Rabbi Gedaliah Nadel’s Thought: Reasoning in Halakha – Lesson 9

[Rabbi Michael Abraham] Basically, we’ve more or less finished the topic of reasoning in the third chapter. We talked a bit about the issue of scriptural decree, that there’s a kind of yeshiva tendency to think that scriptural decrees, or things that emerge from verses, have to be something with no logic behind them, or no explanation, or at least an explanation that isn’t accessible to us even if there is one. And Gedaliah argues that this isn’t true. The whole question is how far we can get to that reasoning, or to that explanation, without the help of the verse. Meaning, sometimes without the verse we wouldn’t know it, and after the verse we would. And I added a few more options there for understanding the issue of scriptural decree. Meaning, sometimes there’s a case where we know the reasoning but it isn’t strong enough. Sometimes the reasoning can be strong, but other rules of Jewish law don’t allow us to use it, and then there’s a scriptural decree saying that here you can use the reasoning. For example, one of the cases I brought was conspiring witnesses. With conspiring witnesses, in Derashot HaRan, the Ran writes that if we say the preference of the second pair over the first pair—the pair that refutes the first pair—is a preference based on reasoning. Because, say, never mind, for all kinds of reasons, there is an advantage grounded in reasoning. But reasoning isn’t enough to execute. Yet with conspiring witnesses we do execute them: if they came to accuse someone of murder and then they were proven conspiring witnesses, then we do to them as they plotted—we execute them. Now, for capital law you need two witnesses. So it doesn’t help that I have reasoning to say the second pair is stronger than the first pair, because that means in effect that I’m killing the first witnesses by force of reasoning and not by force of witnesses. And the reasoning can be excellent, one hundred percent reasoning, but reasoning doesn’t help. At least according to Maimonides, only two witnesses can actually carry out a death sentence. And therefore, the scriptural decree here is not because the reasoning is not strong enough without the verse, or because we wouldn’t think of it without the verse, but because even if we did think of it, Jewish law itself doesn’t allow us to apply it, since in capital law there is a rule that there must be two witnesses; reasoning doesn’t help. So the verse—the scriptural decree here—is not a scriptural decree that comes to teach us the reasoning, but one that comes to remove an obstacle to the reasoning. Meaning, it says: here, don’t worry, this barrier doesn’t apply—the one that says in capital law you need actual witnesses and reasoning isn’t enough. In this case you can go with reasoning. It’s permission to use the reasoning, not that it taught us the reasoning itself. So there’s also that kind. There are all kinds of contexts in which scriptural decree can appear without assuming the common assumption that scriptural decree always means something irrational, or something whose logic is inaccessible to us, as I said before. Just one more point—I want to finish the topic of scriptural decree and then move on, still on the topic of conspiring witnesses. But I lost track a little—the reasoning

[Speaker B] gives, it isn’t enough to have them executed, right?

[Rabbi Michael Abraham] The reasoning—

[Speaker B] basically only comes to say that I believe the later witnesses. Yes, but now I’m already in a different sphere entirely, the implementation of the consequence of the fact that I believed the later witnesses.

[Rabbi Michael Abraham] Fine, but opposite those witnesses there are other witnesses—

[Speaker B] so here I went with the reasoning.

[Rabbi Michael Abraham] So in the end, based on what? What? On the basis of reasoning we’ll kill witnesses who plotted. Not the reasoning to kill; the reasoning is to believe the two. Fine. So I’m saying: what’s the reasoning to believe the two? There’s some logic there, because they’re talking about the first witnesses and the first witnesses are talking about themselves, for example.

[Speaker B] And that’s where the reasoning stops. Now I move to the scriptural decree that says: once you believe the second witnesses and they conspired, you need to kill them.

[Rabbi Michael Abraham] No, but if my trust in the second witnesses comes by force of reasoning, and not by the credibility of witnesses, then basically the force of that trust is the force of reasoning, not of witnesses.

[Speaker B] A court today believes a certain witness.

[Rabbi Michael Abraham] No, because in a regular court a witness has no special independent status. The question is what level of persuasion is before you.

[Speaker B] So once he’s finished believing him, then he’s no longer operating on reasoning, so when he gives the punishment it’s no longer reasoning.

[Rabbi Michael Abraham] No. Again, I’m not talking about the punishment. I’m talking about the question of why I believe the second witnesses when on that basis I kill the first witnesses. So I’m saying: the execution itself is written in the Torah—that a conspiring witness is killed. That doesn’t come from reasoning; I’m not talking about that. I’m talking about the question why believe the second pair and not the first. We’ve got two against two here, right? So there’s reasoning that says to believe the second pair. Which means that in the end my trust in the second pair is trust grounded in reasoning. So what comes out is that I kill the first ones not by force of witnesses but by force of reasoning. The fact that the reasoning supports the witnesses—so what? The strength of a chain is the strength of its weakest link. And if those witnesses are sitting on top of reasoning, then in the end the strength of the evidentiary chain here is the strength of reasoning, not of witnesses. Because the witnesses sit on top of reasoning. Ordinary witnesses have their own independent force; the Torah says that two witnesses are the maximum proof. But here that force doesn’t exist, because opposite these two witnesses there are two other witnesses. So what do I have? I have reasoning in their favor. So in practice I’m killing on the basis of reasoning, not on the basis of witnesses. But you don’t do that, because in capital law you need witnesses. There’s something similar to this—I may have brought it once, I don’t remember. There’s a Tosafot that asks about two against two, where we don’t believe one side more than the other; it’s balanced. Tosafot asks: why not always believe the later ones who arrived? Why? Because they could have disqualified the earlier ones as robbers—“they could have disqualified the former as robbers.” They can say the first ones are robbers. In that case the first ones can’t defend themselves, because when testimony is being given against you, you don’t count as two witnesses. Okay? And since the second pair could disqualify the first pair as robbers, now they come and they don’t say the first pair are robbers; they just say they’re wrong. Meaning, the event didn’t happen, or did happen, when they contradict them. So believe them on the basis of migo, since they could have disqualified the first pair as robbers. Now some of the—Tosafot, by the way, I think there’s a place where he maybe says this—he has various answers on this matter: migo with witnesses, migo regarding witnesses, things like that. Rabbi Shimon Shkop explains that basically even if we did believe them, it would be belief by force of migo. You can’t—migo is not witnesses. Meaning, if you want to extract money or kill someone, you don’t have witnesses here; you have migo. True, that migo says the second witnesses are more correct than the first witnesses, but the evidentiary force you have here is the force of migo, not of witnesses. Migo is not enough to execute or even to extract money.

[Speaker B] There’s some kind of—yes, maybe the plain meaning of the verse, “and you shall do to him as he plotted to do to his brother.” If you—there would have been no way at all to fulfill that demand, “and you shall do to him as he plotted to do to his brother,” if you keep claiming that it always remains two against two.

[Rabbi Michael Abraham] Exactly. So the verse teaches me that here I can use reasoning. That’s exactly the point.

[Speaker D] You could have said that it’s only in a case where, let’s say, we also reversed the—

[Rabbi Michael Abraham] The murdered person comes walking in on his own two feet.

[Speaker D] and proves that they’re liars, and that helps the latter side.

[Rabbi Michael Abraham] “The murdered person comes walking in,” as they say. So that’s a different question—why, in fact, that isn’t a solution for refutation. But the Mishnah says it isn’t. A plain Mishnah in tractate Makkot says it isn’t. So in the end, this is the way conspiring witnesses work. Once the verse tells us to kill the conspiring witness, that’s exactly the point. I ask myself: okay, what is this verse referring to? Apparently to refutation. Meaning, this verse permits me to believe the second witnesses and even to execute on their basis, even though belief in the second witnesses is ultimately rooted only in reasoning; it is not belief with the force of witnesses. Because opposite the witnesses there are other witnesses. The advantage of these witnesses is some kind of reasoning. Reasoning is not enough to execute. So, says the Ran in Derashot HaRan, here there is a scriptural decree. A scriptural decree that does not strengthen weak reasoning, and does not teach me reasoning that I wouldn’t have known without the verse. Here the scriptural decree—I could have known this reasoning earlier too, and understood that it was one hundred percent correct, let’s say. Right? But still I couldn’t use it, because there is a rule in capital law that you don’t execute based on reasoning. So here the scriptural decree comes only to say that here that rule doesn’t apply. It’s qualified. Meaning: here you can do it. I’m bringing this only as an example that a scriptural decree doesn’t always reveal something that I couldn’t understand otherwise. Sometimes a scriptural decree comes to cancel another rule that prevents me from using reasoning that I already knew beforehand; I didn’t learn it from the verse.

[Speaker E] It would be a kal va-homer, but you can’t punish based on a kal va-homer.

[Rabbi Michael Abraham] For example, yes.

[Speaker F] Rabbi, just in the law of two witnesses, that the Torah— isn’t it a scriptural decree to believe two witnesses? So the scriptural decree is—

[Rabbi Michael Abraham] that the trust in them is absolute. You believe two witnesses everywhere. Two witnesses come and they’re believed—what do you mean? Why are they believed? Because they’re believed. Two people have a presumption of validity. Why assume they’re liars?

[Speaker F] So that too is some kind of—why assume? That’s like saying it’s like migo.

