Rav Gedaliah Nadel’s Thought – Reasoning in Halakha – Lecture 8

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

🔗 Link to the original lecture

🔗 Link to the transcript on Sofer.AI

[Rabbi Michael Abraham] But why what? This… once again, I’ll repeat: after we’ve seen this, is there no logic in it? What do you mean, why? What’s the problem?

[Speaker E] No, there is logic in it, fine, okay.

[Rabbi Michael Abraham] Exactly. So once you have a command, then you understand that it’s possible to punish you. If there’s no command or no warning, then maybe you can’t punish—it’s not clear enough, or whatever the problem is. There’s a simple logic to it. Logic in the same sense he said earlier. You can argue, fine, but it’s logical. That’s all, and that’s enough for me. So now, ah, this is… never mind, I just closed… I’m closing the parenthesis regarding… regarding the rule that one does not derive punishments from legal reasoning alone. I think that’s the correct explanation, and Maimonides writes it. It doesn’t appear there at all as an explanation in the Talmudic Encyclopedia. But for our purposes, this attitude…

[Speaker I] Maimonides writes all this explicitly? Huh? Maimonides writes all this explicitly, or is the Rabbi…

[Rabbi Michael Abraham] Almost explicitly. Almost explicitly, yes. In the introduction to the Book of Commandments, at the end of the fourteenth principle. So this perspective, which says that if there’s a verse then that’s a third explanation—that’s exactly the perspective he’s talking about, right? Because what lies behind this conception of the editor of the encyclopedia, the one who wrote this entry? He’s basically assuming that if there’s a verse, then it’s probably not one of the two explanations we brought earlier, because there’s a verse—it’s a scriptural decree.

[Speaker I] And are explanations necessarily mutually exclusive? Can’t you come with three parallel explanations?

[Rabbi Michael Abraham] But that’s not an explanation! It’s neither excluding nor not excluding—it’s not an explanation, it’s a source. Meaning, I’m saying, he didn’t bring three explanations; he brought two explanations and a source. I have no problem if you validate the two explanations, but don’t call it three explanations. I have two explanations and a source for where this law comes from. And after it’s written, I can have two explanations or three, it doesn’t matter right now however many you want. Fine. But this very attitude of his—now I’m returning to our topic, leave aside the parenthesis I added—this very attitude that says that if there’s a source, that means it’s a third explanation, what does it really assume? It assumes exactly what he’s arguing against here. It assumes that if a verse is written, then apparently there is no reasoning behind it. Therefore whoever brings a verse probably disagrees with those who think there’s reasoning here. But that’s not true. The verse is a source, and these are the reasons. And the fact that there’s a verse doesn’t mean there aren’t reasons. The verse tells me that one does not derive punishments from legal reasoning alone. Now I think—I ask myself, really, why? Why does the verse say that one does not derive punishments from legal reasoning? Probably because of one of these two reasons. What’s the problem? Why do I need to turn this into a dispute? Fine, so this is exactly an example of the point. Now, so he’s basically saying: there is reasoning behind verses; however, you need the verse because without it we wouldn’t have been able to know the reasoning. Even what the Talmud calls a scriptural decree is not something that has no reason. Here there’s another important point. There are places where the Torah—the Talmud, sorry—relates to things and says about them, this is a scriptural decree. Conspiring witnesses—it’s a novelty, and you can apply it only to its specific case—that is seemingly a scriptural decree. Or “a son and not a daughter” at the beginning of the chapter of the rebellious son, at the beginning of the chapter of the rebellious son, so the Talmud expounds “a son and not a daughter,” not to apply the law of the rebellious son to a rebellious daughter. And the Talmud says about this: it is a scriptural decree. Fine? So there are things where the Talmud itself says that it is a scriptural decree. So first of all, two things. One thing: you see from this itself that there are verses the Talmud does not treat as scriptural decrees. Meaning that generally, when there’s a verse, there is reasoning in it, right? Because otherwise, what defines those places that the Talmud treats as scriptural decrees as opposed to other places where things are learned from verses? Not everything written in a verse is defined by the Talmud as a scriptural decree. So the very fact that the Talmud defines certain verses as scriptural decrees means that usually it’s not automatic. Not everything written in a verse is a scriptural decree—that’s one point. Now he goes one more step, more radically. He says: even something defined as a scriptural decree also has reasoning behind it. Meaning that’s a bigger novelty. Usually people are accustomed to say—even someone who isn’t too much of a yeshiva type already understands that even when there’s a verse, there may be reasoning behind it—but in a place where the Talmud says this is a scriptural decree, that marks that behind this verse there is no reasoning.

[Speaker J] So if according to his approach there’s reasoning even there, what’s the difference?

[Rabbi Michael Abraham] I think that this—and I think the difference is a quantitative one. It’s only a question of how understandable it is, that’s all, or to what extent we can reach it without the verse or can’t reach it without the verse. But it’s not really a sharp division between two categories; rather there are things that are very far off, and then it’s called a scriptural decree, but that doesn’t mean that after you think about them you won’t find them—you won’t find the explanation, sorry. Maybe I’ll bring an example. There’s Meiri, in an article—well, I think it’s in my article—Meiri writes about the rebellious son. I brought this Talmudic passage earlier: in the Talmud it says, it expounds that the law of the rebellious son is not applied to a daughter, “a son and not a daughter.” Fine? Incidentally, that exposition itself is problematic. It’s problematic because everywhere “son” means son and daughter; the Torah equated women with men for all punishments in the Torah. Everywhere it says, “if men go out and strike a pregnant woman,” if women strike a pregnant woman, then what, no? The assumption is that the Torah speaks in a general way, and it’s obvious that this includes both men and women, except in places where it says explicitly that it does not. Or a place—and also a pregnant woman, right? So there are places, a few places. For example, women’s disqualification from testimony also says, “and the two men shall stand”—men and not women. Or “an Ammonite and not an Ammonite woman,” or here “a son and not a daughter.” There are places where the Sages suddenly decide to take that language and turn it into an exacting term. That is, to exclude the male or exclude the female when masculine language is used. Fine, so I’m leaving that for now; that’s a discussion in itself—when they do that and why and so on. But that’s how the Talmud expounds it. So he says—Maimonides says, in chapter 7 of the Laws of Rebels: “It is a scriptural decree that only a rebellious son is stoned, but the daughter is not judged by this law, because it is not a woman’s way to be drawn after eating and drinking as a man is, as it is said: ‘a rebellious son’ and not a daughter, and not a tumtum and not an androgynous person.” Fine? Yes, in the same sentence. He says—Maimonides says—it is a scriptural decree that it’s only a son and not a daughter. Why? Because it is not a woman’s way to be drawn after this the way a man is. So I don’t understand: you said this is a scriptural decree, and on the other hand you explain to me the logic behind it. So in what sense is this a scriptural decree? Now with Maimonides one could still say that Maimonides is dealing with the rationale of the verse. Right, that’s the rationale of the verse; we do not derive law from the rationale of the verse. “A son and not a daughter”—there are some reasons that don’t really concern us; in Jewish law we don’t work with that, but if you want I’ll also add it for you, just to give you some flavor. What I was really supposed to do in the Guide for the Perplexed, I gave you here in one sentence. It’s not something Maimonides necessarily takes as a binding statement, as a truly halakhic statement—maybe. But Meiri there in that passage also senses this issue and wants to say that the daughter is not judged by the law of the rebellious son at all, because the Torah was strict only concerning one whose way is to be drawn after his desires and become immersed in them, and this is not so with a daughter but with a son. So up to this point he brings Maimonides’ reasoning, right?

