Halakha and Reality – Lesson 4

Table of Contents

• The model of value-based decision-making and correcting the two-stage model
• The expertise fallacy and the mistake about an expert’s ability to decide interesting questions
• The naturalistic fallacy and the bridge principle between facts and norms
• The mistake of binary thinking, the sorites paradox, and fuzzy logic
• Dilemma arguments, “either way,” and the fallacy of extreme assumptions
• The example of the speed limit and applying the three-stage model
• Political agreements and a multidimensional threshold
• The interface between expert and value-based decision-maker as a central point of failure
• The example of COVID and Rabbi Chaim Kanievsky: difficulty understanding exponential growth
• Computer science: polynomial vs. exponential as an illustration of a conceptual gap
• Language coordination between expert and decisor: glass, electricity and fire, and the danger of a dialogue of the deaf
• An expert in court: does it pass through the wires or through the air, and the need to separate interpretation from facts
• The evolution trials (“the monkey trial”) and the mistake of choosing the wrong kind of expert
• Neuroscience in court: brain scans, criminal responsibility, and determinism disguised as fact
• The authority of the judge versus conflicting experts and the burden of making a decision
• Greatness in Torah, rabbinical exams, and the lack of testing for interface skill
• The requirement of seventy languages in the Sanhedrin as a model for an interface without an interpreter
• What is halakhic expertise: the third stage, interface expertise, and the question of skill in the second stage
• Authority versus “a nose for it,” and the proposal of a skill of drawing lines
• Specialization by field and “a nose for it”: Sabbath, niddah, Choshen Mishpat, and COVID
• The closing Q&A: experience, cross-examination, and the tension between formalism and intuition

Summary

General Overview

The text argues that a two-stage model of value-based decision-making—where an expert provides facts and a decisor/rabbi/judge makes the normative ruling—is an overly simplistic conception that generates failures. In its place it presents a three-stage model, in which the value-based decision-maker also determines the thresholds of the concepts involved—such as what counts as “dangerous,” “illness,” or “a human being”—before deciding what is permitted, forbidden, or obligatory. The text traces the root of the failure to two errors: the naturalistic fallacy, and the mistaken assumption that everyday concepts are binary. It illustrates through the sorites paradox and fuzzy logic that everyday concepts lie on a continuum, and therefore an evaluative “shifting of the threshold” is required. It then argues that the hardest problem is the interface between the expert and the value-based decision-maker, because the decision-maker is not always able to understand the data, and the expert often mixes facts with interpretation. Finally, it presents two ways of understanding the stage of shifting the threshold: either as an arbitrary act grounded in formal authority, or as a skill—a kind of “nose for it”—that enables one to draw lines better. From that, it derives criteria for halakhic greatness that include not only knowledge and scholarship, but also interface ability and the ability to draw lines.

The Model of Value-Based Decision-Making and Correcting the Two-Stage Model

The text describes a common model of a two-stage process in which the expert provides factual data, and in the second stage the value-based decision-maker—such as a judge, legislator, moral philosopher, or person of Jewish law—makes a decision on the basis of that factual foundation. The text argues that this model is historically based on an image of the relationship between rabbi and doctor, and therefore is especially widespread in discussions about a doctor and a halakhic decisor. But it creates conceptual failures and misunderstanding about the boundaries of the roles. The text states that in practice this is a three-stage process: the expert provides facts, the value-based decision-maker sets the threshold and the conceptual definitions—such as what counts as “dangerous,” what counts as “a human being,” what counts as “illness”—and only afterward decides whether, given the factual determinations, something is permitted, forbidden, or obligatory.

The Expertise Fallacy and the Mistake About an Expert’s Ability to Decide Interesting Questions

The text defines “the expertise fallacy” as the feeling that an expert can decide the interesting questions, and claims that there is no interesting question that an expert can decide on his own. The text acknowledges that every interesting question has a factual infrastructure, and therefore experts must be consulted, but argues that the decisive stages are the shifting of the threshold and the normative ruling, and those are not entrusted to the expert. The text illustrates that this fallacy recurs in examples such as homosexuality, abortion, educational questions, transportation and speed, and political agreements, because in all of them there is a graph or factual description and then a value judgment about where to draw the line.

The Naturalistic Fallacy and the Bridge Principle Between Facts and Norms

The text attributes part of the failure to the assumption that normative or evaluative conclusions can be derived from facts alone, and states that a “bridge principle” is always required. The text says that people jump from facts to a value judgment, but facts alone do not determine what should be done. It distinguishes between the stage of facts and the stage of the normative ruling, and places between them an additional stage in which thresholds and definitions are set.

The Mistake of Binary Thinking, the Sorites Paradox, and Fuzzy Logic

The text argues that another central mistake is treating everyday concepts as binary concepts such as “yes/no,” “human/not human,” “dangerous/not dangerous,” and “illness/not illness.” The text claims that there is no everyday concept that is binary; binary concepts exist in mathematics, not in the non-mathematical world. The text uses the sorites paradox to show that plausible assumptions are not compatible with one another, and proposes giving up the assumption that adding one unit “doesn’t change” the status, replacing it with the claim that adding one unit changes the status “a little.” The text presents the “degree of heap-ness” as a continuum between zero and one, and identifies this with fuzzy logic, in which truth values are not just zero or one but a continuum.

Dilemma Arguments, “Either Way,” and the Fallacy of Extreme Assumptions

The text explains that dilemma arguments such as “there’s no point in tests, because the lazy won’t study and the diligent will study anyway” fail because they assume a binary division between “lazy” and “diligent.” The text argues that there is a continuum of levels of diligence, and therefore there is a middle sector in which a test does change behavior. The text identifies in this a general structure of failures that stem from binary thinking about continuous concepts.

The Example of the Speed Limit and Applying the Three-Stage Model

The text describes an example in which a technical expert provides a graph of risk as a function of speed, and that is stage one of the decision. The text states that in stage two the value-based decision-maker determines from what percentage of risk something is called “dangerous,” and no technical expert can determine that, because it is a value judgment about the meaning of the concept. The text adds that in stage three the value-based decision-maker determines whether and when it is permitted to take that risk—for example, distinguishing between an ambulance and a regular car, and weighing economic benefits and life-benefits against risk. The text explains that people miss stage two because they treat “dangerous” as binary, when in fact it is continuous, and therefore the expert can only provide the graph, not decide where the line goes.

Political Agreements and a Multidimensional Threshold

The text applies the same logic to political agreements and shows that security and policy experts can provide a complex description of risks and benefits, but the decision about where to draw the line for what counts as a “dangerous agreement” belongs to the value-based decision-maker, not to the experts. The text clarifies that in this case the threshold is multidimensional, with many factors, but the principle remains the same.

The Interface Between Expert and Value-Based Decision-Maker as a Central Point of Failure

The text qualifies the sharp division between the expert stage and the stages of value-based decision-making, and says that the transition from stage one to stage two requires a complex interface, because the value-based decision-maker does not always understand the graph or the data. The text argues that the problem in arriving at a value-based ruling often lies in the interface itself, and therefore the full model must also define how one moves from the expert’s domain to the decision-maker’s domain. The text states that the interface requires intelligence, coordination, and mutual understanding on both sides of what each side knows and does not know.

The Example of COVID and Rabbi Chaim Kanievsky: Difficulty Understanding Exponential Growth

The text cites a “controversial” column the speaker wrote about the conduct of Haredi leadership during the COVID period, and argues that the problem was not only rashness in the decision not to obey the instruction to close schools, but also a lack of data and a concern that there were no tools to understand it. The text argues that understanding “exponential development” is not exhausted by a verbal explanation like “it multiplies by a constant factor,” because what’s needed is a mathematical feel for the meaning of that growth. The text illustrates this with the example of folding a sheet of paper forty times and reaching “from the earth to the moon,” thereby showing how the dramatic jump comes in the final fold. The text adds that relying on a criterion like “number of deaths per thousand people” may reflect a misunderstanding, when the main issue is the rate of infection and mortality, and that the rate of increase threatens hospital collapse and a shortage of ventilators.

Computer Science: Polynomial vs. Exponential as an Illustration of a Conceptual Gap

The text uses an example from computer science to show that professionals rank a problem according to how the time depends on the number of steps, not according to absolute time, and presents the distinction between polynomial and exponential. The text argues that exponential problems are considered “intractable,” because even for not especially large input values one gets enormous computation times—“larger than the age of the universe.” It uses this to illustrate why a value-based decision-maker without mathematical literacy may interpret “five percent per day” as something harmless and miss the dynamic entirely.

Language Coordination Between Expert and Decisor: Glass, Electricity and Fire, and the Danger of a Dialogue of the Deaf

The text argues that an expert cannot answer “yes” or “no” without understanding why the decisor is asking, and illustrates this with the question “is glass a liquid or a solid,” where a physicist’s answer about crystalline structure is not necessarily relevant to the laws of the Sabbath, where the question is rigidity and functional fluidity. The text brings an anecdote about Richard Feynman, in which yeshiva students asked him “is electricity fire,” and he threw them out because he did not understand the halakhic context of “because of kindling,” and so a “dialogue of the deaf” was created. The text states that the halakhic decisor must understand the expert’s world in order to ask correctly and understand the answer, and the expert must understand the world of Jewish law in order to frame an answer in a way that clarifies meaning and implications.

