Halakha and Reality – Lesson 2

Table of Contents

• The naturalistic fallacy and the need for a bridge principle
• What Torah is according to Rashi’s opening comment, and what the focus of Jewish law is
• The presumption that a person does not repay before the due date in Bava Batra 5 as a fact–bridge–norm structure
• Torah and Jewish law as bridge principles rather than bottom-line rulings
• Parallel examples: logic, mathematics, and musical genius
• Torah study: breadth of knowledge in itself versus understanding the principles
• The facts are not always simple: context, equivalent descriptions, and a judge’s ruling
• Glass: liquid or solid as a context-dependent definition
• “Do not form factions” and the shift from a geographic place to an ethnic-virtual place
• A Zoom prayer quorum as a case of conceptual change in place and gathering
• Extreme situations and the experience of reality: an elevator, the Holocaust, and ownership of property
• Women’s singing as an example of the gap between external ruling and inner experience
• “Mary’s room,” Rabbi Chaim’s frying pans, and immediate experience
• Semen as an information reservoir and deception
• The binding of Isaac and the limits of judging someone who has not experienced prophecy
• A summary of the speaker’s position on the role of the halakhic decisor and the definition of facts
• Questions at the end: immediate facts, typing on a computer, and the scope of virtual “place”
• Further discussion: intuition, casuistry in the Talmud, and deciding between experience and an external point of view

Summary

General Overview

The text presents the problem of moving from facts to norms through what is called the naturalistic fallacy, and argues that this transition is possible only by means of a “bridge principle” that connects a descriptive account of reality to a normative conclusion. The speaker defines Torah and Jewish law not as facts and not as the bottom lines of rulings, but as the bridge principles themselves. Therefore, a change in reality can justify a change in conclusions without departing from Jewish law. He adds that even the “facts” are not always neutral, since they depend on context, concept definitions, and the immediate experience of a situation. So the halakhic decisor is sometimes required to determine not only how to apply rules to facts, but also what the relevant facts are.

The naturalistic fallacy and the need for a bridge principle

The speaker says that you cannot derive norms from facts without adding another assumption that connects the fact to the judgment. He illustrates this by distinguishing between a description such as “In the law book of the State of Israel there is a prohibition against murder” and a norm such as “It is forbidden to murder,” and argues that only the descriptive sentence can be tested in terms of truth and falsehood. The speaker defines a “claim” as a sentence that can be judged true or false, and argues that norms are not claims in that sense, because there is nothing against which to compare them in order to test their truth.

What Torah is according to Rashi’s opening comment, and what the focus of Jewish law is

The speaker cites Rashi’s opening comment, which emphasizes that the Torah “should have begun” with the commandments, and concludes that the essence of Torah is the instructions and commands, while the stories require justification. He argues that the same phenomenon exists in the Oral Torah and in the Talmudic text as well, where norms rest on a foundation of factual assumptions and principles that translate them into Jewish law.

The presumption that a person does not repay before the due date in Bava Batra 5 as a fact–bridge–norm structure

The speaker presents the passage in Bava Batra 5 about the presumption that a person does not repay before the due date, and explains that in the case of a 30-day loan and a claim of “I repaid” after one week, the defendant is not believed and the burden of proof shifts to him. The speaker argues that a mistaken understanding sees the passage as teaching a “sacred fact” about ancient Babylonian reality, while in practice the fact is only one component that may change. He breaks the passage into three components: a factual assumption (“A person does not usually repay before the due date”), a bridge principle (given a changing presumption, the rule governing the burden of proof changes), and a normative conclusion (the defendant is not believed, and the burden of proof is on him). The speaker says that when reality changes and a different presumption emerges, the bridge principle remains binding, but the halakhic conclusion may change. So one can arrive at a different ruling and still be considered faithful to the Talmudic text.

Torah and Jewish law as bridge principles rather than bottom-line rulings

The speaker argues that in this structure, Torah is neither the factual assumption nor the normative conclusion, but rather the bridge principles that connect reality to the norm. He says there is no holiness in a particular description of reality given by the Sages, and that the conclusion too may change when reality changes, whereas what remains eternally binding is the bridge principle. He concludes that, at least in principle, “the entire Shulchan Arukh could look different” in a different reality, and still be considered a faithful continuation of Jewish law, because the application would still be of the same bridge principles to new facts.

Parallel examples: logic, mathematics, and musical genius

The speaker defines logic as a field that deals not with whether the factual premises are correct, and not with the factuality of the conclusion, but with the “if–then” relationship that makes it possible to derive a conclusion from premises. He argues that a mathematician does not determine what the premises about space are, but only what follows from them, and therefore the sum of the angles in a triangle depends on the geometry. He gives an analogy about Bach and explains that musical genius is not the final composition itself, but the ability to tailor an optimal composition to the taste and musical language of a given culture. In other words, here too genius is a bridge principle. He extends this to the legal world as well, and argues that a legal genius is not someone who knows the law book by heart, but someone who understands the principles that generate rulings and is able to analyze different systems.

Torah study: breadth of knowledge in itself versus understanding the principles

The speaker argues that knowing the “bottom lines,” or memorizing texts like knowing the Mishnah Berurah by heart, is not halakhic genius but at most phenomenal memory. He defines a true scholar as someone who understands how a ruling is generated, knows how to analyze a passage, and knows how to use bridge principles even in order to disagree. He says that this approach has implications for the form of study, the division of time, and one’s order of priorities in learning, though he does not spell them out here.

The facts are not always simple: context, equivalent descriptions, and a judge’s ruling

The speaker gives an example of a federal law in the United States about paying an intermediary state if “the thing passes through wires” but not if it “passes through the air,” and says that physicists tried to use Poynting’s theorem to argue that the power passes through the air around the wire. He argues that Poynting’s theorem points to equivalence between descriptions, not to “what really happens,” and therefore science does not decide which description is the relevant “fact.” He concludes that the judge has to determine the facts that are relevant to the legal context, and that in such a case common sense says that the legislator meant transfer “through the wire,” because without it the transfer would not take place at all.

Glass: liquid or solid as a context-dependent definition

The speaker says that they asked him at the Chazon Ish kollel whether glass is a liquid or a solid, and he answered that in the halakhic context it is “dry,” even if in physics one could describe it as a liquid because of its non-ordered crystalline structure. He says that professional definitions are not necessarily relevant to halakhic definitions, because the halakhic context deals with a practical, everyday distinction. He uses this to argue that deciding “facts” and defining concepts depend on context, and are sometimes entrusted not to the scientific expert but to the halakhic decisor or the judge.

“Do not form factions” and the shift from a geographic place to an ethnic-virtual place

The speaker cites the exposition of “Do not form factions” as a prohibition against “separate factions,” and the opinion that forbids two religious courts or two customs in one city, and points out that in practice every city in Israel has several synagogues. He argues that the solution is a change in the understanding of the concept of “city” or “place” in a dynamic world in which people move around, so that “place” becomes an ethnic community or a virtual community rather than a fixed geographic entity. He explains that because of modern mobility, the custom of the place has in practice been replaced by ancestral custom, because the physical place is not stable, and therefore the application of “Do not form factions” follows ethnic origin rather than city boundaries.

A Zoom prayer quorum as a case of conceptual change in place and gathering

The speaker raises the possibility that in a reality in which a website is a “place” in modern culture, one can view a Zoom gathering as a space in which people are together, see one another, and interact. He argues that you cannot decide only on the basis of paragraphs in the Shulchan Arukh that were formulated for a physical reality; rather, one has to extract the principles from them and apply them to virtual reality. He presents this as a question that also depends on society and lived experience: in a society in which this is people’s “world,” there may be justification for seeing it as a place in which people combine for a prayer quorum, and someone who does not understand the situation from the inside cannot rule for them properly.

Extreme situations and the experience of reality: an elevator, the Holocaust, and ownership of property

The speaker gives a scenario of an elevator plunging toward certain death and asks whether one may forcibly take a pen in order to write a farewell letter, and suggests that the feeling of “loss” can change the application of concepts of ownership in monetary law. He tells of Rabbi Gibraltar in the ghetto, who claimed that “there is no ownership of property in the ghetto,” described how he ruled an exemption from repayment after the war, and presents his words as testimony from someone who experienced the reality and not merely as a theoretical “claim.” The speaker criticizes a response that said there was no source for this, and argues that someone who lived through an extreme situation and is also a Torah scholar knows how to define the halakhic concepts there in a way that someone outside the situation cannot truly understand.