[Speaker E] And that sounds like a reason for the opposite side, because if someone already has that tendency—a daughter who reached that point is in a sense even more guilty.

[Rabbi Michael Abraham] She hasn’t reached that point. Sure, but she still hasn’t reached a point that would actually obligate her, because the rebellious son is judged on account of his end. And at the moment this act is still a relatively ordinary act. Exactly—so in her case she won’t deteriorate. So this applies only to a son and not to a daughter. Meanwhile this is like Maimonides’ reasoning, right? Now he continues: “For these matters, although they are scriptural decrees, all of them are drawn toward this point. And although at first glance some details may seem to indicate the opposite,” and so on. So he already senses the difficulty. Meaning, Maimonides just says calmly: this is a scriptural decree and this is the reason. Meiri already senses: but we said it’s a scriptural decree, so what are these explanations? So he says: even though these things are scriptural decrees, because at first examination it may seem to you from certain details that this isn’t true, know that this is nevertheless the rationale in the end. Why? So what’s better in Meiri than in Maimonides? In Maimonides it says scriptural decree and there is an explanation. That too basically means that behind a scriptural decree there is an explanation. You can say: fine, that’s a philosophical statement, not… many times explanatory philosophical remarks are brought—we do not derive law from the rationale of a verse—it’s not part of binding law,

[Speaker D] Okay?

[Rabbi Michael Abraham] But Meiri senses that there’s a difficulty here. Meaning, he’s not just casually—if that were really the case, then what’s the problem? Why is Meiri bothered by this? Fine, I said: it’s a non-binding philosophical statement. He’s bothered by it because he says that when I tell you “scriptural decree” and I tell you this rationale, this really is the rationale; it’s not just to give you some flavor, it really is the rationale. So why do you call it a scriptural decree? Meaning, Meiri is bothered by this contradiction. Meaning, he sees this rationale as a real rationale, not as something decorative. So now he asks: then why is it called a scriptural decree? What did you say?

[Speaker I] If it’s a real rationale, why does that necessarily mean there’s some halakhic practical consequence?

[Rabbi Michael Abraham] No, I didn’t say there’s a halakhic practical consequence. And I said that too—Meiri doesn’t bring a practical consequence here. The practical consequence is the exposition itself, “a son and not a daughter.” But the fact that this is the rationale of that exposition—I don’t know what to derive from that. But in Meiri, what we do see is that he senses some contradiction between the statements, between giving a rationale and saying “this is a scriptural decree.” In that sense it is more emphasized than in Maimonides. Maimonides says: this is a scriptural decree, and this is its rationale. So you can say: fine, Maimonides means to say—he gives reasons for lots of things, maybe even for the red heifer he could have given some reason, but it would still be clear to us that this is a scriptural decree. But Meiri doesn’t say that. Meiri says: it’s a scriptural decree, but this really is its rationale, and there’s a contradiction here. How can that be? So he says: know that at first examination it may seem to you from some details that it’s not true, but know that this really is the rationale. In other words, what’s written in this Meiri is exactly what Rabbi Daliah Nadel writes: that basically why do you need the verse or the exposition? Because at first examination you wouldn’t think so. After it is already written, or once it has been expounded, you look at it and say: okay, apparently this reasoning too is true, and behind this exposition there really is a rationale. Fine? So I think that’s exactly what Rabbi Daliah Nadel is saying. Okay, so that’s what he says: that even something called a scriptural decree has a rationale behind it, and then really the difference between something written in a verse and just something written in a verse, and something that the Sages call a scriptural decree, is only a quantitative difference, it’s only a difference… they expounded it.

[Speaker E] They expounded it: “a son and not a daughter.” Here they thought—they thought of the rationale Maimonides gave.

[Rabbi Michael Abraham] That’s a big question. We’ll talk about that when we discuss expositions.

[Speaker E] No, but here the text basically… in the end it was the Sages who said: this is what seems right to us.

[Rabbi Michael Abraham] So I’m saying—we’ll talk about that when we discuss expositions. A real problem arises here, because on the face of it—do you understand what he’s asking? A real problem arises, because when the Sages approached this verse, suppose that at the beginning of reading the verse we don’t understand the reason, right? That’s how they explained it. We don’t understand the reason. After the verse is written we think about it and understand the reason. But the verse doesn’t say that. It says “son.” The Sages come and expound: “a son and not a daughter.”

[Speaker E] So then they did understand.

[Rabbi Michael Abraham] Exactly. So already when they read the verse, they understood the rationale even before it was written in the verse.

[Speaker I] In the initial understanding because the term “son” is…

[Rabbi Michael Abraham] But the term “son” doesn’t mean “son and not daughter.” That’s exactly what I said before: everywhere masculine language means both.

[Speaker I] Right. It could be there’s a difference between the word “son” and just ordinary masculine wording. Because masculine grammar in itself is generic. But if they use a distinct word, “son,” then that implies that it’s…

[Rabbi Michael Abraham] And “son” in levirate marriage—what is it there? If he has a daughter then levirate marriage is required? What’s funny is that it’s the same thing. So, so, so what’s really the question? The Sages, when they approached the verse, made the exposition “a son and not a daughter.” Right? Why did they make that exposition? The verse says “son,” and “son” could also be interpreted as son and daughter, as usual. Why did the Sages make that exposition? Because they understood the reasoning that in the case of a daughter it doesn’t apply. So they did understand it even before the verse.

[Speaker C] Not reasoning—we keep going back as if this started with the Sages. Okay, that’s the answer, I think, that’s the point.

[Rabbi Michael Abraham] Right, I’m saying—that’s the difficulty. Okay, I think what has to be said is that there was probably some indication in the text that here “son” means specifically son.

[Speaker C] Why not that Moses…

[Rabbi Michael Abraham] Our teacher Moses told them, this is how it is? It’s not only reasoning operating here. Obviously the reasoning is involved, but it’s not only the reasoning, because otherwise the whole thing really never gets off the ground. You know, otherwise obviously the Sages…

[Speaker E] Started from the reasoning, and as reasoning it’s weak.

[Rabbi Michael Abraham] Fine, but I’m saying there’s some interplay here between the reasoning and some textual hint of one kind or another. And since that’s so, then yes, there’s something here that I needed the verse in order to understand. It’s not something I simply brought from home.

