Jewish Law and Reality – Lesson 5

Table of Contents

• The three stages of halakhic decision-making
• Three halakhic skills and the gap between a halakhic decisor and a scholar
• Apprenticeship, field experience, and the status of the expert
• Morality, relativism, and ethical realism
• Ethical facts and halakhic facts
• Conscience, the “eyes of the mind,” and normative observation
• Moral disputes and the claim to truth
• Expanding stage three: knowledge, analyticity, and syntheticity (“halakhic instinct”)
• Pilpul, Rabbi Chaim, and the leadership of yeshiva heads
• The naturalistic fallacy and normative facts
• Authority regarding facts: responsa versus books of Jewish law
• Formal authority and substantive authority
• The impossibility of formal authority over facts and thoughts
• Questions from the audience: the Ministry of Health, experts, and the Talmud

Summary

General Overview

The text presents a model of three stages for making a normative decision, and especially a halakhic one: drawing the “graph” of the facts, determining the “threshold” or cutoff point on the graph, and then making the normative decision. It distinguishes between factual expertise and a “value-decider,” and develops an account of the different skills required for halakhic ruling, including skills of clarifying reality, determining plausibility, and analytic scholarship. It then proposes a realist understanding of morality and Jewish law as “normative facts” that can be observed through “conscience” or the “eyes of the mind,” and argues that facts do not have formal authority, but at most the substantive authority of an expert. Finally, it applies this to the difference between responsa and general halakhic rulings, and to the question of the authority of a halakhic decisor and a religious court in determining facts with respect to a particular case as opposed to general factual determinations.

The Three Stages of Halakhic Decision-Making

Halakhic decision-making is built from three stages: a first stage of drawing the graph on the basis of facts, a second stage of determining the threshold or cutoff point, and a third stage of making the normative decision. The first stage belongs to the factual expert, and the last two stages belong to the value-decider. The move from facts to decision is not automatic; it depends on someone who can both understand reality and make a value judgment.

Three Halakhic Skills and the Gap Between a Halakhic Decisor and a Scholar

The first skill is the ability to move from stage one to stage two by clarifying facts: knowing how to speak with experts, what to ask, how to understand the meaning of their answers, and how to check with more than one source. The second skill is an “instinct” for the right place to draw the line, and the question is whether this is a skill in which there is right and wrong, or arbitrary authority; the conclusion is that there is right and wrong, but the gray zone is “thick.” The third skill is halakhic knowledge and the classic scholarly-analytic ability, and that is shared by both the halakhic decisor and the scholar, whereas the first two skills especially characterize a halakhic decisor. The combination of all three produces a halakhic decisor “of real stature,” and sometimes you have decisors who are weak in scholarship, while on the other hand there are brilliant scholars whose grasp of reality is problematic.

Apprenticeship, Field Experience, and the Status of the Expert

The first skills are acquired through “apprenticeship” and by accompanying a halakhic decisor in practical work, something like an internship, because they develop through friction with real-life questions and conversations with experts. That kind of contact also creates an “instinct” for what is plausible and what is not, beyond the dry data. From here there arises the possibility that a practical expert, like a professor of transportation, may gain an advantage even at the stage of setting the threshold and not only in drawing the graph, and therefore there is not only an efficiency-based justification but also a substantive justification for entrusting the second stage to the expert. The assumption that drawing the line is a skill and not merely authority changes the decision about whether it is right to delegate it to an expert, but practical immersion in the field may nonetheless strengthen the case for delegation.

Morality, Relativism, and Ethical Realism

Moral statements like “murder is forbidden” are not facts in the simple sense, because there is no obvious “thing to look at” in order to verify them, and therefore moral arguments are harder than scientific judgments. If they are only subjective feelings, the conclusion is moral relativism, in which there is no right and wrong, only different emotions. By contrast, most people experience “murder is forbidden” as a binding demand even upon someone who feels no revulsion toward murder, and that requires an explanation that recognizes something beyond feeling.

Ethical Facts and Halakhic Facts

The text proposes ethical realism, according to which there are “ethical facts” that exist in the world in an objective though non-physical way, and an ethical judgment reflects them. In the same way there are “halakhic facts” or “normative facts” that ground halakhic obligation even for someone who does not feel obligated. The alternative of a “social contract” is described as a fiction that does not solve the problem of moral obligation toward someone who says, “I never signed it.”

Conscience, the “Eyes of the Mind,” and Normative Observation

For ethical facts to be useful, there also has to be an ability to observe them, and conscience is presented as a cognitive faculty, an additional “sense” for perceiving ethical facts. The metaphors “the eyes of the mind” in Maimonides at the beginning of Guide for the Perplexed, “eidetic seeing” in Husserl, and “auditory logic” in Rabbi HaNazir point to an intermediate faculty between sensory perception and pure thought. This faculty allows the intellect to “observe” normative reality, and that observation yields binding conclusions of obligation, prohibition, and permission.

Moral Disputes and the Claim to Truth

The existence of moral disputes does not prove that everything is subjective; it may indicate that normative vision is blurrier than ordinary sensory vision. The text compares this to seeing a distant object that looks like maybe an airplane and maybe a bird, where one person is right and the other is wrong even though there is a dispute. It rejects the claim that disagreement proves the absence of truth, and interprets moral dispute as a dispute between someone who is right and someone who is mistaken, even if in practice we cannot settle it.

Expanding Stage Three: Knowledge, Analyticity, and Syntheticity (“Halakhic Instinct”)

The text adds to the skills of the third stage a component of “halakhic observation” or halakhic instinct, which distinguishes between claims that are “brilliant” but not actually correct, and claims that are plausible. It describes a situation in which a completely coherent scholarly structure is rejected because it “smells wrong” or “doesn’t fit,” even without any crushing objection. In a dispute, persuasion sometimes happens when the other side begins to “smell” the same implausibility, even though the logic was not refuted, and this is presented as an indication of observing normative facts and not merely of emotion.

Pilpul, Rabbi Chaim, and the Leadership of Yeshiva Heads

The text uses the example of pilpul as a brilliant logical structure built on crooked assumptions, which turns out to be wrong through halakhic instinct. It tells about Rabbi Chaim, who said “There is no such Tosafot,” not because he remembered the Tosafot, but because “something this foolish is not written in Tosafot,” and presents this as showing that knowledge itself depends on a proper instinct. It cites Binyamin Lau as saying that the tragedy of the generation is rabbinic leadership by yeshiva heads rather than community rabbis, because yeshiva heads get feedback about logical bugs from young students, but less feedback of common sense from older people in the community. It describes logically consistent but detached decisions that lack common sense as a possible pathology of such leadership.

The Naturalistic Fallacy and Normative Facts

The text argues that the naturalistic fallacy applies to moving from physical facts to norms, but does not apply to “ethical facts,” which are themselves normatively charged. It distinguishes between a fact like “a blow hurts” and a normative fact like “it is forbidden to strike,” and argues that one may derive norms from ethical facts because that is what they mean. Observation of normative facts does not yield more neutral facts; it directly yields binding norms.

Authority Regarding Facts: Responsa Versus Books of Jewish Law

The rule “if one sage prohibited, his colleague may not permit” applies to a ruling with respect to a particular case or a particular object, such as a chicken ruled non-kosher, and not to a general halakhic determination over which one may disagree. The distinction parallels the difference between responsa literature, which deals with a specific case brought before the respondent, and books of halakhic ruling like the Shulchan Arukh or the Mishnah Berurah, which deal with general norms and types of cases. In a particular case, the halakhic decisor also has authority to determine the relevant facts, because deciding the case depends on factual determination, and that authority includes determining those facts with respect to the litigants. But with respect to general factual determinations in a book of Jewish law or in the Talmud, the decisor has no authority to determine reality, and if the facts have changed there is no obligation to accept the factual determination as fact.

Formal Authority and Substantive Authority

The text distinguishes between formal authority, which stems from an institutional role such as the Knesset or the Sanhedrin, and substantive authority, that of an expert like a physician, whom people listen to because he is “probably right” and not because they are obligated to obey him. It argues that after the sealing of the Talmud and the abolition of the Sanhedrin, halakhic decisors no longer have formal authority, but at most substantive authority. With respect to facts, it argues that formal authority is impossible in principle, because formal authority requires “submission” even against one’s inner conviction, and that is impossible when what is at issue is belief about reality.