[Rabbi Michael Abraham] No. Why? No. Fine, that’s clear. Meaning, you’re right that at the basis of our trust in witnesses sits some kind of reasoning. Correct. But that reasoning is what’s called witnesses. That reasoning—the Torah says that is called witnesses. But when you bring other kinds of reasoning, then this is what Maimonides says at the beginning of chapter 20 of the laws of the Sanhedrin. Maimonides says that you don’t execute on the basis of circumstantial assessment, even if it is absolute circumstantial assessment. I think I mentioned him, right? That someone—we see Reuven chasing Shimon with a knife, and they go into a ruin, and we go in after them, and we find Shimon dead and Reuven holding the blood-dripping knife. You can’t execute him.

[Speaker D] It could be that Shimon attacked him and he defended himself.

[Rabbi Michael Abraham] Fine, okay. In any case, that’s brought there in the Talmud as a kind of proof, circumstantial evidence—but very strong circumstantial evidence. Circumstantial evidence doesn’t always mean weak evidence, okay? It just means I didn’t see the murder with my own eyes, but it’s very strong circumstantial evidence. And the question is whether you can convict on that basis. They tell you no. Why? Because there are no witnesses here. Now you’re right that at the basis of witnesses too there is some sort of reasoning, but that is what’s called witnesses. Meaning, the Torah says that reasoning is what counts as witnesses. Yes, but that reasoning is not a scriptural decree in the sense that it’s unintelligible. Rather, there is logic here. Correct. The Torah tells me: use that logic. Yes, use it. Fine, but that’s a kind of scriptural decree of the first type, which says that if I have reasoning—even if I maybe wouldn’t have taken it all the way—the verse tells me yes, you can use it. Now I’m bringing you a different kind of scriptural decree, which doesn’t strengthen in me some reasoning that I wouldn’t understand without it, but gives me permission to use reasoning that I already understand even beforehand.

[Speaker D] The first type was reasoning I wouldn’t have thought of on my own, but after—

[Rabbi Michael Abraham] Doesn’t matter, I don’t remember how I classified them, how I numbered the types. The type that says there’s some reasoning here that I understand, and the scriptural decree tells me: use it.

[Speaker D] Rabbi Gedaliah Nadel is talking about it being reasoning that in principle I should have understood on my own too, only after I read it I’m supposed to understand it by myself already.

[Rabbi Michael Abraham] That’s the type I’m talking about.

[Speaker D] No, not that. What’s being discussed right now is that even after I study it, it still—

[Rabbi Michael Abraham] No, no. I’m talking about the reasoning that says why two valid witnesses are accepted. That thing is exactly the type Rabbi Gedaliah Nadel is talking about.

[Speaker D] No, but I wouldn’t have taken it that far on my own.

[Rabbi Michael Abraham] Why not? What? Every legal system has two witnesses and acts on their basis. What do you mean? If you have no doubt about their honesty, then that’s it, finished.

[Speaker D] No, it doesn’t rely only on them. There’s a scriptural decree, as it were, not to rely on something that isn’t two witnesses.

[Rabbi Michael Abraham] Not true, what are you talking about? To rely on two witnesses isn’t a scriptural decree in the sense that it’s not understandable, but in the sense that it is understandable—I understand the reasoning. Maybe I wouldn’t have taken it all the way the Torah does, like two as a hundred, and that two witnesses are the maximum evidentiary force, and things like that. That’s where the scriptural decree comes in. But it’s reasoning that I would know even without the verse.

[Speaker D] So there is some component of scriptural decree here that goes beyond reasoning.

[Rabbi Michael Abraham] Yes, of course. Otherwise why would you need the verse? You always need the verse for something. The question is for what. Is it to strengthen in me existing reasoning, meaning reasoning I would otherwise have doubted? Is it to let me use it for this purpose even though I’m already convinced by it? Those are different types, different functions of scriptural decrees.

[Speaker F] I think all the verses come simply to cut the Gordian knot, because otherwise you couldn’t do anything.

[Rabbi Michael Abraham] So I’m saying: in some places yes and in some places no. Here it’s not just cutting the Gordian knot. For example, with witnesses it’s actually against the accepted principles in Jewish law. It’s not only setting a boundary for how far something goes. So I’m saying, there are examples like this and examples like that.

[Speaker D] Now when we’re talking about reasoning that can establish something even without there being a verse, does that refer only to interpretation of commandments that were given in the Torah?

[Rabbi Michael Abraham] I think I talked about this last time, no? I brought the Pnei Yehoshua and the Tzelach on blessings over enjoyment. Right, that you make a blessing before food. The Talmud in tractate Berakhot says it’s reasoning, that anyone who enjoys this world without a blessing is as if he committed sacrilege. So the Pnei Yehoshua asks: then why, in a case of doubt about blessings, are we lenient? After all, reasoning is Torah-level? The Talmud asks, “Why do I need a verse? It’s reasoning.” Meaning, reasoning and a verse—Scripture—have the same status. So why are we lenient with doubts about blessings? It should have been Torah-level. So the Pnei Yehoshua says—never mind, he answers what he answers. I said there that maybe you don’t need to bless with God’s name and kingship and all that. But the Tzelach comes out against him, and the Tzelach says: what are you talking about? Reasoning is not Torah-level. So I asked: what do you mean? The Tzelach didn’t know those Talmudic passages that ask, “Why do I need a verse? It’s reasoning”? The Talmud explicitly says in several places that I don’t need the verse because I have reasoning. Meaning, clearly they have the same status. So I said that the Tzelach probably argues—and this gets to what you asked—that when reasoning interprets an existing law for me, a commandment, a verse in the Torah, something like that, then even the Tzelach agrees that reasoning is Torah-level. But in a place where the reasoning creates a new law, like making a blessing before food, which is not interpreting some existing law in the Torah but creating a new obligation—that obligation is not Torah-level. That’s what the Tzelach would say. And as I said, I once thought the Pnei Yehoshua was obviously right; today I think the Tzelach is right.

[Speaker E] But what does he do with that? He still has to answer “Why do I need a verse? It’s reasoning.”

[Rabbi Michael Abraham] Those cases—of blessing before food—

[Speaker G] Aren’t those Talmudic cases of “Why do I need a verse? It’s reasoning,” that you brought last time, probably cases where there it’s—

[Rabbi Michael Abraham] Yes. The two classic cases are “the mouth that forbade is the mouth that permitted” and “the burden of proof is on the claimant.” In both those cases we’re dealing with the legal procedure, and legal procedure is basically something rooted in the Torah. The Torah says you have to judge. Or the laws of evidence have to be such and such. So I say: fine, that’s interpretation of the Torah’s command to do justice, to adjudicate. So there it can be Torah-level. But with a blessing over enjoyment before eating, that’s some innovation of a new obligation. There, says the Tzelach, without a command there are no Torah-level obligations. Okay? So that’s the answer to what Arik said. Meaning, that’s why I think that’s the dispute between the Tzelach and the Pnei Yehoshua in short. Whether reasoning has a status really like a verse, or only interpretive reasoning has a Torah-level product, but not reasoning that creates a new law. Because according to that, in principle you could of course turn Purim into a Torah-level obligation and Hanukkah into a Torah-level obligation, because there is reasoning to mark the victory and publicize the miracle. So maybe not in exactly the form that the Sages established—it doesn’t matter. The form would be rabbinic, but the obligation to publicize the miracle and celebrate the miracle would be Torah-level. It’s not commonly thought that way, even though in the Behag there is—

[Speaker F] there’s a lot of logic in that though.

[Rabbi Michael Abraham] Fine. The Behag writes—well, not writes, he counts among the 613 commandments Hanukkah and Purim. And Maimonides attacks him there in the first root. Maimonides attacks him: what do you mean, rabbinic commandments? Then include the several thousand other rabbinic commandments too. How did you still get 613 commandments? Fine. So Nachmanides answers that it’s only rabbinic positive commandments, not all rabbinic prohibitions. And what about the 613 before Hanukkah happened? They weren’t there. They weren’t there.

[Speaker G] He doesn’t go all the way down at the end—he says it’s apparently—no, the 613 was all—

[Rabbi Michael Abraham] all the way. Fine, that’s it. So Maimonides says—that’s one of Maimonides’ arguments—that it says 613 commandments were said to Moses at Sinai. So this wasn’t said at Sinai. What, at Sinai he was told that on Purim do this and on Hanukkah do that? I think what the Behag means to say is that at Sinai it was said that you need to celebrate miracles. That was said at Sinai.

[Speaker B] So if now we were to have another miracle and there would be reasoning to celebrate it—people claim this about Israel Independence Day—then would that no longer be part of the 613?

[Rabbi Michael Abraham] Right, so the question is whether it’s two or one. The obligation to celebrate miracles is one of the 613. Now the applications—I don’t remember whether he counts two, whether he includes Hanukkah and Purim both separately in his count. I don’t remember. It’s possible. So it could be that Israel Independence Day would already be number 614, according to those views that say it also enters the picture. But people do bring the Behag in that context. Meaning, so I’m saying, the logic—come, here’s something I do think is plausible, I don’t remember whether this is exactly what the Behag says—but something plausible in his view is indeed to say that the principle that one must celebrate miracles, thank the Holy One Blessed be He, publicize the miracle, and so on, is Torah-level. Now when that happens—in Hanukkah and Purim—that’s already history. Once something happens, the Sages establish the pattern of how we do it. Okay? So that’s not so terrible, I think. Anyway, that’s regarding Arik’s question. One more comment on the issue of scriptural decree. And again I return to conspiring witnesses, because that’s an excellent example. I want to qualify the concept of scriptural decree even more, but really it’s saying the same thing from a different angle. In the Talmud in tractate Sanhedrin there is a dispute between Abaye and Rava—I thought we hadn’t spoken about this, right?—whether a conspiring witness is disqualified retroactively or only from that point on.