[Speaker E] And can one find a textual hint?

[Rabbi Michael Abraham] I don’t know.

[Speaker C] Why can’t you just go back to Moses and say he told them, this is how it is?

[Rabbi Michael Abraham] You mean it’s an asmakhta-style exposition, meaning it’s kind of…

[Speaker C] Not only asmakhta—just in general, that’s how it is. After all it started from that… it started from him, he taught them everything.

[Rabbi Michael Abraham] There’s no indication of that. If I were to say it’s a law given to Moses at Sinai, that has a specific expression.

[Speaker C] Not necessarily as a law given to Moses at Sinai, I’m saying it could be… what’s the difference?

[Speaker E] So what’s the difference?

[Speaker C] Basically it’s a law… I don’t know, maybe a law given to Moses at Sinai is something they received that way and didn’t know the reason. But maybe here he did explain it to them. He taught them everything—it started from someone. So yes, they stood before him, and he told them here “son” means son and not daughter.

[Rabbi Michael Abraham] Not everything started with Moses our teacher—what do you mean?

[Speaker C] No, not Scripture itself, but these major things, that “son and not…” and “son” in levirate marriage and so on.

[Rabbi Michael Abraham] Absolutely not. No, I’m not… again, it could be that it came from there, but I would have expected them to say: this is a law given to Moses at Sinai. They don’t say that. Maimonides writes—fine, we’ll discuss this, all of this we’ll discuss when we talk about expositions—Maimonides writes in a responsum that asmakhta-style expositions number maybe three or four. All the rest are law-creating expositions. Now three or four, it doesn’t matter, even if it were fifteen—but the number of asmakhta-style expositions is a very small number. Meaning most expositions are asmakhta-style expositions, they create new laws? Oh, creative exposition? Huh?

[Speaker E] Ones that also have a verse?

[Rabbi Michael Abraham] Ones that have an exposition, yes. Again, we’ll see all this in the next chapter, so I don’t want to jump ahead. In any case, for our purposes, what he’s basically saying is that the verse teaches me the reasoning that stands behind it; that’s why you need the verse. But the fact that there’s a verse doesn’t mean there’s no reasoning behind it. And that’s true even in places the Sages refer to as scriptural decrees. Even something that is a scriptural decree has an explanation behind it. Now, the fact that there is an explanation doesn’t mean we always find it, by the way. That can also be true. It may be that even after the verse is written we still don’t understand it, or don’t fully understand it, and maybe that’s what is called a scriptural decree. On the theoretical level there may be an explanation behind it, but not everything can we understand even after there is a verse. I’m even less optimistic than you were. Even after there is a verse I’m not sure I can understand everything that stands behind it, and therefore the fact that there is an explanation doesn’t mean the explanation is accessible. But I’m saying: even if it is accessible, if in order to make it accessible to me I need a verse, then that’s why the verse was written. Therefore it doesn’t mean there is no reasoning behind these things. Behold, the commandments called statutes are scriptural decrees—“I have decreed a decree, I have enacted a statute”—but should you say they are meaningless acts? Scripture teaches: “I am the Lord.” If you do not understand, exert yourself more, think more, even for a year or for many years—perhaps then you will understand. And even if you do not understand, as I said, we do not always get there—even if there is an explanation, do not suspect that they have no reason. Clearly they have a reason behind them. You did not reach it, or all of us did not reach it, but there is a reason behind it. And he quotes there from the Jerusalem Talmud: “And if the thing is empty, it is from you—why is it so? Because you have not labored in it.” He says: if the thing is empty, it is from you. Meaning, obviously there is a reason behind it. You may not have reached it, but don’t think there are things here with no reason behind them—that’s not so. So we basically have three levels of reasoning, maybe even four.

[Speaker K] It’s said that if the earlier ones were like human beings, then we are like the donkey of Rabbi Pinchas ben Yair. And there’s the question, seemingly, like regarding the matter that understanding of the red heifer was hidden from Moses our teacher. So how can we supposedly say that we can somehow be on a level greater than Moses our teacher?

[Rabbi Michael Abraham] Look, first of all, it may be—first of all it may be that we’ll never reach the reason for the red heifer, because truly we can’t surpass Moses our teacher. But there is a reason there—that’s one point. And not everything can be reached, as he writes, so it may be that we truly won’t reach it. And second, it may be that we understand things he didn’t understand. That can happen, I think. Rabbi Akiva understood things that he didn’t understand—it’s written, right. And beyond that, it may be that he understood but it didn’t satisfy him, it didn’t explain it fully, so maybe there’s something we too can understand, and even for us it still won’t be a full understanding. And that can be. But it may also be that there are things we won’t understand. So he says: fine, but if the thing is empty, it is from you. You didn’t understand—but that doesn’t mean there is no explanation.

[Speaker D] There’s no end to this—that’s also what I understood. Who says I understood correctly? Maybe later they’ll understand more correctly? And “you shall teach them to your sons and not your daughters,” so there is no warning for a daughter because they are not taught by repetition, the father doesn’t teach her. Any matter—who says this reasoning will still be the reasoning six generations from now, when maybe then it will be correct?

[Rabbi Michael Abraham] So there are four levels, really, of reasoning. There is reasoning that can establish law on its own—why do I need a verse? It is reasoning—and then you don’t need a verse at all. There are verses that are not called scriptural decrees, behind which there is reasoning; after the verse is written we understand the reasoning. But without the verse perhaps we would have missed it or not understood it fully—I’ll come back to that. The third level is scriptural decrees, but scriptural decrees of the kind Meiri talks about, where basically even behind a scriptural decree we can understand the reason. And maybe there is also a fourth level—the red heifer—where there is a reason, there is always a reason, there are no arbitrary things, but this maybe we cannot understand, even if we wait years, it doesn’t matter, we won’t understand, we cannot understand, because it’s too elevated. Fine. But certainly there is a reason behind it. So there is a whole continuum of levels of accessibility of the reasons. They are always there; there is always reasoning. But there is a continuum of levels of accessibility, and therefore there is no question why you need a verse. The verse comes either to reveal to me when I cannot reach it, or to help me reach the reasoning. Fine? But you still need the verse even though there is reasoning. I’ll come back to this later and explain it a bit more. So he says, also regarding ordinances—things that, had they not been written, it would have been fitting to write them—that’s in the Talmud in Yoma. A scriptural decree is the far end of reasoning. That is, something that initially seems strange to us, that we would not have reasoned that the law should be this way, and the Torah tells us that this is the law. But after the Torah tells us this, we find and understand the rationale of the matter. What is he trying to say? Take “You shall not murder.” Earlier they asked: why is it written “You shall not murder,” since that’s obvious reasoning? But if you look in Maimonides’ Laws of Murder, or in the Talmud, it doesn’t matter, you’ll see that there are details there in the laws of “You shall not murder” that are not at all obvious by reason alone. Restricting someone, indirect causation, and all sorts of things of that type—some are expositions, some are reasoning, all sorts of things. I don’t think that if you took an ordinary person and asked him to write the laws of murder based on reasoning, he would write Maimonides’ laws of murder. And therefore even in things that are the clearest by reasoning, there are edges or details that we would not have reached without the expositions, verses, or other sources.