Women’s singing as an example of the gap between external ruling and inner experience

The speaker argues that a rabbi who has never experienced a female singer’s performance may assume that people go there because of sexual temptation and issue an automatic ruling, whereas someone who has experienced the situation can describe it as musical enjoyment that is not necessarily sexual. He says that without the ability to understand people’s experience from the inside, even a great halakhic decisor may miss the meaning of the situation and apply concepts in a way that is not actually correct for it. He presents this as part of a broader claim that sometimes what determines the ruling is not a change in the halakhic principle, but a change in the meaning of the concepts.

“Mary’s room,” Rabbi Chaim’s frying pans, and immediate experience

The speaker brings the “Mary’s room” thought experiment and concludes that formal knowledge about wavelengths does not replace the experience of color itself, and therefore there are areas in which, without immediate experience, there is no understanding of meaning. He quotes the saying that Rabbi Chaim “took the frying pans out of the kitchen” to illustrate a situation in which a theoretical model is detached from an understanding of practical reality. He argues that a halakhic decisor needs not only models and rules, but also experiential understanding of the essence of the situation in order to define concepts and determine relevant facts.

Semen as an information reservoir and deception

The speaker describes a discussion at Bar-Ilan about the use of semen, and suggests seeing semen as an information reservoir that makes it possible “to produce a human being.” He argues that deception is not only lying but also “theft of information,” and therefore using semen without permission might be considered Torah-level deception within a modern conception of information and rights. He adds that a halakhic decisor from the past would have had difficulty understanding this, whereas someone familiar with contemporary biological knowledge and modes of thought can grasp such an interpretation more easily.

The binding of Isaac and the limits of judging someone who has not experienced prophecy

The speaker cites commentators brought by Aviezer Ravitzky who criticize Abraham our forefather for obeying the binding and argue that he should have rebelled or at least suspected that it was an illusion. He argues that someone who has never experienced a divine command cannot judge Abraham for not suspecting, just as a blind person cannot ask why one should trust sight. He concludes that an unfamiliar situation is not correctly perceived even if it is described in detail, and therefore someone who has not experienced the reality cannot necessarily interpret it properly.

A summary of the speaker’s position on the role of the halakhic decisor and the definition of facts

The speaker summarizes that the main expertise of the halakhic decisor lies in the bridge principles that convert facts into norms, not in the facts themselves and not in the bottom-line rulings. He adds that the facts themselves depend on context, concept definition, and experience, and therefore sometimes the decisor must also take part in deciding what the relevant facts are. He presents an ongoing difficulty in mediating between experts and judges or halakhic decisors, because “legal facts” or “halakhic facts” do not always overlap with what a scientific expert would define as a fact.

Questions at the end: immediate facts, typing on a computer, and the scope of virtual “place”

The speaker agrees with a distinction that was proposed, namely that this is not a matter of “subjective interpretation” in the sense of private opinion, but of a perception that is imposed on whoever is in a certain situation. He hesitates over the question of typing on a computer on the Sabbath and argues that it may be forbidden at the Torah level, though not under the category of “writing,” because the formal definitions of writing are not fulfilled on a computer. He suggests that using a computer could have been considered a primary category of labor had it existed when the thirty-nine categories of labor were formulated, and presents this as a demonstration that adapting Jewish law to reality does not necessarily mean leniency; it can also generate new stringencies and new prohibitions.

Further discussion: intuition, casuistry in the Talmud, and deciding between experience and an external point of view

The speaker explains that the Talmud tends toward casuistry and toward working through cases rather than formulating principles, and he presents the passage of “this one benefits while that one does not lose” as a rare example in which an inquiry appears that resembles the later authorities (Acharonim). He uses the example of visual recognition for returning a lost object to justify intuitive decisions of the sort “this is a gathering,” and sets that against the demand for analysis by criteria. He argues that there is an advantage to a “clean” external point of view, but concludes that practical decision-making requires understanding the situation from within. Therefore, it is important to hear the outside perspective, but not to accept an automatic ruling from it when it does not understand the relevant reality.