[Speaker F] That was in a different lecture where you explained conspiring witnesses.

[Rabbi Michael Abraham] Yes. Okay. So there is a dispute there between Abaye and Rava from when a conspiring witness is disqualified. Suppose two witnesses come and testify that on Sunday Reuven murdered someone. Fine? Murdered sometime before that. On Monday they are refuted. Fine? Now, okay, so the Torah tells us that the second pair are believed and the first pair are liars. Once they lied in court, then of course they are also disqualified from testimony; for other testimonies too they are disqualified, because they are now established as liars, they lost their presumption of validity. Fine? The question is from when. Are they disqualified from Sunday or from Monday? If they testified on Sunday afternoon about something else as well, is that testimony disqualified or not? Logic says disqualify it. Why? What difference does it make that they were refuted on Monday? The refutation says that on Sunday, when they came to testify, they were liars, right? You could even have argued that even earlier testimony of theirs should be disqualified, but they don’t say that. From the moment you know he lied, he loses his presumption of validity; from then on, his testimony is disqualified. That’s what the straightforward logic says, and that’s what Abaye says. Rava says he is disqualified only from now on. A conspiring witness—Abaye says he is disqualified retroactively; Rava says from now on. Now this is one of the cases where the law follows Abaye, right? Ya’al Kegam—the ayin there is for conspiring witness, yes, that he is disqualified retroactively. So Rava says he is disqualified only from the time he was refuted, from Monday, and the earlier testimony stands. So why? Why does he say that? He says because a conspiring witness is a novelty: “what makes you think to rely on these? Rely on those.” There are two against two here. Why rely on the refuting witnesses? Rely on the ones being refuted. It’s the same thing—it’s two against two. Rather, a conspiring witness is a novelty, and you only have it from the time of its novelty onward. Meaning, since a conspiring witness is a scriptural decree, it’s a novelty, he says: from the moment this novelty was introduced, I have no choice. Anything earlier than that I won’t do, because this is basically something illogical—that’s the simple reading, let’s say—something illogical, so I restrict its application as much as I can. So Rava basically says that this is a scriptural decree, and Abaye apparently says it isn’t. Abaye says, what are you talking about? If the second witnesses are believed, then from the moment they lied on Sunday, they are disqualified. But it turns out that in Jewish law we rule like Abaye, that a conspiring witness is disqualified retroactively. Yet Maimonides still writes that a conspiring witness is a scriptural decree. And that seems, on the face of it, to go against the ruling—it sounds like Rava. Rava says it’s a scriptural decree, and that’s Rava’s reason: since it’s a scriptural decree, only from the moment he was refuted is he disqualified. And Maimonides rules like Abaye, that he is disqualified retroactively, and writes that conspiring witnesses are a scriptural decree. Fine? And the Tur says no, and this is a well-known dispute between Maimonides and the Tur, and rivers of ink have already been spilled over it. But first of all, from the Talmudic point of view this doesn’t contradict anything. Just because Rava says it is a scriptural decree doesn’t mean Abaye says it isn’t. Rava only claims that since it’s a scriptural decree, you also need to restrict it and disqualify them only from the moment they were refuted. Maimonides says—you’re right. According to Maimonides, Abaye says—you’re right that it’s a scriptural decree, but once I go with that scriptural decree consistently, if this scriptural decree says they are liars, then when did they lie? They lied on Sunday. So it comes out retroactively. Therefore Maimonides does not contradict the Talmud. Fine? Sometimes Maimonides also doesn’t contradict the Talmud—that happens too. Now the question still is: how do I understand this statement that it’s a scriptural decree? Because what does Maimonides actually say? What Maimonides says is that even the fact that they are disqualified retroactively can be a scriptural decree, even though how do I get to their being disqualified retroactively? By force of the logic that says: if they are liars, when did they lie? They lied on Sunday. Right? So why does he call that a scriptural decree—leave aside the Talmud—why is it a scriptural decree? And it’s a scriptural decree because why believe the second pair? Believe the first pair. Because “what makes you think to rely on these? Rely on those,” just like the Talmud says. But Maimonides says: once you’ve reached the conclusion that the second pair are right and the first pair lied, then be consistent about it. When did they lie? They lied on Sunday. I think Maimonides says more than that, and actually Rava too couldn’t mean otherwise. What Maimonides says—what’s usually clear in how people understand the concept of scriptural decree in this context? They say: look, in truth, if you asked me what really happened, I have no idea. It’s two against two, they’re equal. The Torah decreed that we believe the second pair. But really they’re completely equal. That’s the way scriptural decree is conceived. Okay? And then Rava can indeed say: fine, if this is not really logical, after all they may be truthful speakers, then okay, at least let’s postpone this until the point they’re actually refuted, because there is no real logic in it. The first witnesses are not really liars; rather we have some scriptural decree to treat them that way. Yes.

[Speaker D] If that were the conception, then you could say they shouldn’t be disqualified at all even after the refutation.

[Rabbi Michael Abraham] No, the Torah says they are liars.

[Speaker D] The Torah says they are—

[Rabbi Michael Abraham] liars. “And you shall do to him as he plotted”—“a false witness testified falsely against his brother, and you shall do to him as he plotted.”

[Speaker D] So it determines that they are liars.

[Rabbi Michael Abraham] All right, but it determines that we should treat them as liars. That’s kind of the point of the whole approach. No, I don’t agree, but I’m saying that right now I’m defending the devil’s advocate, meaning I’m defending a position that I’m about to attack in a moment. So just a second. Up to here, were you…? No, no, I meant, I meant yes, that I’m defending something I don’t agree with. But that can’t be; that’s nonsense, there’s no such thing. There’s no such thing in Jewish law, and you can’t say otherwise. You can’t say otherwise. There is no such thing as killing someone by force of a scriptural decree; there is no such animal. If Moses our teacher stood here on the table and said it, I wouldn’t accept it. There’s no such thing. What do you mean, to kill someone because of a scriptural decree? There can be a scriptural decree that says, look, now it’s night, recite the reading of

[Speaker B] Listen, Amalek, you kill

[Rabbi Michael Abraham] him because of a decree—no, no, one second. It’s night now, okay? You have to recite the morning Shema even though it’s night now. Fine, if the Torah decided to call it the morning Shema, fine. But there is no scriptural decree that says that now it is day. Right now it is night.

[Speaker F] It’s not killing him; it’s not saying he’s a liar.

[Rabbi Michael Abraham] Yes, I’m talking about exactly that. Now, what happens with conspiring witnesses? Think about it: with conspiring witnesses, the Torah says, “A false witness testified falsely against his brother,” and “you shall do to him as he plotted.” Meaning, this wicked witness who lied should be put to death; he wanted to kill an innocent person, so kill him in return. But in truth, none of that happened—the man is perfectly righteous, he came to fulfill his civic duty and testify in court. He knows the truth; it is his duty to go testify in court. Conspiring witnesses do not need prior warning; that’s what the Talmud says. So he doesn’t need warning, nobody says anything to him, he comes, fulfills his civic duty, they tell him: very nice, we accepted your testimony, you really are speaking the truth, but we have a scriptural decree that you’re a liar, so we’ll kill you. Because as a liar we’ll kill him—not just kill him, kill him as a liar—even though we know that you… well, not know, but you stand on equal footing with the other side. There’s no such thing. A scriptural decree can exist in another sense; say the Torah says to execute Sabbath desecrators, fine? Executing Sabbath desecrators is not comparable to what I’m saying here. Not that over there it’s all that understandable, but I’m saying there the lack of understanding is more tolerable than here. Why? Because there, the person who desecrated the Sabbath knows that there is a death penalty for it. If he doesn’t know, they don’t execute him. And you need warning, and they tell him, look, do you know that Sabbath desecration is punishable by death? He says yes, and it is on that condition that I do it—and then they execute him, if they don’t first hospitalize him for temporary insanity. So there they execute him. So there you don’t have the principled problem of killing on the basis of a scriptural decree, because a person who lives within that normative system knows: these are the rules here. Meaning, whoever desecrates the Sabbath dies; that’s how the system works. But conspiring witnesses—what system of rules? They came to testify, they are speaking the truth, exactly—they come, they speak the truth, they came to testify because the Torah obligates them to go testify, and they kill them because of a scriptural decree. So there is no such thing; it is inconceivable.

[Speaker D] Yes. Not exactly. There are two claims here, as if maybe they’re two separate claims. Meaning, on the one hand one could simply say that the Torah said, “A false witness testified falsely against his brother,” so it follows that the Torah sees him as a false witness.

[Rabbi Michael Abraham] No, that I do agree with. I was making a different claim.

[Speaker D] And the other claim is that it’s just not acceptable.

[Rabbi Michael Abraham] He is not a liar, and there’s a scriptural decree that he is—no, no, no, neither one of those. Meaning, the claim I’m arguing against here is the claim that views this scriptural decree the way scriptural decrees are usually

[Speaker D] viewed as scriptural decrees—wait, I’ll state it in a second.