The Impossibility of Formal Authority Over Facts and Thoughts

The text argues that you cannot require a person to think differently from what he is convinced of, and therefore formal authority has no meaning with respect to facts or matters of belief such as the coming of the Messiah or tsimtsum and the shattering of the vessels. It brings the example from the Talmud in tractate Sanhedrin of Rabbi Hillel, who said, “Israel has no Messiah,” and presents the sages’ response as an argument about truth and not as a mechanism of formal coercion over thought. It also interprets Maimonides’ words in his Commentary on the Mishnah about determinations that have no practical halakhic relevance as a principled claim that “halakhic ruling” does not apply to matters of thought, because the demand cannot be carried out without persuasion.

Questions from the Audience: the Ministry of Health, Experts, and the Talmud

A question about the Ministry of Health and distancing regulations is answered by saying that in principle one may disagree if one is convinced, but one has to think very carefully, because experts are saying otherwise, and there is also the moral consideration of one’s effect on others in the public sphere. A question about experts who define “deviation” or value-laden categories is answered by saying that value definitions are not “professional determinations” in the factual sense. A question about how one acquires the ability of moral observation is answered by saying that involvement, discussion, receiving feedback, and friction with moral topics sharpen the ability. A question about Terumat HaDeshen is answered by saying that it is an example of the literary responsa genre, in which the questions are invented, and therefore it functions as a book of Jewish law rather than as a ruling on a case. A question about the Thirteen Principles is answered by saying that there is no formal authority over facts even if they were “accepted,” and that in Talmudic literature factual determinations are not binding as determinations of reality. A question about the “permission regarding lice on the Sabbath” receives the answer that the prohibition is accepted if the permission was based on an erroneous fact. A question about the Talmud’s “bridge principles” is answered by saying that the Talmud has formal authority in those areas, and the details that remain open are matters of interpretation.