[Rabbi Michael Abraham] Okay, last time—once again I’m starting with this—last time I began talking about the relationship between Jewish law and facts. At the foundation of the discussion is what philosophers call the naturalistic connection. I said the expression may not be all that precise, but it’s the accepted term, and it says that you can’t derive norms from facts. Meaning, if I say that a picture has many colors, you can’t derive from that that the picture is beautiful. In order to derive that the picture is beautiful, you have to add another assumption: that if a picture has many colors, then it is beautiful. So the fact that the picture has many colors—that’s a fact. That it is beautiful is a judgment, in this case an aesthetic judgment, not an ethical one, but the logic is the same. Therefore the move from facts to judgment is a very problematic move. For that move to be possible, or valid, you need a bridge principle that takes you from facts to judgments. I made a few distinctions, we talked a bit about Maimonides’ eighth root, distinctions between sentences that describe facts and sentences that describe commands in the context of the Torah, or norms, and I tried to distinguish between those two kinds of sentences. I said that saying “it is forbidden to murder” is not the same sentence as saying “in the law book of the State of Israel there is a prohibition on murder.” The second sentence is a description: in the law book of the State of Israel there is a prohibition on murder. The first sentence is a norm: it is forbidden to murder—in this case a prohibition, a negative commandment. But it is a norm. The second sentence can be checked to see whether it is true or false by looking. You open the law book and see. If there is such a law there, then the sentence is true, the claim is true—I called it a claim. A sentence that can be judged in terms of true and false is a claim. And if there is no such law there, then that sentence, that claim, is false. By contrast, the claim or sentence “it is forbidden to murder” has no way of being checked. Against what am I supposed to compare it in order to know that it is forbidden to murder? You can say that it is written in the Torah that it is forbidden to murder, or that there is a prohibition in the Torah against murder, but again those are descriptions. When I say “it is forbidden to murder,” I am really addressing the person in front of me with a kind of command—in this case a command to refrain, not a command to act—and therefore it is a sentence that does not describe. Apparently there is no way—later maybe, but apparently there is no way—to compare it to some state of affairs in the world and by means of that decide whether this claim is true or not true. Therefore, in the simple sense, “it is forbidden to murder” is not a claim. It is a sentence, but not a claim, because a claim is only something that can be judged in terms of true and false. At the end, at the end of the class, I talked about the definition of what Torah is. So at the beginning of the previous class I spoke about the first Rashi, who says that the Torah should have begun with “This month shall be for you the first of the months,” and from here you see that in his eyes the main thing in the Torah is its instructions or commandments, and the stories require justification—why do they appear there at all? Meaning, the main thing in the Torah is the commandments or the commands. But beyond that, I also said that in Jewish law, in the Oral Torah, yes, in Jewish law generally, in the Talmud as well, you can also see a similar phenomenon. And I brought the example of the presumption that a person does not repay within the term, a Talmudic text in Bava Batra 5a. The Talmud says there that if, say, Reuven lent Shimon money for thirty days, and after a week Reuven sues Shimon and Shimon says, “I repaid”—meaning, “give me the money,” and Shimon says, “I already repaid you”—the Talmud says that Shimon is not believed. Even though Shimon is the current holder, yes? Reuven wants to extract money from him, and apparently the burden of proof is on the one who seeks to extract, on Reuven. But in this case the burden of proof is on Shimon. Meaning, Shimon is not believed when he says he repaid. Why not? Because if the loan is for thirty days and you say you already repaid after a week, that means you repaid before the time you were obligated. There is some assumption that a person does not repay within the term. Now of course he might repay within the term, but that is an implausible claim. If you bring proof, we’ll accept it, but the burden of proof is on you. That’s what the Talmud says there. So I asked what would happen in some other situation, another place or time, in which a reality developed where people do in fact repay within the term. Reality changed—say nowadays, when you can take… so many people will go and repay their mortgage early; they don’t want to pay the interest. So they can repay within the term too. A person can repay within the term. What happens in such a case? How do you apply the Jewish law from the passage in Bava Batra to such a situation? So I said that it is pretty clear, I think, that no sane judge would insist on applying the Talmud in Bava Batra as-is to the new situation. Rather, obviously he would say: if the person says he repaid within the term, and overall this is a common norm here, to repay within the term, then we return to the general rule that the burden of proof is on the one who seeks to extract from another. In other words, the plaintiff will have to bring proof in order to get the money. And I will be believed. What about the Talmud? You can’t disagree with the Talmud. The Talmud is the most basic authority in Jewish law. And the Talmud says that a person is not believed to claim that he repaid within the term. My claim was the following: basically—or I phrased it another way—so maybe you can read page 5 in Bava Batra and throw it in the trash? It’s no longer relevant. Meaning, everything there is irrelevant to a different reality in which we live, and you can’t apply the law of the Talmud there. That’s the other side of the same question. My claim was that this is not true. That page is still very much relevant, exactly as much as it was then. Why? Because the assumption at the basis of these questions was that what this page comes to teach me is the fact that a person does not generally repay within the term. And I claim that that is incorrect. That is a mistaken understanding of the passage, of what the passage comes to teach. The passage is really telling me a factual assumption: a person does not repay within the term. That is a fact. You can look and see, do statistics and see that generally a person does not repay within the term. On top of that fact there is another assumption: once such a fact is sufficiently established, it creates a presumption—a presumption that a person does not repay within the term. That can overturn the legal rule that the burden of proof is on the one who seeks to extract, that the plaintiff has to bear the burden of proof. Therefore, if there is a presumption against me, despite the fact that I am the defendant, the burden of proof will be placed on me. Now—and the conclusion in that case is—we checked the facts. The principle that says that if there is a presumption, that changes the situation—the conclusion is that the situation changed. And therefore today—sorry—if there is a presumption, that changes the basic principle that the burden of proof is on the plaintiff. Therefore, the conclusion is that in this case the burden of proof is on the defendant. That is the structure of the passage. Now there are three components here: one component is the factual assumption in this case, namely that a person does not usually repay within the term. A psychological fact, an economic fact, but still a fact. The halakhic conclusion is that a person is not believed if he claims to have repaid within the term. That is a norm—that he is not believed—not a fact. That is a halakhic determination, okay? A person is not believed if he claims to have repaid within the term. What led us from the factual assumption to the norm? What led us is some principle saying that if there is a reality of this type, then the norm that the burden of proof is on the one who seeks to extract can change, or does change. Okay? So that “if-then,” that bridge principle, is what allows me to move from the factual assumption to the conclusion—in this case a halakhic conclusion, but it could be aesthetic, ethical, legal, halakhic, whatever—a normative conclusion of some kind. Okay? Now I’m claiming: that is the structure. And now I’m claiming that in this structure, the Torah is neither the assumption nor the conclusion. In this structure, the Torah is the bridge principle. Meaning, the factual principle that a person does not repay within the term has no holiness whatsoever. There are other realities in which people may very well repay within the term. There is no obligation to cling to the description of reality that existed in Babylonia some, I don’t know, 1,800 years ago. Why should there be? There is nothing sacred about that. That is also not what the Talmud wanted to teach us. So what is? The conclusion too is not sacred, because if the fact changes then obviously the conclusion that follows from it also changes. So what remains fixed? What is the principle from the Talmud that anyone committed to Jewish law must adopt? The principle is only the bridge principle. The principle that moves me from the factual assumption to the normative conclusion. The bridge principle saying that given a presumption, the rule concerning burden of proof changes. That rule—that is Torah. And that is what the Talmud says, and that is what anyone committed to Jewish law must adopt. Now what does that mean for us? Suppose we are in a situation where the facts changed and people do repay within the term. The facts are not sacred. If the facts are different, I follow the facts relevant to me, not the facts described in the Talmud. What does obligate me from the Talmud? The bridge principle. The bridge principle says that if a presumption is created, that can place the burden of proof on the defendant. That I absolutely apply in our context as well. And if some other presumption were created, for example, one that harms the defendant or works against the defendant, then the burden of proof would be placed on the defendant. That is true. This principle is eternal, even though reality changed—that doesn’t matter, because the main thing in the passage is not the factual determination. That can change. The main thing in the passage is the bridge principle, and the bridge principle is always true. The only thing is that if reality changes, then that same bridge principle will lead to a different normative conclusion, and in this case a different halakhic conclusion. Right? After all, the fact will be translated by the bridge principle into a different norm. If the fact is different, then the norm is also different. And therefore, once there is no presumption like there was in the time of the Talmud, then the conclusion of the Talmud is automatically no longer correct. But there is no deviation here from Jewish law, because Jewish law is neither the factual assumption nor the normative conclusion. Jewish law is only the “if-then,” only the bridge principle that takes me from factual assumptions to normative conclusions. And therefore I think this is perhaps a good illustration, precisely because it is so neutral. There are no ideological changes here, right? The status of women and feminism and the status