[Rabbi Michael Abraham] The claim I’m arguing against is the claim that says: look, the truth is that he is speaking the truth, or at least he has a presumption of reliability just like the second witness, but there is a scriptural decree to treat him as a liar, and so I kill him. Ask the judge: do you stake your head on the claim that he is a liar? How much are you willing to bet? There is somebody who knows the truth—how much are you willing to bet that he’s a liar or not? Fifty-fifty. Meaning, either he’s a liar or he’s a liar—but I kill him because there is a scriptural decree. No, there cannot be such a thing, there is no such thing in Jewish law. If a judge did something like that, he should be removed immediately. And not only because of a fraudulent judgment; I think you don’t even need to get to fraudulent judgment here—it’s just simply incorrect. But not only because of fraudulent judgment. If you know—if your heart is not at peace that this is the truth, you are forbidden to execute. Even to extract money you do not extract unless you know that this is really the situation. The formal laws of evidence are only the beginning of the discussion; in the end the judge also has to be internally convinced of what he is deciding. And if he thinks this man is speaking the truth, he does not execute him because of scriptural decrees—there is no such thing. Unless—maybe I’ll give you another example. We are very used to the idea that relatives are disqualified by scriptural decree, that relatives are disqualified from testimony. The Talmud says in Bava Batra, and Maimonides brings it in his halakhic formulation, and also the Shulchan Arukh, that the Torah’s disqualification of relatives’ testimony is not because they are suspected of lying, but rather it is a scriptural decree. Meaning, two brothers come to you, Moses and Aaron—yes, Moses and Aaron, that’s the example the Talmud gives, but never mind, any two brothers—they have a presumption of reliability; a person does not sin when there is nothing in it for him. So two brothers come and testify that Reuven killed Shimon, or that Reuven, you know, borrowed from Shimon—leave the killing aside—borrowed from Shimon. Fine? You are disqualified, disqualified from testimony because you are relatives, and therefore I cannot extract the money even though I know it is the truth. Because relatives are not suspected of lying; they have a presumption of reliability. So what they say is in fact the truth, but there is a scriptural decree not to use that testimony. Okay? So that too is a kind of scriptural decree like that. Now here’s the thing: in monetary law, in my humble opinion, as a judge I would extract the money even based on relatives. Because Maimonides writes that the judge should do what his heart—what his mind inclines toward, or something like that, I don’t remember the exact wording—at the beginning of chapter 24 of Sanhedrin, as opposed to chapter 20 that I mentioned earlier, which deals with capital cases, where only witnesses count, no circumstantial evidence and nothing else. In monetary law Maimonides says what determines the judgment is what you think; laws of evidence are only a recommendation. Meaning in the end what you think is what you are required to rule, by the core law. Now later generations deteriorated and all kinds of things like that, so people are more cautious. Of course there is still the law of a fraudulent judgment, meaning if you think that the ruling that emerges from the Jewish law is fraudulent, that it does not match the truth, then withdraw. You cannot rule the opposite, but you can withdraw. So this is an example that we too in yeshivot tend to treat rather nonchalantly, but think about the following situation. Two witnesses who are brothers come and testify that Reuven killed Shimon. Relatives are disqualified from testimony, so therefore we let the murderer go free. Free—we can put him in confinement, but never mind, we do not execute him. Okay? Fine, we somehow live with that. Okay? Now another case: two witnesses come and testify that Reuven killed Shimon, valid witnesses. Then two witnesses who are relatives come and refute them as conspiring witnesses. Fine? What do we do now? The testimony of the relatives is disqualified, right?

[Speaker B] We need to believe them.

[Rabbi Michael Abraham] I don’t know. Because the Torah… no, you don’t have to believe them in capital cases, not in monetary cases. In monetary cases you do what you think; in capital cases the laws of evidence apparently determine things. So what does that mean? If relatives are disqualified, it’s as if nothing happened. There is no such testimony in the record. Okay? So witnesses came and refuted the first witnesses. We know they are speaking the truth, because relatives are not suspected of lying; that’s what Maimonides tells us, that’s what the Talmud tells us.

[Speaker D] We suspect that they are speaking…

[Rabbi Michael Abraham] No, no, we know.

[Speaker D] Like any other two witnesses, same thing.

[Rabbi Michael Abraham] In general we said that… no, no, leave the specific problem of refutation aside for the moment. Plain testimony—we accept even from relatives, okay? We know they are speaking the truth. But since we know they are speaking the truth, yet we do not accept their testimony because they are relatives, what follows? That the testimony of the first witnesses is not invalidated. Meaning that we execute the murderer. Ask the judge: but this murderer is innocent—you know that. Because there are two reliable relatives who refuted the witnesses who testified against him. Meaning, if I ask the judge, tell me, what really happened? Did he actually murder? Obviously not. But there is a scriptural decree not to believe relatives, therefore I’m going to execute him. Is there such a thing? Never in life. If a judge did something like that, he should be thrown out. Obviously not. Meaning, there is something in…

[Speaker B] The judge has to withdraw.

[Rabbi Michael Abraham] Withdraw? Yes, he has to say this is a fraudulent judgment. Yes, there are all kinds of tricks you can use too. Never mind, I… but at the very least the minimum is to withdraw. Meaning, listen, I am not going to execute someone who didn’t murder.

[Speaker D] Until they find someone who will agree to execute him?

[Rabbi Michael Abraham] Or he’ll already be as good as dead… yes, a dead man walking. So what I want to say is that when we disqualify relatives by force of a scriptural decree, that one can hear. We need to understand why the Torah disqualifies them, but one can hear it. Why? Because at most we failed to execute the murderer. A certain problem arises here; we’ll deal with it another way, put him in confinement, everything will be fine. Okay? But in the case I described here, that is much harder to live with. Here I am executing someone who is innocent by force of a scriptural decree. There is no such thing. You do not execute someone by force of a scriptural decree—again, unless it is in the sense of Sabbath desecration. There is a scriptural decree that Sabbath desecration is punishable by death. You knew that, there were witnesses, there was warning. Fine, then Jewish law says—I don’t understand it either—but that’s what Jewish law says. There you do not have the absurdity that exists in these cases. In these cases, nobody did anything against the rules he knew, and in the end they will kill him because there is a scriptural decree saying that he did act against the rules, even though he did not. Okay? Yes.

[Speaker D] But there are laws that are more absurd than killing, meaning that they do not meet this criterion of someone who committed an offense knowing it carried the death penalty. Meaning… for example? Say, killing idol worshippers—not among us—gentiles.

[Rabbi Michael Abraham] What’s the problem?

[Speaker D] They didn’t know that it was…

[Rabbi Michael Abraham] They need warning. Warning for idolatry, and they say yes, and it is on that condition that I do it, and then they execute them. It’s the same as Sabbath desecration.

[Speaker B] You need to know that they really…

[Rabbi Michael Abraham] Warning was given only to distinguish between inadvertent and intentional action.

[Speaker B] Do you have to tell them stoning?

[Rabbi Michael Abraham] You need to see that they really know. Because that is exactly the function of warning. Only in the case of an enticer—an enticer does not need warning, and that is a discussion in its own right. And also in the case of an enticer, in my opinion that was not the situation in the time of the Sages, but that is another discussion. So what do I actually want to say? That with conspiring witnesses, even one who says “it is a novelty,” Rava, or Maimonides in Abaye’s view, who says “it is a novelty,” does not mean to say that the witnesses are in fact on equal footing. If you ask me what happened in reality: an evenly balanced doubt, and the Torah decreed here to believe the second pair and not the first—there is no such animal. There is no such thing, it cannot be, it is simply nonsense. Anyone who says such a thing does not know what he is talking about. It cannot be, it is not correct, it cannot be. Clearly the intent is that the scriptural decree was stated in the sense of certainty. Meaning, clearly the second pair are speaking the truth. We have good reasons why they are preferable to the first pair, the refuters over the refuted. Fine? So we have reasons; our own reasoning—if you asked me what really happened—I too would tell you that the first pair are liars and the second pair are speaking the truth. What is a scriptural decree here is, for example, like the Derashot HaRan, who tells you that even though you have a good reason, you can’t go grocery shopping with reason alone; you don’t execute with reason alone. So I’m saying: here the scriptural decree says that you may rely on that reasoning even for execution. But there is no scriptural decree saying to execute him without his being a liar. That cannot be. The scriptural decree reveals to you that he really is a liar. And now I can maybe even understand that—but even if I couldn’t understand it and didn’t find… huh? Yes, I’m saying here that’s an excellent example, because the verse itself—it is absurd to think that the man is speaking the truth, or at least has a presumption of reliability; it’s two against two, at the very least he has a presumption of reliability—and the verse says, “A false witness testified falsely against his brother”—kill him, this wicked man, while he is actually speaking the truth? What? What is this? It is completely Kafkaesque. The man comes to court, does his duty, goes to testify what he wanted to, and they kill him because of a scriptural decree?

[Speaker B] In other words, a scriptural decree cannot be—or support—something unreasonable, something not grounded in reason.