[Speaker E] What, there in the rest of the world they do reach those details?

[Rabbi Michael Abraham] No, they don’t reach those details. They don’t discuss it like Maimonides’ laws of murder. Their laws are different. Restricting someone, indirect causation, all sorts of things, and what kind of restricting someone, bringing the object near the fire, bringing the fire near the object, “the end of the sun to come,” all the passages in tractate Sanhedrin, all these things, shooting an arrow and then removing the barrier, and all sorts of things like that—there are many things there that I would never arrive at on the basis of reason alone. Fine? Even though it’s “You shall not murder.” “You shall not murder” is the most logical thing there is. Meaning, even in things that are ordinances, what we call ordinances—things that are understandable by reason—there are edges to them. And at those edges you still need the Torah’s guidance in order to understand, and maybe after the guidance is given we can also understand it, but we would not have reached it by reason without a verse. Therefore this whole distinction between statutes and ordinances is also basically a quantitative distinction. The distinction between statutes and ordinances is exactly the distinction I made earlier between things written in a verse that are not a scriptural decree and things written in a verse that are a scriptural decree. Right? That’s the distinction between statutes and ordinances. Ordinances are something written in a verse but understandable. Statutes are something written in a verse and not understandable—what we usually call a scriptural decree. So that’s the distinction I made earlier. It’s basically the distinction between statutes and ordinances. And the claim is that in both statutes and ordinances, on the one hand there is reasoning, and on the other hand you need the verse. And without the verse we would not have reached it—at least not everything. Okay? So therefore the distinction between statutes and ordinances is very blurred. It’s only a question of degree: how not understandable it is, or how understandable it is. It’s not a sharp distinction.

[Speaker K] How does the act of Pinchas fit into this, where it says “it is the law, but one does not instruct accordingly”? Yes. So what? How could he learn it when others could not?

[Rabbi Michael Abraham] I didn’t understand. Pinchas probably did not know what the law would be—meaning he did not understand it without reasoning or without tradition, it doesn’t matter. And the tradition tells us that one who has relations with an Aramean woman—zealots strike him. Fine, that is a law but one does not instruct accordingly, yes? So apparently a person does not understand that unless he is taught it. There are laws like that.

[Speaker K] But then it enters into personal interpretation, supposedly.

[Rabbi Michael Abraham] Lots of things enter into personal interpretation. Ordinances too, statutes too—are there no disputes in the laws of murder? The laws of murder are ordinances. It’s written in the Torah and still there are disputes. Fine, the fact that there are disputes doesn’t mean one cannot understand. It means people understand things a little differently. And usually a dispute is not about the whole matter, but about some part or a specific detail. Meaning, something that initially seems strange to us, that we would not have reasoned that the law should be so, and the Torah tells us that this is the law. And after the Torah tells us this, we find and understand the rationale of the matter. So he gives examples. For example, the exemption for something hidden in a fire. Medieval authorities (Rishonim) wrote that this is a scriptural decree. Seemingly it seems strange to us that a person who lights a fire, who is responsible to ensure that the fire does not spread and damage others, should be exempt for hidden objects. This is not the case in the other categories of property damage. Yes, in the principal categories of damages to property at the beginning of Bava Kamma, there is fire, pit, ox, goring, eating, trampling, and so on. In each one there are special laws. The special law in fire is that it is exempt for hidden objects. Meaning, if a fire burns standing grain and inside the grain something was hidden, then you are exempt from paying for that hidden object. You pay only for the grain, as if the whole place were filled with grain. You also pay for the area of the hidden object, but only for the grain that would have been there in the place of the hidden object, not for the actual utensil itself that was there inside. And the question is why? Why is it not so in a pit? Why is it not so with an ox? Why only with fire? And even with fire, why is it so? So apparently it is a scriptural decree. What is this exemption for hidden things? What’s the logic? So he says: from where do we learn the exemption for hidden things? From “or the standing grain.” Just as standing grain is exposed, so too everything must be exposed. Yes, this is an exposition in the Talmud, because it says “or the standing grain.” Since standing grain is an exposed thing, and this was said in the section about fire—fine?—that if the fire burns the standing grain one must pay. So the Talmud says: like anything that is like standing grain. Standing grain is exposed, therefore one is liable in the case of fire only for exposed things. So he says: one can ask, is that the only characteristic quality of standing grain? This is the question you asked earlier. Is that the only characteristic quality of standing grain? Surely one can find many characteristic qualities of standing grain, for example that it is ritually pure, or that it grows from the ground, and so on. So why expound specifically: just as standing grain is exposed? Yes, one could say: just as standing grain grows from the ground, so too fire is liable only for things that grow from the ground and not liable for other things. So the fact that the Torah says “or the standing grain,” and suppose even that we expound it to mean anything similar to standing grain—even so, we still haven’t finished the story, because the question is: similar in what respect? Meaning, what about standing grain is the thing we take? They say that it is exposed. That’s what the Sages say. Why specifically that it is exposed? Why not something else? And then he says: but in fact there is reasoning here. A person who lights a fire has to look around him. He sees the standing grain in his fellow’s field, and he must be careful that the fire not reach it. The prominent characteristic of standing grain in this context—and he emphasizes “in this context,” yes, because in other contexts we will take other characteristics—is that it is exposed and visible to the one who lit the fire, who sees it. That is what he had to guard against, unlike something that the owner hid and that the one who lit the fire could not have seen. So what is he saying? When the Sages approached this exposition and said “or the standing grain”—everything exposed and not what is hidden—then basically they had to choose which characteristic of standing grain we use for comparison. They chose the characteristic that standing grain is exposed and not hidden, in order to exclude the hidden object, rather than that it… why? Because they understood the logic; there is reasoning here. The reasoning says that the Torah is basically warning us only about things visible to the eye, like standing grain. So you need to be careful—watch your fire, because it will burn that thing over there. And if you didn’t watch it, and you should have watched it, and you saw that standing grain right before your eyes, then you pay. But the hidden object you didn’t see before your eyes, so in failing to guard against the hidden object, I was not negligent. So that’s the logic. By the way, there are major disputes about this among the medieval authorities (Rishonim) and later authorities (Acharonim), whether this really is the logic or not. The argument already begins in the Talmud itself—there are disputes about this. But that doesn’t matter at the moment; this is what he explains. Therefore, first of all, the reasoning was involved in shaping the exposition itself. Now we—right, this is an exposition, it’s written in the verse “or the standing grain,” and from that they learn what is exposed. But what about standing grain do we take? That is reasoning. And we’ll get to that when we talk about expositions—that reasoning is involved in every exposition. There is no exposition with no reasoning whatsoever. On the other hand, we also see that even though this is written or expounded, behind these things there is reasoning. It’s not just a scriptural decree. He says—and now he continues and closes the circle on the previous paragraph—Is this reasoning necessary, self-evident, something like that? No. What we call reasoning is usually things that are necessary. So that’s what he says. Indeed, there is room to argue about this—last line, yes, on page 18—indeed, there is room to argue about this, and Rabbi Yehuda in fact disagrees and expounds something else from “or the standing grain.” But the rationale in this scriptural decree is understandable. Meaning, the fact that it has a rationale, or that there is reasoning behind it, doesn’t mean it’s something necessary, something that cannot be disputed. That’s what he said in the previous paragraph. So therefore one can argue about it, but still that is the rationale, and once it is written we understand that rationale. I’m saying that here this is not a fully successful example, because here really the same question you asked earlier arises: after all, when the Sages expounded it, they already had this reasoning before their eyes, otherwise they would not have excluded hidden objects from standing grain, but rather everything that does not grow from the ground. So here it’s not saying that although it is written, there is reasoning behind it; rather, because this came out of an exposition, then obviously reasoning was involved here. Without that it would have been impossible to make the exposition. So regarding expositions, I think that bringing an example from expositions is not successful. He should have brought some law written explicitly in a verse, not something the Sages derived when they themselves relied on reasoning, and then still say that behind it there is reasoning—yes, like “You shall not murder,” it doesn’t matter, things like that. Okay? That would have been a better example. An example that comes out of expositions is not a particularly successful example for this point, and that relates to the next chapter. Or for example the exemption for utensils in a pit—again, a dispute with Rabbi Yehuda. The Talmud learns it from “donkey and not utensils,” yes, “ox and not a person,” “donkey and not utensils”—that’s in the damages of a pit. Fine? If utensils fall into it, the owner of the pit is exempt. Why? Why specifically is he exempt for utensils but liable for animals? What is special about utensils? Yes, so people usually say: fine, it’s a scriptural decree. So he says: here too, seemingly it is a scriptural decree. Why exempt a pit from damage to utensils, when we do not find this in other categories of property damage? But here too there is a reason for the matter. In parentheses—and here too Rabbi Yehuda disagrees, just as in the case of hidden objects. Animals by their nature walk, and they will come to the pit and stumble in it. That is not the case with utensils, which by themselves will not come to the pit, and therefore the responsibility for them is not upon the owner of the pit. How did the utensils come to the pit? You, the owner of the utensils, apparently did not guard them properly, or an animal took them there, or you took them there, it doesn’t matter, but somehow they got to the pit. Utensils don’t walk by themselves. So if the utensils came to the pit and were damaged, that is the responsibility of the owner of the utensils. In contrast, an animal walks by itself, so if I put a pit in the public domain, then the responsibility is on me, because animals roam in the public domain. Therefore for an animal I must pay—“ox and not a person,” “donkey and not utensils.” Fine? Utensils do not walk by themselves, so the responsibility… and the same is true, by the way, of “ox and not a person.” Why is there no liability for a person in a pit? Because a person is supposed to pay attention to where he is going; that is, he can watch out for himself. Fine? So there is some logic to it. By the way, why is this specifically in the case of a pit and not in other damaging agents? That too is now clear according to this reasoning, right? Because if I’m talking about damages from goring or fire, it doesn’t matter—if fire burned utensils…