of the gentile and all kinds of things that today there are lots of arguments about. Precisely from this simple example in monetary law, a completely prosaic matter, I think you can learn from here a principle that is very important. And I think it has applications also to the burning ideological issues, but I won’t get into that here. So this basically teaches us what Torah is. Torah is—if I return to my introduction about the relationship between facts and norms—basically Torah is not facts, and in practice not even norms. Torah is the bridge principles that connect to the facts and create norms from them or apply norms to them. That is Torah. And therefore in a situation different from what existed in the time of the Talmud, it may be that all the bottom lines will be completely different. Totally different. No connection at all to what appears in the Talmud. And still it will be a faithful continuation of what appears in the Talmud, because it will be the application of those same bridge principles to a different reality. If the reality is different, that will also yield different norms. The entire Shulchan Arukh can look different, and still it will be the correct continuation of the halakhic determination of the Talmud. That is basically my claim. Maybe I want to sharpen this principle a bit. I want to show you that in fact it is true not only for the definition of what Torah is or what Jewish law is. Let me give you—let’s try to think, for example, about what logic is. Okay? So suppose we are presented with a logical argument, and they tell us: if all frogs are green, and the creature in front of me here is a frog, then the creature in front of me is also apparently green. Right? That is a necessary logical conclusion. Meaning, the derivation of the conclusion from the premises is necessary. Now what does logic deal with? With the premise that all frogs are green? I don’t know—maybe they’ll discover frogs that are not green in other places; I assume there really are such things, I’m not a great expert on frogs. Maybe by the Passover Seder I’ll need to make up for that. In any case, this factual assumption that all frogs are green—that is not what logic deals with. That is for scientists to investigate, to check the color of frogs. That the creature in front of me is a frog—that also is not the concern of logic. Logic also is not concerned with the fact that the creature in front of me is green. Not that either. So what does logic deal with, if not with any of these things? Only with the relation between them. Logic deals solely with the bridge principle—in this case the logical one—that takes me from the premises to the conclusion. In this case both the premises and the conclusion are factual, so it has nothing to do with the naturalistic fallacy I talked about earlier, but the structure is the same structure. Logic really deals neither with the premises nor with the conclusion; it deals with the principle that takes me from the premises to the conclusion. That is the field of the logician. Say you ask a mathematician, for example—you ask him: what is the sum of the angles in a triangle? So if he is a responsible mathematician, he should tell you, “I have no idea. It depends on your assumptions.” Or translated: “it depends on the geometry within which you are operating.” Right? If the space is Euclidean, meaning if the assumptions are those of Euclidean geometry, flat space, then the sum of the angles is one hundred and eighty degrees. But if your factual assumptions are different, then the mathematical conclusion is also different. And we know that there are non-Euclidean geometries: if someone draws a triangle on a spherical surface, then the sum of the angles there—you have to know how to define it—is not one hundred and eighty degrees. Or in any other curved space, it is not one hundred and eighty degrees. Why? Because once the factual assumptions are different, the conclusion is different too—again, in this case it’s also a factual conclusion. So then what is the craft of the mathematician? He cannot tell me whether the space I am dealing with is straight or not—that is the concern of the physicist. He also cannot tell me what the sum of the angles in a triangle is in the space in front of me; that too he cannot tell me. What can he tell me? Only the connection: if your assumptions are such-and-such, if your space is such-and-such, then the sum of the angles in a triangle is such-and-such. This “if-then,” this bridge principle—that is the mathematician’s area of expertise. The mathematician is a kind of machine, an if-then machine. Give him the assumptions—say the physicist gives him the assumptions, what kind of space our space is, what geometric assumptions are correct for it—and then the mathematician will do the calculation and tell us what the sum of the angles in a triangle is in such a space. But the mathematician cannot tell me either the assumption or the conclusion; that has nothing to do with his field of expertise. His field of expertise is solely the transition from the assumptions to the conclusion. And in that sense I think the structure is very similar to what I said earlier about the definition of what Torah is. In Torah as well, the move from factual assumptions to normative conclusions—that is the concern of Jewish law. That is the concern of the halakhic expert. Not the assumptions and not the conclusion, but the principle that takes me from one to the other. Maybe I’ll bring one more amusing example. I think I spoke about this at some point here in a class in Petah Tikva—here, here virtually in Petah Tikva. Because the example is this: I once thought a little about the question, why is Johann Sebastian Bach considered a musical genius and I am not? That’s not nice. I mean, why only him and not me? After all, in the end, he wrote some melodies that apparently—I don’t know—those who understand these things say are truly genius, something extremely impressive in, I don’t know, their aesthetics, their complex structures, and so on. With Bach it’s probably also some sort of complex structures, right? The Tower of Bach, whatever, bits I skipped over there. In any case, that is Bach’s craft. But clearly, say, in another society with another culture, it is entirely possible that people would not enjoy Bach’s music. Don’t tell anyone, but I’m not sure I enjoy his music all that much either. Basically it depends on the society. Now someone who writes music for that other society, some tribe in Africa, writing some other kind of music for them—there can be musical geniuses there too, who hit the audience’s taste exactly or create astonishing works there, which of course in the salons of Europe, or the concert halls of Europe, let’s say, people would not be especially impressed by. So what does that mean? That this genius is a relative matter. More than that, I’ll tell you: if I write music of my own—I already told you I’m considered a rather small-scale genius in music—I’ll write music for myself, okay? It is perfectly clear that in principle I could produce a group of creatures, mutations, for whom this is exactly the optimal music, the most perfect, most fitting, most aesthetic, most genius thing they can imagine, okay? You can synthesize such beings. I assume that if I were the Holy One, blessed be He, I could create a collection of creatures to whom my musical works would appear the way Johann Sebastian Bach appears to us. So why is he a genius and I’m not? Basically, his luck turned out—or I don’t know, turned out badly or maybe paid off, right?—his luck was good in that he happened to land on a group of people whose standards fit his compositions exactly, so he is considered a genius. And I, unfortunately, do not live in that imaginary tribe which, if it heard my music, would be very impressed by it. What can I do? No. So Bach is lucky, and I’m unlucky. But that doesn’t mean he is a musical genius and I am not. I am a musical genius just like he is; it’s only a difference of luck. No. So what is it—why is he considered a genius and I am not? So I have a theory as to why he is considered a genius and I am not. First of all, because he is a genius and I am not. But beyond that, I think that Bach’s genius—if I am right, and again I am a very minor expert in music, not only a very minor genius in music but also a very minor expert in music—but it seems to me that from a musical genius I would at least expect that if he operated within a society like an African tribe, as I described before, after some time, once he understood who the people are and what their taste is and their culture and so on, he would succeed in producing genius works appropriate for them. His works are a product—they are the landscape of his homeland. Meaning, because he lived within a certain culture, he created works that fit that culture. His genius would express itself to the same degree in other cultures as well. It might take him a little time to get into it, to understand what is going on there, but in the end, if he really is such a musical genius, I assume he would know how to create genius works there that suit the taste of those imaginary—or real—or whatever—creatures. What does that mean? That musical genius—again, I’m really talking here about a field I don’t understand very well, but it seems to me a reasonable statement, I don’t know, it sounds reasonable to me—Bach’s musical genius, just like logic, just like Jewish law, is not the final product. It is the “if-then.” Meaning, given a certain culture, a certain musical language, certain habits, certain people, and so on, I can tailor to them a certain music that will be optimal for them. But the ability is the ability to match this to that, the bridge principle that takes me from people’s taste to the work. And if he is really a genius in bridge principles, and that is the meaning of musical genius, then if he had lived in a tribe in Africa he would have created completely different works, and they would have been equally genius, even though in Europe people might not have enjoyed them. Why? Because genius is not the work itself; genius is only the bridge principle of the “if-then.” The work is the output. Meaning, once you understand the situation and match yourself to it, you apply the musical bridge principle to it and arrive at the perfect work. I’m obviously describing this in a very rough and simplistic way, just to make the principle clear. And therefore there too, it seems to me, the ability really is not exhausted in the final result; it lies in the bridge principle. And basically these examples show us that this distinction I made in defining what Torah is or what Jewish law is is not unique to Jewish law. It is true of everything. The same applies, I think, to legal genius. A legal genius is not someone who knows the entire law book by heart, of course, and not even someone who can guess what is written in the law book because he understands the legal world so well, but rather someone who has some understanding of the principles that create the legal system. Therefore he has the ability to analyze statutes or legal systems or court rulings and the like. And therefore, in principle, even if he moves to a different legal system, if he is a legal genius I assume that there too he will be able to produce brilliant, deep, fascinating analyses. Again, this is very schematic and very rough. It may certainly be that there are different legal systems in which his abilities simply won’t fit, and there he will not be considered a legal genius. Maybe—in fact, not just maybe, that’s even likely. But it doesn’t matter. The fact that this is called a legal system and that is