[Rabbi Michael Abraham] No, it can be in a place where it does not lead to absurdity, as with Sabbath desecration. Sabbath desecration—I also don’t know why they execute a Sabbath desecrator, I don’t know; for me that is a scriptural decree. But there is no injustice there on the moral and legal level because the person knows what he is heading toward. Meaning, the person—there are warnings, he knows, because if not they really do not execute him, that is the point. You must have warning before you touch him; there are pretty draconian requirements there before anything like that can be done. It doesn’t cross the line. Huh? There’s no line; nowhere do you cross into something unreasonable in killing.

[Speaker E] What do you mean, the discretion of a judge? What is unreasonable for you might perhaps be reasonable for someone else.

[Rabbi Michael Abraham] I’m saying, I don’t know, maybe I’m mistaken, but I’m saying on the principled level: that same judge sitting in judgment—if it is unreasonable in his view, he is forbidden to execute. It may be that I disagree with him and think it is reasonable, or the opposite. Fine, there are disagreements about many things.

[Speaker B] But why is it not unreasonable to execute a Sabbath desecrator? So why do you think that if he knew he was desecrating and you warned him, then it is permitted to execute him?

[Rabbi Michael Abraham] No, I didn’t say it was unreasonable. I said I don’t understand why; I don’t understand the reason for it.

[Speaker B] The Torah probably has a good reason

[Rabbi Michael Abraham] for this matter, but I don’t understand it. But here… is the fact that you don’t understand not enough to make it unreasonable? No, because the Torah says yes. With conspiring witnesses, what happens—one second—with conspiring witnesses I’m not saying it’s unreasonable to execute them; that’s not my problem with them. If they told me: look, a false witness should be executed—even that I’m not sure I would agree with, maybe I wouldn’t do it myself—but that’s what the Torah says, fine, I accept it, it probably has a good reason. There, the unreasonableness is in the procedure, not in the death penalty itself. Meaning, you take someone who is not guilty at all and execute him because… that cannot be. I’m not saying that I need to understand every death penalty and why it is given; I assume there is logic behind it, but I don’t understand the reasons why the death penalty is given. But I do understand that there is logic in the procedure, meaning that a person who is executed is not being legally wronged—meaning, he knew what he was doing, he received warning. Fine, those are the rules, he has to know that those are the rules; if he doesn’t know, they really don’t execute. Fine, it’s not the same thing.

[Speaker F] But still there is some problem with it because the Torah says he is a liar, and that is categorical. It means that every conspiring witness…

[Rabbi Michael Abraham] No, it doesn’t mean that. There is fraudulent judgment, and that too is a Torah law: if in a particular case you suspect something, then you withdraw; you do not follow the Torah’s law mechanically.

[Speaker E] And still he is not a liar.

[Rabbi Michael Abraham] Huh? And still he is not a liar. Yes.

[Speaker F] What would you do, Rabbi, if you were a judge and two people came before you and you simply could not suspect them?

[Rabbi Michael Abraham] What does “could not suspect” mean?

[Speaker F] I suspect but can’t prove it? No, no, more than that—that you don’t even suspect it. Okay? But there can still be a situation where conspiring witnesses come before the judges who are complete liars, or who are completely truthful, and you can’t… obviously that can happen; there are lots of mistakes. But the Torah writes categorically that the second pair are false witnesses. Meaning, the Torah says that black is white in this case.

[Rabbi Michael Abraham] It does not say that black is white; it says black is black. It’s just that in a few rare cases that can miss. We are all human beings—what can you do.

[Speaker F] I agree that the judge can miss, but that the Torah writes that the two are liars.

[Rabbi Michael Abraham] The judge—the Torah says—you need to assume they are liars.

[Speaker F] It says they are liars, not that you need to.

[Rabbi Michael Abraham] Fine, that is what it means—it gives instructions to the judge, not to the witnesses. Judge, you need to assume that they are liars: “And you shall do to him as he plotted to do to his brother.” If in fact they are not liars, then you made a mistake. It is a very unfortunate mistake, but fine, the Torah tells me what I have to do. It is not… if most of them really are liars in such a situation, if the plain assessment really is that they are liars, then that is what I do. Any judge can make mistakes. You know, we talked about the fact that in the United States, yes, once DNA was introduced as admissible evidence, they discovered hundreds and hundreds of cases of people who were imprisoned, and among them, if I remember correctly, dozens were executed unjustly. Just today there was a story with DNA, yes, this… meaning a judge can make mistakes, what can you do, we are human beings.

[Speaker D] Even when it’s circumstantial evidence. Huh?

[Rabbi Michael Abraham] Even when it’s not circumstantial evidence.

[Speaker D] That they convicted them because of it, or acquitted them because of it…

[Rabbi Michael Abraham] No, that they convicted them. They executed them on the basis of evidence, and then the DNA showed that they should not have been executed; it was someone else. Yes. It’s a known story, it’s a crisis. A book came out, I forgot its name, some Israeli who wrote a book about errors in punishment—Sanjero, I think, Boaz Sanjero, I think—wrote a book about the error rate in the courts. He has some methods for estimating it, because it’s hard to estimate. How do you know there was an error? If the judge doesn’t know, how do you know? Meaning, you need some independent tool that will let you know when the judge didn’t know, and usually there isn’t one… By the way, that’s the American story; I assume the Israeli one too. It’s just that in America there is execution, so it is much more extreme. Meaning, once that’s done, it’s over. You can no longer fix it.

[Speaker B] At some point once the Rabbi told about two babies who died

[Rabbi Michael Abraham] from SIDS, and the judge put the mother in prison for murder. Well, that really was an idiot. In England, a few years ago.

[Speaker B] It

[Rabbi Michael Abraham] happened with several people like that, not just one.

[Speaker C] Couldn’t someone frame the scriptural decree as a logical conclusion? Meaning, the judge has to be convinced that the second witnesses are telling the truth, and then the first witnesses are liars. Once he reaches that conclusion, then he executes the witnesses.

[Rabbi Michael Abraham] And if he is convinced that the first pair are telling the truth and the second are liars? Then he won’t…

[Speaker C] First of all, then they are not conspiring witnesses. Meaning, why are they conspiring?

[Rabbi Michael Abraham] They plotted to kill the first pair and were themselves refuted.

[Speaker C] That doesn’t matter… because in every matter you need two conditions. You need witnesses to come, and you need the judge to believe them. Right. Meaning, if now the first witness comes and says A, and the second witness comes and says

[Speaker G] B,

[Speaker C] “you were with us,” refuting them, then there is a prior condition before you apply the scriptural decree: you need to be convinced that the second pair are telling the truth.

[Rabbi Michael Abraham] That’s what I said.

[Speaker C] But then everything is fine. Then the scriptural decree stands…

[Rabbi Michael Abraham] Obviously. That’s what I said. If you don’t think it’s true, you won’t do it, even though the verse says so.

[Speaker C] And you’re also not supposed to do it.

[Rabbi Michael Abraham] Correct, that’s what I’m saying.

[Speaker D] No,

[Speaker C] and then the conclusion is—I want to try to suggest—that we execute on the basis of a scriptural decree when we have a basic condition that the judge believes this is the truth.

[Rabbi Michael Abraham] But the scriptural decree here says what is true and what is false. That’s what it says.

[Speaker C] Not that if… fine, but it says that on condition that the judge believes it.

[Rabbi Michael Abraham] Fine, then we’ve returned to what I said, so what’s the difference? That’s exactly what I’m saying.

[Speaker C] And it is still a logical scriptural decree.

[Rabbi Michael Abraham] Fine, that’s what I said.

[Speaker C] Are you opposed to executing on the basis of a scriptural decree?

[Rabbi Michael Abraham] No, again: a logical scriptural decree—no, that’s exactly the point. If this scriptural decree is logical, then what does that actually mean? That I’m executing a liar. He really is a liar. And therefore he deserves to die and I execute him. I have no problem with that. By force of a scriptural decree? Certainly. The Talmud says that it is a scriptural decree and the Talmud says that conspiring witnesses are executed. And also in Maimonides. I have no disagreement with them. My disagreement is about how to read those statements in the Talmud and in Maimonides. Do you read them as execution without basis, or exactly as you said? Or no, of course not: if I really understand that the first pair lied, the Torah says then “you shall do to him as he plotted to do to his brother.” The scriptural decree says that only if it really seems true to me. If it does not seem true to me, I will not execute anyone based on that. And that is exactly what I am saying. I’ll say more than that: let’s take the opposite case. Suppose the judge became convinced—that’s the other side of the issue—that דווקא the first pair are right, and the second pair, the refuters, are liars. They are liars. That’s his impression. Fine? Do we execute the second pair? After all, the second pair effectively plotted to kill the first pair, because if they had succeeded in the refutation process, then we would have executed the first pair, right? By the law of “as he plotted.” So now from my perspective they lied—they wanted to kill the first two witnesses, but they were caught, or I didn’t believe them. I do not execute the second pair. Why not? Because there is no scriptural decree to execute them. That is exactly the point. You need the scriptural decree in order to execute. You do not execute every liar.

[Speaker B] They also weren’t caught.

[Rabbi Michael Abraham] They weren’t caught, but I was convinced. If what determines things is what I was convinced of, then I was convinced they lied for all kinds of reasons, never mind, I found contradictions in their testimony, okay? I don’t know what. So I was convinced. Still, I do not execute them. That is exactly the point: it is not enough to be convinced who told the truth and who lied. Obviously there must be some basis for the Torah to impose the death penalty. Without that I won’t execute. I’m only saying that even if that basis exists, there is some additional requirement that says I too understand that this is the truth. If this is not the truth, I do not do it. And of course the Torah too imposes the death penalty only on the assumption that this really is so—not that it establishes a scriptural decree that even though it is not so, treat it as though it were so. Okay?