[Speaker G] The fire goes to the thing.

[Rabbi Michael Abraham] Exactly, the fire goes to the thing. You can’t ask the owner of the utensils, tell me, how did your utensils get to my fire? Meaning, your fire went to my utensils, not the other way around. Fine? Only with a pit, which is a static thing, and then the utensils, in order to be damaged, came to the pit—the Talmud says, wait, utensils don’t walk by themselves. If your utensils got to my pit, that means you didn’t guard them properly. Okay? This whole concept of property damage—that is, the fact that a person is liable for damage caused by his property—is a novelty of the Torah. And in human legal systems it is not so simple. Both liability for property damage and the exemption for utensils in a pit contain reasoning and logic. There is no scriptural decree that is without a rationale. Again, somewhat of a… And the whole matter of property damage, that a person is liable for damage caused by his property, is a novelty of the Torah. There is a Tosafot like that. But, Tosafot in Yevamot, I think. Yes, that it’s like a loan written in the Torah, meaning it’s not something we would obligate on our own had it not been written. For a person to pay for damage caused by his property—that’s a bit surprising. Someone comes and says: fine, if people think that after the Torah said it and by now it’s become ingrained and conventional, then maybe everyone has somehow internalized it. I don’t know. But at least today, we’re living so long afterward that it’s hard to judge. But at least today it seems to me it’s a simple matter of reasoning for anyone that if your property damages someone else, then you are responsible for it, you have to pay.

[Speaker E] Doesn’t that appear in Hammurabi too?

[Rabbi Michael Abraham] If I had to bet, I’d bet yes, but I don’t remember. The Talmud in Chagigah 11 says: “Laws of plagues—much Scripture and few laws; tents—little Scripture and many laws.” And what practical difference does that make? Laws of plagues, the laws of leprosy-like afflictions—there are long sections about that in the Torah, in Tazria and Metzora. Meaning, the Torah invests many verses in it. So if we look at this whole body of laws of plagues, most of it is things written in the verse; very few things are additions of the Sages. That is much Scripture and few laws. The oral matters are always called laws. Tents—little Scripture and many laws. Regarding tents, there are very few verses there, and most things are basically the Oral Torah, expositions, laws given to Moses at Sinai, or things of that sort. And what practical difference does that make? He says—this is a continuation of the quote from the Talmud in Chagigah—“If you are in doubt about a matter in plagues, examine the verses. If you are in doubt about a matter in tents, examine the Mishnah.” Meaning, if you are uncertain in the laws of plagues, it is worthwhile to look carefully in the verses. Don’t think on your own; look at the verses, because basically the source of the matters is from verses. And if you are in doubt about a matter in tents, examine the Mishnah. Meaning, look—Mishnah here probably means Talmudic give-and-take or oral traditions and the like. It’s interesting that they say to Rabbi Akiva: what have you to do with aggadic literature? Go to plagues and tents. Rabbi Akiva was an expert in those two things. In any case, he says: in plagues most of the laws are learned from Scripture, like in Bava Batra. Bava Batra is known as a tractate without verses. It’s a tractate with almost no verses. Why? Because it deals with property acquisitions. In the laws of acquisitions, generally the overwhelming majority of the laws are laws that the Sages innovated—traditions, enactments, decrees, assumptions of the Sages, and so on. Very few things come from a verse. There are such areas in Jewish law where there is little Scripture and many laws. Therefore, in plagues most laws are learned from Scripture, and there is not much room for reasoning. Therefore if you are in doubt about a law there, return to Scripture and look for the answer in the precise wording. In contrast, in tents most laws are reasoning. Therefore the whole system of branching cases is built on the foundational reasoning, and you need to find the answer from what is said in the Mishnah. Up to this point, that’s the subject of reasoning. I just now want to explain a little more the relation between the verse and the reasoning behind it. What is he really saying? He’s basically saying that even if we have a verse about something, still there is reasoning behind it. And still you need the verse. There are several ways in which the need for a verse can appear even though we have reasoning. The simple form, what he himself says, is that we would not understand that reasoning without the verse. But what does it mean that we would not understand the reasoning without the verse? Either that reasoning without the verse—for example, let’s take “a son and not a daughter,” fine? So the reasoning is that it is not a daughter’s way to be drawn after this and turn into a highway robber and stand on street corners, as they say about the rebellious son. So true, we would know that reasoning even without the verse. But is that reasoning sufficient to determine categorically that there is no law of rebellious son for daughters? It’s a statistic that daughters generally are not like that, but there are also tomboys, meaning there are also daughters who do things like that, right? So can I establish some sweeping rule in Jewish law here that daughters are not subject to the law of the rebellious son? I completely understand the reasoning now; I’m not talking about not understanding it fully. I understand it completely. And still it seems to me that deriving the law by force of that reasoning is still one step further. Because the reasoning is statistical reasoning, not about every daughter or every son. If there is a son for whom it’s obvious that he will not become a highway robber—a disabled son—do we apply the law of the rebellious son? A disabled person cannot be a robber; it is not likely that he’ll turn into a robber, right? He doesn’t have the charisma, and he can’t run around in the streets for many reasons. So do we apply it or not? We do apply it, at least I don’t know of any exclusion in Jewish law for such a thing. Meaning these reasonings can take us to all kinds of places. We could start examining every person, every child individually, send him for psychological evaluation, and ask the psychologist whether this child is ultimately expected to become a robber of people.

