinai. When you received that authorization, who said you’re allowed to rely on it? You have authorization, the Holy One, blessed be He, told you use your mind, use a fortiori. Now are you allowed to use your mind? Who said? Reasoning says that if the Holy One, blessed be He, says so, then you can do it, right? And that reasoning—how do you use it? I received it at Sinai. I once said that a horse goes one forward and one right or left. Well, that’s what I received at Sinai. No, at Sinai you received that a horse goes one forward and diagonally, I’m sorry. Diagonally, yes, one forward and to the side. Sinai for me is just something else. So that I received at Sinai. Fine. Now, if you take that same horse here or there according to those same rules, that’s what the court does. But the authorization of how to play the move—a fortiori, verbal analogy. But why can it really go in every direction? What? With the horse? Let’s continue your parable. Who says it can go in all directions? Maybe only forward is allowed. I received the rules, the thirteen principles—only forward is allowed, one and diagonally. Now who said backward too, sideways too, with the same move—who said? Reasoning says that apparently if a horse moves like that— I’m joking, I’m continuing your analogy, though there it really is part of the rules, because for example pawns only go forward. Fine. So I derive it by reasoning. That’s fine—can you use that reasoning even without authorization? I’m asking, yes or no? I’m saying that if the reasoning is within the rules, yes. If the reasoning is within the rules, then it’s not reasoning—it’s part of the rules. I’m now talking about reasoning that comes from me. I interpret the rules or the game, the Jewish law, according to what seems logical to me. Now, I don’t know—would I not do that if I hadn’t received permission from the Torah? Would I interpret it in an illogical way? Are you afraid you’re mistaken? Afraid I’m mistaken—and then what? I would still have to go in the more logical direction, what can I do? And if you didn’t have authorization you wouldn’t do it? And then what? Then not to rule is even worse. It is very illogical not to rule. So what would I do then? Take the illogical step and not rule? I also pushed hard earlier, but “whoever is stronger prevails” is also a ruling—just now I said that sentence. I shouldn’t have said the sentence “whoever is stronger prevails”; let them throw punches and I’ll keep quiet. That’s what was said—what do you mean? No, they ruled “whoever is stronger prevails,” they uttered that sentence. No. “Whoever is stronger prevails” would happen even if there were no court and the two of them were alone in the forest—it would happen. The fact that the sentence “whoever is stronger prevails” was written down—that’s the ruling. No, you’re mistaken. “Whoever is stronger prevails” isn’t written in the slip that says “court ruling.” “Whoever is stronger prevails” is written in the Talmud. The Talmud is instructions to judges. So then it is a ruling—wait, no. The instructions to judges say that if a case comes before you where there is no possessor and no evidence—the boat, yes, some raft at sea, okay, where no one is in possession, there’s nothing—“whoever is stronger prevails”: that’s what they tell the judges, this is what you do. What will the judges write in the ruling? Nothing. They’ll go home. They won’t convene; they won’t write a ruling. You’re assuming that the judges write a ruling and it says there “whoever is stronger prevails.” That is the view that indeed “whoever is stronger prevails” is a ruling. But if you say that “whoever is stronger prevails” is not a ruling, then the judges write no ruling. “Whoever is stronger prevails” is the Talmud. There is no ruling issued there. The Talmud says: don’t sit, “whoever is stronger prevails.” The Talmud speaks to the judges, not to the litigants. The judges determine for the litigants what they do. The Talmud instructs the judges. But isn’t it nicer to think that from Sinai we were commanded to work with logic? It seems very nice to me. Very nice—the question is whether it’s true. I don’t know if “nice” is a criterion for truth, I don’t know. Not commanded—we were permitted to work with logic. No, I assume it’s even a commandment. Every a fortiori argument you make, suddenly they ask you: ah-ah, didn’t you think? It’s exactly the opposite. By the way, with a fortiori indeed, that’s why some hold one cannot derive punishments from reasoning, because maybe there’s a mistake. Yes. So because of that—but still, to extract something from someone by a fortiori we do. We don’t punish, but between two people, to rule legal matters—whether one gets the million dollars or doesn’t get the million dollars—that yes. I don’t know what it means to extract by a fortiori; I don’t even know an example of that. A fortiori is an interpretive tool. We don’t rule that way? By a fortiori we derive. Ah yes, in interpreting the ruling. Whether he’ll keep his money or not, he can lose the whole house. He won’t get punished, he’ll lose the house. Exactly. So okay—losing the house, maybe you’re mistaken, so they tell you: no, the Torah tells you to use your logic. If you’re mistaken, that’s on Me. But I’m saying—let’s take that example. Let’s say the Torah didn’t say it, okay? Let’s say it didn’t say it. What would I do? I wouldn’t rule. But that’s an even greater injustice. Because I know the plaintiff is right, I know it from a fortiori, from reasoning. So I say okay, then leave the money there—but leaving the money with him also requires authorization from the Torah. Because leaving the money with him is an even greater injustice. So I’d prefer to do the smaller injustice. But you didn’t do it. What difference does that make? But I’m the judge, I’m responsible for order here. What difference does it make? Passive inaction—I did an injustice. One person succeeded in tricking the other, so what? Of course it isn’t just, so what? No. But you—I as judge am responsible for order. And if I now leave the object in the robber’s hands and I know that he—or I don’t know, but very likely he—is the robber, more likely than the plaintiff, then what do you mean? For that I need authorization from the Torah. The robber has authorization? What authorization? To leave the object with him even though he’s a robber? To leave the object with him even though he is—no, to leave the object with him even though he’s a robber, do I have authorization? You don’t. Exactly. But you’re saying that if I didn’t have authorization to take it from him, I would leave it with him. Why in the world? You need authorization to leave it with him, not authorization to take it. From the robber there is authorization in the Torah to take it from him. But I’m saying if there were no authorization to use that a fortiori you mentioned earlier, by whose force I extract money from someone, okay? There was no authorization. Then