[Rabbi Michael Abraham] Good. Last time, if I summarize the picture we arrived at, we saw that making a normative decision, and specifically a halakhic ruling, is made up of three stages. The first stage is drawing the graph, the second stage is setting the threshold or cut-off point, the graph’s cut-off point, and the third stage is making the normative decision. The last two stages belong to the value-decider, the evaluative instance, while the first is a matter for the expert, expertise regarding the facts. I spoke about this, and from there I spoke about the fact that there are three kinds of halakhic skill, three kinds of halakhic activity or abilities that are required in this process. The first is the transition from stage one to stage two, this sensitivity to understand how to speak with experts, what to ask, to grasp the significance of what they’re telling you, some familiarity with different areas, some understanding of how to ask, willingness to listen, to check maybe with someone else too—that’s the first skill. The second skill, I said, is a kind of sense of smell, where it is right to draw the line. What is a permitted speed, when is it a human being, and all kinds of things like that. Here I raised two possibilities. Is this skill really a skill? Meaning, is there a more correct and less correct placing of the line, or is it really authority and not skill? And in fact the value-decider draws the line on the graph not because he knows better than others how to do it, but because that is his authority. Meaning, he is the one who is supposed to draw the line not because he knows how to do it better than I do. So here there were two possibilities. In the end I said that I leaned toward saying that it is indeed a skill and not only authority, because the fact is that a line that is too low or too high is something all of us agree is not right. There can be arguments in the gray zone in the middle, but nobody will say that the correct line on the Haifa-Tel Aviv highway is 250 kilometers per hour, and nobody will say it is ten kilometers per hour either. So there is right and wrong here after all, except that the line that distinguishes between right and wrong is very thick. There is a gray area between black and white, and it is a wide area, and with regard to it there can be disputes, but it is not true that this whole drawing of the line is just an arbitrary lottery based on authority and not skill. There is indeed something here that touches on skill. Meaning, something where someone who knows better how to smell where it is more correct to draw the line, where it is more reasonable to draw the line—that was the second halakhic skill. And the third halakhic skill is the one people usually talk about. That includes halakhic knowledge and halakhic analytic ability, just plain intelligence, analytic ability, analytical talent. The classic yeshiva-style abilities. That is basically the third layer. You could call it the learning component in halakhic ruling. The first two skills are not connected to scholarship; they are skills that relate to the question of how I connect the results of the learning to the factual world. Meaning, how I apply them to the factual world, and therefore the first two skills are the skills of a halakhic decisor. The third skill is a skill of a halakhic decisor too, but also of a scholar. Okay. A rosh yeshiva can in principle be a rosh yeshiva even without the first two parts. He’ll give a lecture, explain Nachmanides’ approach, explain Rashba’s approach, put each one through critical analysis and how each fits with the sources and resolves them and builds sophisticated and brilliant conceptual and logical structures, and then he presents a beautiful picture of the topic. But from that alone you still can’t arrive at a halakhic ruling. In order to rule Jewish law you have to decide what counts as dangerous, as I said, and of course know how to speak with the expert who gives me the graphs. That is not the business of the rosh yeshiva or the scholar; that is the business of the halakhic decisor. Therefore one can say that the first two skills are skills that are supposed to characterize a good halakhic decisor. The third skill is the skill of a scholar. Now many times it somehow turns out that the first two skills exist in the decisor, but דווקא the third is weaker in him, while in the scholar the third is strong and the first two are weaker. The point is that in order to rule Jewish law you need all three. And therefore many times the feeling is that there are many decisors who maybe know a lot and it may also be that they have some good feel for reality, but they are not scholars. On the other hand there are scholars who are wonderful, intellectually brilliant, but their grasp of reality is very problematic. What they say sounds a bit detached from common sense, from ordinary common sense. And therefore the combination of these three skills is really what produces a good decisor, a decisor of stature, someone in whose hands one can entrust the ability to make decisions. Maybe one more note—up to here was the summary—there is one more point connected to the previous lecture that I didn’t say, and I’ll add it here. Because I said that this skill, we spoke a bit about the fact that such a skill is an acquired skill. Meaning, there is of course an innate potential, people have better or worse potential, but that potential has to be actualized, and that is what is called perhaps apprenticeship. When someone who will become a decisor learns how to become one, goes through his training process, many times beyond study he has to accompany a decisor in practical work, like an internship for doctors or in other professions where they do internships. And what that does is help you develop those first two abilities; it has nothing to do with scholarship. The scholarship he learned in yeshiva. After that, when he wants to take the knowledge and skill he acquired in yeshiva and become a decisor, he has to do apprenticeship. Why apprenticeship? Within that framework he develops the first two skills. You learn how to clarify facts, how to relate to experts, how—you get to know things, you hear things, you develop a certain sensitivity. You develop a sense of smell for what is more reasonable and what is less reasonable. And then, if you have that kind of potential, the apprenticeship helps you develop it, bring it from potential into actuality, and then you become a good decisor. Now since this development includes as an inseparable part rubbing against the field itself—simply dealing with real-life questions, talking to experts, seeing how the more experienced decisor, your mentor, does this work—this means that contact with the field gives you, beyond knowledge, which belongs to the third skill—the knowledge and analytical ability and so on—it also gives you something that ostensibly is not connected to facts: a sense of smell. For example, the claim that perhaps the professor from the Technion who is a transportation expert may also have some advantage, at least if he deals not only with theory but also with practice, then he also has some advantage regarding the question of where it is reasonable to draw the line. Is it reasonable to draw the line on the Haifa-Tel Aviv highway at 80 kilometers per hour or at 110 kilometers per hour? It may be that because—if we assume this is a skill and not only authority, and if we assume a skill is something that develops through contact with the field, then maybe once again some part of the distinction I made between facts and norms, the naturalistic fallacy, gets blurred. And that is that the factual expert, insofar as he is a practical and not only a theoretical expert, has some better sense of smell, a better-developed sense of smell, also for what is more reasonable in drawing the lines, something that is connected more specifically to the normative dimension. You look at the road, you see accidents, you investigate accidents, you check, you deal with practice and not only theory, so you acquire a kind of sense of smell for what is reasonable and what is not reasonable. It is more than the dry data—half a percent, one percent, point-two percent. Those are numbers; they won’t help you in terms of a sense of smell for where to draw the line. And contact with the field contains something that still gives you some kind of advantage. And that has great significance in practice. Because until now I basically argued that, say, on abortion approval committees, or on committees for determining the permitted speed, my claim was that it is not right to put experts there. The experts can provide the first stage, the graph. But after that someone has to come who is the value-decider and make the decision. I said, correct—but for efficiency there is logic in putting experts there anyway. You’re already a transportation expert, you have to draw the graph anyway. Instead of drawing the graph and passing it to the value-decider, you be the value-decider too. Because all in all, if the assumption is that the value-decider has no data according to which he works—he receives the graph and now with his sense of smell he has to draw a line—fine, the professor from the Technion can do that too. There is no skill that the value-decider has and the professor does not have. So therefore I say there is a lot of logic in saying okay, why complicate the process, put the professor there to do stage two as well, not only stage one. And that means he will also determine what the permitted speed is, not only draw the risk graph as a function of speeds. But this of course assumed that drawing the line is a matter of authority and not of skill. And if that is so, then let us delegate the authority to the expert, because there is no advantage of the value-decider over the expert. Someone has to be there. So in order to streamline the process, shorten it, simplify it, we will take the expert and also give him the authority. But if I assume that we are dealing with a skill and not authority, meaning there is someone who must have a good sense of smell for where to draw the line of reasonable risk, then it is no longer so simple to give this to the Technion expert, because the value-decider knows better than he does how to draw lines, because this is a skill, not merely a matter of authority. But in light of what I just noted two minutes ago, maybe there is still room to give the decision to the Technion researcher. Because if indeed contact with the field develops the skill of how to draw lines, then he has that skill too. And if so, perhaps even more than the value-decider who is supposed to decide in many different fields and who hasn’t necessarily had that much contact specifically with transportation problems. And therefore here there is also a substantive justification, not only one of efficiency, for entrusting the drawing of the line, the second stage in the process, also to the expert. So I’m saying this is a possibility, and it is a derivative of the assumption that we are dealing with a skill and not authority alone. Now I want to add one more layer. Really, all these things attack from various directions the path from facts to value-decision, which is exactly our topic, the relation between facts and Jewish law or between facts and a normative determination. So now I want to look at this from another angle as well. And this connects to the point I made here about sense of smell and contact with reality and so on. I’ll remind you that at the beginning of this series we discussed the gap between facts and judgments. And there I also talked about the question of how to relate, say, to moral determinations. It is forbidden to murder, forbidden to steal, one should help another person, one should not harm another person, all kinds of things of that sort. Are those facts? Simply speaking, no. They are not facts, because factual claims, in order to check whether they are true or not, you simply have to look at reality and