Halakha and Law – Lecture 3

[Rabbi Michael Abraham] Last time we discussed the riddle, and I wanted to embed the context. I argued that the concept of ownership in Jewish law is not a bundle of rights the way people usually understand it in legal contexts. Rather, the legal rights a person has over his property are the result or derivative of some metaphysical relation between him and the object. And the consequence of that metaphysical relation is the rights a person has in the object. I brought several proofs for this from the case of the emancipated Canaanite slave: even though I’ve effectively abandoned him, he is still considered my property in the sense that if someone injures him, he has to pay me, even though I haven’t actually lost anything from it. I brought several implications of this view. One of them is the rest of one’s animal on the Sabbath—the claim that a person has to make sure his animal does not desecrate the Sabbath. There are medieval authorities (Rishonim) who understand this to mean that the person is really performing an action through his animal, and therefore he’s desecrating the Sabbath. But in the straightforward reading, that’s not so. In the straightforward reading, that’s the prohibition of leading an animal with a load. And the prohibition of the rest of one’s animal and the prohibition of leading an animal with a load are two different prohibitions, even though both are Torah-level prohibitions that are not prohibited categories of labor—in other words, one is not liable to stoning for them. But they are different prohibitions. The rest of one’s animal is not that I perform labor through the animal; rather, the animal itself performs labor, period. In other words, I’m forbidden to have my animal do labor. If it walks around the yard and nibbles grass, then I’m in violation of reaping, basically—or reaping that the animal is doing. It’s reaping on the Sabbath not because I did it. I might not even be there—it’s irrelevant. Like the donkey of Pinchas ben Yair, which wouldn’t work when they sold it to a non-Jew. It refused to work; that’s how the story is told in the Talmud. Pinchas ben Yair had to explain to it—true, it was a donkey, but it wasn’t a Torah scholar—so he had to explain to it that when you sell it to a non-Jew, then the law of the rest of one’s animal no longer applies, so it’s allowed to work. The donkey thought it was still forbidden to work even when it belonged to a non-Jew. And as the comedy troupe HaGashash says, ‘That’s not a donkey, that’s a bear,’ the guy selling seeds with Gershon Popov.

[Speaker B] Okay. In any event, there’s also a prohibition regarding one’s slave—the rest of one’s slave—isn’t there?

[Rabbi Michael Abraham] In the verse it also says your slave, your maidservant, your ox, your donkey, your son, and your daughter. And we talked a bit about that, and I said that as far as your son and your daughter are concerned, it’s basically a displaced verse.

[Speaker B] But I saw that regarding one’s slave too, in Jewish law, there is a prohibition that one’s slave do labor.

[Rabbi Michael Abraham] Yes, regarding one’s slave there is. Your son and your daughter—that’s the displaced verse, because there you don’t really find anything, apart from the Rashba that the Magen Avraham brings, but besides that there’s nothing. Nobody relates to it. On the contrary, in the Talmudic passages from which this ought to emerge, the medieval authorities (Rishonim) wonder what’s going on, even though there’s a simple explanation: there’s an explicit verse. They ask what it is and connect it to other passages—to the passage in tractate Shabbat, where if a minor comes to extinguish a fire, you don’t tell him ‘extinguish’ or ‘don’t extinguish,’ because his Sabbath rest is not your obligation. But then the Talmud discusses there what happens if you actually cause him to do it, or if your son acts with his father in mind—then it’s forbidden. The Talmud asks why. If a minor eats forbidden meat, the religious court is not commanded to stop him—so why should this be different? So it answers that this is feeding it to him directly, and all kinds of things. But there’s a verse about the rest of one’s son—why even ask the question? Even where it cries out to be used, they don’t say it. Not only do they ignore this verse, but in the place where I would expect them to bring it as the logical explanation, nobody mentions it. Fine, that’s just an anecdote. In any case, the rest of one’s animal is an indication. Why indeed do they impose on me an obligation that my animal not desecrate the Sabbath? Even though nibbling grass is not forbidden in practice, because that’s for its own benefit—it’s doing it for itself in order to eat, it needs that in order to live, and that’s allowed. But if it just does actions—say, grinding or other kinds of labor—that’s Torah-level prohibited. Now, why really do they impose on me an obligation that my animal not desecrate the Sabbath? Apparently the idea is that my animal is some kind of periphery of me. And just as my body is forbidden to desecrate the Sabbath—that’s the closer periphery—so too my property, which is a more distant periphery, is also forbidden. It’s just forbidden in a somewhat lighter way. When my body performs the prohibited labors, I’m liable to stoning—that’s the severe Sabbath prohibition. When my property desecrates the Sabbath, then it’s the prohibition of the rest of one’s animal, which is a Torah-level prohibition but not a stoning prohibition—in other words, not a prohibition of prohibited labor.