what would I do? You say I would leave the money with him, I wouldn’t extract it. But there’s no fact that he’s a robber, that’s what we were discussing. We’re discussing smaller things. We don’t know whose raft it is. So now you gave an example where by a fortiori I prove—say three witnesses come, okay? And say you owe Ezra money, okay? Now I say, I make an a fortiori argument. The Torah says that with two witnesses we extract money; all the more so with three witnesses we surely extract money. A fortiori, okay? Now suppose a fortiori is reasoning—let’s set aside for the moment that it is one of the thirteen principles. Now let’s assume the Torah had not said to use reasoning. There is no authorization to use reasoning. No authorization was received. Not that it says not to use it—if it says not to use it, no problem. But suppose it says nothing, says nothing at all, I don’t know. Nothing written, nothing oral, nothing. What would I do? Would I not extract the money on the basis of three witnesses? Leaving the money there when there are three witnesses against him—for that I need authorization from the Torah, not in order to extract it. Obviously I would extract it. Not like from two, never mind. I would extract the money. What do you mean? I would extract the money by means of that a fortiori. Obviously. I don’t need authorization from the Torah for that. On the contrary—it’s like what we once discussed, I think, regarding reasons for commandments. Then why did he even force it in? What? He didn’t just say it for nothing. I don’t know. Or maybe he didn’t say it at all. I’m not sure; I don’t know. But it doesn’t sound that way. I don’t know. Fine. I think that in truth for this matter no permission is needed, and no permission was given. I’m not familiar with any law given to Moses at Sinai saying “please use reasoning.” I don’t know, I know of no such law given to Moses at Sinai. One second, I’ll just bring an example. It seems to me that when we discussed changes in Jewish law, I said that there is a not-at-all bad reasoning, in my opinion, for validating women as witnesses today. Today things have changed, and I think one can change it. So they tell me: look, who says the reason the Sages disqualified women as witnesses was because of lack of education, say, or lack of involvement? They didn’t allow them to judge? What are you talking about? There is only one Tosafot in one place that talks about Deborah; there’s only that one Tosafot. She can be a judge but not a witness? No, there is one Tosafot and even there there are two answers, and that’s only one of them. And if everyone accepted her, then certainly there, “they accepted her upon themselves” is something else. “They accepted her upon themselves”—you can even accept a cowherd as a judge. And if both sides accepted, can’t they accept the testimony of a woman? Of course they can, with acceptance upon themselves. I’m talking only about judging. Not true, not true, unequivocally not true; the Shulchan Arukh is explicit, not true. If they accepted upon themselves testimony, judges—whatever you want you can accept, even cats. Yes, a cowherd, cats, women—I’m sorry, I’m not comparing; whoever you want you can accept. If they accepted upon themselves, you can waive your money however you want. This is Shulchan Arukh, agreed by all, no dispute. Talmud, Shulchan Arukh, everything. I’m talking without acceptance upon themselves, in principle. So then they bring Deborah, Tosafot, there are dozens of Tosafot in all kinds of places. In most places Tosafot brings the answer that this was a temporary decree or something like that. Women are disqualified from judging, because the Mishnah says: anyone fit to judge is fit to testify, anyone unfit to judge is unfit to testify. There is one Tosafot in one place, and even there I think there are two conflicting answers, where he indeed says it may be that for judging she is fit even though for testifying she is disqualified, because there is a rule in the Mishnah that anyone fit to judge is fit to testify, so the Talmud itself makes that comparison. But I’m saying, suppose I now have some reasoning that says women should be validated as witnesses. Then they tell me, look, that reasoning is based on your assessment of why the Sages disqualified women from testifying then, and since today women are not like that, therefore one can validate them. Who says your reasoning is correct? Maybe they disqualified them for other reasons. Now suppose I come—what did they disqualify? No, they didn’t write it; it’s a derivation: “and the two men shall stand”—that’s a derivation in tractate Shevuot—“the two men shall stand,” men and not women. But after all there is an explicit derivation everywhere that whenever it says men, both men and women are implied. It’s concerning the litigants there, there are many problems there; it’s a very questionable derivation. But that’s what the Talmud says. The Talmud made that derivation. Now the question is what reasoning lies behind it, because behind every derivation there is reasoning. In another moment we’ll also see that in his continuation. Fine? So I’m saying, that reasoning may have changed—the women of today are different. So they always tell me in that context, when I speak about it: who says? Maybe that’s not the reason they interpreted it that way. You know what? Suppose not. Fine? I don’t know why the Sages disqualified women. Now I have two interpretive possibilities regarding why they disqualified them then. No, I’m speaking about then. Let’s try to analyze why they disqualified them then. So I don’t know why they disqualified them then. So I have two interpretive possibilities: either my reasoning—that women simply were not knowledgeable, not educated, etc., and therefore they disqualified them, and we know that this was the reality then. Another possibility is that there was some other reasoning that we don’t know, and therefore one must not change it. Two possibilities. Now, which of the two is more reasonable? I don’t know; I have no proof of anything. Still, the first is more reasonable. Why, if I have a reasoning that I understand, should I assume it’s wrong because perhaps there is some other reasoning that none of us knows? Why assume that? Now I’m saying more than that—even suppose it were equal. What do you do in a situation where the two possibilities are equal? You also have no proof, right? No one has any proof. What do we do in such a situation? I say: let’s examine the costs. People think only changing Jewish law has a price, whereas preserving Jewish law has no price. But that’s a basic consideration. Certainly. Absolutely a consideration in legal ruling. Why is cost a consideration for truth? Since once you have two equal possibilities, once you have two equal possibilities you need to decide between them. What does it mean that in a pressured situation you may be lenient, “Rabbi Shimon is worthy to be relied