called a legal system—that’s just our label. In the end, when I speak about the kind of genius he has, it is genius in bridge principles. It may be that those bridge principles are not relevant to legal systems in other worlds, so fine, we’ll call them whatever—some alien systems, not legal systems. That doesn’t change the principle I want to argue for here. So basically my claim is that in general, a field of expertise, genius, discipline—or talent in a discipline—is usually an understanding of bridge principles. Mastering bottom lines is some kind of knowledge, but not very valuable knowledge. If I go back to the halakhic world, it is parallel to people who know by heart the entire Mishnah Berurah. Someone who knows the entire Mishnah Berurah by heart is not a halakhic genius. He may have a genius memory, some phenomenal memory ability. Fine. But he is not a halakhic genius. A halakhic genius is someone who knows how the rulings of the Mishnah Berurah were created, or perhaps how rulings in general are created, and he can disagree with the Mishnah Berurah. But again, genius, or understanding, or the discipline, does not lie in the bottom lines; it lies in the analysis. And that touches on many questions regarding Torah study, regarding the approach to halakhic ruling, all kinds of things of that sort. Maybe I’ll touch on that later, because basically the question is whether there is much value in learning the whole business by heart. When people study broad familiarity in Talmud, is there much value in knowing all the Talmud by heart? There is some value, but it is of rather limited value. It is much more important to understand the principles that led to what the Talmud says—much more important. To remember everything by heart, you obviously need a phenomenal memory, but that doesn’t mean you are truly a scholar, of course. That is just a donkey carrying books. But the real scholar, the one who truly knows how to analyze a passage, the one who knows how to rule in Jewish law, is someone who knows the principles and is skilled in using the principles. And when I speak about principles, I mean bridge principles, not bottom lines. Bridge principles. And that has many implications for the form of study, for the division of time, what to invest in, in what order to do things, but I won’t get into all that here. Okay, so up to here I’ve only sharpened what I said at the end of the previous class, what Torah really is—that Torah is bridge principles. But there is another point, also somewhat related to this topic. It is really the same thing, but at first glance it looks a little different. The decision regarding the facts that underlie halakhic ruling—after all, in every halakhic ruling there are facts, and from them, or to them, we apply the relevant halakhic norms. What does Jewish law say about such-and-such circumstances? The facts basically determine the law; they determine what I need to do or what I am forbidden to do. But facts, too, are not such an unambiguous thing, or such a simple one. I’ll give you maybe one or two examples. A story I’m very fond of from one of my lecturers in electrical engineering at Tel Aviv University, Professor Frankenthal. He taught us electromagnetic fields, and he told us that there was once some federal law in the United States—maybe it still exists, I have no idea, though I assume today it probably can’t still exist—according to which if two states transfer something to each other through a third state—say, two distant states with some state in the middle between them—and state A wants to transfer something to state C through state B, then it has to pay state B a certain amount, whatever, if the thing passes through wires, some sort of wires, or through pipes. But if the thing passes through the air, then not. Okay? Now state A transferred an electricity line to state C—it supplied electricity to state C. State B, which stood in between there in the middle, demanded payment from them: pay up. They refused, so state B sued them in court. In court they brought physicists who explained to the miserable judge that there is a theorem in field theory called Poynting’s theorem. And that theorem says that the power of the electric field created by the current actually travels through the air around the wire. It does not travel through the wire. The current travels through the wire, but the electrical power—the thing with which we do the work—travels outside the wire in the air around it. You can even calculate it, not important, but it travels in the field surrounding the wire. Fine, so if that is the case then they are indeed exempt from paying, because it passes through the air. The only problem is that someone who knows electromagnetic fields and is a bit sensitive to the philosophical significance of these things knows that Poynting’s theorem does not say that. What Poynting’s theorem says is that there is an equivalence between two descriptions. One description is that the power passes through the wire. There is current, there is voltage, current times voltage is power, and you can say that some kind of power passes through that wire. You can, in an analogous description or an additional equivalent description, describe the power as though it passes there. But these are just two mathematical ways of describing the same phenomenon. You can choose this description and you can choose that one. By the way, in the scientific world there are many situations that have several different descriptions, all of which describe them well. And there is no connection between them—different descriptions saying different things, but they yield exactly the same results. Anyone familiar with Fermat’s principle in optics, for example, geometric optics: in optics we know that when a beam of light passes, say, from air into water, the angle is refracted. It doesn’t continue in a straight line; the angle bends a bit. Every time it moves from one medium to another, the angle is refracted. And there are laws—Snell’s law, which determines the relation between the angles and things like that. Now there are several principles of geometric optics, and all of them can be formulated through one formulation called Fermat’s principle. It says that light always chooses the shortest path—or more precisely, the fastest one, not the shortest one—the path that takes the least time between two points. You can prove that all the principles of geometric optics follow from this description. It is completely equivalent. You can describe optics through the collection of principles studied in high school, and you can describe optics through this principle. With a little mathematical skill you can show that these are two completely equivalent descriptions. And you have to understand: conceptually, these descriptions are opposite. It’s not just that they’re not the same. “Light chooses the shortest path” is a purposive description, a teleological description. A description as though light does calculations, chooses the shortest path—and that raises allergic reactions among physicists when you formulate it this way, or among philosophers. Because it is basically a teleological description of optics, whereas the standard description of geometric optics is causal. Or take mechanics, for those who know it—not everyone does: there is description through forces and description through potentials. You can say that a ball rolls down a mountain into the valley and that a force acts on it downward. That is a description through forces, and it is causal. The force pulls the ball and the ball is drawn along. There is a description through potentials: the ball wants to get to the place with the lowest potential energy. The ball wants to. So it wants to—so what? What does it mean, “wants”? It chooses for itself the place with the lowest potential energy and goes there. And this is completely equivalent. Description through potentials and description through forces are completely equivalent. It is exactly like Fermat’s principle, only in mechanics rather than optics. And so on. There are many cases in science and technology where you can describe the same thing in different descriptions and they are completely equivalent. But here, in the legal context—and I return to the electricity-transfer example—this has a very important consequence. If you choose the description that the power passes through the air, then those states are exempt from paying the intermediary state. But if the power passes through the wire, then they have to pay. So what do you do now? The question is not how physics describes reality, but what reality is. And regarding the question what reality is, it seems to me that the physicist has no advantage over the judge. The physicist knows that this description is correct and that description is also correct. He has no way to choose between them, because they are equivalent. Every scientific result can be explained through this description and through that one. So who decides what is correct? Not the physicist, but the judge. But the judge here has to decide a fact. Does the electricity pass through the wire or through the air? Apparently that is a factual question, not a normative one. After that, as a result of it, there will be a legal ruling—whether they must pay or are exempt from paying—that is the normative conclusion. At the moment I’m speaking about the facts, not the bridge principle and not the conclusion—about the facts themselves. The facts themselves are actually a matter for the judge. Why? Because there is no way to determine scientifically whether this is correct or that is correct. And of course common sense says that the legislator meant that if a wire is needed to transfer it, then you have to pay. Why do I care that once you’ve laid the wire it can also pass through the air? If you take away the wire from there, it won’t pass either through the air or through the wire. Meaning, clearly, in order to transfer electricity you need a wire. Okay, in those contexts, it is possible to transfer electrical power without a wire, but certainly not in that manner, not a strong current. So the point is that legally, clearly, the relevant fact or the relevant description is the description that electricity passes through the wire. But that is a factual determination in the field of physics or engineering. The judge is not an expert in that, and still he is the one who in this case has to determine the facts. After he determines the facts, he will of course use the bridge principle and say: if the thing passes through a wire, then one must pay; if it passes through the air, one need not pay. That is the bridge principle. That is the judge’s expertise; that is what is called the field of law. That is the world called law. So on the factual assumption—which has to be determined using, I don’t know, tools of looking at facts, and we’ve already seen that this is not done by physicists and engineers—you apply the bridge principle and then you reach the conclusion whether one must pay or is exempt from paying. And once again, the legal expertise is the bridge principle. But notice: in this case the judge will also have to be involved in determining what the relevant facts are. Because the question of what the relevant facts are from the legal point of view cannot be decided by physicists or engineers. Let me perhaps give you another example. Once I was sitting in the Hazon Ish kollel, and some Jew came over to me and asked, “Tell me”—he knew I was a physicist—so he asked me, “Tell me, is glass a liquid or a solid?” I didn’t quite understand the question, so I said, “What do you mean, what?” He said, “I heard that among physicists glass is defined