An Expert in Court: Through the Wires or Through the Air, and the Need to Separate Interpretation from Facts

The text gives an example from the United States about a law that imposed payment if electricity “passes through wires” and granted an exemption if it “passes through the air,” and a physicist expert testified that it passes through the air. The text argues that an intelligent judge should ask, “then what are the wires doing there?” and understand that this is a linguistic-scientific interpretation, not a simple legal fact. The text states that the value-based decision-maker must identify what in the expert’s words is fact and what is the expert’s interpretation, because scientists sometimes mix the two.

The Evolution Trials (“The Monkey Trial”) and the Mistake of Choosing the Wrong Kind of Expert

The text describes the struggle in the United States over whether evolution should be taught in public schools because of the separation of religion and state, and the attempts by creationists to present creationism as a scientific theory. The text tells about Judge Jones, who decided by ranking experts according to cited publications and preferred the evolution experts, thereby ruling against teaching creationism. The text argues that the question whether creationism is “science” is a philosophical question, not a question for scientists, and therefore experts in the philosophy of science should have been heard. Again, the failure stems from the interface: the judge does not understand what to ask and what type of expertise is relevant.

Neuroscience in Court: Brain Scans, Criminal Responsibility, and Determinism Disguised as Fact

The text describes the growing penetration of neuroscience into the courts through the presentation of brain scans in order to argue temporary insanity or lack of responsibility for one’s actions. The text argues that brain experts commonly mix “interpretations” with “facts” and present a deterministic worldview as though it were a factual finding. The text tells of an article by five famous experts who wrote to jurists in an apparently “modest” way, and claims that inside that modesty they smuggled in a full interpretation that left the judges “no degree of freedom.” The text also illustrates the interface problem in psychiatric testimony such as “not responsible for his actions,” and argues that the judge should ask about a continuum of control and where the line is drawn, because the psychiatrist cannot establish in any tested way “zero control.”

The Authority of the Judge in the Face of Conflicting Experts and the Burden of Making a Decision

The text states that when experts disagree, a legal decision must still be made, and the one who decides is the judge—not because he is “the bigger expert,” but because that is his authority and role. The text adds that the judge must investigate, understand the source of the disagreement, and decide whether to rule or to remain in a state of “laws of doubt” when there is factual uncertainty. It describes the very high intelligence demanded of the decision-maker and identifies this as the greatest stumbling point in the whole process of value-based decision-making.

Greatness in Torah, Rabbinical Exams, and the Lack of Testing for Interface Skill

The text argues that rabbinical exams mainly test knowledge and standard halakhic analysis, but do not test “common sense” and the skill of listening to an expert and extracting the information relevant to the ruling. It states that the skill of bridging between the factual stage and the threshold-shifting stage is usually not part of the training of a rabbi or halakhic decisor, even though it is more critical than the sheer quantity of knowledge. The text argues that sources can “be found nowadays,” and that halakhic skill is acquired through learning, but sensitivity and general knowledge for reading texts outside the world of Torah are conditions for entrusting practical decisions to a decisor. The text presents Rabbi Shlomo Zalman Auerbach as an example of sensitivity, humility, listening ability, and choosing experts who had halakhic understanding, and emphasizes that greatness in Torah includes that ability.

The Requirement of Seventy Languages in the Sanhedrin as a Model for an Interface Without an Interpreter

The text cites the requirement in the Sanhedrin that judges know “seventy languages” and explains that the Sanhedrin “may not hear from the mouth of an interpreter,” and therefore must hear the witness himself. It explains this by saying that translation is not “a hollow pipe”; it always loses connotations, nuances, and contexts, similar to the differences in literary translation. The text uses this to reinforce the claim that decision-making requires understanding language and contexts, not only receiving facts—and that likewise the expert-decision-maker interface requires direct understanding of the meaning of what is being said.

What Is Halakhic Expertise: The Third Stage, Interface Expertise, and the Question of the Skill Needed in the Second Stage

The text argues that the halakhic decisor, like a judge, does not need to be an expert in every field; he needs to know how to hear an expert, understand him, and make a decision. It identifies classical halakhic expertise mainly with the third stage, which is the stage of knowledge, learning, and the normative determination. The text asks what kind of skill is required for the second stage, the stage of shifting thresholds, and suggests two possible tracks: one in which there is no expertise here at all, only arbitrariness mandated by formal authority because someone has to draw the line; and another in which there really is a genuine skill of drawing lines, reflected in the fact that there is broad agreement about extreme boundaries, so it is not total arbitrariness.

Authority Versus “A Nose for It,” and the Proposal of a Skill for Drawing Lines

The text presents a view according to which shifting thresholds is a matter of authority, not expertise, because there is no “correct answer” to the percentage of risk that defines “dangerous.” It then presents an alternative view according to which there is a reliable intuition, or “a nose for it,” that points toward a correct answer in some sense, and therefore a Torah scholar may “hit the truth more often” than an ordinary person. The text concludes that if one adopts this second view, halakhic expertise includes three kinds of skill: interface skill with experts, skill in drawing lines in the second stage, and classical halakhic skill of knowledge and analysis in the third stage.

Field Specialization and “A Nose for It”: Sabbath, Niddah, Choshen Mishpat, and COVID

The text distinguishes between fields of halakhic expertise and notes that different sages and halakhic decisors are considered experts in particular fields, and that halakhic knowledge is not universal across Sabbath, niddah, and Choshen Mishpat. It argues that analytical skill is more universal than field-specific knowledge, and raises the question whether the “nose” for drawing lines is universal or depends on long immersion in a certain field. The text tends to think there is universal potential, but that prolonged friction with a field is needed in order to develop the relevant “nose,” and therefore skill in issuing rulings in certain areas may not be enough for decisions of the COVID type.

The Closing Q&A: Experience, Cross-Examination, and the Tension Between Formalism and Intuition

The text includes a question whether this “nose for it” is really just experience, and the response compares it to medical internship, where a sensitivity is built that cannot always be formulated in explicit arguments. The text includes a remark about general law, where cross-examination helps crack an expert, together with the claim that in Jewish law this exists less, though in Jewish law there are rabbinical advocates; the response adds that lawyers serve the judge so that he does not miss key points. The text also includes a discussion about the tension between absolute definitions and formulations like “it seems,” and about the lack of formalism, with a forceful claim that there cannot be a final rigid definition for such matters, and that a halakhic decisor must decide even without the ability to prove things conclusively, and sometimes must act by virtue of authority when there is not enough expertise.