upon”? It’s not connected to truth; it may be that I’m mistaken, but policy decided. Obviously. But I’m saying where the two possibilities are equal, you don’t have the truth, what can you do? You need to make a decision. You don’t know what the truth is. If I knew what the truth was, certainly it wouldn’t be a consideration. But if I have two interpretive possibilities and I don’t know what to do, I say: let’s see, so what is the passive non-action here? The passive non-action is the minimal cost. So I say: let’s examine the costs. One second. If there are two women who saw a murder—yes, Agatha Christie, a murder in the ritual bath. Fine? Two women saw it in the women’s ritual bath, saw a murder, okay? This is Terumat HaDeshen’s Agatha Christie, and Noda B’Yehuda, that regarding a murder in the ritual bath women are fit by Torah law to testify, because there it cannot be that there are male witnesses. But suppose just generally, not in the ritual bath, somewhere else, and only two women were there, okay? And they saw the murder. The price of not accepting their testimony is a heavy one. You release a murderer, and if he is dangerous he will murder more people. If the issue is danger, then you can punish him extra-legally. No, fine, but I’m saying: why punish him extra-legally if I have reason to punish him legally? No, but then the argument of cost falls away, because the cost I can address by… Fine, but I’m saying if I had a clear Jewish law and there is a cost, then here I use a rule—the rule that the court may punish not according to the formal law. But here you too have no proof that the Jewish law is to preserve the status quo of women. I don’t know what the correct answer is. Suppose I don’t know. I have no proof in either direction. Still I say it is not at all absurd to say: well, if there is no proof in either direction, then I validate women. Well, you can… I’m saying again, many times the two possibilities—I’m saying once I’m in a vacuum, then even if there is one possibility that is more reasonable, I don’t know if it is correct, but it is more reasonable, I would use it even without permission from Sinai. That is why I brought this example. Meaning, I have something that requires interpretation, and there are two ways to interpret it. Fine? Or rather, there is a possibility to interpret and a possibility to do nothing—not two ways to interpret. The question is whether I need permission from the Torah to interpret. So I’m saying: suppose there had not been permission from the Torah. Then I have two possibilities, one reasonable and one not. Why wouldn’t I choose the reasonable one even without permission from the Torah? That is why I brought this example. I just want to comment on something. This example is a bit artificial, because there is a determination that women are disqualified as witnesses. Okay. Now you come and say: I assume that this prohibition is the outgrowth of a cultural condition that existed in that period. And against that you set the possibility that maybe it is unrelated. But who said… this very framing is baseless. There is a determination without a reason. No determination ever comes with a reason. So once… then your assumption about what brought the determination doesn’t create a basis of fifty percent versus another claim. There is a foundational determination that women are disqualified as witnesses. But maybe that determination is only the result of some reasoning? But you need a basis to say “maybe.” Why? Every determination… No, “maybe” needs no basis at all. If the Sages derived a derivation, as we’ll see here later in Rabbi Nadel himself, it says “You shall fear the Lord your God,” and the Sages derived this to include Torah scholars. Fine? From the word “et” they included, there is such a rule that “et” includes. Why didn’t they include chairs? “You shall fear the Lord your God”—to include chairs. Obviously they had a reasoning that if you’re already including something, it makes more sense to include Torah scholars than chairs or clouds or whatever else you like. Right? Meaning, there is never a derivation in the world that doesn’t have reasoning behind it. That’s a common mistake. There’s no such thing. But once there is a determination, the very fact that you find some opposite logic does not create… I don’t find that logic. It does not create equal force. You are creating an artificial equality of force here. Once you put forward the logic that maybe they did it because of women’s cultural inferiority at that time, then you’re basically saying this is already fifty percent, and the other fifty percent is that maybe it’s unrelated. No, I’m not saying fifty-fifty. Then why not? Because there is a determination, and the determination exists without a reason. No, but I don’t know the reason. I don’t know, so let’s now reckon. So what is the reason? And the fact that you suggest a reason doesn’t make it equal to the determination. On the contrary, in my view it is not equal—it is stronger. I don’t rule out the possibility of coming and saying that for social reasons or all sorts of things one decides to abolish that enactment. But to say that the Sages’ determination was an outgrowth of the cultural reality of that period—that is your assumption and it cannot stand against the determination. Why not? It’s not one against one. Why? Because there are lots of things, say the thirty-nine categories of labor… Exactly, there too I’d say the same thing. Right, but you’re not an interpreter there. Why am I not an interpreter? Of course I am, why not? What do you mean? You won’t be the interpreter. Certainly—what do you mean? This is legal reasoning… What do you mean “you won’t interpret”? Because the court… Who said that? The Sanhedrin. I am the Sanhedrin now, leave aside the question of authority. I’m the Sanhedrin now. I’m not entering technical questions at the moment, fine? What’s the problem? I don’t understand. If it’s a law given to Moses at Sinai, there’s no problem. If you say this is a law given to Moses at Sinai, all is fine. But if it is the result of an inference the Sages made, and here we’re not dealing with an enactment but a Torah law, then if it is an inference the Sages made and that inference is based on a certain assumption that today is not true, then I’ll make a different inference. What’s the problem? And in such a case you don’t even need a greater court in number and wisdom than the previous one. You don’t need that in such a case… No, that’s for enactments. For an enactment, right. For enactments you need it; for Torah law you don’t. Yes, correct. And if you reach the conclusion that the Sages in that period determined that women are disqualified as witnesses not because women were on a lower cultural level in that period but because in their opinion women are intrinsically inferior, and today we do not think women are intrinsically inferior—is that on the same level? No. No. So there is… I would