[Speaker B] Is there any discussion, Rabbi, in the direction that they did not come intending to kill the first witnesses—they came to save the murderer?

[Rabbi Michael Abraham] Fine, but still at the price of killing the second pair. That’s real. When they are refuted, they are indeed executed. If a third pair comes and refutes the second, then they execute them—that’s an explicit Mishnah. Fine? They execute all the pairs. Meaning, if there are up to a hundred pairs—Mishnah in Makkot, up to a hundred pairs—so if the hundredth pair refutes the ninety-ninth pair, all the odd-numbered pairs are executed and all the even-numbered pairs go home. Now, can I tell you that this was ever carried out in practice? It seems to me that when there are so many witnesses, with a hundred pairs, the judge has to withdraw. Something here is unclear. It’s not that all the even-numbered pairs are telling the truth and all the odd-numbered ones lied. There is something very… this is some clan war where they keep sending one side to kill the other. Yes, they always come—the odd-numbered ones, that’s… yes, it’s the Capulets and Montagues. What?

[Speaker B] In Makkot it says

[Rabbi Michael Abraham] clan? Yes, exactly. So here it is obvious that the judge must withdraw if we continue with this line of thinking, but on the principled level the Mishnah says what the law is. It is clear that all this is subject to the question of the local judge. And anyone who thinks otherwise is not fit to be a judge. You cannot seat a judge who follows only formalism. Judges don’t do that either. Anyone who knows actual practice—with all the slander and criticism there is of judges—you cannot go based on the law as it is learned in yeshivot. It doesn’t work like that, just as it doesn’t work according to the law as it is taught in university. It doesn’t work that way in the courts either, and it cannot work that way. It cannot. You have to understand the practice, live the field, see the case. You can’t—and there is no system that can be handed over to a computer algorithm to produce the ruling. I have a friend who once dreamed of doing that.

[Speaker D] What? What is that? You can make a system that learns behavior.

[Rabbi Michael Abraham] I once thought of building a system that would critique them, meaning that it would show when they made mistakes and when they didn’t. But okay, that’s…

[Speaker C] I can do that without a system.

[Rabbi Michael Abraham] What? No, I can do it with a mechanical system; it inspires more confidence, otherwise they ask who says you’re not… okay. In any event, that is regarding scriptural decrees. Let’s move on to chapter four on page 19, about derashot. Fine, so first of all, what are derashot? We know there are four systems of interpretation, called Pardes: peshat, remez, derash, and sod. And derash is one of the… one of the four kinds of approaches to the verses. These are categories, and each one also has shades within it. It is one kind of approach to Scripture, where derash stands parallel, say—let’s leave remez and sod aside for the moment because they don’t really touch the discussion here. What matters here is the relationship between peshat and derash. Peshat is what is written in the verse, say according to its literal plain meaning—that’s usually how people tend to think—and derash is a different interpretive system. It can also lead to different results. “An eye for an eye”—so the peshat, say, is literally an eye; if someone blinded another person, then they blind him in return. And the derash says money, meaning he pays money instead of an eye. The question of the relationship between peshat and derash is a disputed one. There are those who understand that derash is really the depth of the peshat. Meaning that derash is when you take not the simplistic interpretation but also consider context and compare to other places—not just a local literal interpretation—and in the end you discover that this is the true interpretation of the verse. This is an important point.

[Speaker E] I don’t know, because “an eye for an eye,” say, really the peshat maybe is that. If you asked me whether it’s peshat and derash… no, I look more at… verses in the Torah and in the Talmud, where they take some verse and learn something from it…

[Rabbi Michael Abraham] No, no, I’m talking about a place where the peshat and the derash

[Speaker E] are like completely bizarre, definitely not in the context of the story.

[Rabbi Michael Abraham] So what do you see in Rashi?

[Speaker E] No, no, about Rashi I said… is Rashi’s approach that the derash is the depth of the peshat?

[Rabbi Michael Abraham] I’m not sure at all. Yes, on the contrary. Usually when Rashi can’t make it work with the peshat he says, “this is its midrash,” something like that. But Rashi doesn’t say… no, not נכון, I don’t think so. Fine, I don’t know. In any event, I’m talking about legal derash, so it is less relevant to interpretations on the narrative sections of the Torah. Okay? So the relationship between peshat and derash, as I said, is disputed. There are those who hold that derash is the depth of the peshat. Meaning, peshat is something superficial; you read the verse, the literal interpretation is what is called peshat. Usually people say yes: peshat is what I say, and derash is your peshat—meaning, your derash is my peshat, and vice versa.

[Speaker D] Those who hold that say the opposite.

[Rabbi Michael Abraham] Ah, here—if we ignore human pettiness and really look at the matter, then the question is truly how these two things relate to one another. So the first conception I am presenting here is a conception in which derash is… derash is really the depth of the peshat. Meaning, the peshat actually is not correct. The derash is the correct thing. Therefore with “an eye for an eye,” the truth is that the verse means money. It does not mean gouging out the eye. True, literarily you don’t see that at first glance, but if you compare to other places, look at the context, I don’t know, do various interpretive maneuvers of one sort or another, you will reach the conclusion that it has to mean money. And that is the correct, true interpretation—this is what the verse means. The peshat is confusion. A mistake. Yes, a mistake or something like that. The Vilna Gaon writes in several places, or his students report in his name, that this conception is mistaken. By the way, this is a conception that mainly characterizes apologetic thinkers, meaning those who—after all there are attacks on derash, because derash really does sometimes seem a bit bizarre, a bit unconvincing—so it took quite a few attacks, and the best way to defend against the attacks is to say that there is some real hidden interpretation here, but really it is the depth of the plain meaning of Scripture. Sometimes they even manage to show this by various means. Yes, Rabbi Medan is a master at this—truly an extraordinarily creative person. He can prove from the verse whatever you want; you simply cannot stand up to him. But someone who can prove whatever you want from the verse—you understand that such proof is a bit problematic.

[Speaker B] He surely proves something else, because every time he wants…

[Rabbi Michael Abraham] Yes, so I don’t know. Usually he is consistent, but I mean his ability to prove anything from the verse is so virtuoso that I no longer know how to relate to it. I once had Kaveh, the president of Bar-Ilan University—he was my doctoral advisor. So whenever one of his students did some big mathematical work and reached some interesting result, you’d come to him, and he’d say, well, that’s obvious, didn’t you see it from the start? And immediately he would show you with signs and wonders—he was a master at this—he would show you with signs and wonders that actually from a simple look at the problem, with a few symmetry considerations and a few edge cases and so on, you immediately see that this is what it had to be. Then you go back to your room and find a mistake in the calculation, and that result is wrong, the result you reached. You go back to him; he says, ah yes, you’re right—meaning, now, the first time, no, it was so convincing that it was simply obvious. I rebuke myself—how did I not see it earlier? Now I no longer remember which of these happened to me and which to others; it’s a bit of an urban legend. But I can tell you, I know him—he is a master at this. Meaning, he does in physics what Rabbi Medan does to Scripture. Meaning, whatever you want, he can show you with signs and wonders that it is obvious; there is some simple intuitive explanation.

[Speaker B] I heard a lecture of his there on the creation of the world and…

[Rabbi Michael Abraham] No, I’m talking about physics, leave that nonsense aside. Let’s talk about physics. Meaning, talent is talent. A lot of times you do a mathematical calculation and you don’t understand its meaning. Sometimes this intuitive kind of thinking is needed to show you what you discovered. A person can do a mathematical calculation, it comes out eight, okay, so what—does that merit publication? It could have been seven, it could have been nine; it came out eight. So what? Not everything like that is worth publishing. If he tells you, no, no, notice, this eight shows that there is really some general phenomenon here—systems of this type must behave in such-and-such a way and the result has to be thus—then suddenly you understand that you have a result with significance, it’s worth publishing, etc. I mean this in the real sense: it is a very important talent for a physicist, to understand the meaning of what the calculation you did reveals. There are people who can be excellent mathematicians but don’t have the ability to understand what they discovered, whether they discovered something that truly has general significance or just solved a problem. Fine, you solved a problem. Never mind, let’s get back to our matter. The Vilna Gaon says that this is a mistake. Derash is not the depth of the peshat; derash is an interpretation parallel to peshat. There is peshat and there is derash, and the latter is not dependent on the former. And someone who attacks derash because according to the peshat it doesn’t look that way doesn’t understand what derash is, because derash does not have to fit the peshat.

[Speaker E] So according to that, “an eye for an eye,” literally an eye—that isn’t peshat? It is the peshat.