[Speaker E] To rob people or not? Do you know that that’s the only reason for the rebellious son? What?

[Rabbi Michael Abraham] Meaning, the Sages say that’s the reason—never mind, let’s say that’s the reason.

[Speaker E] I don’t know, the Torah determined it—maybe there are other things in it too?

[Rabbi Michael Abraham] Maybe, but let’s say even that this is the only reason. Let’s go even further in the direction of treating it as a scriptural decree, okay? Let’s say this is the only and complete reason. Still, even if I understood it without the verse, that still wouldn’t be enough to make a clear interpretive derivation in Jewish law here, a clear-cut ruling in Jewish law, that a wayward and rebellious son applies only to sons and not to daughters. Fine, there’s some neighborhood where these kinds of people live, soft types, weaklings, right? The kind who would never become bandits, never turn into criminals. So one of them happened to take a tartemar of meat and drink a log of wine—so what? Because of that he’s now going to become a robber? No. So is that enough not to apply the law of a wayward and rebellious son to him? In other words, there’s a certain gap here between understanding—and even fully understanding—the reasoning, and the question of what to do with that reasoning. Is this reasoning sufficient to determine the law and say that the law of a wayward and rebellious son does not apply to daughters? Even if I completely understand the reasoning. I’m not talking about a situation where without the verse I wouldn’t have been convinced by the reasoning—that’s a different case. I’m talking even in a case where I fully understand the reasoning, it’s clear to me that it’s correct, everything is fine. And still, to infer the halakhic conclusion from that—that’s another step. In other words, it’s not enough. Of course, the second case is a situation where the reasoning would not have seemed strong enough to me, not decisive enough, and therefore you need a verse. That’s a little different. In other words, here the weakness is in the reasoning itself, not only in the question of whether I infer the halakhic conclusion from it. In the reasoning itself I’m not one hundred percent sure. True, there’s a side that says this, but I don’t know—maybe yes, maybe no. And once there is a verse that says it, I understand that behind this verse stands the very reasoning I had thought of, only the verse tells me: know that this reasoning is correct, it’s fine, that’s what we go with. That’s good enough for me—so to speak, that’s what the Holy One, blessed be He, says. Okay? So this is the second case. It’s a case where the reasoning is not strong enough without the verse. The verse is basically teaching me: this reasoning, which you would have thought of beforehand as well, but you wouldn’t have been convinced it was right—it’s perfectly fine, it’s good enough reasoning. Okay? So that’s the second case. The third case is a situation where the reasoning is decisive, and deriving the halakhic conclusion is also decisive—that is, the two previous possibilities don’t exist here—and still it contradicts another rule in the Torah. Not contradicting the reasoning—contradicting another rule in the Torah. For example, let’s take conspiring witnesses. Maybe I’ll give an example that I’ll get into a bit more if there’s time left. With conspiring witnesses there are different explanations for this law of conspiring witnesses. Sorry—not explanations of the law of conspiring witnesses, but explanations of why this is a scriptural decree. And among other things, there are the Derashot HaRan. One second. Yes, so Derashot HaRan says as follows: conspiring witnesses are a novelty. That’s what the Talmud says—a scriptural decree, a novelty, and you only apply it within the limits of its novelty, only from the moment of its novelty. Okay? That’s the… one moment, I’ll come back to this and then I’ll explain what we’re talking about. But the Talmud says this is a novelty. What are conspiring witnesses? It’s well known. In other words, there are two witnesses who come and testify that Reuven murdered Shimon. If two other witnesses come and contradict them, saying Reuven did not murder Shimon, then you have two against two—that’s contradiction. Right? Now, what happens if the second pair comes, but they don’t say that Reuven didn’t murder Shimon; they say: you witnesses were not in Haifa, there where you say the murder happened—you were with us in Eilat that same day. So you couldn’t have seen it. It could be the murder happened—we don’t know. But you couldn’t have seen it. That is called conspiring witnesses. In the first case it’s contradiction, two against two. One is not preferable to the other. In the second case the Torah says we accept the testimony of the second pair and the first pair is nullified, even though it’s still two against two. These two say: we were in Haifa; the latter two say: what are you talking about? You were in Eilat. So it should have been contradiction. But it is a scriptural decree that we believe the second pair, and the first pair are called conspiring witnesses, and we do to them as they intended, and so on. There’s the whole law of conspiring witnesses there. So the Talmud says that conspiring witnesses are a novelty. Okay? In a moment I’ll explain why that matters practically. But first let’s understand what the novelty is here. Why is this a novelty? What is the scriptural decree here? So as I said earlier, there are several ways to understand the concept of a scriptural decree and its relation to reasoning. So Derashot HaRan says here: there really is a rationale. He brings a rationale for why the second witnesses are in fact preferable to the first witnesses. I think he also gives the rationale mentioned by several medieval authorities (Rishonim),

[Speaker D] to give force to the first witnesses,

[Rabbi Michael Abraham] that the first witnesses are speaking about themselves when they say, “We were in Haifa,” while the second witnesses are speaking about the first witnesses, and there is always an advantage to someone speaking about you over you speaking about yourself. When you speak about yourself, you’re an interested party. Okay? Therefore the second witnesses are preferable to the first—that’s what several medieval authorities (Rishonim) say, that this is the superiority of the second witnesses. A pretty problematic rationale, by the way, but never mind. Let’s say that’s the rationale. So Derashot HaRan asks: but does this not contradict what our Sages, of blessed memory, said—that conspiring witnesses are a novelty? Fine, but if I gave you a rationale, then why do the Sages say that conspiring witnesses are a scriptural decree, a novelty? It’s reasoning, right? Like the Meiri we saw.