be willing to make that argument too, but I agree that that argument is different from the previous one. About that there is more room to argue. Why? Because here I’m claiming not that reality changed but that the Sages were mistaken. Those are two different things. Meaning, there is a claim for change by virtue of change in reality. What am I basically saying? If the Sages were alive today, they too would change the reality. That is the first argument we discussed. What you just said is a second type of argument. By the way, I’m willing to make that claim too. But it’s a second-type argument. Even today there are people who think that way? What? That women are not capable of being judges. Fine, they think so, they are mistaken. What can I do? Again, there’s no already… No, I’m saying… No, Ezra, you need a tour of Bnei Brak. You need a tour of Bnei Brak. There are many people who think that way. Of course there are. No, I’m saying, the fact that some people think that way—so what? I’m speaking about my position. I also agree that perhaps I’m mistaken. I’m not claiming I’m certainly right—this is my position. Now what am I supposed to do with that? If I were the one who had to decide, what’s the problem? I would make use of my position. If someone thinks otherwise, we’ll vote, we’ll try to persuade one another. I’m not claiming I’m definitely right. That’s a different discussion. But it’s not by force of the system. Why not? Why not? I want to say a word: that their derivation from the verse is not correct; I think one should derive it differently. But that’s already not learning from within the system. Why? It’s part of the system. Tosafot, by the way, does this in dozens and hundreds of places, considerations like this. Dozens and hundreds of places. All the time. It was that way in their day because it was such-and-such, but in our day it is different. You do study Talmud, no? Fine, so the reality changed. Exactly. So here too the reality changed. Women are different; they are not what they once were. Okay. No, you’re talking about the second consideration that Tzvi… That’s something else. When I say the Sages were mistaken, that’s a different discussion; I said that, it’s more delicate. Let’s leave it. I’m speaking about the first possibility: the reality changed. Yes. Casual speech, so I say that’s a great thing. Casual speech is a great thing. It makes sense. It’s a tape recorder, or I don’t know what. No logic, no intellect, casual speech. But with a woman suddenly we say the reasoning is that she isn’t clever. And if a woman speaks casually… What is casual speech? What do you want from casual speech? What, accepting a gentile who speaks casually—that’s reasoning, what do you mean? We accept it, we accept the testimony. Certainly. Right. Why? Because there is reasoning to accept it. And with a woman whose eyes are only a camera, she told her husband what she saw in the ritual bath and her friend also told her husband what she saw. You say there is reasoning to accept the testimony. Certainly. Certainly. Why with casual speech do I not look for the speaker to be intelligent and educated, whereas with a woman I do? On the contrary, I’m saying… But here you’re already assuming another assumption, one that does not stand the test of the facts—at least the Talmudic facts. The assumption is that if I know it fits factual truth, that is good evidence. But according to that I should also accept relatives. Since two relatives who come to testify, or a relative of the litigant who comes to testify—the Talmud and afterward Maimonides and the Tur and the Shulchan Arukh say that the Torah’s disqualification of relatives’ testimony is a scriptural decree. Not because they are liars, not because they don’t tell the truth. Moses and Aaron are the famous example, right? So that means that even though what they say is true, I do not accept it. Meaning, the fact that I estimate what he says corresponds to reality does not by itself yet mean I should accept it. Two different things. With relatives, for example, since I don’t have an argument of the type: look, relatives today don’t look like relatives back then, therefore one should change it—and I also know why they disqualified relatives there, so one should change it—therefore with relatives, for example, I do not raise the possibility of changing. Because with relatives I have no parallel consideration. But with women I do have such a consideration. I didn’t understand, but what is the consideration? If the consideration is that… I understand how the reasoning could be that they are not clever and therefore it’s unreliable, but if it isn’t connected to reliability, then what is the consideration? What difference does it make if… For example, because they wanted “all glorious is the king’s daughter within,” and therefore wanted to keep them in the home. But today they are already not in the home anyway. But that’s a… That’s an entirely different argument. No, I can just bring a hundred thousand arguments. We didn’t say we’re learning this topic right now; I’m only bringing an example of the logic. So I’m saying, today women are in the public sphere anyway, so what is the point of preserving “all glorious is the king’s daughter within” in just one place? It’s not serious. She is already not inside. It won’t help at all. Now it’s the same as the arguments—mixed weddings and all kinds of things—where people say, listen, today it’s irrelevant, life is mixed. So maybe once it was relevant, fine. Today life is mixed, so only at weddings do you have to sit separately? They live together anyway. No, but if we assume that’s not okay… Irrelevant. Obviously, but I’m saying it’s not that women then were unintelligent and today they studied, so now it’s okay. I’m saying it on two levels. First, maybe it’s okay—I also think it is—but beyond that, even if it weren’t okay, the fact that we already live together is a fact. So if at weddings we sit separately, it won’t help anything; life is still together. So it doesn’t even help if it isn’t okay. It’s just irrelevant. You leave one point where they sit separately once a year when you’re at a wedding—there sit separately. The rest of life you live together. It reaches everywhere. Fine, exactly, I’m aware of all that, suppose. Fine. I’m saying on the conceptual level one has to distinguish here between… well, this is already a discussion about changes in Jewish law; I won’t get into it now, we discussed it in the past. I only want to come back to our topic. The reason I brought this example was to show that where I have no instruction from the Torah, I don’t have one, I have two interpretive possibilities. I’m saying I don’t know if my logic points in favor of interpretation A, which is better than interpretation B. I’m not sure; maybe I’m mistaken. But on the other hand, there’s a greater chance I’m mistaken if I choose B, because A is more logical. And if I choose B there’s no