[Rabbi Michael Abraham] All right. Last time I talked about the model of value-based decision-making, and I said that people usually divide it into a two-stage process. In the first stage, the expert provides the factual data, and in the second stage, the value-based decision-maker—which could be a judge, a legislator, I don’t know what, a moral philosopher, or a person of Jewish law—makes a decision on the basis of the factual foundation the expert gives him. I showed that this simplistic conception, which usually draws on the relationship between a rabbi and a doctor in ancient culture—the typical representative expert is a doctor, and so these models usually come up for discussion in relation to the relationship between a doctor and a halakhic decisor—and there people often speak in exactly that language: the doctor gives the facts, and the decisor says what one should do, what is permitted or forbidden to do, given that these are the facts. I showed that this leads to various conceptual failures and misunderstandings regarding the boundary between a rabbi and an expert. And the claim in the end was that this is really a three-stage process: the expert gives facts; the value-based decision-maker—and I’m deliberately using that term because it’s true of every value-based decision, not only a halakhic one—the value-based decision-maker determines, say, where the threshold lies, what counts as dangerous, what counts as a human being, what counts as a disease; I gave several examples of that; and afterward he also determines whether it is permitted, forbidden, or obligatory to do something given those factual determinations. And this middle link, which connects what the expert does to what the decisor does in the two-stage model, is what actually underlies a great many failures, where what they all have in common is what you might call the fallacy of expertise—that sense that an expert can, to a large extent, decide the interesting questions that concern us, when in fact that isn’t true. In other words, basically there isn’t a single question that an expert—I think at least, I can’t think of one interesting question that is a matter for experts. Of course, all interesting questions have a factual infrastructure, because you need to consult experts, but in the final analysis there are the next two stages, and those are what actually lead to the final decision. And in the description I gave last time, this middle stage is usually some sort of crossing of a threshold, of a certain line, from which onward something is defined as dangerous, as a human being, as a disease—all the questions we discussed in the context of homosexuality, abortion, educational questions, transportation questions, permissible or forbidden speed, political agreements—all those examples we discussed are basically built on the logical scheme that underlies them. I no longer remember whether we talked about this in one of the earlier classes, but I’ll just mention briefly that what really underlies this whole issue, what underlies this fallacy and the correction I proposed by adding that middle stage, is two common mistakes. One mistake is the naturalistic fallacy, which I definitely talked about—we devoted quite a bit of time to it at the beginning of the series—the fallacy that says one can infer normative or value conclusions from facts, which of course is not true; there always has to be a bridging principle, we talked about that a lot. Here too, people think you can jump straight from the facts to the value decision. So no. Facts are facts, and a value decision has to be made on the basis of the facts, but independently of what the expert says. But that only gives me the difference between stage one and stage three. Where does stage two come in? One is the expert, three is the value-based decision-maker. Where does stage two come in? Stage two sits on another mistake, and that is the mistake that sees everyday concepts as binary concepts. That is, people generally tend to think about concepts in terms of yes or no. Is it yes or no? Is it a human being or not a human being? Is it dangerous or not dangerous? Is it a disease or not a disease? And the truth is that there is no everyday concept—and this is connected to the sweeping statement I made earlier, that there is no interesting question an expert can decide—that is precisely because there is no everyday concept that is binary. There simply is no such concept. Binary concepts exist in mathematics. They do not exist in our world, the non-mathematical world. And what illustrates this is the sorites paradox, and again, maybe I mentioned this, I don’t remember, so I’ll just go over it briefly. The sorites paradox basically goes like this: let’s say a person with one hair is bald. A person with a million hairs is certainly not bald. But if a person with a given number of hairs is bald, adding one hair won’t change his status. Right? I think those are three assumptions, all three of which are reasonable. The problem is that they don’t fit with one another, because if having one hair means you’re bald, and adding one hair doesn’t change the status, then that means that with two hairs you’re also bald, and by extension with three and four and five. Each time you add one, it doesn’t change your status—so how does he suddenly become not bald at a million? When does this miracle happen? Why is it called the sorites paradox? Because the same question is asked—philosophers ask it—about what a heap is. One pebble is not a heap. If I have a pile of stones that is not a heap, adding one stone doesn’t change the status. But a thousand pebbles are a heap. So again the same question: those are three assumptions, all three of them reasonable, but they do not fit with one another. One stone is not a heap, adding one stone doesn’t change anything, so then two is also not a heap, and if so then three isn’t either, nor four, nor five—so how is a thousand yes? And where exactly does this transition happen, from not a heap to a heap? Or when exactly is it afternoon, like my kids used to ask me when they were allowed to go out and they weren’t allowed to go out between two and four, right? So when is it afternoon? For Americans, once you pass twelve it’s afternoon. But in our language, afternoon is an amorphous concept. An amorphous concept, because twelve is noon; add one second and of course you haven’t passed into afternoon. But in the end, when you get to four or five, it’s clearly afternoon. So again, where is the transition? And my claim is that there is no everyday concept that is not exposed to this paradox. It’s not a paradox unique specifically to the concepts bald, heap, or afternoon; rather it applies to every everyday concept. What is the color red? Talk in wavelengths, right? Add one more angstrom to the wavelength and it won’t change the color from red to something else. So then add another angstrom and another angstrom; eventually you’ll already arrive at other colors. Exactly when does the transition happen? Or if you take Escher’s metamorphosis, right, which moves you from fish to birds and back again—at what point in that metamorphosis do you actually move from fish to birds? There is no way to point to a specific point where this happens. And if you want to create Escher’s work in a non-artistic way, there’s no problem—a three-line program can do it. In other words, take two pictures of whatever you want, put them at two sides—two metaphorical sides. Now create a third image composed pixel by pixel, right? Take a pixel from here and a pixel from there, and generate the corresponding pixel in that same position by a combination of them, right? p times the color of this one plus one minus p times the color of that one, where p is between zero and one. Okay? You produce an image that is a blend of the two images. When p equals zero, this will just be this image, right, because the multiplication of those pixels is zero. When p equals one, it will just be that image, because one minus p is zero, so those components don’t enter in. And if you take p between zero and one, it will be either closer to this image or closer to that image, and as you increase p continuously between zero and one, you simply move continuously from the left image to the right image. And therefore one can really make the sorites argument about every everyday concept. Every everyday concept has no sharp boundary. You cannot define it sharply—when it begins and when it ends. So what happens? How do we solve this paradox? So what is a heap? How is it that a thousand is a heap, one is not a heap, and adding one doesn’t change the status? Or how can one define concepts in such a way that the definition always includes an internal contradiction? The simple answer is that there really are, as I said, three assumptions here, each of which is reasonable, but they do not fit together. One assumption is that one pebble is not a heap; the second assumption is that adding one pebble does not change the status; and the third assumption is that a thousand pebbles are a heap. All three assumptions are reasonable. The question is which one—but you can’t accept all three because there is a contradiction. What do you do? The claim is that the middle assumption—that adding one pebble does not change the status—is the one we have to give up. Fine, that sounds reasonable, but what do we put in its place? What does it mean to give it up? So adding one pebble does change the status? When? From one to two? Or from ten to eleven? Or from fifteen to sixteen? When does this happen? You can’t just play games. What do we really mean when we say heap? The answer is that our mistake is in the concept of heap itself. The concept of heap is not binary, and the assumption we need to adopt instead of the middle one is that adding one pebble changes the status a little bit. It is not correct to say that it does not change the status, but it is also not correct to say that it changes the status completely, from non-heap to heap. What is correct to say is that it changes the status a little bit. In other words, one pebble is really not a heap at all; two pebbles are almost not a heap at all; three pebbles are pretty much not a heap; four pebbles maybe are beginning to approach something heap-like; five pebbles more so; and if you want it in numerical form, then take the numbers between zero and one. The degree of heap-ness can range from zero to one, and adding pebbles simply increases the degree of heap-ness of the pile until at one you can really call it a heap, full stop, without qualifying language. And basically what this means is that the concept heap is not binary. The concept heap is a concept that really marks a continuum of levels of heap-ness. In everyday language we say this is a heap, this is not a heap, but the truth is that in a precise definition there really is no such binary concept called heap that distinguishes between piles that are not heaps and piles that are heaps; rather, the degree of heap-ness of the piles varies between zero and one. This is what is called fuzzy logic. Yes, this is a logic that accepts truth values that are not just true or false, or zero or one, but a continuum of values, for example between zero and one. What this basically means—maybe let’s take another example—is the arguments philosophers call dilemma arguments. In Talmudic jargon this is what is called a what-can-you-say argument. A dilemma argument basically says: there’s no point in giving exams. Why? Because lazy students won’t study even if there’s an exam, and diligent students study even without an exam, so there’s no point in giving exams—what for? It doesn’t help anyone. Where is the mistake here? The mistake is that the division on the lazy-diligent axis is not binary. It’s not a division between pathologically diligent and pathologically lazy people. There is a whole continuum of levels of diligence between zero and one. So true, for the two extremes an exam won’t help, but somewhere there is some sector in the middle for whom an exam is relevant, such that without an exam he won’t study and with an exam he’ll study better. For him it’s worthwhile to give the exam. Again, dilemma arguments always fall apart because they assume a binary assumption—that either you are diligent or you are lazy—but that isn’t true. There are levels, a continuum of levels of diligence that can range between zero and one, and a dilemma argument always assumes there are only two levels; therefore if it’s this and if it’s that, the whole dilemma or what-can-you-say argument—either this or that. But if there is a continuum of levels, you cannot formulate the what-can-you-say argument or the dilemma argument. What these things basically mean—I’m going through it quickly because I think we already talked about it—is that everyday concepts are not governed in terms of binary logic. It’s not either a heap or not a heap; it’s not either red or not red; it’s not either dangerous or not dangerous, or a disease or not a disease. There is a continuum