as a liquid, not a solid.” I said to him, “But do you mean to ask a question in the halakhic context? In other words, whether it is permitted to heat it on the Sabbath? Or whether it has the law of something dry or the law of something wet—is that the question?” He said, “For example.” So I said to him, “If that’s the case, then it’s dry, not wet.” Why? Because the definition of what is solid and what is liquid is of course context-dependent. In the physical context people sometimes define glass too as a kind of liquid, for certain purposes. And why? Because it has a non-ordered crystalline structure. Usually solids have an ordered crystalline structure; glass has a non-ordered crystalline structure. In that sense it is like a liquid. Therefore, from a certain point of view, at least, physicists relate to glass as a liquid. But clearly in the halakhic context that relation is irrelevant, because in the halakhic context the question whether it is liquid is whether it is strong, solid, rigid, or whether it is liquid. That is not a physical-philosophical definition; it is a practical definition. And therefore in that context a physicist can come again and say, “What do you mean? We physicists say that it is a liquid; it is forbidden to heat food on the Sabbath in a glass vessel because you are heating the glass, and the glass is a liquid.” But that is nonsense, of course. Why? Because in the halakhic context it is clear that the definition of liquid or solid is a homeowner’s definition, an everyday definition, not a professional definition of crystalline structure. Exactly like the structure of electricity, only here of course it is much more obvious. So here we see that in fact the judge is supposed to be involved not only in the bridge principles, in the application of the bridge principles, but sometimes also in determining what the relevant facts are. That too, in fact, sometimes at least, has to be entrusted to the judge. Now let me perhaps give a few examples that are more current. For example, there is a dispute in the Talmud about the verse “You shall not cut yourselves.” So there is “do not make yourselves into separate factions,” and “you shall not cut yourselves for the dead” is the plain meaning, that it is forbidden to pull out hairs or do such things and make cuts on yourself when you are in mourning. But the Talmud interprets it, among other things, as a prohibition against becoming separate factions. What does that mean? There is a dispute in the Talmud how exactly to explain it, but one opinion is that it is forbidden to establish two courts in one city. What does that mean in translation? It is forbidden to establish two synagogues in one city, forbidden to have two communities in one city, forbidden to have two different customs in the same city, and so on. Now this is Abaye’s opinion against Rava’s, and apparently this is not one of the Ya’al Kegam cases, so the Jewish law ought to follow Rava. But Maimonides at least—and I think most decisors, though I’m not sure about most, but other decisors too—rule like Abaye: that it is forbidden to establish two courts or two synagogues in one city. Now does anyone know a city in Israel that does not have two synagogues? Or in the world—I don’t know, maybe somewhere in the world yes, but in Israel certainly not. There is no such thing. And it’s not only because of change of place; it’s also because of different customs, which only makes the situation more severe. Because if it is a matter of differing customs, and you perpetuate that merely by having two synagogues, that is far more serious. Because the whole reason they didn’t want there to be two synagogues was so that there would not be two customs in the same city. And now you tell me that because there are two customs here, there must be two synagogues—that is exactly opposite to the spirit of the law. Not the spirit of the law—the instruction of the law. It is a direct, frontal violation of “do not make separate factions.” And no one opens his mouth. Everywhere it is like that. No one even thinks to question this matter. Why not? Because I think the question is what counts as a city for this purpose. In our world this is much clearer. I think if we had asked this fifty years ago it would have been harder to answer, but in our world it is much clearer. And it was true fifty years ago too. Once, when the world was very static, people more or less died where they were born, and so did their children and grandchildren and so on, then they spoke about the custom of the place, right? Yet for some reason, for us the basic concept of custom is not the custom of the place at all, but the custom of one’s forefathers. Each person—say I live in the same place as others; if they are Sephardic and I am Ashkenazic, we follow different customs, and each of us is sure he is fulfilling the laws of custom. But the laws of custom in a place concern the custom of the place, not the custom of one’s forefathers. Even when it says regarding the people of Beit She’an there in Pesachim, “The custom of your forefathers is in your hands,” the meaning of “the custom of your forefathers” is the custom of the place where you live, only your forefathers also lived in that same place. But the assumption is that it is the custom of the place. Why today does custom become the custom of one’s forefathers? Because place has become something dynamic. The logic of Jewish law does not make it reasonable to preserve custom by place. It is not reasonable. A person moves from place to place very easily; people move house; the children of course do not live where their parents lived. Therefore to speak of the custom of a place in the old static sense is not reasonable. I know, all this is retrospective interpretation. The same is true of “do not make separate factions.” Place means the community to which I belong—that is place. Place has become something virtual. It is no longer a geographic place; it is something virtual. Once I am Ashkenazic, then my place is the Ashkenazic community. Right? And someone who is Sephardic, Moroccan, Hungarian, whatever—his community is in fact the place, the modern substitute for place. Once the world became more dynamic, as the Jewish people were no longer in one place, no longer concentrated in one place, but are in different places and move from place to place, then somehow, quite naturally—and I haven’t researched it—but I think almost without explicit discussion, people kind of slid over to places in senses that today we already know to call virtual places. Basically the community is a virtual community. Whoever belongs to the same ethnic origin—that is the same place, and the binding custom is that custom, and “do not make separate factions” means that. Now imagine you asked someone from the old world, asked him about our situation today, whether it is permitted to establish two synagogues in the same city. Quite possibly—unless he were really a person of broad vision—but quite possibly he would tell you: absolutely not, forbidden. Why? Because for him there is the custom of the place, and “do not make separate factions” by place; therefore, absolutely not—how can you establish two synagogues in one city? That violates “do not make separate factions.” But if I live in a situation where it is completely clear that concepts of place are now understood in an entirely different way, then I understand that the correct application of the Talmud’s “do not make separate factions” to our day, when the reality is different—you see the earlier structure I spoke about—the correct application is to establish a synagogue for each ethnic origin, not for each geographic place. And therefore maybe it is forbidden to establish two Ashkenazic synagogues in the same place. Although today, since the breach has already been made, no one is strict even about that. About that there would be room to be strict, by the way. Unless, again, there is no room to pray and another place is needed and there are constraints, and so on—then perhaps yes. There is room to discuss how far one needs to be strict with this matter. But I think today nobody even imagines that there is any issue requiring accounting if I create another synagogue of the same rite in the same place. But with different rites, clearly not. Now this thing basically tells me that in order to rule the law for the situation in which I am located, one has to determine the definitions of the concepts and the facts—in quotation marks—relevant according to the reality in which I live today. What are the facts? Does electricity pass through the wire or through the air? Depends on the context. In the legal context, electricity passes through the wire. In the halakhic context, glass is a solid. In the physical context, glass may be a liquid. Therefore the definition of concepts and the factual assumptions are circumstance-dependent. And one needs familiarity with the circumstances and with the context in order to determine both the facts and the definition of the concepts. Therefore, if I return to what I said before, halakhic expertise is not exhausted merely by a good understanding of the bridge principles. Give me the facts and I will move you from the facts to the conclusion. You have to understand very well what the relevant facts are in your context, and it is not always the case that an expert or professional in that particular field can save you or replace you. In the end, you are the one who has to decide what the relevant facts are. And for example, on a very current issue: let’s say people ask about joining a prayer quorum through Zoom. If you ask a halakhic decisor who has never seen what Zoom is, never used a computer, does not understand what Zoom is—it sounds to him like some science-fiction description. So his simple tendency—and by the way, even decisors who do know Zoom, this is still their simple tendency—is to take the relevant paragraphs in the Shulchan Arukh, that if there is a partition through which they see one another then the quorum joins, and if not then they do not join, and all kinds of things of that sort, and to determine the rules of how a prayer quorum is joined through the rules that appear in Jewish law, in the Shulchan Arukh or in the Talmud or in the medieval authorities (Rishonim), the decisors, and so on. But—and this is something people don’t generally do very much, they do it just barely and without admitting it, but they do it a bit—in another reality it may be that if we are all here on one screen, all of you are in front of me here in little boxes, then what do you mean—we are in the same space. There are ten people here, there is a quorum. What’s the problem? You can join a quorum. Now why? After all, it’s not really a place. They call it a site, yes, but that’s only a borrowed use. I want to claim no, it’s not a borrowed use. It’s not for nothing that they use the term site for this thing. They use the term site—site means place—because in our culture it really is considered a place, it is considered a site. If we are all in the same site and talking to one another, why is it so obvious that we cannot join a prayer quorum? Especially when it is also a visual site and we even see one another. So therefore—and again I say, I am not an internet enthusiast. There are people for whom even asking the question is bizarre. Meaning, for them it is completely obvious that this is their world, this is the space and arena within which they operate. In such a situation it is entirely possible that all the laws of joining a prayer quorum change completely. There is no point at all in reading the Shulchan Arukh in order to determine whether one joins a prayer quorum