[Speaker L] The novelty is even though it’s not “as they intended”? No, no—the novelty is also that they are disqualified.

[Rabbi Michael Abraham] That’s his claim—the novelty includes that as well. Because there, when we say it’s a novelty—well, I didn’t actually say this—when the Talmud says it’s a novelty, the Talmud is not talking about “as they intended”; it’s talking about the disqualification. After all, the dispute between Abaye and Rava in tractate Sanhedrin is over the question of from when we disqualify a conspiring witness. There are two conspiring witnesses who come and say that Reuven murdered Shimon in Haifa. They testified to that on Sunday morning, okay? Now on Monday two other witnesses come and say: what are you talking about? You were with us in Eilat—you couldn’t have seen it. So the Torah says the second pair is believed, the first pair are conspiring witnesses. So now the first pair become liars. Now what happens if they gave another testimony on Sunday afternoon? The testimony about the murder was Sunday morning. On Sunday—they’re people who really love testifying, they also really like, yes, they watch a lot of murders, they have this tendency—on Sunday afternoon they testified about another murder. Okay? Are they believed? They’re believed—they’re police officers, right, good, nice answer, they’re police officers. Okay, so now—we disqualified them, right? Because witnesses came and proved them conspiring on Monday concerning the first case. But once they were exposed, what happened? When did they lie? On Sunday morning. We discovered it on Monday, but they lied on Sunday morning. So now if we declare them liars, then in the testimony they gave on Sunday afternoon they were already liars. At that time we didn’t know it; we only found out on Monday, but it became clear to us that they had already lied on Sunday morning, so all testimony they gave from that point onward ought to be disqualified. So that’s the dispute between Abaye and Rava: is a conspiring witness disqualified retroactively from the time he testified, or only from now on? Okay? Is he disqualified from the time he was shown to be conspiring? The dispute between Abaye and Rava. And the logic would seem to say that of course he is disqualified retroactively, right? Once it turns out he was a liar, that was already true Sunday morning.

[Speaker E] What do you understand the refutation to have done? What do you mean? If it revealed that it’s a scriptural decree that just says: fine, accept the second pair, like with brothers who testify—meaning, not because of some logic that I believe them more than I believe the others.

[Rabbi Michael Abraham] No, no, there is logic. So the Ran says there is logic. So I’m telling you, it depends what you say. I’m going in the direction that there is logic. Even the approach that says there isn’t logic has its own logic, but maybe, if I have time, I’ll comment on that.

[Speaker D] There is logic in it: if you’re going to lie in testimony, know that someone may come and they’ll do to you what you wanted to do.

[Rabbi Michael Abraham] Fine, that’s the point of testimony that cannot be refuted—you have to take a risk in order to be a credible witness. Fine. But you can’t say that’s the explanation, because then if the first witnesses are actually telling the truth, what good does it do that they know that if others come, they’ll be exposed? That would just cause them not to come even when they’re right.

[Speaker D] No, they should just tell the truth.

[Rabbi Michael Abraham] Fine, they’ll tell only the truth, but you still have to decide that in fact the first pair are not telling the truth and the second pair are. That rationale you can’t bypass—you have to explain why that is correct. Without that, this stick won’t help you.

[Speaker K] Would that be cross-examination? Yes.

[Rabbi Michael Abraham] So in short—the argument is over from when they are disqualified. And the view that says they are disqualified from Monday, from the moment they were exposed—that is, you do not disqualify the testimony they gave on Sunday afternoon—relies on the idea that conspiring witnesses are a novelty, and you only apply it from the moment of its novelty, from the moment it arose, meaning from when they were shown to be conspiring, because it is a scriptural decree. So Derashot HaRan says: we are talking here not about doing to them as they intended, but about from when they are disqualified. From when do we treat them as liars? And that indeed is apparently problematic. If there is really a rationale that the second pair are believed and the first pair are disqualified, then it turns out the first pair really lied. So if they really lied, they ought to be disqualified from Sunday morning. So what does it mean that the Talmud says it’s a novelty? On that the Ran says as follows: “And this does not contradict what our Sages, of blessed memory, said, that conspiring witnesses are a novelty, for ‘why do you see fit to rely on these? Rely on those.’” Meaning: it is not the way of the Torah to rely on what appears from the facts of the case as to whether it is true or not, but only on the testimony of two witnesses. For the Torah believed two of the lowliest people, so long as they are not disqualified from testifying, just as it believed Moses and Samuel, whom we know would not alter anything, even in the slightest casual remark. Okay? What is he actually saying? This is Maimonides’ view, by the way—not everyone agrees with it. It’s a dispute between Maimonides and Tosafot on the question of whether circumstantial evidence is accepted in a murder trial. Right, we saw someone chasing someone else—Reuven chasing Shimon—he went in after him into a ruin with a knife; this is a case that appears in the Talmud. He went in after him with a knife, and afterward we enter the ruin and find Shimon dead, bleeding, and Reuven comes out holding a knife dripping blood. You still cannot punish him with the death penalty of a religious court. Put him in a cell—that’s something else—but you cannot punish him with the court’s death penalty for murder. Why? Because that is circumstantial evidence. You need two witnesses who saw the murder in order to punish him. That is what the Torah decrees. The Torah wants specifically two witnesses. Circumstantial evidence, by the way, can be excellent evidence. It has a bad name in our circles, but that’s not true. Circumstantial evidence can sometimes be excellent evidence. The only thing is, it isn’t witnesses who directly saw the matter; rather, we infer it from the circumstances.

[Speaker E] You can call anything circumstantial—maybe they stabbed him inside the ruin when he was already there?