see whether the claim is true or not. In an ethical claim there is nothing to look at. What exactly am I supposed to look at in order to see that it is forbidden to murder or that it is forbidden to steal or that one should help another person? There is no fact here that if I look at it I’ll see whether this is true or not true. That is why disputes in the realm of values and morality are much harder to decide than disputes in factual or scientific fields and the like. There they do an experiment and check. But in the moral realm there is nothing against which to check. It’s a matter of worldview—against what would you check it? But then the question that arises here is whether there is such a thing as right and wrong in the moral realm at all. Because if there is nothing against which to check, then what is it exactly? What is the meaning of the statement “it is forbidden to murder”? After all there is no fact here that I can check whether I am right or not. So why do I say that it is forbidden to murder? I didn’t check it; it is not the result of observing something. So why do I say that it is forbidden to murder? Because I have a feeling that it is forbidden to murder. What does it mean that you have a feeling that it is forbidden to murder? It means you are built in such a way that you feel revulsion toward the act of murder. But then this really becomes something subjective, some feeling, a structure embedded in me in some way in my genes, I don’t know, it doesn’t matter how, but it is embedded in me somehow. Embedded in me, and it doesn’t really have the meaning of a claim that can be true or false. And the question is whether we are really willing to relate to moral claims in that way. Now someone who relates to moral claims in that way reaches relativism very quickly, moral relativism. This basically says that if I have such a feeling, then in my eyes it is moral. If the other person has a different feeling, then in his eyes it is moral. There is no objective thing here over which we are arguing and saying let’s check who is right. There is no right and no wrong here. He feels this way and you feel differently. What relevance do right and wrong have here? But then this really means that the claim “it is forbidden to murder” is not actually a claim that I stand behind. It is merely a description of a psychological state or of my feelings in relation to murder. And if I want to see morality as something beyond that—meaning if I understand morality as a binding claim regardless of what your feelings are, even if you have no such feelings, you still may not murder—I think this is the accepted approach among most people, that “it is forbidden to murder” is not a matter of expressing a subjective feeling within me, but rather I have a claim against someone if he murders. Even if he says to me: listen, I feel nothing at all about murder, I have no issue with it, as far as I’m concerned it’s like squashing a mosquito. So what is the problem? The problem is that the fact that you have no feeling is not interesting; bottom line, it is forbidden. What does “forbidden” mean? It means there is something beyond feeling. In saying “it is forbidden to murder,” I am not merely expressing a feeling; I am saying something, let’s put it this way, in some sense about reality. Something objective. Meaning, it is forbidden to murder—but that is not a fact in the simple sense. So how can one nonetheless give some account of this, justify it? I think the only way to understand such a conception—or abandon it; one can abandon it and say yes, this is moral relativism and that’s it—but if I do uphold absolute morality, again, “absolute” does not necessarily mean that there is one correct answer to every moral question, but that not anything goes. It is not just a subjective feeling and that’s all, but there is right and wrong in morality too. Maybe sometimes there are also two opinions that can both be right, but there are also opinions that are not. Meaning, there is something here that really does connect to right and wrong. And then how can I justify such a thing? I think the only way to do that is what is called moral realism or ethical realism. Ethical realism means that the ethical determination reflects something that exists in the world itself. It is not only something implanted in me, some feeling, some emotion; rather the feeling and emotion implanted in me express something that I perceive outside myself, in some sense, in the objective world. Not in the physical world, of course, but something objective. Call it Plato’s world of ideas if you like, I don’t care how, but there is something here that can be observed and from that one can derive the conclusion whether a certain act is permitted, forbidden, praiseworthy, or reprehensible in the moral sense. And then this basically means that if, say, someone has no negative emotion toward murder, I can still make a claim against him because as a matter of fact murder is forbidden. Look, as it were—okay, not literally look with your eyes—but the fact says that murder is forbidden. Meaning, it is not a question of whether you have that feeling inside you or not; there is supposedly something here that is a fact. And then what this means is that there is in fact another kind of facts. I call them ethical facts. Ethical facts means there is some kind of fact that says that murder is forbidden. By the way, in the halakhic context there can also be a fact that says that it is forbidden to desecrate the Sabbath. That is not a moral fact; it is a fact, and also not a physical fact; it is a halakhic fact, because that too is a normative system. And if I relate to the prohibition of desecrating the Sabbath not as something subjective but as something binding, then even if someone does not feel that way, in my eyes he is sinning. Maybe he is compelled, maybe he doesn’t understand, maybe he is like a child captured among non-Jews, fine—but he is sinning. He is doing something that is not right, even from his own perspective. This means there is something objective here: it is forbidden. Just as I spoke in the ethical context, now I’m saying the same thing in the halakhic context. And then this means there are really normative facts: moral facts, halakhic facts, in every normative realm, if I do not relate to it as something that is an arbitrary determination. In the legal realm, for instance, there is another option. In the legal realm it may be that it is simply an arbitrary determination, meaning the Knesset legislated, the public accepted upon itself that what the Knesset determines is what will bind the public. All of us, and therefore it binds. If that is indeed the case, then I no longer need to arrive at legal facts in order to make a claim against someone who does not obey the law, because there is some sort of contract between us that obligates us to obey the law, not because there is some root here in objective reality. But in morality it is not like that. People have tried—there is the social contract—they tried to create something similar to the legal system also in the context of morality, so they built a kind of fiction called the social contract. We all supposedly signed some kind of contract, and therefore everyone is obligated to uphold it. That is how they supposedly solve the problem I’m trying to deal with here. But of course there was no such contract, and if someone says “I didn’t sign it, what do you want from me, on what basis are you coming to obligate me?” then that is why it is a fiction. It is not something that can really solve the problem. I think the only real way to solve the problem is only if I assume the existence of ethical facts. And likewise in Jewish law. In Jewish law too I can assume the existence of halakhic facts, and then on the basis of those facts I can make a claim against someone who behaves immorally or non-halakhically and say to him: listen, objectively, factually, you are wrong. You are doing something unworthy. And not because that is how I feel. The fact that I feel that way is not supposed to obligate him. He doesn’t feel that way—so what? If it is a subjective feeling, there is no way to judge someone, condemn someone, demand things of him, because it is irrelevant; everyone with his own feelings and emotions. If I do allow myself to judge someone, I do believe there is worthy and unworthy here, right and wrong. That means that in some objective sense there is something here, some kind of normative fact that says this thing is right or not right, and on its basis I make claims against the other person who does not do it. Now of course these ethical facts are not seen with the eyes, not heard with the ears, and are not grasped by our senses. So what are they? I think that in this context the metaphors people use are metaphors that really hint at—I’ll mention some of them in a moment—they hint at some ability to observe not through the senses. I carry out ethical observation. For example, when I say that I have pangs of conscience following a bad deed that I did, or my conscience tells me that I must do such-and-such or must not do such-and-such. What does it mean “my conscience tells me”? According to the subjective relativistic interpretation that says “it’s an emotion, you were born that way, you are built that way, and therefore you get a stomachache when you see a certain act or on the contrary a positive urge to do it,” yes? But if we conceive it as something objective, then that means conscience is not a kind of emotion. Conscience is another sense. We have five senses that perceive physical facts. Conscience is the eyes through which I perceive ethical facts. Religious conscience is the power, the faculty with which I perceive halakhic, religious facts. And therefore the claim is really that this is some sort of observation, and we have senses—in quotation marks, okay, a sixth sense if you like, a seventh sense, an eighth sense, doesn’t matter—senses beyond the five known ones, through which we observe those facts and reach the conclusion what is permitted, what is forbidden, what is obligatory, and that conclusion, at least in my view, binds everyone. Therefore what we have here is not only normative facts, but also another kind of observation. There is normative observation. I mentioned different metaphors used in this context. Maimonides at the beginning of Guide for the Perplexed speaks about “seeing with the eyes of the intellect.” Now “eyes of the intellect” is a very strange expression, because eyes are a sense and intellect is a capacity for thought. What are “eyes of the intellect”? Perception is one kind of activity; I simply observe the world or listen to the world through a sense; I form contact with the world. That is called perception, our perception of the world. And there is thinking, cognition, and that thinking is really thinking that is not connected to the world at all. I think to myself about certain concepts or relationships between claims or all kinds of things of that sort; it happens within me. Thought does not create contact with the world; contact with the world is created by the senses. The thought then takes the sensory data and builds from it conclusions, theories, whatever you want, all kinds of relations between them, it doesn’t matter. That is what thought does. The term “eyes of the intellect” really says that this division between thought and perception is probably not a sharp dichotomous division. There is some intellectual faculty we have that is something between perception and cognition. Meaning, it is a form, a part of the intellect, that deals with interaction with the world, with seeing. Not literal seeing with the eyes—the seeing here is a metaphor—but there is some kind of what Maimonides calls “the eyes of the intellect.” The intellect has eyes, not these eyes. They are the eyes through which the intellect observes ethical facts or halakhic facts or legal facts if you like. So this metaphor says—yes, Husserl’s “eidetic