[Speaker B] Is it the same thing we saw regarding intentional labor and all that, that there has to be intent?

[Rabbi Michael Abraham] No, that’s not related; that’s within the categories of labor. But this isn’t a prohibition of prohibited labor. The prohibition of the categories of labor is intentional labor, but with an animal it’s a different kind of prohibition, and it’s also learned from a different verse. It’s not that same expansion of ‘any labor.’ The same thing—the same parallel structure—we also saw regarding damages: when my property causes damage, I have to pay. And we saw that later authorities (Acharonim) discuss why I really have to pay. Some make it depend on negligence in guarding. I was negligent in guarding it, so they impose liability on me to pay. But there are later authorities from whom it emerges—maybe also among the earlier authorities, but it’s formulated explicitly among the later authorities—that some claim that the very fact that it is my property obligates me to pay. Again the question came up: why? If it’s not negligence in guarding, then it caused damage—what do you want from me? Obviously, I said it’s exactly the same structure as with the rest of one’s animal. Why, when my body causes damage, am I liable to pay? I am not my body. I am my soul, my psyche. A person is the cognitive part of him. This thing here is just a lump. Why, when it causes damage, do I have to pay? If you’ll say: when I activated it—meaning when I do it consciously and deliberately, intentionally—that’s something else, because I’m using my body, so clearly the one who caused the damage is the soul, not the body; it used the body, fine? If I take someone’s hammer and hit with it and smash somebody else’s jug, that’s not property causing damage; that’s a person causing damage. Right? It’s not that the hammer is property causing damage and its owner has to pay. It’s a person causing damage. I used the hammer, but the hammer is an extended hand. It’s an action of the person, not an action of the property. Okay? So too with my body: when it causes damage but I do it intentionally, then the psyche or the soul uses the body in order to cause damage; the one who caused the damage is the soul. But ‘a person is always forewarned,’ whether awake or asleep. Meaning, when a person is asleep and he causes damage, he is still liable, and there it is not an action of the soul. I didn’t decide on it, I wasn’t conscious. But if my body does something, I’m responsible, even though the body is not me. So you see that a person has some kind of responsibility when his periphery causes damage—the body. So a more distant periphery, namely my property that causes damage, is exactly the same structure I mentioned regarding the rest of one’s animal. The more distant periphery—there too there is responsibility, but again the responsibility is lighter. Because if my body causes damage, I’m liable even if I was under compulsion. If my animal causes damage, and I guarded it properly and it happened through circumstances beyond my control, then I’m exempt. Again, exactly as with the rest of one’s animal: the prohibition is lighter the more distant the periphery is, or in the context of damages, the liability is lighter the more and more external the periphery around me is. But it’s the same structure.

[Speaker B] If the person is under compulsion in his body? Like, say, he was thrown?