chance I’m mistaken? If I don’t know, that means that whichever option I choose I might be mistaken, right? Even the conservative option—I might be mistaken if I choose it. Okay? So in both cases I may be mistaken. So now what’s the question? Where is my chance of being mistaken smaller? Then I choose the better option. What’s the problem? Do I need authorization from the Torah for that? The same in our contexts. I have an interpretation that seems reasonable to me. There’s a possibility I’m not right; there’s always such a possibility, obviously, we’re all human beings. Okay? But on the other hand, if I do nothing, that too can be a kind of mistake. Not only that—if the interpretation is reasonable, then doing nothing makes it more likely that it’s a mistake. So why on earth do that? There is no logic in it at all. So if really only change has a price, and freezing in place had no price—if we could just freeze in place—then okay, and we’re not lenient. Then I’m prepared to accept, you know what, for the sake of preserving the system let’s stay with conservatism as long as it isn’t clear that one needs or can change, because there is some value in preserving the system. But where preservation involves severe costs, the problem is bigger. So to say simply “conservatism, because passive non-action is preferable” is very problematic, because “passive non-action is preferable” is something where one must also take into account the costs of passive non-action. “Passive non-action is preferable” is usually some sort of safeguard—you see, it’s a minimal cost; since I didn’t do anything, I won’t have committed a transgression or something like that. It’s some kind of minimal-cost position, “passive non-action is preferable.” I’m saying: take into account that there are other costs here too. And now make your calculation. And one can arrive at different conclusions—again, without getting into this issue because it is a charged issue and should be discussed separately. I’m bringing it only as an example. Therefore, if I return to our topic, I say: I’m not sure a tradition from Sinai is needed in order to use logic. It doesn’t sound right to me, but fine. Okay, after all this is majority decision. What? Fine, majority decision. The idea is not that everyone agrees at all. Correct, so majority decision. There, the Sanhedrin—that authority was given to them. And if authority had not been given, then we would go after the minority. And that doesn’t need authority. To go after the minority is fine; to go after the majority requires authority. Right, but we don’t worry—we follow the minority. We follow the minority? We do not take minority concern into account. In the Torah it says “incline after the many”—why? Because if we took minority concern into account, and in doubt we followed the majority, “incline after the many,” do not take the minority into account, then you would never execute anyone. That too is Torah. Of course you would be concerned about the minority, and then it turns out you increase bloodshedders in Israel. That is the Talmud at the end of the first chapter of Makkot, where Rabbi Akiva and Rabbi Tarfon say: if we had been in the Sanhedrin, no one would ever have been executed. Why? Because when a murderer came, we would ask the witnesses: did you see that there was no perforation at the place of the sword? Where the sword entered, perhaps there had already been a perforation there and he was mortally defective? Then Rabban Gamliel says to them: you too would increase bloodshedders in Israel. Here is an example: even to passive non-action there are costs. Meaning, it’s not… you can be righteous and not execute any murderer, but there will be a heavy cost—the murderer will continue to roam around and do all kinds of things. So the consideration is more complex. In short, I think there are costs on both sides, and where there are costs on both sides and both interpretive possibilities exist, I would choose the more reasonable possibility even without being given permission. Yes. I didn’t understand why women who didn’t have education couldn’t testify. For example, because perhaps they don’t understand the situations they encounter, because they don’t live in the street. But they also have logic. Exactly—and indeed the Torah speaks in terms of the majority, and in general that wasn’t the situation. But sometimes this is what is called an incompetent person. There is a disqualification of an incompetent person. An incompetent person is someone who is a man but doesn’t understand, doesn’t understand what is happening before him. That’s a case… I’m speaking in generalization; it’s always generalizations. As a generalization—right, right. I’m speaking about the generalization. Obviously there are always exceptions. But as a generalization, because a woman sits at home all the time, therefore they disqualified her. Because Jewish law always speaks about… Jewish law speaks in rigid rules. You can’t say: check every time whether the person before you is reliable or not reliable. So they establish: men yes, women no. If you have some special case, fine, then the local judge will do what he thinks right. Obviously… I think that… say bring a person to see an event happening in the market—if he never bought anything in his life and doesn’t know what’s going on, there is a reasonable chance he doesn’t understand what he is seeing. Meaning, like the famous story about the Black man from Africa—an African-American from America, you’re not allowed to say Black man—whom they bring by helicopter and land on the roof of a hospital, and he sees there several people standing over a corpse and sawing him with knives like lunatics. He says, where have I arrived, this is Sodom and Gomorrah. Meaning, he doesn’t understand that it’s a hospital, that a person was ill and these people are saving him. Understand? If you don’t understand the context, you don’t understand what’s going on there, your testimony is problematic testimony. So I’m saying again: obviously there were exceptions. There were men one can’t trust and women one can trust. But if one had to establish some generalization, then the generalization was this: men are trusted, women are not. And if the local court sees there are problems, it handles the specific problems. Women are not trusted and men are. Could the reason be different? It could be like positive time-bound commandments. Yes, fine—I’m only saying this is one suggestion. Obviously I’m just offering a suggestion. So this is one possible suggestion, okay? Now, do I need permission from Sinai in order to use my logic? If two possibilities exist, then I take the more reasonable one. What do you mean? It sounds very logical to me. Why would I need permission from Sinai? If there had been no permission from Sinai, you’d need permission from Sinai in order to use the less reasonable option. For that you need permission from Sinai, not for the more reasonable