or not. You can look at the Shulchan Arukh only for the principles. Meaning, given that the reality is a physical reality and not a virtual one, then the rules are that some see others and so on. Okay, now let’s apply this to our virtual reality. And again, this is basically the same structure I described before. I take a concept like “being in one place” or “some see some,” and I apply it to a different reality, and then this basically means that the facts suddenly become different. If Rabbi Yosef Karo were looking at this, he would crucify me for what I’m saying now. How can you join into one prayer quorum people who are partly abroad, partly in other places in Israel, I don’t know where? What connection is there? How can this be a place? Can the Holy One, blessed be He, dwell in an internet site? It seems to me yes. Why? I don’t rule it out—why not? I see no reason not to. What’s the difference between that and actual physical space? Meaning, as long as there are ten people here interacting and functioning with one another, then this is a place. It is a place in which people join into a prayer quorum and everything is fine. I’m not saying this as practical Jewish law right now, but I’m raising it as a consideration that is certainly relevant, and I think it will also depend on the society. Say, in a place where people do not use the internet or Zoom or something like that, it may be that there the answer will be that this is not a quorum. But if there are people for whom this is their world, they spend hours in this context, they really feel here—when they talk to one another, communication through Zoom no longer feels artificial to them. Right? In another few months I think all of us will already be like that. But there are people who are like that even in ordinary life too, all sorts of internet mice. So for them this is the real space. I see no reason at all to rule for such a community, or for such people, that they join there into a prayer quorum. And I’ll say more than that: someone who does not understand this situation cannot really rule for them. Because even if they describe it to him, it may be that he still does not truly understand what this thing means. Let me maybe give another example to sharpen the point more. Suppose two people are in an elevator and the cable snaps; the elevator is plummeting at enormous speed to the ground. They know that in another, I don’t know, twenty seconds they will crash to their deaths, no doubt. Okay? Now one asks the other for a pen to write a farewell note to his family. The other says, absolutely not. I’m not willing to give it to you. I don’t want to; it’s my pen. Now the question is whether I may take his pen by force. On the face of it—of course not. That is theft. Writing a farewell note does not justify theft. Theft, according to Rashi, is even something for which one should be killed rather than transgress. Right? It does not justify theft. On the other hand, I would find it very hard to rule for people in such a situation, which is so far from me, so incomprehensible to me. It seems to me that someone inside the situation can sometimes sense that here monetary law changes. Meaning, something here cannot be conducted as in the normal world. I once wrote an article about this in the context of halakhic ruling during the Holocaust. Right? In situations that are so far from us that it is hard for us to understand them, people can describe everything that happened there to us, everything. They can describe to us that this happened and they murdered and took and abused, and everything is fine. As long as you do not live that situation and understand what it means, you cannot make halakhic decisions about it, because sometimes that very feeling changes the situation. For example, it may be that in such a situation a person’s property cannot be defined. Ownership of property lapses in such a state, and then I can take your pen because it is not yours—like goods swept away by the sea, or things like that. Right? If something is swept away by the sea and heading to destruction, if someone saves it there, it is his. Even though the owner is standing on the riverbank shouting, “Hey, it’s mine, it’s mine,” and it’s clear that it fell from him, everything is fine. But if it is not salvageable and someone jumps in and nevertheless saves it, then it is his. Why is it his? Because the ownership of the first person has lapsed. Why? Because this is a situation in which the object is lost. Now in a place where the people themselves are lost—what does “lost” mean? In twenty seconds they are lost; for now, not yet. In twenty seconds they are certainly going to die. So does ownership of the pen really still remain with you, such that you can oppose me? I’m intentionally giving an almost absurd example, but still, it can be discussed halakhically; the answer is not at all simple. And someone who has not experienced the situation himself and does not understand what it means will not know how to apply the concepts and principles of Jewish law. As I said, I wrote about this in the context of halakhic ruling in the Holocaust. There was a series of articles in Yated Ne’eman about someone named Rabbi Gibraltar, who survived and eventually reached Italy. There was some rabbi in Italy there, and his son wrote a series of articles in memory of his father, telling a bit about what happened there and so on. Among other things he also inserted a description of his father’s halakhic approach in the ghetto. And his father’s halakhic approach in the ghetto was that there is no ownership of property in the ghetto. Therefore, for example, he lent people money in the ghetto—he had money, and he lent them money. They came to repay the debt after they survived, after the war ended. He told them, you are exempt. That money was not mine. Or whatever—inside the ghetto too he gave instruction according to this conception, his halakhic instruction, his halakhic rulings were according to this conception. In the ghetto there is no ownership of property. Like in the elevator case I just described, like in the elevator situation I described earlier. Now there was somebody there, someone involved in monetary law, who wrote a response article. He said, fine, he had no books there and one should not judge him because the situation was extreme, but clearly this is nonsense and it is incorrect and the man is mistaken and clearly it is not true from a halakhic standpoint that there is no ownership in such a case, there is no source for it and it cannot be right. And I argued there, first of all, why in my view it actually can be grounded in principles of Jewish law; meaning, I also do not agree with his halakhic obviousness. But my starting point was that from my perspective I was not even coming to evaluate him. From my perspective, what he said was testimony. It was not a claim. It was testimony from someone who experienced the situation and was a Torah scholar. Meaning, not just anyone—he knows Jewish law, he is expert in Jewish law, he experienced the situation, and he told me, “Listen, if you understood the situation I am in, you too would understand that in such a place there is no ownership of property.” That was testimony from my point of view. Now I can try to anchor it in some halakhic principles, and I think that was done there, and it seems to me it can even be done. But I only did that after I accepted his position, because it was clear to me that if he lived in that situation, then he determines it. Even if he is not the greatest Torah authority in existence, and even if there are rabbis and decisors far greater than he elsewhere—he experienced the situation, so he knows how to apply the law correctly there. And it doesn’t matter. Even if you explain in a thousand explanations, in a thousand ways, to the ruling rabbi exactly what this situation means and what its significance is and so on, still, if what he says doesn’t sound logical to you, doesn’t make sense, then the one who decides is you. One of the more relevant examples, and of course much less extreme, is the example of women’s singing. With women’s singing—well, one can discuss whether this is an objective prohibition that does not depend on circumstances and nothing else, in which case maybe there is no place for this example. But if not—and there is a lot of room to think that not—then when you go to a rabbi who has never in his life gone to a concert by a female singer, has not listened, does not know the phenomenon, has not experienced it, he knows of it, he knows people go, but he has not experienced the phenomenon himself, he will immediately tell you: forbidden. A woman’s voice is nakedness, forbidden. Now, if you experience that phenomenon and you say to yourself, wait a second, but I’m there and I know—I’m not going there because of forbidden thoughts and sexual temptations and all sorts of drives and such things. I’m going there because she sings beautifully. I want to enjoy that music. Now when I explain this to that rabbi, there is a chance—again, it depends on his openness, his willingness to listen, and his ability to step into the other person’s shoes—but it is entirely possible he will say, forget it, you’re telling yourself stories; that’s all the evil inclination. Forbidden. And I claim that he simply does not know the situation. It is a situation unfamiliar to him. From his point of view it is obvious that if someone goes to hear a woman sing, it is because of the evil inclination. Not because he wants to enjoy music and thinks she knows how to do things others do not know how to do. And therefore he enjoys it. So he goes there. By the way, if that really is the case, then it may be that even if improper thoughts arise, it is not at all clear that it is forbidden—but that is a different discussion. But let us say for the sake of discussion that such thoughts do not arise. Then the claim is that when you are dealing with an unfamiliar situation, you ask for an explanation: understand what is happening there and then issue a ruling. But if this is a situation whose meaning you cannot really grasp, in terms of how the people themselves experience what is happening there, then no explanations will help. The one making the decision has to be someone who knows the situation from within. Very often, questions brought to the rabbi of a young and modern community, egalitarian perhaps, more liberal, and he rules for them in ways that receive a lot of criticism from decisors more veteran and more experienced than he is. And he also agrees that they are more veteran and more experienced than he is. But they do not know the situation in which he lives, and they do not understand what the significance of each decision really is. Now, I am not saying that it is always like this. There are situations in which there are certain principles and it does not depend on the situation or on the circumstances of how you perceive them and all sorts of things like that. But many times—and I think maybe even most of the time, it seems to me, maybe; I haven’t done some test, and how would one test that?