of levels. Every everyday concept is basically a concept that sits on a continuum; it isn’t a concept that… yes, today people like this concept of a spectrum, but I think in this sense it’s true. Almost every phenomenon and every concept, every thing really lies on some kind of continuum. To grasp it in a binary way will always lead you into contradictions, paradoxes, misunderstandings—it simply doesn’t work that way. Our world is not prepared to submit to binary thinking; in mathematics there is binary thinking. Mathematics, of course, is what develops fuzzy logic in order to deal with non-binary phenomena, but the development of fuzzy logic itself is done within the framework of binary logic, of course, because that is our basic logic. In any case, for our purposes, so what does this mean? Now if I return, say, to the example of the permitted speed, and I said: how do you determine the permitted speed? So the technical expert, on a certain road, say, for the sake of discussion—the technical expert gives me a graph. The graph is risk as a function of speed. Let’s say the Y-axis is risk, the X-axis is speed, and I draw what the risk is as a function of speed. For every speed, what is the corresponding risk. That is stage one out of the three in decision-making. We want to decide what speed will be permitted. So we say this is the first stage. The second stage is the stage where a threshold has to be set. That is, one has to determine what percentage of risk, in our view, is called dangerous. Because there is always some percentage of risk at every speed. What counts as dangerous in this matter? That is the question of where the threshold lies. Of course no expert from the Technion can tell you that. That is not within his area of expertise. That is a value judgment. It is a value judgment about the meaning of the concept dangerous. Therefore, the decision about what speed we allow on a certain road is composed, basically, of the graph given by the expert, the setting of a threshold given by the value-based decision-maker, who determines from what point onward it is dangerous. Say, from a risk of half a percent, whatever, that is called dangerous. I go to the graph of the expert from the Technion and say, ah, that gives me a speed of ninety kilometers per hour on this road. Okay. Now the value-based decision-maker has to make another decision. Is it permitted to drive at a dangerous speed on this road, and when? An ambulance may perhaps be allowed, or also up to what level of risk, and an ordinary vehicle probably will not be allowed, although I don’t know, there are economic considerations and so on, such that at a certain level of risk we will take it—we do not avoid taking risks to that extent, one cannot run a life that way. So basically there is a third stage in which the value-based decision-maker determines how much one is allowed to endanger oneself compared to the costs or consequences or benefits one gets from driving on the road. Now why do people really miss the middle stage? Why do people say, in the simple model as I began last class, that the technical expert will say what speed is dangerous on this road, and the value-based decision-maker, say a legislator, police officer, or halakhic decisor in the halakhic context, will say whether one may or may not drive at that speed? That is the normative determination. But that’s just not right. In the middle there is another stage, and that is the stage of setting the threshold. The technical expert cannot tell me what speed is dangerous. He can tell me what risk there is at every speed, but what level of risk will count as dangerous for our purposes—that is not within the technical expert’s mandate. The technical expert cannot answer me that question. That is something that needs—it is a value judgment—and that has to be made by our value-based decision-maker. And that is exactly the sorites paradox. The root of why people miss this middle stage between the first and third stages is because of our binary thinking. We think the concept dangerous is binary. Fine, so the technical expert will tell me either it is dangerous or it is not dangerous—but that is not true. The concept dangerous is continuous, and therefore the technical expert can only give me the graph. But in order to determine what counts as dangerous for our specific purposes here, I need a value judgment, and that does not belong to the expert. Because that basically means: from what number of stones is it called a heap? Or from what number of hairs is it called not bald but hairy? Or from what speed is it called dangerous? It’s all the same thing. Or in, say, a political agreement between us and our neighbors, assuming some kind of agreement is on the table—again, decisions have to be made. The experts—say military and diplomatic experts and so on—will draw some kind of graph, of course a very complicated graph, but some kind of graph. And ultimately the decision whether to draw, where to draw the line, what counts as a dangerous agreement, which risks to take and which risks not to take, is a matter for the value-based decision-maker, not for military experts and not for diplomatic experts. Again, this is basically setting a threshold, only in this case it is of course a multidimensional threshold, not like the permitted speed where one simply has to determine what is dangerous. Here there are many factors that need to be taken into account, but at the conceptual level it is the same logic. Therefore, what underlies the fallacy, or what I called earlier the fallacy of expertise, that feeling that experts can decide interesting questions, what underlies this fallacy is the sorites paradox. It is the assumption that concepts are binary, and therefore an expert can determine whether this fetus is already alive, say—already at four months of pregnancy or only at five months? Is homosexuality a disease or not a disease? Is this speed permitted—dangerous or not dangerous? None of those questions can be decided by any expert. These are distinctly value questions and not factual questions at all. Of course they are connected to facts, but the determination of where the line passes on the factual graph—that is a value judgment. So that, basically, with a few expansions, is what I described last time: this three-stage model for making a value judgment. But now I want to qualify the picture a bit. Because while it’s true that I divide this picture into three stages, and ostensibly I’m cutting with a very sharp knife—yes, a sharp knife—the first stage is the business of the expert, the second and third stages are the business of the value-based decision-maker. And ostensibly we should really do this: go to the expert, have him draw the graph, take that graph to the decisor or legislator or police officer, who will draw the line and determine what speed is permitted or forbidden on that road. The problem is that this is not always right. Because the value-based decision-maker does not always understand the graph. In other words, the interface between the expert and the value-based decision-maker is often very tricky. Precisely the interface. That is, both sides are clear, but you cannot move from the first side to the second and third unless you understand how this interface works. And very often the problem in making a value decision lies in the interface. Therefore, besides the fact that people miss the middle stage between the first and third, that there is a three-stage process here and not a two-stage one, there is another important point. That is not the whole model. The full model is that besides there being three stages, in the transition from stage one to stage two there is some kind of boundary line that also has to be defined. How do you cross it? How do you move from the domain of the expert to the domain of the value-based decision-maker? I’ll give a few examples, some of which I already gave and some not. I’ll take an example from current events. Yes, I wrote a somewhat controversial column on the site—another one—about the conduct of the Haredi leadership and Haredi society in general during the coronavirus period. And among other things, afterward it came up more in the talkbacks because of this, but I also wrote it in the column itself—among other things my feeling was that not only did Rabbi Chaim Kanievsky make some decision there in ten seconds not to obey the instruction to close the educational institutions, and a decision that was probably mistaken—he himself later understood that it was mistaken—so not only was there the problem of the haste with which he made the decision, there was another problem. The problem is that he did not have the data before him. Even if he had sat for two hours or two months, he didn’t have the data. But that too is not, not even that is the main problem. The main problem, I think, is that even if the data had been before him, I’m not sure he had the tools to understand it. The explanations—yes, I argued about this there with various Haredi defenders—I said that I am not entirely sure to what extent Rabbi Chaim Kanievsky would understand, if one described to him, what exponential growth means. Yes, of course it can be described in words, to say that it is multiplied by a fixed factor in every unit of time. But that doesn’t tell you much. When you tell a person it rises by twenty percent each day, say, or ten percent each day—okay, that sounds innocent. He doesn’t understand that within ten steps you already arrive at wild multiplications. For that you need some kind of mathematical feel or understanding beyond just understanding the words that I’m explaining to you. Yes, the example—if I’m not mistaken, I saw Bennett use it, and it’s an old and well-known example for explaining an exponential process. Yes, the famous question: let’s say you take a sheet of paper. Yes, you fold it in half. Right? You take that sheet, fold it in half. Fine? Now fold it again in half, and so on, repeat this many times. Let’s say the sheet is large enough and you fold it in half and again in half and again in half—you fold it forty times. What is the thickness of the folded layer that is created? Yes, the side thickness. Fold it in half, and fold those two, that makes four, and so on. What is the thickness, what is the thickness of that folded sheet? So I won’t make this a quiz for you, because your microphones are closed and I assume some of you know the answer. In forty folds you get from the earth to the moon. That is, a sheet that you fold forty times—a sheet, that’s its thickness, understand. Can you see the thickness? A millimeter. That’s the thickness. Fold it forty times one on top of the other. You get a thickness from the earth to the moon. Forty times. Yes, the trick question is of course what happens after thirty-nine times—one fold before the last fold. You are halfway between the earth and the moon. That is, you covered half the way in the final fold. Yes, because every time it is multiplied by two, right? So the last doubling actually takes you from half the way to the full way. Right? Now this is something that a person with no mathematical understanding will not believe even when I tell it to him. You do not really understand what an exponential process is until you know these things in your bones. You do not understand how this business works. Therefore, for example, computer people—when you ask them about the running speed of some program, they answer in language that to a layman sounds totally incomprehensible. The question is whether it is polynomial or exponential. It isn’t a question measured in time—whether the calculation will take a minute, a month, or two thousand years. That’s not the question they ask. They ask whether it is polynomial or exponential. Basically that doesn’t say anything, because polynomial means when there are n computational steps to perform, how long does it take to perform them? Is it something that is n to some power, or is it something that is some number to the n? That is the polynomial versus the exponent. Okay? Why is that more interesting than the question of whether it’s a minute or a month? Because it turns out that if it is an exponential process, if your computation has some n that is only a little less than—not even very high numbers—you get to twenty, thirty, fifty, and you reach computation times greater than the age of the universe. Therefore what is important in evaluating the speed of a program is not at all the question how long it takes it to work on a certain number of steps. That isn’t the point at all. Rather, the question is what the dependence of the time on the number of steps is. Is the dependence of the time polynomial—a power law—or exponential, which is an entirely different world. Exponential problems are considered by computer scientists to be unsolvable problems, because it takes the computer an infinite amount of time to solve them. What do I mean by infinite? If the number of steps is two and the base of the power is, say, three, then three squared