option. Fine, let’s continue reading. It seems to me that women are more upright than… Fine, so maybe today—tell you what—we’ll make an even more radical reform. Today we’ll disqualify men from testifying; only women will be fit as witnesses. Not today—I’m talking about that period. No, I’m speaking about today. Since we’re already making changes—the Sages already said what they said there. We’re talking about what to do today. There can be disagreement, not because of the reasoning. Yes, fine, I’m saying this is a debate one can debate. I’m only bringing it as an example of the principle. It’s easier to refute the derivation of why a woman cannot testify. Yes, but that I can easily refute, that’s no problem. So the Talmud? So the derivation? That derivation is very problematic. Fine, but I don’t just refute Talmudic derivations. So I’m saying: if I can explain why they did it, then I understand that there was reasoning behind it, like “You shall fear the Lord your God.” And then I say: if today I understand the reasoning is different, then that derivation no longer yields that result, but a different halakhic outcome. I’m not just dismantling Talmudic derivations; the Sages have authority, at least on the formal level they have authority. Fine? On such a foundational reasoning one can develop a whole system of questions, such as less extreme examples of “the burden of proof is on the one who seeks to extract from another”—whether there too one says “the burden of proof is on the one who seeks to extract from another.” He says such reasoning is first of all accepted, and not only accepted—it undergoes interpretations and mounds upon mounds of interpretations, such as in cases where it is less reasonable to say “the burden of proof is on the one who seeks to extract from another,” and entire works are written about it. He says, and there can be disputes about it. There is the dispute between Sumchus and the Rabbis, whether money of uncertain ownership is divided or whether “the burden of proof is on the one who seeks to extract from another.” And the dispute among the Amoraim about certainty versus uncertainty. Also there there is an opinion that says certainty against uncertainty can extract from a possessor, meaning it does extract, and others say no; in practice, no. Entire books were written on this topic, parenthetically such as the book Takפו Kohen by the Shakh, and all about the scope of the reasoning “the burden of proof is on the one who seeks to extract from another.” Meaning, his basic claim is that what is called reasoning in the Talmudic context is not a reasoning such that one cannot say otherwise, but rather a reasoning regarding which there can certainly also be disputes and reservations. And still, even regarding reasoning of that sort, the Sages say, why do I need a verse? It’s reasoning. Meaning, the assumption is that such reasoning too is a sufficient source for founding Jewish law; no verse is needed. But that’s by definition. Once you say it’s reasoning, that’s what’s reasonable to assume. Right. And if that’s what’s reasonable to assume, it isn’t necessary—there is something else one could also say. Right. That’s what he says, exactly. But why do you need to… Because that’s the better reasoning, or the primary one. No, if I had asked you at the beginning of the class what you think… what do you think the Talmud means when it says “why do I need a verse? It’s reasoning,” you would have said: yes, reasoning where one can say this and one can say that—also there the verse is considered superfluous. A big novelty. Fine, I agree. I think in the end it is logical, but it needs to be said; there is a point to saying it. A prophet’s prophecy—isn’t a prophet’s prophecy a kind of testimony from the Holy One, blessed be He? So? A prophet’s prophecy. Listen, if not, then after some amount of time I saw this would happen and it happens and happens. So? Right. Then there are women who are prophets, and that’s not testimony? That is testimony. If the Holy One, blessed be He, puts it in their heads, then He chose them and decided that apparently they are reliable. They decided that the Holy One, blessed be He… If they decided, then they’re not prophets. If the Holy One, blessed be He, gives them information, then they are prophets, and if not, then not. You can ask why we believe a prophet that she is a prophet, because after all we didn’t hear that the Holy One, blessed be He, spoke to her. That doesn’t depend on us. A prophet can be one and give testimony she cannot? Yes. And in casual speech, the bigger an idiot he is, the higher his reliability? Shmuel, you’re going back to the question of the exception. You’re going back to the exception question I raised earlier. It may be that those prophetesses should also have been validated as witnesses. So that’s the question of the exception that I asked earlier. So I say fine, but as a generalization, as a generalization, the Talmudic rule is that women are less reliable than men. Let’s say, according to my suggestion. There are always exceptions, and still Jewish law, as Maimonides says, speaks in terms of the majority. Meaning, Jewish law speaks about the general principle, and yes, the world is complicated. Meaning, sometimes these generalizations don’t work. Fine—and still, we work with generalizations, there’s no choice. The Talmud in Bava Kamma initially wanted to derive the rule “the burden of proof is on the one who seeks to extract from another” from a verse, and to that it objected: why do I need a verse? It is reasoning. So a thing that can be known by reasoning is not sought in Scripture. In Scripture we find the laws that we would not know on our own. So that is the end of his first section. Now he begins the second section. Maybe before I move to the second section, this question—whether reasoning is a sufficient source to found a new law—is not entirely simple. Not entirely simple. There is the Talmud in Berakhot 35. The Talmud there discusses: from where do we know the blessing before Grace after Meals? Right, and blessing over Torah afterward, and blessing over food beforehand—there are discussions there of where they derive it from. In the end the Talmud concludes: rather, it is reasoning—one may not derive benefit from this world without a blessing, and anyone who derives benefit from this world without a blessing is as though he committed sacrilege. Fine? So that is reasoning. So Pnei Yehoshua asks there: if it is reasoning, then it is like Torah law, because reasoning—after all, “why do I need a verse? It’s reasoning,” so reasoning has the status of Torah law. So in a case of doubtful blessings one should have been stringent. Why do we say that in cases of doubtful blessings we are lenient? After all, blessings are generally accepted as rabbinic law, and therefore their doubts are treated leniently. Pnei Yehoshua says: since the blessing beforehand, the blessing over deriving benefit