seeing,” “auditory logic” in the thought of Rabbi HaNazir. All of these pairings—notice—they are always pairings of something intellectual with something sensory. Perception with thought, some pairing of perception and thought, each philosopher in his own terminology and from his own angle, but all of them in some way sense that the boundary between thought and perception is not sharp. There is an in-between realm that combines these two kinds of faculties. The intellect also knows how to observe, not only to process information and think. The intellect has the ability to create interaction with reality, to create some sort of relation to reality. And therefore my value-conclusion is really the result of observation. Someone asks here whether it might be merely an illusion. It might be—that is what those who say there is no objective morality, that it is all emotions, would say. But someone who thinks there is objective morality claims that it is not an illusion; he claims it is a faculty for observing ethical facts. That is what he thinks. Now that is his assumption, his immediate conception, that is what he thinks. Someone who thinks otherwise will of course interpret it as an illusion. There is a dispute, but at the moment I’m speaking according to the view of the objectivist, the moral realist. And then the claim is: the moral realist cannot merely assume that there are moral facts; he must also assume that we have the ability to observe them, otherwise what good are facts. And only in this way, through observation of moral facts, do I arrive at the moral conclusion, what is right and what is not right. That is how I know that murder is forbidden. I look at the idea of the good, yes, at some normative reality, and this observation yields the conclusion or result that murder is forbidden, or theft is forbidden, or that one should help another person, and so on. This faculty of observation is expressed in what we call conscience. Our conscience is a cognitive faculty—that is what I want to claim. It is not an emotion. To love or hate someone, I do that; it has no real value. You love, I don’t love—so what happened? It makes no claim about reality. Here many people treat it as an emotion, but that is a mistake. It has emotional expressions, but it begins with some kind of perception, some kind of interaction with reality. When I say “it is forbidden to murder,” I am not merely reporting a stomachache when I feel confronted by murder. By contrast, when I say I don’t love someone, or I do love someone, I really am only reporting my inner feelings. There is no claim there about reality itself. Therefore, once I accept the fact that we have such an observational faculty, that we have the ability to observe reality this way, then that basically means—maybe one more note, also in response to a question I saw in the chat popping up every now and then—what happens when there are disputes? After all these senses are of course much less unequivocal than the eyes. With the eyes, generally what I see you will see too. Generally—again, there are color-blind people, sometimes there are disputes about distant things, one can argue about what exactly we are seeing—but in broad terms the eyes are a fairly intersubjective sense. Meaning, all people see more or less the same thing, and therefore there is agreement. So it is easy to understand or easy to argue that the eyes are not just some inner feeling but an ability to grasp something in reality; this is observation. Okay? When I claim that the “eyes of the intellect” are also some kind of observational faculty, it is harder for people to accept that, because the fact is that someone who thinks act X is moral, someone else thinks act X is immoral, or act Y is moral. There are disputes. If this were observation, then how are there disputes? My claim is that this is not a decisive argument. It is not decisive because, first, it may be that there are several correct answers. Second, it may be that one person is mistaken. That does not mean there is no truth. There is truth; one of us is mistaken. Why don’t the “eyes of the intellect” give us the correct answer in a very clear and unequivocal way? I don’t know. Apparently this seeing is less unequivocal than ordinary seeing with the eyes. Think, for example, of when I see something far away. I don’t know whether it’s a plane or a bird. Okay, so we have a dispute. What do you mean? But you’re seeing with your eyes. Right, but I’m not seeing with my eyes all that clearly. On the other hand, does the result of the fact that I think it’s a plane and you think it’s a bird mean that there is no seeing here at all and it is only a subjective emotion? Obviously not. The fact is, it is either a plane or a bird. One of us is right and the other is wrong. It is just that the seeing in this case does not give us unequivocal results; it is not unequivocal seeing. And because of that, there can be disputes. I claim the same about seeing with the eyes of the intellect or with our moral conscience. The fact that there are disputes does not mean there is no truth and that everything is subjective feeling. Not at all. It only means that this seeing, this observation of ideas, seeing with the eyes of the intellect, is not as unequivocal as ordinary sight. It is something distant, something blurred, something that does not impose itself on me in some clear way. Perhaps it even involves some kind of decision; we could discuss that at length. But the point is that the fact that two sides argue means that one is right and the other is wrong, not that there is no truth and both are right or both are wrong. Rather, one is right and the other is wrong. The existence of a dispute does not prove there is no truth. That is a common mistake. The fact that there is a dispute over something does not mean there is no truth or that there is a plurality of truths. It only means that one is right and the others are wrong, that’s all. Or at least one can say that. I am not proving my point, only showing that it can be said. In any case, someone can come and say that it is all illusions and the disputes are just emotions and there are no ethical facts at all. I did not bring arguments in favor of the matter. All I said is that if someone thinks there is moral objectivity, then we are dealing here with ethical facts, ethical observation, and then the dispute should be interpreted as a dispute between one who is right and one who is wrong. And who is right and who is wrong? We have to argue about that. Okay. Either we decide or we don’t decide, and even if we don’t decide, that does not mean there is no decision. It means we did not succeed in persuading. But that does not mean one is not right and the other wrong. In any case, what this means for our purposes is that if indeed—this only adds more light to what I said before—because it basically means that the ability I talked about earlier, how to draw the line, what a permitted speed is, is some kind of good perception of reality. You perceive better the plausibility of what counts as dangerous. Is 80 dangerous or is 110 kilometers per hour dangerous on this road? So if the assumption is that this is a skill and not merely authority, then that means there is more right and less right here. And that means that someone whose eyes of the intellect are more successful, sharper, or whose conscience is more precise, is more right in these contexts. This whole business, this whole move, works on the plane of moral objectivity. But if so, then there are experts in this. A big question is how one acquires this expertise, I don’t exactly know, but it is definitely called for—that if so, there are people whose eyes of the intellect are sharper or less sharp. There are greater and lesser experts, and therefore one can add to the toolbox of normative skills the ability to observe normative facts. If we are talking about moral skill, moral decision-making, then the ability to observe moral ideas, moral facts. If I am talking about halakhic skill, then the ability to observe halakhic ideas. So this is another kind of skill that should be added to the skills of a halakhic decisor or a scholar, of a man of Jewish law. And here the question of which of the three stages this belongs to is an interesting one. Because I tend to think it belongs to the third stage. Meaning, another skill in the third stage. Until now I counted two, two skills. One is knowledge, the second is the scholarly analytical ability. But analysis itself is composed of two things. There is analysis as an analytical faculty, meaning excellent logical ability. You know how to distinguish between two things, analyze, build a logical structure that cannot be refuted, and so on. That is logical ability, analytical ability. But there is another ability one can call synthetic ability, as I have called it in various places, which is really the ability I talked about before—the ability to smell what is right and what is not right. And again, I’m not talking about smelling the facts; I am talking about smelling ethical facts, smelling Jewish law. Therefore I connect this to the third stage, not the first and not the second. Rather, there is something within—say a scholar comes and tells me something in a conceptual structure, not connected to perception of reality, only in the third stage, we are in the yeshiva. This is not a practical question, and we are dealing with a theoretical question of scholarship. Now a fine scholar comes with excellent analytical ability and presents me with a beautiful analytical structure of the topic, with all its branches, and the different opinions, and the practical ramifications, and the solutions to the difficulties, and all kinds of things of that sort. And then I say to him: listen, but something here smells wrong; it doesn’t sound right to me. The assumption you made—is this a rule about the person, as you say, and he says it is a rule about the object? It smells bad. It is not reasonable that this should be a rule about the person and not about the object. What is this? What is the meaning of this statement? I think this statement is the sense of smell I spoke about before. I observe the halakhic idea and I see: you are not right. I do not know how to find the bug in the logical structure you built. It may even be that there is no bug in it. It is built on certain definitions or assumptions that my sense of smell, or my halakhic observation, tells me are not correct. And therefore I say: it is not correct. Again, this is not the perception of physical facts, which is the first skill. And it is also not the perception of what is more or less reasonable, which is the skill at the second stage. It is part of the third stage, part of scholarly ability. Scholarly ability is now, we are reaching the conclusion, made up of three components: one component is halakhic knowledge, the second is analytical ability—be a good mathematician—and the third ability is a halakhic sense of smell. “And he shall smell with the fear of God.” Yes, some kind of sense of smell that tells me: this doesn’t work, you can’t say such a thing. This is not correct. I have no proof against you. I do not know how to bring some crushing objection that will topple what you are saying. But it is not right, it cannot be right. A sense of smell. Now anyone engaged in scholarship encounters this at every turn. It is not some mystical thing; it is an everyday occurrence. Meaning, there is no topic in which this does not arise. You sort among possibilities according to some kind of sense of smell—this sounds reasonable to me, this does not sound reasonable to me—even before the objections, before you say this doesn’t fit that line in the Talmud or the baraita that appears in that topic or what Rashba writes here. Before all that. Something here doesn’t smell right, it is not correct, not reasonable. This thing is not reasonable. So I disqualify it, even before the objections. And this is the third kind of skill in the third