—things can definitely depend on one’s perception of the situation. What does this thing really mean for the people living there inside it? And without understanding that, you cannot rule Jewish law for them. No matter how great you are, you cannot rule Jewish law for them. Meaning, there is something in the interpretation of reality, in the immediate experience of reality, that will basically define perhaps even the principles of Jewish law, but mainly the definitions of concepts. Not that you invent different halakhic principles there, but the concepts will receive different meanings. Because joining a prayer quorum can suddenly also happen in a virtual site, or “do not make separate factions,” where place suddenly becomes an ethnic place rather than a geographic place, or all kinds of things of that sort. And therefore many times the ability of the decisor, or his involvement in determining Jewish law, is not only in the bridge principles as I said earlier, but also in defining what the relevant facts are. How to define the relevant concepts that appear in Jewish law and in its bridge principles. Because without defining those things, you will not succeed in deciding the law. And many times this is not a matter for experts and not a matter for objective knowledge. It is a matter of subjective experience, of immediate perception of the situation. Let’s perhaps give one more example from a completely different source. In Wikipedia there is an entry called Mary’s room. You can look at it there. This is an example once brought by some philosopher, about Mary, who was a brilliant physicist. She had mastered all the secrets of optics, knew all the laws and all the calculations, an optical genius. But all her life she sat in a black-and-white room and had never seen color. She knows all the wavelengths and so on, and how to do calculations that fit them. When she comes out and sees a red object for the first time—has she learned something new? The answer is of course yes. Obviously yes. Because formal knowledge, scientific knowledge, does not tell you what the thing itself is. To experience the color red directly is not to know its wavelength and how it behaves when it meets the color green. She knows that. If you ask her what happens when red meets green, she’ll tell you that it makes brown. Is that true? I don’t know, maybe. It makes the color brown. Fine? And she’ll tell you that. But she does not know what green is, or what red is, or what brown is. She only knows that these and these wavelengths mix in such and such a way. But when she encounters it once directly, she will understand what these colors mean. And if there is some question involving those colors, there is no reason at all to ask her while she is sitting in that sealed black-and-white room. Because she does not understand the meaning of colors, what it does to a person when he sees red, what sort of mood that gives him as opposed to green, black, white, I don’t know, whatever. And many times the issue depends on that and not on the formal properties of the colors. When ruling in Jewish law, the Torah was not given to ministering angels. When ruling in Jewish law, one rules about a real-life situation. And with a real-life situation, it is not enough to describe it. They always say that Rabbi Chaim took the frying pans out of the kitchen. For Rabbi Chaim a frying pan was a theoretical construction. Meaning, some vessel that is round, you put oil in it, and you use it to heat things in oil, and that is called frying. But let’s assume for the sake of discussion that he had never in his life eaten anything fried, had never been in a kitchen, and had never seen a frying pan. Yet he knows exactly what one does with a frying pan and what happens there and what the laws of a frying pan are in prohibitions and permissions and absorption and the like. Can he rule in Jewish law regarding frying pans? My claim is no. Even though he knows all the rules and can define exactly what a frying pan is and what… because he does not understand what fried food is. He does not know what it is, what it means, what it looks like. So again, there are certain things he can say about it. But certain things he cannot. You have to experience the thing directly in order to understand what it means, not in order to give a model describing it. And therefore, beyond his bridge principles, the decisor also has to be involved in determining the relevant facts. Maybe one more example—I already see I’m not getting to the next chapter in this series, so perhaps I’ll give one more example. There was once a discussion at Bar-Ilan, some panel there, and they were discussing ethical problems involving the use of sperm, the Nachmani case and things like that—who owns the sperm. Now from a modern perspective, sperm is basically an information reservoir. A warehouse of information. And from that information you can produce a person. Now the question is whether one may use another person’s sperm—say the husband died, right? I think that was the problem there, or maybe divorced or dead, I don’t remember anymore with the Nachmani case, because there was also some issue with a soldier who died, I don’t remember the case now. The sperm of someone who does not consent, or who is dead, or I don’t know exactly, and to use it to inseminate the woman—or whatever exactly, to use that sperm. The question is whether one may do it or not. Now I wanted there to translate this matter into deceptive taking of another’s mind. My claim was that this is really theft of information. And I can prove that from the passages. Usually people think that deceptive taking of another’s mind is lying. That is not correct. It is theft of information. That is what is called deceptive taking of another’s mind. And I wanted to argue that here too it is the same. Once that sperm is essentially some kind of information bank, the information belongs to the owner of the sperm, the person whose sperm it is, and therefore it is forbidden to take his sperm and use it because that would be a prohibition of deceptive taking of another’s mind, a Torah prohibition of deceptive taking of another’s mind. How we got from lying to this, who knows. Now if you said this to some decisor in the tenth century, he would stare at you and hospitalize you. But it seems to me that someone immersed today in the way of thinking and the way of looking at sperm, and also in the biological knowledge of what human sperm is, could grasp such a thing more easily. I am not saying everyone has to agree, but he could accept such a thing more easily. He could agree to such an interpretation or such a ruling more easily. Because he suddenly understands that in fact sperm is nothing but information, and then we are suddenly dealing with a completely different object, an object we had not thought was before us. This analysis on the one hand requires some kind of, say, scientific knowledge—though here very minimal—but on the other hand one must also live the situation in which that is really how people relate to it. Meaning, it is also an attitude; it is not only a question of a technical scientific definition. If in a community this really is how people relate to it, then there is room to see this thing indeed as some kind of, I don’t know, computer memory. Exactly the same thing. Copyright becomes exactly the same thing, and so on. The original article I wrote there was an article about copyright; there I basically argued this point. One final example perhaps that I’ll bring in this context is the binding of Isaac. The binding of Isaac—I once saw an article by Ravitzky, Aviezer Ravitzky, where he brought several Sephardic commentators who criticize Abraham our forefather for going to bind Isaac. They claim he failed the test. The Holy One, blessed be He, expected him to rebel, that there should be conscientious refusal there. And Abraham obeyed, right, he carried out the order, as they said at the Nuremberg trials. So they criticize Abraham. Others criticize Abraham: how did you not think this was merely an illusion? Who said the Holy One, blessed be He, appeared to you? Maybe some demon just entered you, I don’t know, maybe you imagined it? After all, there were so many difficulties with that divine command that it is only natural to say that there is some deceiving demon here, in the language of Descartes. Why didn’t Abraham suspect such a thing? My claim was—in that article about the Holocaust I brought this as an example—my claim was that as long as you have not experienced a situation in which the Holy One, blessed be He, commands you something, you cannot say to Abraham our forefather, “Tell me, why didn’t you suspect that this was a deceiving demon?” It is like a blind person asking me why I believe there is a lamp here. So I tell him, I see. But who says your eyes are not deceiving you? How do you know? Now I do not know how to answer that; I have no way to answer it. But I know my eyes are not deceiving me, and if I see a lamp, then there is a lamp here. It may be that Abraham our forefather, who was a prophet and was in contact with the Holy One, blessed be He, direct contact with the Holy One, blessed be He, understands that when there is a divine command, he knows—it is a divine command. He simply sees it—not with his eyes, but grasps it directly. And I, who have never experienced such a thing in my life and did not merit to be a prophet, can raise all sorts of hypotheses like the blind man in my previous parable—why do you believe your eyes, maybe they deceive you? And I ask Abraham too, wait a second, who told you it was the Holy One, blessed be He? Maybe it was a deceiving demon? So what does that mean? That I am looking at a situation unfamiliar to me, one I have never experienced, and I am determining positions about it. And if Abraham heard this thing and did not examine it again, then he failed the test, because clearly he should have suspected that maybe it was not the Holy One, blessed be He. But you have never experienced such a thing, so you do not know whether a reasonable person should doubt when he hears a divine command. Just as a blind person does not know that a seeing person does not doubt what he sees—it is obvious, it is true, there is no room for doubt. So he asks questions because he does not know the situation. Someone who does not know the situation does not perceive it correctly, even if you can describe it to him fully from beginning to end, everything you can describe to him—still he does not grasp the situation. So what this basically means—if I summarize this chapter for now, and with this we’ll finish—the decisor, although there is a distinction between facts and norms, the main expertise of the decisor, or the main occupation of the decisor, is not in facts and not in norms, but in bridge principles. Only the application of bridge principles to facts is what yields the norm. But really, if we try to refine what Jewish law is, Jewish law deals with bridge principles. And the second thing I dealt with mainly in this class is that facts too are not such a neutral and simple matter as I described last time. Facts are a matter of interpretation, a matter of how you experience the situation, a matter of what facts are relevant to the issue that interests you. Right? In the wire or in the air—does electricity pass through the wire or through the air? For legal purposes it clearly passes through the wire. For halakhic purposes, glass is clearly a solid and not a liquid. So facts for what purpose? Lawyers often speak about legal facts, facts relevant from the legal point of view. That means that not everything you call a fact will count for them as a fact, and vice versa. There is fact through the legal prism, and that is not necessarily the fact as determined by the expert. And in that sense there are significant difficulties in mediation between experts and decisors or judges. Judges—and maybe I’ll speak about this in one of the next installments in this series. Okay, we’ll stop the class here. I’m releasing the microphones, and once again I ask—oh wait, what is this—I ask only that you keep them closed on your own initiative, except for the person who is speaking. I’m now giving you control over the microphones.