[Rabbi Michael Abraham] It is the peshat. “An eye for an eye” is the peshat. And “money for an eye” is derash. And when you ask, but the Torah says “an eye for an eye,” so how do you interpret it as “money for an eye”? Then that is what the Talmud means when it says, “Was it for nothing that the embalmers embalmed and the mourners mourned?” What the Talmud says about Jacob our father, yes, that someone expounded there that Jacob our father did not die. They ask him: tell me, was it for nothing that the embalmers embalmed, the mourners mourned? It is described there that he was embalmed and mourned and they took him with a great procession to bury him—the Torah is full of this. What do you mean, Jacob our father did not die? He said to them: “I am expounding a verse.” When he says, “I am expounding a verse,” it always sounds like something absurd. It is not absurd at all. This midrash in the words of the Sages comes to tell us exactly this point of the Vilna Gaon, in my humble opinion. What it comes to tell me is: when I engage in derash—aggadic midrash, it doesn’t matter—but when I engage in derash, I am not committed to the peshat. Not because it is really what… what fits the true peshat, so that if you look at the Torah with, I don’t know, other lenses, you’ll discover that really Jacob didn’t die. Factually he died. On the plane of derash, he didn’t die. What is that supposed to say? Some message—“the righteous, even in death, are called alive.” I don’t care—but derash is not committed to peshat in the sense that you can attack the expositor on the basis of the verses, that it doesn’t fit the verses. It does not need to fit the verses; it needs to fit another system. It is another system with its own rules, meaning it has principles—“rules” may be too strong—but it has modes of thought. There is right and wrong also in the world of derash. But right and wrong in the world of derash is not the literal interpretation of the verse. That is right and wrong in the world of peshat, not in the world of derash. And then the conception is that these parallel interpretations or approaches to the Torah are parallel approaches; they are not dependent on one another. There is a toolbox of derash, there is a toolbox of peshat, and each of them produces for us a different interpretation of the verse. And these interpretations do not have to be compatible; they may contradict one another. Sometimes they contradict, sometimes they are just different.

[Speaker B] If a judge has to rule?

[Rabbi Michael Abraham] No, in aggadic derash that’s how it is. In legal derash that really is a hard question, because then one has to rule. What do you do when ruling? Always according to the derash. Always according to the derash.

[Speaker D] And then the question arises: there are those who say there is also value in doing the peshat.

[Rabbi Michael Abraham] No, the Talmud always says, “A verse never departs from its plain meaning.” After you state a derash, “a verse never departs from its plain meaning.” Then they offer a peshat; they don’t reject the derash, but rather, besides that there is also peshat. You need to explain both the peshat and the derash; you need two interpretations of the verse. Now the question is what you do with them, say, in Jewish law. Let’s take “an eye for an eye.” What do you do with these two interpretations in Jewish law if both are true? It’s not that the peshat is incorrect and the derash is the correct interpretation. No, the peshat is also true—and that is what is called the plain interpretation—and the derash is also true. What?

[Speaker B] If there are witnesses and warning, would they take out

[Rabbi Michael Abraham] his eye.

[Speaker B] No, we’re talking about witnesses and warning, always.

[Rabbi Michael Abraham] So now the question is, to pay

[Speaker B] Does money require warning?

[Rabbi Michael Abraham] No, to put out his eye you need prior warning. It’s obvious that without witnesses and prior warning, you don’t put out an eye regardless of this verse. But the claim is that both of these interpretations are simultaneously true. Now, there really aren’t all that many cases where the plain meaning and the midrashic interpretation contradict each other, contrary to what people think. There are only a few such cases. In most cases they’re different, not contradictory. Meaning, the midrash adds another Jewish law for me, and the plain meaning gives a different Jewish law. “You shall fear the Lord your God” — to include Torah scholars, okay? “You shall fear the Lord your God” means fear of God; “to include Torah scholars” means reverence for Torah scholars. That’s plain meaning and midrash, and both are fine; there’s no contradiction. One adds another Jewish law on top of the other. There are rare cases where the midrash uproots the plain meaning, yes? Jewish law follows, or uproots, Scripture. That’s what the Talmud says. Regarding levirate marriage, the Talmud says this: “the name of his dead brother” — it doesn’t mean the name, that you don’t have to name the child after the dead brother; rather, the child is as though he is the name of his dead brother. Or “an eye for an eye” is also an example of this. Because with “an eye for an eye,” either you put out an eye or you pay money. You could of course have made it cumulative. Meaning, “an eye for an eye” means literally, and besides that the midrash also says pay money. Meaning, they would both put out his eye and make him pay money. But the midrash says no — you do not put out his eye; instead, he pays money. Here an actual contradiction arises. A contradiction between the plain meaning and the midrash — what do we do here? There’s a series of articles by Henshke — when he was still a young guy, he was nineteen, I think — in Ma’ayan, from 5737 and 5738. He has three articles there on the relationship between plain meaning and midrash, beautiful articles. For a nineteen-year-old, it’s amazing. Beautiful articles, with examples and really excellent conceptual analysis. And there’s also a response by Rabbi Weitman. I very highly recommend reading them, if you get the chance — the whole series of articles and the response. It’s beautiful, really something worth reading. And there he suggests, for example, an interpretation of “an eye for an eye,” even though it’s not the practical Jewish law. But according to one opinion in the Talmud, when you pay the money for “an eye for an eye,” you assess it based on the eye of the damager, not the eye of the injured party. That’s a dispute in the Talmud; in practical Jewish law they ruled not that way, but there is one opinion in the Talmud.

[Speaker G] They assess it according to your eye.

[Rabbi Michael Abraham] Exactly. Now the question is: what’s the logic of that? What does it mean to assess the eye of the damager? After all, you put out his eye, you’re paying him compensation — so pay him what his eye is worth. Why are you paying him according to what your eye is worth? He says: if I really take both the plain meaning and the midrash, and both are true — not that one is true and the other isn’t, but both are true — what do I do in Jewish law? I do both. How? “An eye for an eye” means first of all that your eye should have to be put out in exchange for his eye. What’s written here is not compensation; it’s punishment. This isn’t tort law in the sense of compensation; it’s punishment. It’s a punitive payment, not compensatory payment. Really, your eye ought to have been put out. The midrash says no, we don’t put out eyes; instead he should pay money in its place. In place of his eye, not in place of the injured party’s eye. Meaning, “an eye for an eye” means they put out your eye because you did that to him. And the midrash says: instead of your eye, we’ll take money. So the combination of the plain meaning and the midrash together gives us exactly this Jewish law: that the payment I make is the value of my own eye, not the value of his eye.

[Speaker B] A ransom for the punishment.

[Rabbi Michael Abraham] Exactly. Like, say, “you shall not take ransom for the life of a murderer” — so for a murderer you don’t take ransom, but for—by the way, that’s one of the proofs people bring. “You shall not take ransom for the life of a murderer” implies that for something else, yes, you do take ransom. For the life of a murderer, be careful not to take ransom. Where do you take ransom for something else? Here, maybe in damages. Meaning, that’s one possibility. In any case, for our purposes, what this means is that both the plain meaning and the midrash have significance. If you took only the midrash by itself, then you would obligate payment of the value of the victim’s eye. If you took only the plain meaning by itself, then you would put out the eye of the attacker. If you have both plain meaning and midrash, both true, then the result is neither just the plain meaning nor just the midrash; the result is a third thing. You pay the value of the attacker’s eye. Okay? And I think that’s a beautiful implication of the claim that both the plain meaning and the midrash are true. Now, in practical Jewish law this is not the accepted view, and we need to examine what that still means.

[Speaker B] But then too, you still haven’t really compensated the person.

[Rabbi Michael Abraham] Correct. Correct. If your eye is worth less, for example—

[Speaker B] than the value of his eye, then there’s no—

[Rabbi Michael Abraham] Here the damage—he isn’t entitled to compensation. It’s punishment. Like with a murderer. With a murderer, you don’t pay; there’s no monetary value for free persons. I’m liable to death if I murdered, but they can’t sue me in civil court for compensation.

[Speaker E] I think he pays a fine.

[Rabbi Michael Abraham] No, that’s something else. Fine, I’m talking about the damage. The claim is that damage payments are basically punitive payments according to this approach. By the way, in Maimonides this remains true even in practical Jewish law, in the sense that although I pay the value of his eye, it is still a punitive payment. It’s not compensation. And all the commentators on Maimonides go crazy over this — what, how can that be? It’s ordinary monetary payment. After all, one who confesses to a fine is supposed to be exempt, so in damages one who confesses would not be exempt — so how can Maimonides call it a fine or ransom? There’s some approach in Maimonides there — not exactly a fine, but something like ransom. It isn’t ordinary money. And apparently that comes out of here. So in practical Jewish law we rule that it’s according to the eye of the injured party, not the eye of the damager, but it’s still a punitive payment and not compensation according to Maimonides. So this is a dispute among the medieval authorities (Rishonim). In any case, this example shows us the implication of seeing the plain meaning and the midrash as two interpretations, or two approaches to Scripture, both of which are true. Meaning, not that one is true and one is false — it’s not a competition. Therefore the midrash is not measured by the tools of plain-sense interpretation, and the plain meaning is not measured by the tools of midrashic interpretation. These are two different worlds, each of which yields a different interpretation. Lest you say: if so, we’ve arrived at deconstruction, where everyone does whatever he wants, there’s no real interpretation and no unreal interpretation, everyone can interpret however he wants — that is absolutely not true.

[Speaker E] In midrash too there’s more than one midrash. And in plain meaning too.