stage, which is basically a sense of smell that is the result of observing normative facts, halakhic facts in this context. In the moral context, I say: you raise a brilliant moral argument, magnificently built on the logical level, but it doesn’t make sense. It is not logical, it is not correct. So my sense of smell tells me that it is not right. I have no objection, I have no case to bring against you or source or I don’t know exactly what, but my intuition says it is not right. And therefore I claim it is not right. This is some kind of sense of smell, and it too is a skill. And I’ll tell you more than that: many times after I say this to the other person, I succeed in persuading him even though I did not bring some objection that destroyed his position. After he hears me, suddenly he too understands: right, it is logically consistent, everything is fine, it may even be brilliant, but he too understands that it is not right. How does that persuasion happen? I didn’t raise an argument; I said to him: listen, it doesn’t smell good to me. Because suddenly he too begins to smell that it isn’t good. Meaning, he observes the moral or halakhic idea that I observed, and suddenly he too sees what I see. He suddenly understands that what he is saying is not reasonable, does not make sense, and therefore is not right. And the fact that I can persuade people in an argument even without bringing some objection that topples their structure is another indication that we are dealing here with some kind of observation and normative facts, and not merely gut feelings of one kind or another. Now this point really indicates another kind of skill that both a scholar and a decisor should have, because it belongs to the third stage. So this too is for the scholar. We all know what hair-splitting pilpul is. Pilpul is often a brilliant logical structure magnificently built, completely consistent, only it is built on crooked assumptions and reaches crooked conclusions. How do you discover that this pilpul is crooked? You won’t refute the logic, because you smell that something here is off and therefore it is obviously not right. That is exactly the point. Someone who has only logical abilities and knowledge can build structures that are completely detached from common sense. Not from reality—I’m not talking about reality, I spoke about that before. I’m talking about straightforward halakhic common sense; there is something that just cannot be said. Yes? The famous story about Rabbi Chaim—I think I mentioned it—that someone came to him and said: look, this morning I saw a Tosafot that says such-and-such. And it is very difficult; I have a very difficult objection to this Tosafot. So Rabbi Chaim says to him: there is no such Tosafot. The man said: I don’t understand, I studied the topic this morning and saw the Tosafot. What, have you seen it recently? He said: no, I haven’t seen it recently at all—there is no such Tosafot. The man said: impossible. He went and brought the Gemara, opened it, and indeed Tosafot did not say exactly what he had claimed; it said something else. He asked Rabbi Chaim in amazement: what tremendous mastery. I studied the topic this morning and didn’t remember the Tosafot correctly, and you probably studied it a long time ago and you remember it precisely. How can that be? So Rabbi Chaim said to him: what are you talking about? I didn’t remember the Tosafot at all, but Tosafot doesn’t write nonsense like that. There can’t be such a Tosafot. It’s not that I remembered there isn’t such a Tosafot; it cannot be that there is such a Tosafot. Tosafot doesn’t talk nonsense. What does that really mean? He smelled that such a thing—he had no objections to it, no refutation proving it impossible. Because with objections, you look for an answer; maybe you find one. He smelled: there cannot be such a Tosafot. There is no such Tosafot. Now you can see how such a thing is a necessary condition even in the sense of knowledge. Sometimes even the knowledge you possess—if you don’t have the right sense of smell, you won’t notice when you don’t remember your knowledge accurately. Meaning, this is necessary for a scholar, not only for a decisor. If a scholar doesn’t have it, then he says brilliant things but completely detached ones. I think I once mentioned what I saw Binyamin Lau write, that one of the tragedies of our generation is that rabbinic leadership is generally leadership of roshei yeshiva and not of rabbis, community rabbis. Once leadership was entrusted to community rabbis; there weren’t even roshei yeshiva. All the medieval authorities, everyone, were community rabbis, rabbis of places; the great later authorities, all of them. Maybe they set up some yeshiva in their city, but the point was not that he was a rosh yeshiva; the point was that he was a rabbi. From the generation after the establishment of the yeshivot onward, leadership gradually passed to roshei yeshiva. Down to our own days, leadership is often in the hands of roshei yeshiva—Rabbi Elyashiv was exceptional in this respect, and even Rabbi Chaim Kanievsky was somewhat exceptional. But many times—for example Rabbi Aharon Steinman, Rabbi Shach, the leadership traditionally, Rabbi Isser Zalman—the leadership traditionally is entrusted to roshei yeshiva. And one of the problems with roshei yeshiva is that they are often brilliant people, they produce brilliant logical structures, but they present this to twenty-year-old boys studying in their yeshiva. And what those twenty-year-old boys can give them as feedback is to find a bug in the logic. But a twenty-year-old boy won’t tell you: listen, this doesn’t make sense, you’re talking nonsense. No—a twenty-year-old is looking for a bug in the logic; he hasn’t yet developed ordinary common sense in the positive meaning, simple human good sense that says: I have experience, I’ve learned things in life, I’ve seen things in life, this business is not right. I have no objection, but it is not right. That is not the kind of response a rosh yeshiva will get from a student; that is the kind of response a rabbi will get from a member of his community. Because that member of the community is already an adult person, he has seen things, learned things, so maybe he isn’t a great scholar and maybe he isn’t as brilliant as the yeshiva prodigy, but he has some sense of smell, some common sense that tells the rabbi: listen, what you are saying is brilliant but not right. It cannot be right; it doesn’t make sense to me. And often one of the problems in the leadership of roshei yeshiva is that this leadership sounds very consistent on the logical level, their decisions are very consistent on the logical level, but many times it seems very detached; there is no common sense there. It cannot be right. I have no objection—he resolves everything, everything is correct, everything is magnificently built—but this business is crooked. Something here is not logical, okay? So this sense of smell of “this cannot be right” even without an objection from some source—that is what I call observation of ethical facts or halakhic facts, and this skill often, though not always, is lacking in people who do have logical brilliance, and therefore I define it as an additional skill. Now maybe one more note about this matter. One could argue at this point that what I have just said pulls the ground out from under the opening of this entire series. Because this series opened by presenting the naturalistic fallacy, by presenting the sharp line between facts and norms. Facts are facts and norms do not derive from facts. And yes, the fact that murder causes suffering, say to the family, or that hitting causes suffering to the person hit, that still does not mean that hitting is forbidden. One has to add the assumption that causing suffering is morally wrong. Only then can I infer the normative conclusion that hitting is forbidden. The bare fact that it hurts—that is a fact. That is not enough to ground the normative determination that hitting is forbidden. Okay? There is an unbridgeable gap between facts and norms. After I defined ethical facts or halakhic facts, one can ask the same question. After all there is the naturalistic fallacy. If the fact is such-and-such, how can I derive from here the norm that murder is forbidden or sorting on the Sabbath is forbidden or I don’t know what, or that one may not drive over 90 kilometers per hour on the Haifa-Tel Aviv highway? After all there is a gap between facts and norms. How can I derive norms from facts? The answer is of course that the naturalistic fallacy—that is its very name, by the way. What does “naturalistic” mean? It has to do with nature. That is, there is a gap between norms and physical facts, facts in nature. But the ethical facts I defined are another kind of fact. They are facts loaded with normative content. It is a fact that murder is forbidden. It is not a fact that murder is painful. “Murder is painful” is a physical fact, meaning look and see: murder is painful. Or rather injury, not murder—murder hurts perhaps the family, but injury, a blow, is painful, okay? That is a fact. But that hitting is forbidden, that hitting is wrong, that is a norm. Okay? And a norm is not derived from facts. But now it turns out that I derive this norm from facts, only other facts—not physical facts but ethical facts. So what then? Where is the naturalistic fallacy? How can I derive norms from facts? The answer is that ethical facts are not subject to the naturalistic fallacy. From ethical facts one can certainly derive ethical conclusions, because that is the meaning of the fact: when I observe it, I understand that murder is forbidden or that one should help another person or that one should honor one’s parents or that one may not drive above 90 kilometers per hour on the Haifa-Tel Aviv highway. Okay? So in that context, clearly there is no point in applying the naturalistic fallacy. The naturalistic fallacy concerns physical facts, which do not speak to the normative world. But ethical facts, normative facts—that is their whole meaning: they are not neutral facts. They are loaded facts. Someone who observes them does not merely learn one more fact and become more informed; rather someone who observes them is supposed to be moved to action, or the reverse, repelled from action, because they tell him forbidden or obligatory or permitted. Okay? So the results of the observation are norms; they are not facts in the simple sense. Observation of normative facts yields norms, not facts. Okay? Therefore in this context there is no point talking about the naturalistic fallacy. And if so, then to sum up at this point, this means that this skill too is required in order to be an outstanding man of Jewish law. In this context I think it is also required in order to be an outstanding scholar. Therefore I define it as part of the third layer we spoke about, part of the scholarly abilities irrespective of the question of reality. The sense of smell for reality is the first skill, interaction with the expert. And the sense of smell for how to draw the line is the second stage. And in the third stage I said there are three different skills: halakhic knowledge, logical ability—how to analyze Jewish law, how to assemble it, how to build a consistent logical structure free of objections—and the third ability related to the third stage is ethical observation or halakhic observation in the halakhic context, which is another skill. Okay, so up to here are the halakhic skills and the transition between norms and facts. Now, that is more or less the map, it seems to me, at least as far as I understand it. Now I want to speak about another aspect, and this aspect is connected to the question of authority with respect to facts. As I said, many times halakhic decisors are required to determine what the relevant facts are. We talked about this in the context of the model of determining Jewish law: they have to determine what is dangerous, what is a human being, factual