[Rabbi Michael Abraham] No, then it’s no longer circumstantial—that’s already exculpatory arguments. Let’s not get into that corner. Those are exculpatory arguments, not circumstantial evidence. But circumstantial means that you did not directly see it; the witnesses did not directly see the act, and yet we may have excellent evidence that this is what happened. Circumstantial evidence can be excellent evidence. Okay? According to Maimonides. Tosafot says if there is excellent circumstantial evidence, you can execute based on it. But Maimonides says no—only two witnesses. And the Ran here follows Maimonides. Okay? So the Ran says this: I have a rationale that the second witnesses are more credible than the first. That is a rationale. Fine, I have a rationale—but on the basis of a rationale alone you cannot execute a person. You need two witnesses in order to execute a person. And at the level of testimony, here you have two against two. So what emerges? That this rationale, which says the later two are better or more credible than the first two—ultimately what I have, on the basis of which I convict the person, is a rationale, not witnesses. But a rationale is not enough to execute a person, because the Torah says we need witnesses. Witnesses you do not have, because the testimony has been contradicted. You only have a rationale saying—this is like what Rabbi Shimon says, what he says about why, yes, two witnesses come and testify that Reuven murdered Shimon. Then two other witnesses come and expose them or say Reuven did not murder Shimon—even in a mere contradiction case. Tosafot asks: why shouldn’t we believe the second pair on the basis of miggo, since they could have disqualified the first pair by saying they were robbers? They could have come and testified that the first pair were robbers and therefore disqualified from testimony. Now clearly the second pair would be believed in such a case, because they are testifying about the first pair that they are disqualified as witnesses, and the first pair would say, no, no, we are not disqualified as witnesses. But every litigant is disqualified from testimony—he is an interested party, he is not believed. Okay? So they have a miggo. So Rabbi Shimon explains—one second—Rabbi Shimon explains why such a miggo would not help the second pair of witnesses. It wouldn’t help because in the end, what are you relying on when you trust the second pair and not the first? On miggo. But miggo is not enough—you need two witnesses. Not because the miggo is wrong; the miggo is in fact correct. But according to the Torah’s laws, even a correct miggo does not help, because I need witnesses. Other forms of evidence that are not witnesses you cannot accept. So since that is so, therefore we do not rely on the second witnesses more than on the first. There are, by the way, those who say that this is the rationale underlying the credibility of the second pair even in the case of conspiring witnesses.

[Speaker D] But the miggo means they’re telling the truth—the miggo is not about something else. Fine, the miggo is about their being trustworthy people.

[Rabbi Michael Abraham] Right, so the second pair are trustworthy, correct. Fine, but on what basis do you trust them? Not because they are witnesses who came and testified, but because of miggo. It follows that in the end your conviction rests on miggo, not on witnesses. But miggo is not enough to convict—you need witnesses. Evidence that is not witness testimony is not enough in a murder case. So now Derashot HaRan says this.

[Speaker D] You convict on the basis of the testimony, and the testimony is accepted because of the miggo.

[Rabbi Michael Abraham] Exactly. The strength of a chain is the strength of its weakest link. It is not the miggo that convicts. The strength of a chain is the strength of its weakest link. Here you have witnesses that rest on a miggo. So in the end, the force—

[Speaker D] Their credibility rests on the miggo, not the testimony.

[Rabbi Michael Abraham] Fine, but in the end the weakest link in the chain is the miggo, right? You understand that in a chain, if one link is weak and one is strong, try tearing it. It doesn’t help that all the links are strong—if there is one weak one, that’s where it will tear, right? Now the conviction here rests on a double structure. You have witness testimony which itself is believed because there is a miggo at its foundation. That is a chain. Now I ask: what is the force of this evidence? The force of this evidence is the force of miggo, not of witnesses. Because after all, the only reason you believe these witnesses is because of the miggo. So if that is so, then in effect you are convicting—convicting on the basis of miggo, not on the basis of witnesses. So now Derashot HaRan says: if that’s so, then what emerges is: true, there is logic in believing the second pair over the first. But it’s logic, not witnesses. Logic is not enough to convict, because the Torah’s law is that you need witnesses. So why is this called a scriptural decree? This is the third type of scriptural decree. We saw one scriptural decree that says: even when there is clear reasoning that we fully understand—“a son and not a daughter”—still, to implement it, meaning to derive a law from it, is another step. Who knows what law can be extracted from it. The second type of scriptural decree we saw is where the reasoning itself is not unequivocal, not entirely sharp or not entirely clear to us; the verse tells us: correct, it’s good reasoning, you can rely on it. Here this is a third type. The reasoning is completely clear, and we could have implemented it too, were it up to us—but the Torah itself says this simply contradicts another rule in the Torah. The Torah itself says you need actual testimony; logic is not enough to convict someone of murder. And here, even though I have a wonderful rationale in favor of the second witnesses against the first—let’s say it’s an excellent rationale, and it’s clear to me that the second pair are credible and not the first—the Torah itself says that rationales, even excellent ones, are not enough; you need two witnesses. Circumstantial evidence, or evidence that is not testimony, is not enough. So here the scriptural decree is a scriptural decree because the conclusion of the reasoning contradicts another law of the Torah—the law that says you convict for murder only on the basis of witnesses. So that is a third type of scriptural decree. Here the reasoning is clear, and I would have applied it if it were up to me, but there is a rule in the Torah that such reasoning is not applied in this area. So then comes the scriptural decree and says: yes, but in the case of conspiring witnesses you may rely on this reasoning and believe the second pair over the first, even though it is only reasoning. What’s the logic of that? Fine—the Torah says this reasoning is strong enough and you may rely on it.

[Speaker E] And it’s good reasoning, so why is it different from…

[Rabbi Michael Abraham] Yes, never mind, I’m not getting into that issue. Okay, but this is a third type of scriptural decree in the relation between a verse and reasoning. In other words, if there is a rationale, why do you need the verse? Either you need the verse in order to implement the rationale, or you need the verse in order to say that this rationale is not one hundred percent but it is good enough for us, or you need the verse because this rationale contradicts another law of the Torah—so the scriptural decree says: here that other law does not apply; you can use the rationale, no problem, that other law does not interfere. Okay? That is the third type of scriptural decree. And in the article I also show practical ramifications—each kind of scriptural decree is treated differently, each such type of scriptural decree is handled differently. In other words, there are halakhic implications depending on which type of scriptural decree we are dealing with here. Okay? I’m not going to get into that. Just one final sentence and I’ll finish. The fourth claim, really, as to why you need a verse if there is a rationale, is actually what I said earlier: I don’t think Gedaliah is entirely right in what he says at the beginning. In other words, when there is a verse, that is still a different status than a rationale. You need it so that there will be a command, so that there will be a warning. The fact that I have a rationale is very nice, but first of all, of course, it depends in what context. In order to say whether these witnesses are valid or invalid, I don’t need a command or a warning; we’re not dealing here with a prohibition or a positive commandment. The question is whether they are valid or not. So here the rationale really could do the job.

[Speaker B] There’s a line in the Talmud: “Why do I need a verse? It is logical.” Exactly.

[Rabbi Michael Abraham] These are not things connected to warnings. Exactly. In places where you want to introduce a prohibition or a positive commandment—that is, by the way, the case of the Pnei Yehoshua and the Tzelach—where you want to introduce a positive commandment to make a blessing, or a prohibition against someone who does not make a blessing, whatever—there it really is a different discussion. There the rationale and the verse are not of equal standing, because you need a warning. Without a verse there is no warning, even if the rationale is completely clear to you. So here the simplest explanation for why you need a verse even though there is a rationale—he doesn’t bring this explanation because he assumes that a verse and a rationale are literally the same thing. I don’t think he is right about that. Okay. So that is the fourth explanation. Good.