means it takes you nine seconds. That isn’t much. True. But if the number of steps is not two but ten, you already get to three to the tenth. Three to the tenth is already a crazy number. So the quality or speed of the software is measured by the question whether it is polynomial or exponential. But it doesn’t matter, we won’t go into all those issues now. I just want to illustrate why, say, if an expert had come to Rabbi Chaim Kanievsky and said to him, “Listen, we know”—an epidemiology expert—and had said to him, “Listen, we know that epidemics spread at exponential rates.” Then Rabbi Chaim Kanievsky would ask him: “What is exponential? Explain it to me.” So he would say to him: “Exponential means that it multiplies itself by a fixed factor in every unit of time. Say, every day it rises by five percent, ten percent.” So Rabbi Chaim Kanievsky would say: “Okay, that doesn’t sound so terrible, five percent, all right, what happened?” He doesn’t understand that with compound growth, after twenty steps—which is twenty days, three weeks—you get insane numbers. You get insane numbers. Now for that it isn’t enough that he understand what they explain to him, that it is an exponential process, and they explain to him what an exponential process is. He has to understand the mathematics of the matter. It isn’t enough to understand formally what it means, the words, what this thing means. One of the things one of those defenders said there in that column was that Rabbi Chaim—he heard in the name of Rabbi Chaim Kanievsky, I don’t know, I didn’t see it written, but that is what he claims—that there is some Talmudic text, the Talmud in Ta’anit says from what number of deaths per thousand people it is called a plague in a city. Okay? And according to that he basically made the decision. It didn’t look from the video like that was the reasoning; it looked as though he simply answered off the cuff, but I don’t know. Let’s suppose he made the decision in that way. That in itself is a total lack of understanding. Because why do I care about the number of dead? If the process is exponential, then if today I have two dead, the day after tomorrow there could already be twenty. In other words, in a process that proceeds linearly or slowly, I say, “Fine, the number of dead per day gives me some rough indication of the severity of the process.” In an exponential process, the parameter of the number of dead per thousand people per day is irrelevant. Because the question is what will happen on the next day and the day after that. The speed of progress is much more important than the number of dead. Not to mention flattening the curve—all of that, they explained it a lot on television and I think people eventually understand it, partly because they learned a little math and partly because it was explained to them many times. A person who has neither this nor that will have a harder time understanding it. It’s not beyond him, but still harder to understand what that means. It may be that the number of dead overall—now all the voices of the experts are coming out explaining that actually the number of deaths in all this coronavirus business worldwide, even in Italy and Spain, is not such a big deal. It is negligible compared to the number of deaths from influenza in an ordinary year. More or less the same number. Even in the countries where it is most severe. By us it is not even close, of course. The number of deaths from influenza is I don’t know how many times larger than the number who have died so far from coronavirus. There is no comparison at all. It’s not the same order of magnitude. So ostensibly there’s no problem, it’s a simple epidemic. On the other hand, the concern all the time is not the absolute number of dead, but the death rate. Because the death rate and infection rate—not just the death rate—mean that it will rise so fast, even though in the end it will level off and soften and eventually recede, and the total number of dead may not be all that great, but there will be a period in the middle—and that is what we saw in Italy and Spain—when the hospitals will not be able to treat people. People will suffocate there because they don’t have ventilators. And the policy planners were worried about that. Now, one can argue about everything. I’m only saying that even in order to argue, you need to understand. And my feeling was that in Rabbi Chaim Kanievsky’s background, with all due appreciation for his talents—I don’t know, there are arguments about that too—but never mind, one can appreciate his talents and his Torah knowledge, but one also needs some ability to listen to experts. That is, to understand what they are saying. The expert too, by the way, needs to understand very well the value-based decision-maker standing opposite him. He needs to understand what that value-based decision-maker knows and does not know, and explain to him not only what an exponent is—that something is multiplied every unit of time by a fixed factor—but to bring him exactly the example with folding the sheet of paper to the moon and show him how this actually works. So this interface between the expert and the value-based decision-maker is an interface that requires a great deal of intelligence and coordination and mutual understanding from both sides. Therefore, no less important in this model than the distinction between the three stages in the process of value decision-making is how the interface between stage one and stage two is built, the interface between stage one and stage two. Do the expert and the decisor know how to speak the same language? I’ll mention here the examples I already gave. For example, yes, when I was asked whether glass is a liquid or a solid. So if a decisor asks me that question—say some kollel man asked me, who happened also to have studied in the yeshiva-high-school one year below us, so he had matriculation exams, meaning he had some background. But the point is, if some decisor had asked me that question, you need to explain. You can’t just say yes, it’s a liquid, because as a physicist I relate to glass as a liquid. You need to explain that it’s a liquid because the crystalline structure is not ordered. But you need to understand why the decisor is asking you this. You need to understand that from his point of view this is about heating on the Sabbath. And for the question whether it is permitted or forbidden to heat it on the Sabbath, the definition of liquid and solid has nothing to do with crystalline structure, but with the state of matter. That is, the important question is whether it is rigid or fluid. That is actually the important question. So you need to understand the decisor and the decisor needs to understand you, and the discourse between you should be coordinated. It reminds me of a story—Richard Feynman, the Jewish physicist, Nobel Prize-winning American, was a great clown, a huge personality cult around him. In any case he wrote several books, also cult books of that sort, You’re Surely Joking, Mr. Feynman, the most famous among them, but he has several like that in which he jokes about the whole world. So among other things he told there, he told there that once some yeshiva boys came to him, with all the gear, and wanted to ask him a scientific question. So he was so happy that finally the eyes of these benighted people had been opened to the light of modern science. And they wanted to ask him. Fine, so he invited them to his house, and they went up in the elevator, and while they were going up in the elevator he asked them, tell me, what did you want to ask? So they said to him, we actually want to determine whether electricity is fire. So he lost the ability to speak at that moment; he describes it in a mocking way and laughs about the matter. I don’t understand what you want from me. Fire is a chemical process, electricity is something physical; I don’t understand your question at all. They say to him, no, look, the question whether it is permitted to turn on electricity on the Sabbath depends on whether you violate the prohibition of kindling. So the question is whether electricity is fire. Now this Jew didn’t understand what they wanted from him; that is, he of course didn’t know the laws of the Sabbath, he doesn’t know what “electricity is fire” means. What is kindling—he threw them down all the stairs. He said to them: I thought you wanted to learn science; what do you want, to keep clarifying your nonsense in a conceptual system that is irrelevant to them? Get out of my sight, basically. In other words, what happened here? What happened is that they didn’t know how to ask the question, and he didn’t understand their world from which the question came, and therefore their conversation was a dialogue of the deaf, where they actually wanted to find out—and of course it is legitimate to ask a physicist what this process of electricity really is and whether it has some connection to kindling fire in some sense, regardless of whether one is physical and the other chemical, but in ways that interest Jewish law. Can he shed light for them on certain aspects or not? One can argue about it—whether a physicist has added value in such a clarification or not—but I can understand that a person wants to hear the physicist; afterward he’ll decide whether it is relevant or not. But for that you need to know the physicist’s world. Not to be a professional physicist—you need to understand the physicist’s world, understand the concepts, the way of thinking, know how to present the question and its context, and understand very well what he answers. To understand very well whether what he answers is relevant or not relevant to you. And the same goes for the physicist being asked: he needs to understand very well the world of the person of Jewish law, because he needs to understand where this question is coming from in order to understand how to answer. His answer too is not always unequivocal. We talked about the problem in the United States, yes, with two states that transmitted electricity through a third state, and the law was that if it passed through wires, you had to pay the middle state, and if it passed through the air, you didn’t have to. And they brought a physicist there who explained that it passes through the air and not through the wires. Now of course, if the judge—I don’t know what happened there in the end because he didn’t tell the whole story, only that anecdote—but if the judge was not a particularly sophisticated person, he would say okay, then they are exempt from paying because it passes through the air. But if he is a more intelligent person, without being a professional physicist, he should ask him: what do you mean it passes through the air? Then why is there a wire there? If it passes through the air then you don’t need a wire, so why do they put an electric wire there in order to transmit voltage or power? Clearly you need the wire in order for it to pass through the air, so don’t confuse me. So practically speaking, you need the wire and they need to pay. That is what an intelligent judge should decide, and you don’t need to be a physicist for that, but you do need to understand the language of the physicist, what it means, how to ask the question, and how to understand the answer properly. And by the way, it is highly worthwhile that the physicist you ask should also understand the legal world, or the halakhic world if you are speaking of a halakhic question, because then he too can help clarify the contexts, the connotations, the meaning. You can describe the scientific answer in words, but the connotations and contexts and meanings of things are sometimes much more important than the formal scientific answer itself. And this interface between expert and value-based decision-maker is a very, very problematic interface. And this interface arises not only in the halakhic context, where unfortunately it is often very painful because very often a large part of the decisors really are decisors who have no foothold whatsoever in other worlds. And in order to understand how to ask and how to understand the answer, you somehow need some background, some sensitivity, some natural intelligence of this sort beyond Torah knowledge. And not every decisor has that. Rabbi Shlomo Zalman was known, by the way, to have had this even though he had no formal education, but he knew whom to turn to—and by the way he usually turned to experts who also had halakhic knowledge, and he was right about that, like Professor Lev regarding—yes, we talked about this, I think—regarding electricity on the Sabbath. And he himself also knew how to ask and how to understand what they were saying. He had that sensitivity and that willingness to listen, even a certain humility, not to jump. In other words, hear what he says, listen carefully, understand the meaning of what is being said, interrogate him a little, maybe ask another expert too in order to understand whether everyone sees the same thing, understand what in this is fact and what in this is interpretation. Yes, like