determinations, what is a fetus, when is it a human being, and so on, or what is an illness, we talked about that. So here there is really some need to determine facts. The question is whether when a decisor determines a fact, he has authority—must I obey him? Here one has to distinguish between two things, and in order to make that distinction I’ll perhaps give some introduction. The Talmud says that if one sage prohibited, his colleague may not permit. I took a chicken to ask a rabbi whether it was treif or not. He told me: it is treif. I went to another rabbi, and he says to me: no, it seems to me not treif, it is kosher. One may not do such a thing. If one sage prohibited, the other may not permit. Now how does this fit with the fact that the great medieval authorities write all kinds of halakhic rulings and others after them come and disagree? Why does that not fall under the rule that if one sage prohibited, his colleague may not permit? The answer is that this rule speaks about a ruling with respect to a case. A specific chicken came before me; once it was determined that this chicken is treif, another sage cannot say that it is not treif. By the way, I don’t know whether this is a rabbinic law or a Torah law, the decisors debate that, but there is such a law. There are many limitations to it too, but there is such a law. By contrast, if someone claims that adhesions in the lung make something treif—he is not talking about a specific chicken, he is making a general halakhic determination. About that I can certainly argue. I claim not. I studied the passages, I thought, I reached the conclusion that I disagree with him. What—if the first person who said it seized this law, no one else is allowed to disagree with him? Of course they are. “If one sage prohibited, his colleague may not permit” refers only to a ruling regarding a specific case. Once a specific case has been ruled upon, another decisor cannot permit it. But a general halakhic determination, not about a specific case, a halakhic position—of course anyone who wants may disagree with it. Therefore I’m not talking now about “do not deviate” with regard to the Sanhedrin; that’s something else. In general. So what is the difference between these two situations? The difference between them is similar to the difference between two halakhic genres. There is responsa literature and there is literature of halakhic codes. There are of course other genres, but at the moment I’m focusing on these two. Halakhic codes, say like the Shulchan Arukh, Maimonides, Kitzur Shulchan Arukh, Shemirat Shabbat Kehilkhatah, Mishnah Berurah, things like that—those are halakhic books. What is the difference between them and responsa literature? A very great difference. A book of responsa—I’m talking about ordinary responsa books, there are other kinds—deals with a specific case that came before the author. A couple came before him; the question is whether they are married or not married. Was the wedding valid or invalid? Is she permitted to him or forbidden to him? This is a ruling on a specific case. Responsa deals with that. Yes? They send a question to the respondent and say: listen, such-and-such a case came before me, what is your opinion? So he answers, sends a halakhic ruling about that case. Once he has ruled, one cannot disagree with him concerning that case. But concerning his principled determination that in cases of this type a woman is permitted to her husband—and I say that she is forbidden to her husband—of course I can disagree with him. If another couple comes before me and now I need to address the same question, of course I can rule differently from what he determined. Because he did not determine the law for them; he made a general halakhic determination. The Shulchan Arukh does not deal with cases. The Shulchan Arukh deals with norms. The Shulchan Arukh deals with principled halakhic determinations: what may and may not be done on the Sabbath, what may and may not be eaten, what is impure and what is pure. That is what it determines. It does not speak about cases. These are not concrete cases that came before it. It speaks about types of cases. Say, if you went there and did such-and-such, you committed a transgression. That is a case, but not a specific one; it is an if, a hypothetical case. It is not that a case came before him and he determined some law about it. He says that regarding cases of this type, my halakhic opinion is such-and-such. That I can dispute. I think my halakhic opinion is different regarding those cases. The rule that one cannot disagree applies only when a law was ruled regarding a specific case or object. Once a law was ruled there, I cannot apply a different law to that same object. Meaning the root of the matter is the difference between the Shulchan Arukh and responsa. Responsa is not a principled halakhic determination. Responsa is a halakhic determination about a case. Responsa is similar to what a decisor does. A decisor has a case come before him and says: in this case it is permitted. Fine? Responsa too says the same thing about the case that came before it. About that case I cannot disagree with the responsum, but about its principled determination—of course, in another case that comes before me, I can certainly rule differently. Why? Because with respect to another case, the responsum functions like a halakhic code, not like a responsum. It determined some halakhic norm, and with regard to a halakhic norm I have the right to think differently; I disagree with it. Okay? Now notice what this means regarding authority over facts. Suppose that the ruling about the chicken before us had to decide some factual matter in the chicken. What is the size of the hole in the lung? I don’t know, or things of that sort. Okay? That is a factual question. Now there are disagreements between experts, it doesn’t matter, I don’t know exactly. The decisor had to decide, and he decided that the size of the hole is half a centimeter. Fine? Therefore the chicken is disqualified, treif. Okay? Now he made a factual determination here. If I disagree with him, it won’t help me. Why? Because with regard to this case, once he is the decisor who was asked, meaning he received the authority to determine the law regarding this particular chicken, then he also has the authority to determine the facts relevant to that ruling. This is what I spoke about also regarding halakhic ruling. Once a question comes before a religious court, a specific question about a specific case, the factual determinations of the religious court also bind the litigants. Even though the court is not expert in facts, and it may be that the litigant is himself an expert in the field and understands it better than the court does. As long as the court was not persuaded and determined that the facts are such-and-such, then with regard to this specific case it has the authority. It determines, and that is what counts. For our purposes, the fact in this case is that the hole is half a centimeter. One cannot disagree with them even on the factual plane. Because otherwise, understand: every court that decides a law decides to believe a certain witness. It says: this witness seems to me a liar. The question whether the witness is a liar is a factual question. Do the judges understand better than I do how to identify liars? Who said so? Maybe I have a better sense of smell for reading people, I think he is a liar, so I won’t accept the judge’s ruling. There is no such thing. Once the case came before the judge, he received the authority to determine the law with respect to this case, then he also has the authority to determine the facts relevant to that determination, and that of course binds the litigants. Only the litigants. Because those determinations do not mean that in such cases from now on I always have to assume that the hole in the chicken is half a centimeter—not at all. But in this chicken, the binding factual determination is that it is half a centimeter. Of course this does not mean that it really is half a centimeter, but for purposes of the law pertaining to this chicken, the size of the hole is half a centimeter because that is what the judges determined. Even though this is a factual determination outside their area of expertise. This is an authority a judge has also to determine the facts. And I spoke about this in previous sessions when I said that in stage one, after all, the expert brings the facts before the judge, or dayan. But another expert will come and bring different facts. Who will decide? The judge of course, right? What can you do—he is the one who has to render the judgment. So what then? He will decide that he believes expert Reuven and not expert Shimon. But what—are you a greater expert than Shimon? So what if you decided that you believe Reuven? You yourself are not an expert at all. Here are two great experts disagreeing. Why should we accept your position? The answer is: because I am the authority, not because I am an expert. Since I am the one entrusted with deciding this case, whether I am a judge or a dayan or whatever it may be, I also have the authority to determine the facts relevant to this case. Not because I am an expert. This is formal authority. I am authorized to determine what are the relevant facts for this case. Okay? So halakhic authority actually also gives me authority to determine the facts for the case I am dealing with, of course, and only for it. But what happens in a halakhic book—not responsa. The Shulchan Arukh or the Talmud, yes?—that deal with hypothetical questions, not with specific cases, but with general questions. And in the course of that they also determine various facts. I spoke, for example, about the presumption that a person does not repay within the allotted time. That is a factual determination, right? The Talmud determined it. Now the Talmud is the authoritative text on the halakhic level. So apparently according to what I said before it should also have the authority to determine the facts. But that is not correct. Obviously not. If the facts today are different, I am not going to take these facts from the Talmud. If today people do repay within the allotted time, it won’t bother me that the Talmud says that a person does not repay within the allotted time. Why not? Because the Talmud is not responsa. In these passages the Talmud is a halakhic book. Halakhic give-and-take and halakhic decision, but it is not dealing with a case. In that sense it is a halakhic book. It does not deal with a specific case; it deals with a type of cases, a category of cases, not a specific case. And in that context, even if the decisor or judge expresses a position in factual contexts, he has no authority for that. If I do not agree with his factual determinations, I do not have to accept his evaluative decision either. Therefore, if for example I am in a situation where I think that people do repay within the allotted time, in my surroundings or even in general, I am not obligated to obey a halakhic book that determines that a person does not repay within the allotted time. Because that is a factual determination, and in matters of fact I am as much an expert as he is. If this were about a specific case that came before a judge, that would be something else, because the judge determined that this person did not repay within the allotted time. True, this is a factual determination, but since it concerns a specific case for which the judge has authority, here I cannot disagree with him. But if the judge says in passing, and in general in my opinion human beings—what lawyers call obiter—the judge makes some general determination, saying people do not repay within the allotted time. Then I think that they do repay within the allotted time. Okay? So there he has no authority, and here this is a very important point, because in the context of general halakhic determinations, not about a case—now I move to discuss halakhic books or the Talmud, not a ruling on a case—what happens there