beforehand, comes from reasoning, and reasoning is Torah law, then in cases of doubt one should be stringent and not lenient. You said that the blessings should have been Torah law. Hm? You said that the blessings should have been Torah law. Meaning, because it is Torah-level reasoning. So then why in doubt are we lenient? But the reasoning is rabbinic. Meaning, the reasoning comes from logic. You’re saying that reasoning has the status of Torah law. Yes. So if in Torah law there’s an explicit verse, then with Torah law I’m stringent, so I should make the blessing. Now who brought this Torah law? It’s the reasoning of the Sages. No, no—the verse yields Torah law. When the Sages interpret the verse, that Torah law too was brought by the Sages. And still its doubt is treated stringently. It says “and they shall be for frontlets between your eyes,” fine? The Sages say this means tefillin and tell you all the details of tefillin. In a doubt about tefillin are we stringent or lenient? Stringent. Right—why? After all, it comes from the Sages; the Sages taught us this law. True, it’s Torah law, but the Sages taught us this law. Fine, but in the end it is a Torah law. So reasoning is the same. The very fact that the Talmud asks “why do I need a verse? It’s reasoning,” already implies that reasoning is Torah law, apparently. And the answer is very simple: I need the verse so it will be Torah law. Yes. So now the question is: then why are doubtful blessings lenient? Well, but there is room to distinguish here, to say that here there is a difference between reasoning that interprets a commandment that is from the Torah and… Wait, you’ll see in a second. So that’s Pnei Yehoshua’s question, and his answer there—look, if for example I have a doubt about the reasoning, a doubt whether the reasoning is correct or not, there I can understand that one need not be stringent, because you don’t yet know at all—it’s Torah law only after you decide that the reasoning is correct. You are in doubt precisely about that. But the reasoning—a balanced doubt perhaps. Reasoning by definition contains doubt. No, but not a balanced doubt. A balanced doubt, I’m saying—a balanced doubt. If there is a balanced doubt exactly. There I say I can indeed understand that doubt should be treated leniently. But “doubtful blessings are lenient” is not a case where I have a doubt whether the reasoning is correct; the reasoning is certainly correct. One who derives benefit from this world without a blessing is as though he committed sacrilege. I only have a doubt whether I made the blessing or not. And what is a balanced doubt anyway? A balanced doubt in reasoning means there is no reasoning. Fine, that’s what I said earlier. I said: if the doubt were about the reasoning itself, then I understand that one needn’t go stringently, because there is no reasoning. But I’m talking about a different situation. The law emerged from clear reasoning; I have no doubt about the reasoning that one should bless before food. Now I am in doubt whether I blessed or not. So I’m in a doubtful blessing, right? Now here, apparently, one should be stringent because it is doubtful Torah law. So Pnei Yehoshua answers what he answers there—it’s a bit vague. I think he means to say that indeed doubtful blessings are stringent. Really doubtful blessings are stringent and not lenient. The wording of the blessing is rabbinic, but the obligation to bless as such is Torah law, like prayer according to Maimonides. According to Maimonides, prayer is worship; it is a positive commandment from the Torah. The formulations, when to pray, the times of prayer and the order of prayer and all that—the Sages established. But the very obligation to pray is Torah law. So what? It’s the same with blessings. The obligation to bless is Torah law, but the Name-and-Kingship formula, the structure of the blessing, is rabbinic law. So if you are in doubt, don’t say the full formula again, because it contains God’s Name, but say thank You very much, Holy One, blessed be He, for the apple You gave me. Doubtful blessings are stringent—true, the wording is rabbinic, so regarding that if you are in doubt, be lenient. I think that’s what Pnei Yehoshua means there, but I also have proofs for this; never mind, I think there are good proofs for it. But the Tzelach there—Tziyun LeNefesh Chayah, that’s Noda B’Yehuda, his commentary on the Talmud—he asks: what are you talking about? There’s no such thing. What is “reasoning is Torah law”? Obviously it’s rabbinic, and doubtful blessings are lenient, and there’s no such thing as reasoning creating Torah law. What, he doesn’t know these Talmudic passages? “Why do I need a verse? It’s reasoning.” Obviously he knows them, but he doesn’t explain; he says it’s self-evident. I assume the intention really is that there is some difference between reasoning that interprets a known law and reasoning that innovates a new law. With the blessing before food, the reasoning produces a law out of nothing, a new law. That, says the Tzelach, reasoning has no power to do, and in all the places where the Talmud says—wait, one second, I’m getting there—but in every place where the reasoning creates a new law, that cannot be Torah law; for a new law you need a verse. If you use reasoning to formulate, shape, interpret an existing law that has a verse, that has a source in a verse, then yes—that is Torah-level reasoning. That, I assume, is what the Tzelach means. Now indeed here one needs to examine the examples that appear in the Talmud—for example, “the burden of proof is on the one who seeks to extract from another,” “the mouth that forbade is the mouth that permitted,” mainly in those two it appears. There indeed there is room for some hesitation. Apparently “the burden of proof is on the one who seeks to extract from another” is a new law—what is it interpreting? On the other hand, it’s not exactly so. Judicial procedure exists in Jewish law. “The burden of proof is on the one who seeks to extract from another,” on whom lies the burden of proof and so on—this is a detail within the laws of judicial procedure or the laws of evidence. It’s an interesting question whether to classify it under judicial procedure or laws of evidence; probably both. But it’s a detail within a broader system that does appear in Jewish law. Therefore perhaps this is not difficult for the Tzelach. Meaning, this detail—that the burden of proof in judicial procedure lies on the one who seeks to extract—we derive from reasoning, but since it is already clear to us in advance that the Torah said there must be legal process, and there must be logic, and “judge your fellow justly,” and all sorts of things, meaning the context is set by verses. Now exactly how to shape it, exactly how to formulate it—that we do by force of reasoning. So here I say: therefore I’m not sure that this example is difficult for the Tzelach. And similarly “the mouth that forbade is the