whether it passes through the air or through the wire—that is interpretation, not fact. So you need to understand that scientists themselves often do not distinguish between facts and their interpretation of them. And here the value-based decision-maker often is in a kind of inability to make the decision, to understand what the expert is saying. Let’s maybe bring examples specifically from the legal world. For example, there was the monkey trial—actually there were several things called the monkey trial, but they all usually revolve in the United States around the question whether to teach evolution in schools. Because in the United States there is separation of religion and state, and there are certain states where there were upheavals; there are states that are very conservative Christian and some that aren’t. They do not allow evolution to be taught; they want the creation of the world from the Bible to be taught, not evolution. Those people are much more religiously rigid than we are, by the way. And on the other hand there are of course the militants, the neo-Darwinians, the atheists, the materialists, these militants who insist on teaching only evolution and are not willing to teach the Bible. Now because in the United States there is separation of religion and state, the claim is that in science classes one should study evolution, and in Bible classes one can study creation according to the Bible. But you can’t teach the Bible in science classes; that doesn’t work. So they come—or whether to teach Bible at all. Basically the question is whether to teach Bible at all, but even if they do, they teach it as literature or something, not as religious study, at least not officially. The United States is a very religious country, so that isn’t always upheld, but that’s what was supposed to be according to the dry letter of the law. Now these trials often proceeded because the Christians employ serious cadres of experts also in the field of evolution. They do serious work; they are not playing games, and they developed there some claim that creationism, the claim that the world was created by the Holy One, blessed be He, is a scientific theory. It is a scientific claim, one can subject it to falsification; they can prove that the theory of evolution does not meet various scientific criteria, and so on, and then the whole business reached the courtroom. Why? Because the court had to decide whether the creationist theory is a scientific theory or a religious theory. And that has practical consequences for the question whether to teach it in schools, or whether to teach it in science class or whether to teach it at all. There are various versions here. Now what happened in those trials? What happened was something simple. Usually if the judge sitting in judgment was a devout Christian, then of course everything was fine. In the United States everything is political anyway, even judges are appointed politically, everything there is political. And if the judge was a secular judge, an atheist or something like that, then he would basically summon experts. Now which experts do you summon? Obviously researchers of evolution, what do you mean? Those who specialize in the origin of life, the origin of the world, physicists, researchers of evolution. What did he hear from them? Of course he heard from them that creationism is not a scientific theory. Evolution is a scientific theory, the Big Bang is a scientific theory, creationism is not a scientific theory. Now the creationists come and argue their arguments; they too send experts. Okay? What did Judge Jones do—this was in… I don’t remember where, in the twenties, I think, of the twentieth century. So what did he do? He basically asked them, okay, how many cited articles do you have—each one of the experts—and by that he tried to rank who were the more leading experts in their field, and of course he reached the conclusion that the people of evolution and the Big Bang are the real experts, and the experts who represented the more Christian fundamentalist side were not experts, or not experts like those experts, and therefore he decided that creationism would not be taught in school. Now in truth, the question of what here is a scientific theory and what is not is a very tricky question, but it is a question in philosophy and not a question for scientists. And if the judge is not sufficiently sensitive—and there that was the situation—he had no idea that he was not dealing with a scientific question at all. Therefore the experts you need to hear are not experts in science at all, but philosophers of science. So this is exactly the same failure in the interface that I spoke about earlier, the interface in this case between the judge and the expert witness, because he needs to understand what to ask the witness, whether the witness’s expertise is relevant, how to understand what the witness says—is it interpretation or fact. All those things have to be done by the judge or the decisor. The expert—first of all, the responsibility is not on him; he testifies what he testifies, the judge has to make the decision, that is, he is the responsible one. And besides that, he has to make the decision. The expert does not always distinguish between interpretation and facts. There are so many experts who fail on this point, mixing interpretation and facts. I mentioned examples also in the previous class about homosexuality and the argument I had with Yoram Yovel and others; there are many examples of this. Another example one can give in this context is an article I wrote about neuroscience, not yet published; it is supposed to come out in some book in the future, and there I tried to show these interface failures, in the interface between brain researchers and judges or jurists, because neuroscience in recent years is entering the courtroom more and more. You present a brain scan to the judge and through that you can argue that the person was temporarily insane, or that he is not responsible for his actions, or all kinds of things. Now this is no longer testimony of a psychologist or psychiatrist, but testimony of a brain expert who brings a brain scan to court, explains what it means, and essentially he determines—and not the judge—whether the person is responsible for his actions or not responsible for his actions. Now what happens is that in neuroscience it is very common, also in other fields but very common in neuroscience, to have a shocking mixture sometimes between interpretations and facts. And brain experts—and I brought there the example of an article, maybe the most central article I found, in which five really well-known top-level experts in the United States wrote an article for jurists, presenting neuroscience to them and what it says and how to relate to it in court. In the United States there is very extensive activity around this issue. In Israel it is still pretty dormant. And that is a shame, by the way, because when it does awaken there will already be a consolidated scientific doctrine and judges won’t be able to do anything against it, whereas that doctrine is worth nothing. But judges don’t allow themselves to criticize brain experts because they are not experts. They do not understand that this is a philosophical critique and not a scientific critique. The same interface problem. And I showed there in the article what failures those brain researchers have, that they present interpretations as facts. They come to present them before the judges and they even warn: distinguish between facts and interpretations. We are presenting you the facts; you decide the interpretations and the legal decisions. The article is written very modestly. It is written in the form: come, we will give you the scientific tools and then we will disappear; you do with it what you understand, you are the ones who have to make the decision. And I showed how within that modesty they actually smuggled in everything, the whole Torah, as it were. They left the judges or jurists no degree of freedom as to what to do with what they presented. They presented a completely deterministic worldview without any reservations. And they presented it as some kind of factual presentation. We are only bringing you the factual findings; you will make the value or normative legal decisions in this case. And again this is the same problem of interface. When an expert comes to court, this is a very sensitive point, very sensitive. The expert too needs to be sensitive if he is a court-appointed expert. If he is an expert on behalf of the parties, then he won’t be sensitive. Then only the judge needs to be wise. But if this is an expert whom the court brings, then that expert is supposed to be objective. So he—but still, despite his being objective, he needs to be sensitive. He needs to understand for what purpose his answers are being used, what the judge wants to get from his answers. And the judge of course needs to be no less sensitive: first, whether the person opposite him is sensitive; and second, he is not a legal expert, and in the end the one who understands law is me. So I need to understand very well whether he is translating correctly for me, whether what he is saying is really what I’m looking for. And this interface is very, very sensitive. When a psychiatrist comes and tells the judge this person was not responsible for his actions—what does “not responsible for his actions” mean? That he had zero percent control? It is never like that. A psychiatrist cannot know at all that it is like that. Even if it is like that, the psychiatrist cannot know it. He can say that he had very low control, that ninety-eight percent of human beings would have done this act in those circumstances. But there are two percent who would not. Now the question is where the line is. What counts as not responsible for his actions? Someone who acts like the top tenth, like the top two percent or bottom two percent, however you want to call it, depending on where you look from. That already the expert cannot say. And I don’t think you will ever find—or I don’t know about ever—but in most cases in this interface between an expert, in this case a psychiatrist, and a judge, you won’t see the judge asking those questions. As far as he is concerned, this is expert testimony. The psychiatrist says he is not responsible for his actions, then if so he is exempt, he does not receive punishment. But you need to ask what “not responsible for his actions” means. Zero control? How do you know it is zero control? Even if he answers zero, how do you know? Is that interpretation? Is that verified information? Explain it to me. Give me some explanation, even though I’m not now going to study psychiatry for ten years, but still try to bring me in, as an intelligent person who is not a professional, and explain to me how you know that. Are you sure it is so? Is this really a determination of experts? And if I want to do this even more properly, it would be worthwhile to bring someone else. Preferably someone who clearly thinks otherwise, to hear which one of them is right. And by the way, in the end who will be the one to decide which expert to listen to? The judge, of course. Why? Is he the greater expert? Is he more expert than both of them? Or in evolution? More expert than all the experts who stood before him? No, he isn’t. But what can you do? He is the one who has to make a decision. There is an expert who says this, or experts who say this, and there are experts who say that. Who will decide? Will the experts decide? The experts disagree among themselves. A legal decision has to be made. Who will make it? Only the judge. The judge makes it not because he is a greater expert, but because it is his authority. It is his role. There is no way around it. So he needs to be an intelligent person and not just do eeny meeny miny moe, but to hear what they are saying, hear what they are saying, try to interrogate and understand whether there really is a genuine disagreement here and where it comes from, and as much as he can to decide, or to remain in the laws of doubt—that too is a legal condition with legal answers, what happens when we are in doubt on the factual plane. But there are not simple demands here, in fact almost impossible demands, on the judge. This interface between the expert and the value-based decision-maker is almost the point—it’s not almost, it is the most difficult point or the point most likely to cause failure in this whole process of making a value judgment. And this projects onto the question I’m asking: what does it mean, now I return not only to the jurist but to the person of Jewish law, what does it mean to be a decisor or a great Torah scholar? Usually what they test for in the rabbinate is, if he is a great Torah scholar, a Torah scholar who has a certificate from the rabbinate—what they test is a certain body of knowledge. In other words, study the Shulchan Arukh with such-and-such commentators, I’ll give you some case and have you analyze it for me. But they do not