[Rabbi Michael Abraham] That’s a dispute between Tosafot and Nachmanides whether ‘a person is always forewarned’ applies even in a completely unavoidable case, or only in what is called compulsion but not total, absolute compulsion—then he is exempt. The third example is splitting testimony. I said that the Raavad’s view on splitting testimony is this: if I testify, ‘So-and-so had relations with me while she was a menstruant,’ or ‘so-and-so sodomized me with my consent’—there are two parallel passages. So I’m testifying that so-and-so committed a transgression together with me. Now, a person cannot render himself wicked. I’m not believed to render myself wicked, to say that I committed a transgression. Once I testify about myself, then the testimony is invalidated; I can’t testify about myself. But the Talmud says that the testimony about the other person remains valid. The testimony about me is not accepted, but the testimony about the other remains valid. The Raavad asks: why? Testimony that is partially invalidated is entirely invalidated. If part of the testimony is invalid, then the whole testimony is thrown out. So nothing remains of it. The Raavad says: all that is true when I testify about a relative—my brother, my father, my mother, one of my relatives. Then that part of the testimony is invalid testimony, and once it is invalid, it invalidates the rest of the testimony too. But when I testify about myself—not about my relative, about myself—then here it’s not testimony at all, because I’m a litigant, not a witness. When I testify about a relative, I’m a disqualified witness, because a disqualified witness cannot testify about a relative. So it is testimony; I’m classified here as a witness, but it’s invalid testimony. If I testify about myself, my role in the religious court is that of litigant, not witness. It isn’t testimony at all. And therefore, says the Raavad, that’s why we split the testimony. When I testify about myself, the part I testified about myself is deleted from the record—it isn’t testimony at all, they don’t hear it. The part that remains is fine, because no part of the testimony was invalidated. That part isn’t part of the testimony in the first place; it isn’t testimony. And what remains remains, so we don’t say: if part was invalidated, all of it was invalidated. That’s the Raavad’s claim. And they ask against him, because the Talmud in Sanhedrin 9—there on 10—says that we split testimony also regarding one’s property and also regarding one’s wife. Even though with relatives we do not, with one’s wife we do, and with one’s property too. So why? Regarding one’s wife, again, you really see that a wife is a closer relation than other relatives. A wife is considered literally like testifying about yourself—when you testify about your wife, ‘one’s wife is like one’s own body.’ Meaning, unlike a brother, father, or all other relatives—that’s relationship—but a wife is ‘one’s wife is like one’s own body.’ Also in the calculation of those disqualified for testimony—you know, the Talmud in Sanhedrin chapter 3 also discusses those disqualified for testimony, and it counts the degree of relational distance that disqualifies, some sort of radius of kinship within which you are disqualified. So whether second to second, second to third, we have all sorts of ways of counting that distance. Now, when counting, say, in relation to a brother-in-law, we talked earlier about brothers-in-law, then in relation to a brother-in-law I would say, say, second to second, because there is a distance of two between me and him. That’s what we call second to second, and that’s what it’s called. But if some of the steps are marital kinship, that doesn’t count. In other words, it isn’t considered a step; it’s the same thing. So for example, the connection between me and my brother-in-law is a connection of length one, not two. Because the distance between me and my wife is no distance; my wife to her sister—that’s sisterhood, that’s one step; and her sister being married to the brother-in-law—that’s nothing, because one’s wife is like one’s own body. So really the distance between me and him is like a brother instead of three. Yes, exactly. Because ‘one’s wife is like one’s own body’ doesn’t count. So that’s regarding one’s wife. But what about one’s property? There too they split testimony. Why property? Again, you see that when a person testifies about his property—not testifying in order to make himself lose money, but rather that his ox committed bestiality and therefore the ox has to be killed, and the discussion here is about the ox, not about me—then I am considered to be testifying about myself. Therefore we split testimony here, because according to the Rif, if I testify about myself, we split testimony. So why does the Talmud say that when I testify about my ox, we split testimony?

[Speaker D] Because testifying about my ox is testifying about me, about myself.