[Rabbi Michael Abraham] No, and there is authentic midrashic interpretation and inauthentic midrashic interpretation. In plain meaning too there’s more than one interpretation. That’s why I say this has nothing to do with deconstruction at all. What it means is that there are two interpretive systems. Now you can decide independently whether, within each such system, everything anyone says is correct or not. If you’re a deconstructionist, then you’ll say yes, you can say whatever you want. If you’re not — and I’m not — then no. There is a correct interpretation and an incorrect interpretation. And by the same token there is a correct midrash and an incorrect midrash. The fact that both the plain meaning and the midrash are true does not mean that anything goes; rather, it means there are two independent interpretive systems — or two systems of reference; one should be careful about calling them interpretive systems, because midrash does not necessarily mean interpreting the verse; it is not striving for interpretation. It’s not exactly interpretation. And within each of those two systems there can be truth and falsehood — that’s unrelated — it’s just that there are two systems, not one. Okay? Now I personally tend toward the Vilna Gaon’s approach, and I also think the apologetic approaches do not stand up to scrutiny. It doesn’t seem to me that for every midrash you can show how it is really the true plain meaning. That’s not convincing to me. In the places where people show that, in most cases I haven’t been persuaded. And of course the question that comes up here is this: if indeed the approach is that the midrash is the true plain meaning, then you always have to explain — okay, so why didn’t the Torah write it explicitly? If the Torah really means money — let’s say you’ve convinced me, based on comparisons to other places and context and everything, that the real meaning is money, not an eye — the question still is, obviously, why didn’t the Torah write: “he shall pay money in place of the eye he put out”? The solution of forced contextual readings? Or alternatively. Maybe I even talked about this when I discussed forced contextual readings.

[Speaker E] You did talk about forced contextual readings,

[Rabbi Michael Abraham] but I think I also brought these examples in the context of forced contextual readings, I believe. So the question really is: why didn’t the Torah write it that way? It’s a little strange. Therefore it seems to me that this approach is not plausible. The second approach says: the Torah wrote it this way because the plain-sense interpretation is a correct interpretation, but alongside it the midrashic result is also correct. You’re right, and you’re right, and you’re right — yes, meaning both are correct. In the end, you have to take both, and Jewish law is some kind of synthesis of the two together. Okay? Therefore it’s not that the Torah wrote it this way just to confuse us. It wrote it in this way… Very often people think that in order to prove that the Vilna Gaon is wrong, it’s enough to show that the midrash is really the true meaning. If you bring me sufficiently convincing considerations that the midrash is the true meaning, that’s a knockout against the Vilna Gaon, because then you’ve shown me that the midrash is really the correct interpretation. But that’s not true, because in addition you still have to explain to me why the Torah didn’t write it that way. I’m convinced that the meaning here is money and not putting out the eye, but tell me why the Torah didn’t write, “he shall surely pay for the eye he put out.” It wrote things like that elsewhere — what’s the problem? Why doesn’t it write it that way here? That too requires explanation. Therefore it’s clear that this won’t solve the problem either, even if you find some interpretation that convinces me that the midrash is indeed a correct interpretation, because you still have to explain to me why the Torah literally did not formulate it explicitly. And therefore it seems to me fairly clear that the Vilna Gaon is right. These are two interpretations that live side by side; both are true, and each has its own system of rules, its own mode of thinking, and each can be judged in terms of true and false using the relevant tools. Now what is that toolkit in the interpretive world? That’s what people are used to — the theory of interpretation, what is usually done. By the way, Rabbi Weitman too, in his response there to Uman’s article, shows with some beautiful examples that what we call plain-sense interpretation is not literal interpretation, contrary to what people tend to think. Plain-sense interpretation very often also includes considerations of justice and morality and what is reasonable in light of other places, and there are cases where you read a verse and if you read it literally it says one thing, but you have no doubt that it does not mean that. No doubt it does not mean that. Meaning, from the context it is clear that it does not. Anyone with a bit of familiarity with the Bible knows that. Sometimes when we read the verse, we don’t even notice that what we call plain meaning is not really the literal meaning, but rather literal meaning plus what is obviously supposed to be here. Is it not a mistake to identify plain meaning with literal interpretation? That’s not correct. Plain meaning is not exactly literal interpretation. Where did I think of an example? Yes — the big dispute over attributing physicality to the Holy One, blessed be He. Okay? Uman even once wrote about this, I think. He argued that this was an invention of Maimonides. Who? Uman, Israel Uman. He argued that it was an invention of Maimonides, that before him it wasn’t there — that Maimonides managed to instill the idea that the Holy One, blessed be He, has no bodily form and no bodily likeness, that this was Maimonides’ invention, which he basically introduced, and since then all of us think this is a principle of faith, whereas before him people did not think that. I don’t know about everyone, but they didn’t think that.

[Speaker B] The Raavad writes this

[Rabbi Michael Abraham] explicitly, yes. The Raavad says that many greater and better than he thought that way, and so on. Meaning, such an approach certainly existed before Maimonides. Was it the mainstream, and Maimonides here reinvented the wheel? I don’t think Uman is right. But the debate that revolves around this issue — and he himself brings this — look at the Torah: the Torah itself anthropomorphizes the Holy One, blessed be He: “His mouth,” “and He relented,” “His mighty hand,” and all sorts of things like that. Now when we read the Torah — for me this was fascinating in this context; even before Uman this was already a discussion, before him too — but when I read the Torah, I don’t see that at all. When I read “the mighty hand” of the Holy One, blessed be He, it doesn’t even occur to me that this is talking about a hand. Obviously not. It’s talking about some metaphor — yes, obviously, right? But what do you mean “obviously”? The literal meaning says “hand.”

[Speaker B] Any anthropologist could come and explain…

[Rabbi Michael Abraham] Yes, exactly, exactly. Meaning, very often when I read something it’s clear to me that we’re dealing with some metaphor or something of that kind — so is that not the plain meaning? If so, then it’s not the plain meaning? When I say that “the mighty hand” of the Holy One, blessed be He, is a metaphor — is that a plain-sense interpretation or not? You could say: the plain-sense interpretation is that He has a hand; the midrashic interpretation is that it’s a metaphor. I don’t think that’s right. Plain meaning is something that is not only literal; it’s literal plus what, from the context, you need to understand. Now it may be that we’re mistaken — maybe the original plain meaning really was that, and Maimonides confused everybody — but I at least am not persuaded by arguments that say: look, the Torah says “hand.” So the Torah says “hand” — so what? That’s how people speak. When you speak to human beings, you speak in their language. It’s very obvious. When you speak to a child, you also say all kinds of things in a way he’ll understand, without meaning them literally — so what, would anyone say you’re a liar or that you’re making midrash to the child? No. You understand that you speak to him in the way you understand he’ll understand. That’s all. So again, maybe he’s right, but there’s no proof here. Meaning, that’s not a proof. And this is a nice example of the fact that plain meaning does not mean literal interpretation. Rather, plain meaning is perhaps what arises at first glance, let’s call it that. When first glance is made up of the literal plus some context — but obvious context, context that goes without saying. And midrash is something that perhaps requires more work of comparison and other sources, noticing difficulties in the verse and trying to derive interpretations and theories and the like. Meaning, it’s something more indirect; it does not arise immediately. But it is not the literal versus something else. In legal interpretation too they distinguish between literal interpretation and purposive interpretation. But what they call literal interpretation there, I don’t think necessarily always really means literal. Rather, they mean the required interpretation — the wording plus the context. And purposive interpretation is when you start doing midrash. When you say, look what they intended, what the law is aiming at, what its purpose is — that’s already midrash. But there too, the literal interpretation they call literal — what we call plain meaning — I don’t think they mean just the meanings of the words. Meaning, if I manage to show from the statute book that this is not the meaning, by way of comparisons and so on, then that would still be literal interpretation. Purposive interpretation is when I don’t show it from the statute book but from the Knesset debate or I don’t know what, from my own logic, from what the purpose of such a law might be. That could be purposive interpretation. But literal interpretation is everything somehow connected to the text or the context. It does not necessarily—basically, it’s everything not connected to purposes.

[Speaker E] The Supreme Court does that all the time. Fine, it takes things out of context. No, that’s Aharon Barak.

[Rabbi Michael Abraham] Yes, he has a big book on interpretation, and there he talks about the relation between literal interpretation and purposive interpretation, and I think that already there you can see that “literal”—once I went through some substantial parts of that book; I needed it in another context — and there too you can see it. He doesn’t define it fully. Barak is not a philosopher, and in my opinion that is one of the problems with philosophical treatment of legal systems: the people who usually do it are jurists. And jurists don’t have philosophical sensitivities, meaning they don’t explain and define things at the more abstract level; they’re more practical.

[Speaker B] Aharon Barak writes that in one of the first chapters of his book on law.

[Rabbi Michael Abraham] Oh really? If so, then I agree. In any case, if I really summarize what we’ve reached up to this point — an introduction to midrash. What’s the claim I wanted to make? Simply that midrash and plain meaning are two parallel interpretations. Plain meaning is not just literal but what arises in a first reading — literal plus various things — and midrash is what arises in a second reading, or another meaning. But what arises in a second reading can itself be interpreted in two ways. There are those who still understand it as belonging to the text — meaning, make comparisons and so on, the depth of the plain meaning. I say no: what arises in a second reading, but a second reading that uses different tools, not the tools of plain meaning. The plain meaning can be the result of a very, very complex theory. But if it’s a theory built out of ordinary interpretive tools, that’s plain meaning. And if it’s midrash, that means using the hermeneutic principles of midrash or midrashic rules, which perhaps we’ll discuss later on. Okay? Let’s begin chapter 4, please.