test, first of all, and analysis too they don’t always require, though sometimes they do; more in rabbinical courts, I think, than in the rabbinate, though I’m not sufficiently familiar. But what they do not test is his common sense. So let’s hear you listening to expert testimony and extracting from it what you need in order to make your decision. That kind of intelligence that is not halakhic knowledge and is not even halakhic skill, but rather a skill in—not in stages two and three, which are the halakhic work—but the skill to bridge the gap between stage one and stage two. To understand what the expert is saying, to choose the relevant expert, to interrogate him or several experts, and in the end reach the relevant decision for the purpose of the value judgment, the halakhic judgment in this case. It is a certain type of intelligence that is very difficult to test. Not that I have some algorithm or know how to write tests that examine such a thing. More than that, I have a strong suspicion that those who examine the tests are not necessarily sure to pass such tests successfully, because they know the commentators and everything, but the question is whether they were endowed with that sensitivity I mentioned earlier, of Rabbi Shlomo Zalman Auerbach for example. It is something a bit hard to test. But on the other hand it is the core of the process of value decision-making. Because I can find the sources. Sources can be found today. And halakhic skill, assuming you studied long enough and you’re not stupid, then you acquire one halakhic skill or another. Okay? The sensitive point, the one not acquired anywhere, either you have it or you don’t have it—you can acquire it, it just doesn’t happen. You can acquire it if you train, if you take interest, if you read, if you get to know various fields, then you can develop this thing. But there is no such stage in the training of a rabbi or a decisor. It is generally not included in the process. There are those who did it, but it is not included in the process. Therefore it seems to me that this is perhaps the most sensitive point when I ask myself whether this is a Jew into whose hands I am willing to place halakhic decision-making, from my perspective. It really does not matter that he recites the whole Talmud backwards and forwards. That is not interesting at all. It is interesting for those questions that really are questions of information. Tell me what the law is in a secondary vessel, I don’t know what, regarding liquids on the Sabbath. Fine, then he’ll tell you because he knows what the Jewish law says. And almost no question is like that. Almost every practical question is a question bound up with understanding reality, translating it into halakhic language, understanding what the Jewish law says about it. And that, I don’t know to which decisors one can really entrust. Very few that I know, I would entrust such a decision to them. And some of them really are both wise people and know a lot of Torah—not because of that. Rather, they lack that sensitivity I spoke about earlier, that general knowledge, that sensitivity, the understanding, the common sense, the acquaintance with different fields not as a professional but to understand the language, understand what it means, the meaning of things, to know how to read a text that is not from your own field of expertise. That is Torah greatness, such a thing. Someone who does not have that is lacking in greatness of Torah. He has other kinds of greatness and can be great in Torah in principle in those certain respects, but this whole package that leads me to be willing to entrust decisions to him—in that, this thing is no less important and maybe more important than the amount of information you hold and maybe even than your analytic talmudic skill. Because this is basically the Achilles’ heel of this whole process of decision-making, value decision-making. In the Sanhedrin, one of the requirements for someone who sits on the Sanhedrin is that he know seventy languages. There is a discussion about this in the commentators and in the Talmud. A discussion. But the claim is that it is not enough to have seventy judges on the Sanhedrin, each one knowing one language, and he will explain to the others, translate to the others if some witness comes. The assumption is that witnesses come who speak all kinds of languages, and the Sanhedrin is not allowed to hear through an interpreter. That is, it has to hear the witness himself, not through a translator. So how will that happen? If they themselves know the languages. Now what if one of the judges knows—if each judge specializes in one language, then every witness who comes, there will be a judge—there are seventy languages, seventy judges. Of course that is a typological number, but no matter. And each judge can—each language will receive decoding by a judge and not an interpreter. You can trust him, he is a judge. And he will tell the others what the witness said and then they will make a decision. Why does it require that all the judges, or a certain number of judges, know all the languages? Because translation is never a hollow pipe. When you translate something from Hebrew to English, you have lost certain connotations, like the translation of literature—when you read the book in Hebrew or in English it is not the same thing. It is not the same not because the translator was inaccurate, but because there are certain connotations that pass in English and do not pass in Hebrew. Just as I am always amazed anew how S.Y. Agnon received the Nobel Prize for literature. How did those Swedes, or I don’t know who read his books, understand the literary value in them? How can you translate such a thing from Hebrew into another language? Maybe into Yiddish, but how can you translate it into Japanese? Yet they translated it. And I have no idea how it gets across there or how it—but in the world of connotations, also of the reader, even if you translated it correctly, the reader himself does not have the whole world of connotations; he does not understand what is written there. Even if he understands it verbally, he does not understand what it means. And that is exactly the point. Therefore in the Sanhedrin each one had to understand the witness. Don’t translate for me, I want to hear him in his own language. And I need to be alert to all the nuances and contexts and sensitivities, not only to the words he says. Because when you hear someone, it is not enough to understand the facts he is giving you. You need to understand the contexts, what it means, how to apply it, how to interpret it, for what purpose to apply it. It is a very, very sensitive business. Okay, so one point I wanted to say is that here I am basically concluding the description of the process of making a value judgment. How one moves from facts to a value decision. We said it is built of three stages: that of the expert, the setting of the threshold, which is already by the value-based decision-maker, and the determination of the Jewish law itself, the normative determination, which is of course also the value-based decision-maker. What I added today is the interface or the seam between stage one and stage two. Now I want to speak about one more thing. There is another aspect—we are dealing, after all, with the relation between facts and Jewish law—there is another aspect that one might call the factual aspect of value decision-making. And here I want to ask the question: so basically—I began last class with the fact that people wonder how it can be that a decisor is an expert in so many fields. They ask him about medical fields and political fields and interest, economic fields, and fields of Sabbath and technology and everything. What, can he be an expert in all those fields? As I said then, for some reason no one asks judges that question. Judges too have to make decisions in many fields. So everyone understands that they cannot be experts, professionals, in those fields. But what he can do is hear the expert, understand what he says, and make the decision. Okay? So in that sense the situation of the decisor is no different from the situation of the judge, it’s the same thing. True, there are sensitivities there, one needs to understand how the interface works, but there’s no way around it—that is how it works, and it is not that he needs to be an expert. He does not need to be an expert. He needs to understand what the expert says, how to ask and how to decipher the answer, how to apply the answer, as I explained earlier. And then the question arises: so what is halakhic expertise, yes? So my claim is that halakhic expertise is first of all in stage three. Stage three is mainly the stage of knowledge and learning. Okay? That is basically classic halakhic skill. That is what all the decisors I described have—yes, most of the important decisors have that. But what is in stage two? I described—let’s phrase it this way—I described what expertise is required for the interface, right? The expertise required for the interface is the humility and the familiarity with many fields and the willingness to listen and the skill, the ability to understand the context and the connotation. That whole thing I talked about earlier—that is one skill. The second skill is the analytic skill of halakhic knowledge and analysis, and that is stage three. What skill is required for stage two? How does the decisor sit and decide, okay, dangerous is when there is 0.6 percent. That is dangerous. I go to the graph, so that is ninety kilometers per hour, so ninety kilometers per hour is the permitted speed on this road. Legislator or decisor, it doesn’t matter for the moment. How is this done? On the face of it, it seems arbitrary. What—how can you determine what counts as dangerous? At every speed there is some level of risk; the whole question is where you draw the line. And where you draw the line is like with the heap. Where do you draw the line? One stone is not a heap. A thousand are a heap. Everything that passes between one and a thousand is a continuum of levels of heap-ness. But in the end you need to make a decision: what, for legal or halakhic purposes, will be called a heap. Jewish law and law do operate in binary fashion. Because Jewish law determines that a heap is forbidden, or the law determines, I don’t know exactly, something like that, okay? So now the question is what is a heap for purposes of Jewish law? You need to draw a line. What is this skill that enables the decisor to draw lines, if there is such a skill at all? So one can go here in two directions. One route is the route that says there really is no such skill. The decisor is not an expert in this matter; rather, he merely has the authority to decide. Like the legislator, by way of contrast, yes? When the Knesset determines the permitted speed, for the sake of discussion, or whoever on its behalf determines the permitted speed, or on behalf of the government, he is not necessarily—what do I mean not necessarily—he is not an ethical expert in the sense that he knows how to draw lines. No one knows how to draw lines. That dangerous means 0.6 percent; dangerous means such-and-such a speed; 0.7 means such-and-such a speed; 0.8 means such-and-such a speed; okay, but where do you draw the line? According to what criteria can you draw such a line? There are no criteria. So then by virtue of what do we let the legislator draw that line? Because he is the legislator, not because he is an expert. It is not because of any expertise he has. Stage two, according to the route I’m choosing right now, the first route, stage two does not require expertise. The interface between stage one and stage two requires one type of expertise, the sensitivity I talked about today. Stage three requires expertise, which is classic halakhic expertise, knowledge and the ability of halakhic analysis. And stage two is a stage founded on formal authority. It is not expertise, but because you are the decisor or the legislator or the police officer, the one entrusted, the one who has the authority to determine, then you will determine. That is your expertise. No—your authority, sorry. Not because you are an expert. I can determine it just like you; there is no expertise here, there is no correct or incorrect answer. But someone needs to determine it, the law has to be set. So I give someone the authority, the legislator or the decisor, and he determines. But there really is no type of expertise here. So stage two is in the decisor’s mandate but not in the decisor’s expertise; rather, it is his authority, the Sanhedrin or a decisor, it doesn’t matter, I’m not entering now into who the value-based decision-maker is. So here the matter of authority really enters in. Similarly, when the judge or the rabbinical judge or the decisor hears opinions of different experts and he has to decide which opinion to adopt. Which expert is more persuasive to him? So he can use sensitivity and still try to decide which expert is more right, even though he himself is not an expert, so