[Rabbi Michael Abraham] Money is part of my periphery, and therefore when I testify about my money, it’s like testifying about myself. It’s a more distant periphery, but I’m still considered here a litigant, not a relative or someone with a vested interest or something like that. Those were three examples, but that’s not testimony. What? So that’s not testimony. Right. Why do we split the statement? Because if I say, for example, “So-and-so sodomized my ox,” we would treat it as follows: regarding my ox, it’s a prohibition for which he is liable to death. The testimony about my ox is voided, because I can’t testify about my own ox, and in such a case they also don’t execute the ox. An ox that is stoned requires twenty-three judges, doesn’t it? Why? Because that testimony is from someone with a vested interest; it’s his, it’s his. Yes, but exactly there it doesn’t say why. It says that we split the statement: regarding the ox, we don’t accept the testimony, and regarding the sodomizer, yes. They execute the sodomizer. Meaning if there is another witness together with him—two witnesses. Not according to the Rif’s approach. Right, that’s exactly the difficulty raised against the Rif. So the claim is: no, it’s not difficult on the Rif, because it’s written explicitly in the Talmud, and the Rif is obviously bound by the Talmud; he can’t go against the Talmud. So the claim is that according to the Rif this is not contradictory. Why? Because when you testify about your ox, it’s like testifying about yourself. It’s not like testifying about your brother or your father. Because the ox is your periphery, your property is your periphery, just as you testify about your body like you testify about yourself. Therefore we do split the statement here even according to the Rif. How does the Rif formulate this? Because he doesn’t talk about periphery. No, the Rif doesn’t answer this at all. The Rif states his basic principle about the law of splitting a statement. The later authorities ask him: so how will you explain “So-and-so sodomized my ox”? I think the answer is this answer. In legal language one could say that the issue of “a person cannot make himself wicked” is one of admissibility: the testimony is not admissible regarding himself. Yes, I said—I spoke about this with Miranda last time. And that fits. And in the second issue it’s reliability. Right, it’s not exactly reliability, because regarding relatives the Talmud says there is no problem of reliability; that too is admissibility. So why don’t we accept it? Because it is testimony. Yes, that’s written in the Talmud. That was Miranda’s mistake—Miranda took “a person cannot make himself wicked” to mean that maybe he was pressured into confessing and therefore his admission or testimony isn’t reliable, but in the Talmud that’s not the point. In other words, “a person cannot make himself wicked” is about admissibility. And regarding relatives too it says there is no concern for lying. It says in the Talmud and then in Maimonides and explicitly in the Shulchan Arukh that when the Torah disqualified testimony of relatives, it wasn’t because they are suspected of lying. Even when they testify, for example, against their relatives, their testimony is still not accepted. So why don’t we accept the other half of the testimony? Because it is invalid testimony—not false testimony, invalid testimony. Fine, but a person’s testimony about himself is not testimony at all. It’s not the same distinction as admissibility and reliability. Even within the world of admissibility there are also two types: there is testimony that is inadmissible, and there is something that is not testimony at all. I once spoke about the division of roles in a religious court when we discussed miggo, so I spoke there about the division of roles in a religious court, and I said: why can’t a witness become a judge, or why can’t a litigant be a witness? There are three roles in a religious court: litigant, witness, and judge. None of them can be the other. Some explain it with local explanations, that maybe such-and-such will happen, but in the Rashbam cited by Tosafot it says, “And the two men who have the dispute shall stand before the Lord.” Meaning, the man must stand opposite the judge; it cannot be that the man himself becomes the judge. What is the idea there? Is that just some wordplay? The claim here is that the three roles in the religious court—the litigants, the witnesses, and the judges—must not be mixed. In other words, each one is in his own role. Isn’t that clear? What? Isn’t that clear? Yes, but not because of some concern that maybe this or that will happen. There is some kind of determination here, and we need to think what exactly it means, but there is some determination here of judicial procedure or something like that. It seems to me that this is the most sensible option in the world. Why? Why do you care if the witness says, “Now I’m going to be a judge”? Why not? What’s the problem? The witness says: now I’m going to be—what? Why not? Let him be a judge. What’s the problem? Because he’s a litigant. He’s not a litigant, he’s a witness. And the litigant will also say that he’s going to be. No, and the witness. The witness—so why not? Because he testifies before himself. He doesn’t testify to himself. He testifies, and afterward turns around, sits at the judges’ table, and rules the case. Why not? After he accepts the testimony? Exactly. So Tosafot there bring the Rashba. Rabbeinu Tam says