with the question of authority? Here one must distinguish between two kinds of authority: there is formal authority and there is substantive authority. Formal authority is authority given to you by virtue of being an officeholder. The Knesset, for example, has formal authority. What it says binds, not because it is always right and not because it is wiser than others, but because it is the Knesset. This is institutional authority. Meaning, because you are members of Knesset, you were elected, you received the authority to determine. This is called formal authority. Meaning, I obey you not because you are right, but because you are you. Because you are the Knesset, I obey you, not because you are right—you do not have to be right, even if you are wrong. Substantive authority is authority like that of a doctor, an expert. I usually obey him because he simply knows, because he is right. That is what is called substantive authority. I do not have to obey him. Suppose a doctor prescribes me a certain medicine, and it seems to me he is wrong, even though I am not a doctor at all, and I don’t take the medicine. Can anyone sue me for that? Did I do something wrong? I did something foolish, not something forbidden. I have the right not to listen to him, because he has no formal authority. Reason says to listen to him. Reason says to listen to him because he is a greater expert. But there is no formal authority here. I am not obligated to obey him. Here, for example, there is a difference between a psychiatrist and a district psychiatrist. Why? What is the difference? Is it because the district psychiatrist is smarter? No. Because the district psychiatrist received authority to decide; he has formal authority. Even if he is not right, he is the one who determines by force of law. An ordinary psychiatrist is an expert, so what he says is probably more correct than what I say. But if I don’t want to listen to him, I have not violated anything. He has no formal authority; I am not obligated to obey him. Reason says I should obey him because he is probably right, because he is the expert. So that is the difference between formal and substantive authority. Now with respect to Jewish law there can be substantive authorities and formal authorities with respect to norms. Formal authorities are, for example, the Sanhedrin, “do not deviate”—what it says is binding. It has formal authority like the Knesset. What is substantive authority? Substantive authority is that of a decisor; he is not ordained in the ancient sense, he is not in the Sanhedrin, he is a decisor in our day. Where does his authority come from? To the extent that he has authority, he does not have formal authority. I am allowed not to obey him. I just take a risk that if I do not obey him, chances are that he is right and I am wrong because he is a great decisor. So he is the expert. He probably knows. So it is not that I must obey him; rather reason says to obey him, like a doctor. This is substantive authority, not formal authority. He has no formal authority. After the Sanhedrin ended and the Talmud was sealed, no one in the world has formal authority. There is only substantive authority, the substantive authority of someone who is an expert in Jewish law. Why do I have to obey him? I don’t have to. But it is reasonable to obey him. Why? Because he is probably right, because he is an expert. Otherwise I risk committing a transgression, so reason says it is worth obeying him. But he has no formal authority. Only the Sanhedrin has “do not deviate,” which is formal authority. That is with regard to norms. What happens with regard to facts? With regard to facts there is only, conceptually, substantive authority. There is no formal authority with respect to facts. One cannot define formal authority with respect to facts. Not because the Torah did not grant formal authority, or because the law did not grant it—that is not relevant. One cannot give formal authority with respect to facts. Why? Think, for example, that I come to the conclusion that it is permitted to sort—sorry—yes, let us say that I come to the conclusion that it is permitted to sort on the Sabbath. Then the Sanhedrin comes and says it is forbidden to sort on the Sabbath. Now I am a rebellious elder, meaning in that sense I reached a legal ruling, I am a Torah scholar just like they are. Okay, only I am not a member of the Sanhedrin. Let us say I am Rabbi Akiva, son of converts, can’t be on the Sanhedrin, but I am a greater Torah scholar than all of them. Now they say it is forbidden to sort on the Sabbath, and I say it is permitted to sort on the Sabbath. I have to obey them. Why? Because they are the Sanhedrin. They are not right—I am the greater scholar. If one had to bet, probably I am right, not they. Yet they have formal authority, even though they are not right, because they are the Sanhedrin. This means I am required to behave in a way that I think is not correct. Why? Because the authority determined that this is how one must behave. Now the question is whether one can say the same thing with regard to facts. Suppose someone says that a person does not repay within the allotted time. Fine? And he has formal authority, but I reached the conclusion that a person does repay within the allotted time. Then they tell me: no, because he has formal authority, you have to behave this way even though you think it is not right. The problem is that here it is not a matter of behaving, it is a matter of thinking. What do you want—that I should think that a person does not repay within the allotted time, even though I think that a person does repay within the allotted time? If I think he does repay within the allotted time, then that is what I think. I cannot think otherwise than what I think. One cannot demand of me that I think differently from what I think. I can tell you with my mouth, “I think that a person does not repay within the allotted time,” just so you don’t beat me or kill me, but I cannot think differently from what I really think. If I am convinced that a person does repay within the allotted time, the only way you can change how I think is to persuade me. If you persuade me that I am wrong, then I will admit it and think differently. But to demand from me submission to formal authority—that is not relevant with regard to facts. Since facts are something—say I reached the conclusion, as Rabbi Hillel said, “Israel no longer has a Messiah, because they already consumed him in the days of Hezekiah.” A statement in tractate Sanhedrin. Yes, one of the amoraim there reached the conclusion that the Messiah will not come. The Messiah also doesn’t call. Now the sages there come and say, “May his Master forgive Rabbi Hillel,” meaning may the Holy One, blessed be He, forgive him for this mistake, this heresy that the Messiah will not come. Fine? Now can they say to him: listen, there is authority, we determined that the Messiah will come, and therefore you have to think that the Messiah will come. What does it mean that I have to think? But I reached the conclusion that he will not come. If you persuade me that I am wrong, then I’ll think that he will come. But as long as you have not persuaded me, even if in truth I am mistaken, as long as you have not persuaded me, this is what I think. How can one demand that I think differently because you have formal authority? So I say there is no formal authority with respect to facts, not because the Torah did not grant authority regarding facts, but because there cannot be formal authority regarding facts. This is the result of logical analysis. It is not at all a factual question whether the Torah granted such authority or not. Maimonides writes in three places in his Commentary on the Mishnah that determinations in the Mishnah that do not pertain to practical Jewish law are not subject to halakhic ruling. That is what he writes. Usually people understand why not? Because it does not matter in practice, so there is no point in imposing some ruling on a person; what difference does it make, he won’t act differently anyway, it does not matter in practice. I claim it is not only that. There is no halakhic ruling in matters that are matters of thought because halakhic ruling does not belong there, because there is no authority in that context. Not because we did not find it worthwhile to rule because it does not matter in practice and so we don’t need to. Not that we don’t need to—we cannot. It is impossible to issue a halakhic ruling on a matter of thought, because what good would such a ruling do? If I think otherwise, then I think otherwise. It won’t help. That is what I think. Therefore it is impossible to define formal authority with respect to facts, only with respect to norms. That is the claim, basically. So if I return to the difference between halakhic books and responsa: if in responsa we saw that the decisor also has authority to determine facts, that is only because he determines a fact about a specific case. And even there I do not have to agree with him that the fact is such-and-such. I have to behave as he determined, because with respect to this case he is the authority. But if there is a halakhic book that determines some general factual statement, “a person does not repay within the allotted time,” there I do not have to obey it at all. Because it has no authority to determine the facts. By the way, in my view it probably is not even pretending to determine the facts; it is using the facts in order to determine the norm, as I discussed with “a person does not repay within the allotted time,” but even if it did intend that, it would not matter. All the sages of the Talmud can line up in rows of three and shout, “A person does not repay within the allotted time, and we also determine this as practical Jewish law, and anyone who does not admit it is a rebellious elder.” And now I reached—so they can jump around until tomorrow, all in rows of three, and tell me I am a heretic and a rebellious elder, and still what I think is that a person does repay within the allotted time. If you persuade me, then fine, you persuaded me and I reached the conclusion that you are right. But to demand of me that I think differently from what I think is absurd. What am I—I can say that I think differently, but the truth is that I do not think differently. You are not asking me to say something, to lie; you are asking me to think differently. How can you demand that I think differently? Understand this well: if they claim, look, we are greater sages, or we have a tradition from Sinai and the Holy One, blessed be He, said so—so what if you reached a conclusion? You admit that He knows better than you. Then they persuaded me—that’s fine. If they persuaded me, then fine, I think as they do. But if I reached the conclusion that no, I was not persuaded, despite everything they claim, then they cannot demand that I think differently from what I think. Not because it is immoral to demand it of me, but because it is impossible to demand it of me. I cannot even fulfill that demand if I want to, because this is what I think. What good does it do that I can say with my mouth that I think differently? It changes nothing; it is irrelevant. In short, my claim is that there cannot be formal authority with respect to facts. With respect to facts there is only substantive authority. Substantive authority means there are those who are greater experts in this factual field, so they are probably right, like the doctor. Then I will listen to them because reason tells me to listen to them, not because Jewish law tells me to listen to them. Jewish law cannot determine authority regarding facts. There is no formal authority regarding facts; there is only substantive authority. Someone who is an expert—if he says something, he is probably right. Okay, we will see later where these things take us. So at this stage I’m giving you back control of the microphones, and if anyone wants to ask something, you’re welcome. Is it possible to ask?