that is a bit rash, but there is no way around it. But at the base, at the base, what is sitting there is not expertise but authority. In the end the judge is the one who has to make the decision. What can be done? Who will make the decision if not him? The experts are arguing. A legal decision must be made. Who will make it? Only the High Court, or whatever court it is. What can be done? Not because they are more expert but because it is their authority; they are the ones to whom the authority to make the decision was given. So they will decide whose expert opinion they accept. So choosing which expert is the relevant one is also a matter entrusted to the decisor or the value-based decision-maker, the legislator and so on. And that he will either do out of the sensitivity I spoke about, the expertise of the interface, or he will do it by virtue of his authority. He doesn’t know, but there’s no way around it—I’ll draw lots, what the Talmud calls the judges’ discretion. Do whatever you want, as long as you make a decision. Why? Because you are the factor who has to make the decision, you are the authority that has to make the decision, with you it stops. You cannot look upward and say okay, I’m passing it on to you, you make the decision. You are the one sitting at the top. Now make the decision. Ask whatever expert you want, but in the end the decision has to be by you. So that is one route. That route basically says that stage two in the process is not a stage based on expertise at all, but a stage based on authority. But I want to raise another possibility, another route. These routes are two possible ways of interpreting it. It may be that there is an issue of expertise here, and not only that it is an issue of expertise, but that it is a certain kind of observation of facts, this expertise. What do I mean? There is still some sense—you can treat it as an illusion, but it seems to me most of us do not see it that way—that to drive, say, at ten kilometers per hour, it is not reasonable to place the line there on the Haifa-Tel Aviv road, and not at two hundred either. Right? On that we agree. Whether to place it at eighty, ninety, a hundred, a hundred and twenty—we can argue—but those are more or less the boundaries of the field. That is, not two hundred and not twenty, okay? And not forty either. What is that? How do we relate to those boundaries? Is it just because we are used to it? Or are there still concepts here of truth and falsehood? In other words, that it is true that it lies somewhere between eighty and a hundred and twenty, and not right to put it at twenty or at two hundred. That I can say. Where between eighty and a hundred and twenty? Maybe here it is arbitrary, one feeling or another, I don’t know. But the fact is there is broad agreement that it will not be at two hundred and it will not be at forty either. That means I am claiming it is not true that this decision is completely arbitrary. There is something in it that still can be judged in terms of true or not true, right or not right. And now I want to make a more far-reaching claim: that there is a skill of drawing lines. Earlier I said drawing lines is an arbitrary decision and therefore it is based on authority, not skill. Now I want to suggest another proposal: there is a skill of drawing lines. There is someone who has a more developed or more reliable nose and he knows how to smell where it is right or where it is reasonable to draw the line—at eighty, at ninety, or at a hundred. On what basis do I say this? I say it on the basis of the fact that at forty and at two hundred there is broad agreement. So that means it is not arbitrary. If it were arbitrary, then someone would say three hundred, someone would say forty, someone would say a hundred, I don’t know—I would expect an infinite spread. The fact is it is not arbitrary. There is very broad agreement about the sides. In the middle there is a gray area, but black and white are clear. So there is in the middle… what does that mean, it is clear? If there is no right answer, then there is no clarity. Understand: my previous claim, when I tied this to authority and not expertise, the claim was not that it is hard to reach the right answer or that we lack the tools to reach the right answer, but that there is no right answer. There is nowhere to get to. The problem is not that I lack the tools. There is no right answer. And with my favorite example: if I ask you what there is more of, human kindness in people or water in the ocean, one cannot answer that not because it is complicated and I lack the tools to handle the question, but because it has no answer. It has no answer. Not that I can’t reach the answer. This question has no answer; it is a meaningless question. It has no answer. Now the view that ties line-drawing to authority and not expertise is a view that basically sits on the fact that there is no right answer, not that we lack the tools to get there. How will you determine the right answer—one percent risk, half a percent, two percent, three percent? I don’t know. How do you determine such a line, according to what? We said an expert can say nothing about this. So how does the value-based decision-maker determine it? Apparently he tosses a coin. A coin toss, an inner feeling, whatever, but it is just arbitrary. That is the first route I proposed, the route of authority. So true, there is no answer here at all, and one has to set something that will be binding in terms of law or Jewish law, so they make an arbitrary determination, and who makes it? Whoever has the authority. Therefore the basis here is authority and not skill. The proposal I am now suggesting is no. True, authority was given to the decisor or the legislator, but to the decisor it was given because we trust that he has the skill to draw lines. What does that mean? He has some kind of nose that says half a percent risk is reasonable here, one percent is no longer. I feel that this is the right decision and therefore I draw the line here. It is not arbitrary. He has a sense that this is the right thing to do. Of course, the people of arbitrariness will say: you have a feeling simply because that is how you are built; it does not really point to anything correct. Feelings, fine, feelings, everyone has feelings. According to what I’m now suggesting, I say no, there is some kind of intuition here that points to a right answer, that it is right to draw the line there. Then that means that stage two in value decision-making is also a stage based on expertise, and this is another aspect of halakhic expertise. A person who has some sort of nose for understanding what risk is reasonable to take and what risk is not reasonable to take. And there is right and wrong here. The Torah scholar has a better nose; he will hit the truth better than the layman. That is basically the claim I want to make. Such a Torah scholar, one whose nose I trust, in how he draws the lines, is basically a Torah scholar who has another type of skill. Now if I am right about this, yes, then according to this conception it comes out that halakhic expertise is really composed of three kinds of skill. I am now defining someone who is great in Torah. We began from the relation between reality and halakhic determination, and now suddenly we are beginning to distill from this, from this model, the criteria, the criteria of what halakhic greatness is. So it is composed of three kinds of skill. The decisor is involved in two of the three stages, but three skills are required of him. One skill is to transfer the information from the expert to the chef—to the normative sphere. The sensitivity, which I talked about for most of today’s class. That is one skill. The second skill is the nose. The nose that says okay, I got the graph from the Technion person, I understand this is exponential, this is linear, I understand more or less what it means. Now I need to decide where the line passes. That same nose—if I adopt the second route, the second proposal—then it is that same nose that says half a percent already counts as dangerous for our purposes. 0.4 does not. Fine, no matter the resolutions, but 0.4 does not and 1% does. All right? Of course one has to be careful not to overdo the resolutions. But there is some kind of nose that says where more or less it ought to be. Okay? And if the claim is that this is a skill, not just an arbitrary matter, then it means there is another aspect here of halakhic skill. And the third skill is what is required in stage three, which is basically classic halakhic skill. Usually people only talk about that one. What is called halakhic skill is only the third. In the world, if you ask what a skilled decisor is, an outstanding decisor, it is only the third thing. And that is knowledge of halakhic information and the ability of halakhic analysis. That is stage three. But in stage two there is also a kind of skill, if I am right that it is a skill, and there is also another skill, which is the transition from stage one to stage two, and they are no less important and maybe more important for defining a great decisor or a great person of Jewish law, a significant person of Jewish law. And maybe one last point I want to raise here as a general wonder: I have a certain inclination, but I really—it’s hard for me to ground it. The interesting question is: after all, as they said to Rabbi Akiva, go to tractates of Negaim and Oholot. Yes? There are areas of halakhic expertise. Or Rav Nachman, Jewish law follows him in monetary law; Shmuel, Jewish law follows him in monetary law; and Rav in ritual prohibitions. There are fields of expertise of decisors and amoraim. And this is known also among present-day decisors: there are decisors who are more expert in certain fields and less expert in other fields. Regarding which of the expertises is there a difference between the fields? In the third expertise, certainly yes. Halakhic information—if you know the laws of the Sabbath well, that does not mean you know the laws of niddah. It is different information. In other words, you need to know the halakhic information. So in the third type of skill, or in part of the third type, it is of course not universal. Every area you studied, you know. Analytic skill, which I also assigned to stage three, is already something more universal. Because analytic skill—one can apply the analytic tools to all topics in principle. Therefore there it is more universal. The interesting question is the nose. Is the nose in the laws of Sabbath or in ritual prohibitions and permissibility or in monetary law the same nose, or are these different noses? It is the ability to draw lines, but one can draw lines in the question of homosexuality, one can draw lines in the question of security and policy, and one can draw lines in the question of the permitted speed on the road or abortions or all the examples I gave last class. Is the ability to draw a line—assuming it is an ability and not just authority—is it the same ability? In other words, someone who has a nose in the laws of Sabbath, then assuming he is equipped with the tools, the information and the analytic tools in monetary law, will he be a better judge there too? Or not. Does a nose develop through rubbing up against the field? When you rub up against the laws of Sabbath, then you also develop the right nose for the laws of Sabbath. When you rub up against the laws of preserving life, you develop a nose. In monetary law, then you develop such a nose. I tend to think there is something universal here too, but still there is a difference. Someone who spent all his life in monetary law develops some kind of sensitivity, some kind of nose for legal-halakhic questions, and it is not clear that he will have that same nose in other areas of Jewish law. Therefore, for example, in order to decide—again, if I go back to corona—not every halakhic skill, even in many fields, necessarily gives you the tools to draw the line correctly, to make correct decisions even in questions of this type. But here this really is a question of nose. My nose tells me that the different noses in the different fields do not always develop together. In other words, sometimes there is a nose that will work well here and less well there. But there is still something in it that is universal. Perhaps the ability to develop a nose, the potential to develop a nose, is universal. But you still need to rub up against the field in order to mature, in order to understand or develop the relevant nose for that field. Here this really is the realm of speculation, or I can say what my nose tells me on this matter. You can accept it and you can choose not to accept it. Okay. I’ve finished the class, and once again, as is my custom, we’ll move on to… I’m unmuting your microphones. We’ll first move to questions that deal with the class, and afterward to questions if someone wants to talk about something else. So for now I’ve opened everyone’s microphones; everyone should stay muted except whoever wants to speak. Okay.