mouth that permitted”—that too is just a rule within the laws of evidence, that there is “the mouth that forbade is the mouth that permitted,” a kind of migo, a strong migo. So there again, it’s a rule, a detail within the laws of evidence, but the laws of evidence were not innovated by reasoning. It is clear in the Torah that one must conduct matters—now some of the laws of evidence are a result of reasoning. So that’s okay; it can still be Torah law. By the way, same idea for example with Maimonides at the beginning of the Laws of Marriage. The famous Maimonides who says that things derived by derivation have the status of rabbinic law. And indeed at the beginning of the Laws of Marriage Maimonides brings that a woman is acquired in three ways—three ways there, yes, by money, document, and intercourse. By document and intercourse from Torah law, and by money from rabbinic law—so he writes. In the next law, of course, he says that one who has relations with such a married woman is liable to death, and he didn’t say that only about document and intercourse but also about money. Meaning, apparently money is Torah law. So there are contradictions and discussions. Rabbi Shilat, who published the book, has some major dispute there with Rabbi Kapach—there are issues there about whether there was an error in the version or not, and there are many debates about it. But I think the simple plain reading in Maimonides is this: this thing comes from a derivation, but it is clear that betrothal of a woman is written in the Torah, “when a man takes a woman”—meaning it is written in the Torah, the section of betrothal appears in the Torah. So when I make a derivation that innovates a detail within a section that has a source in the Torah, even Maimonides agrees that it has the status of Torah law. Where the derivation creates a new law—“You shall fear the Lord your God,” to include Torah scholars—that is rabbinic law, because the law to fear Torah scholars is a new law. So there the doubt is treated leniently. Fine? But here, when I say there is a section of betrothal in the Torah, and the Torah says, let’s say, document and intercourse—even that it doesn’t exactly say, but never mind, let’s say it says it, okay? So that section appears in the Torah, and the Sages derive “taking-taking” from the field of Ephron—never mind, they derive from it that money also acquires, effectuates betrothal. So here the derivation only helped us understand what the Torah meant when it speaks of betrothal. Therefore the fact that it is a derivation doesn’t matter. The result is certainly a Torah-level result. When Maimonides speaks of rabbinic law, he means a derivation that creates a new law. When the derivation creates a new law, perhaps it is not Torah law but only rabbinic law. Same idea as with reasoning. “And you shall eat and be satisfied and bless”—what do we infer from that? Is “and bless” Torah law or is “and bless”… Wait, wait. No, it’s obvious that that’s afterward; even according to the Talmud’s conclusion, it’s afterward. They do not derive the blessing before from there. The before? The before, no. The Talmud first tries to derive it by a fortiori. If Torah, which has no blessing afterward, has a blessing beforehand, then food, which has a blessing afterward, all the more so has one beforehand. And the Talmud rejects that. In the end it remains with reasoning, meaning according to the Talmud’s conclusion in any event it does not come from “and bless,” and “and bless” is only Grace after Meals. Fine? Okay. And by Torah law I have fulfilled it even if I say to the Holy One, blessed be He, thank You for the apple. Correct. And I don’t need the rabbinic text. Correct, that’s only a rabbinic law. With the rabbinic law, you need the blessing formula. By reasoning you wouldn’t say to bless afterward; afterward you’d say not necessary, only beforehand would there be an obligation. Could be. Could be. In that respect… By the way there is Tosafot in Sukkah, since we’re talking about what you asked, Shmuel. There is Tosafot in Sukkah. The Talmud says there that the elders of the schools of Shammai and Hillel went to visit Rabbi Yochanan ben HaChoranit, and they disagreed whether one may sit in the sukkah when one’s table is in the house, when the table is outside the sukkah, and that is a rabbinic law. So they went there, and Rabbi Yochanan ben HaChoranit sat in the sukkah and his table was outside the sukkah. So they said to him: if this is how you behaved, you never fulfilled the commandment of sukkah in your life. Because one may not eat in the sukkah when his table is inside the house. So Tosafot asks: what do you mean, you never fulfilled sukkah in your life? This is only a rabbinic law. The sukkah is certainly valid. It’s a rabbinic law that if the table is in the house, one may not sit in the sukkah, or that the sukkah is rabbinically invalid, but the Torah commandment of sukkah he certainly fulfilled. So Tosafot says that if you don’t do it according to the Sages’ rules, then you haven’t fulfilled the Torah law either. You also did not fulfill the commandment of sukkah. If one understands that way, then also with blessings. In a place where you need to bless but don’t do it according to the Sages’ formula, maybe you haven’t fulfilled the Torah obligation either. But where you are in doubt, that’s not true—there, don’t say the formula, because it contains God’s Name, “doubtful blessings are lenient.” But the very obligation to bless—do bless, say thank You very much. Fine, therefore I think that there it is indeed correct. So regarding Shmuel’s question whether I fulfilled the Torah obligation, I don’t know. And the same with prayer. Also in prayer, where according to Maimonides one must pray by Torah law but the text and rules, the order and times and all that, are rabbinic—still the question is whether, if I did it not according to the Sages, did I fulfill the obligation? So there is a Talmud in Berakhot at the beginning of chapter four; the Talmud says there—I don’t remember exactly how it goes—it discusses compensatory prayers there, there is some mix in the Talmud. It discusses compensatory prayers, and then says: one who prayed after midday has the reward of prayer; he does not have the reward of prayer in its proper time. What does it mean “he has the reward of prayer; he does not have the reward of prayer in its proper time”? So plainly, according to Maimonides, plainly, he has the reward of prayer because he prayed. Prayer in its proper time is only part of the rabbinic determination of when one prays. So that he doesn’t have, because he didn’t fulfill the rabbinic rule, but the Torah-level obligation—he prayed, everything is fine. The question is what happens according to Nachmanides, who says there is no Torah law there. He could say there are two commandments: to pray and at the proper time. Yes, yes. For whoever… okay, enough. That’s it, I’ve finished with this.