it’s because he cannot receive an accusation of false testimony about himself. He wouldn’t know whether his own testimony is true or not. Okay, but the Rashba doesn’t accept that. The Rashba says it is because of “And the two men who have the dispute shall stand before the Lord”; that’s the issue. I understand, but “the two men” there refers to the litigants, not the witnesses. No, in that exposition, because the Talmud in tractate Shevuot derives from “And the two men”—men and not women—that from here women are disqualified from testimony. So “the men” are the witnesses, not the litigants. And of course that is a midrashic reading; in the plain sense that is not so. Understood. But the distinction within inadmissibility—between “not testimony at all” and “invalid testimony”—doesn’t make sense. Why? I’m telling you—what do you mean it doesn’t make sense? The question is whether you accept the principle that there is a separation of authorities in the religious court. We didn’t invent that. Inadmissible testimony is not—what is “is not”? Invalid testimony is also not. Fine. So I’m saying: that distinction you do accept, between inadmissible testimony and invalid testimony. What’s the difference? No, if it is invalid because of credibility—right, so what? He is invalid on grounds of credibility regarding the second half of the testimony as well. If it’s because of credibility, then I say the second half of the testimony can also be unreliable because it’s part of him. But once the testimony is not testimony at all—no, there is no connection. Otherwise you wouldn’t need the rule of splitting the statement. Otherwise the second thing would be disqualified not because “if part of it is void, all of it is void,” but because there is also a credibility problem there too. The rule that “if part of it is void, all of it is void” says: no, no, I have no concern about the credibility of the testimony there. I have a concern about the credibility here. And nevertheless, since this part is void, that part is also void. That is the rule of “if part of it is void, all of it is void”; otherwise you wouldn’t need it. There would already be a credibility problem with the second half as well, and therefore it would be invalid not because the first half was invalid. If you say “if part of it is void, all of it is void,” then you’re saying: no, no, with the second half I have no concern about credibility. Only the first half has a credibility problem. But since one half is void, the second half also becomes void. Now, what difference does it make whether it is void because it is invalid or because it isn’t testimony at all? In any case it’s some formal definition. Now the question is: what is called “not testimony at all”? You identify that with inadmissible testimony. And I say no—that is only a certain type of inadmissible testimony. What type? Testimony of a litigant about himself. And why? Because his role in the religious court is not defined as a witness at all. He is playing a different role in the court—he is a litigant. If this is testimony—if he is a relative, then he is not a litigant, and not a judge. What is he doing in the court? He is a witness. It’s only that his testimony is invalid. Therefore I say: that is invalid testimony. But a litigant is not even labeled “witness.” He is not a witness; he is a litigant. He has a different role there. Therefore it is not testimony at all. But for a relative too, the testimony is invalid because of credibility, because they say: you can’t testify about your relative. No, not in Jewish law. What? And in Jewish law it’s clear that—this sounds very logical too, that how could you accept testimony about someone who is your relative? It’s not so simple. What if he is testifying against you? What? If he testifies against you? Then it’s fine. Then it’s fine. There’s no problem with a person testifying against you. What? But they say that a relative—you shouldn’t accept a relative—regarding credibility, neither for nor against. Why not against? That’s perfectly fine. Maybe he has an interest. An interest in what? About any person you can say maybe he has an interest. That’s not—I understand closeness. Because clearly, when a brother has a good relationship with his brother, usually—that’s the simple assumption—testimony in his favor I understand could raise a credibility problem. Testimony against him—if I summon him from the other side, then maybe some other person also has something against him. You don’t know. As long as you don’t know, you don’t know. There is a presumption of fitness. Yes, but within a family, if there isn’t a positive bond between them, then there’s a reasonable chance of a negative bond. No—why assume there is no positive bond? Maybe there is a positive bond and he is testifying against him because he is telling the truth. He is simply fulfilling his civic duty and coming to testify. So what really is the reason for disqualification? The reason is a scriptural decree: “Fathers shall not be put to death because of sons.” Fathers shall not be put to death by the testimony of sons. Again, of course, that’s an exposition, because that is not the plain meaning of the verse. If it’s a scriptural decree, then we don’t look for logic? We do look for logic, but I’m saying the logic here is not the logic of credibility. That is explicit in the Talmud; there’s no room to argue in that direction. I think I can understand the logic—call it legal logic, not credibility logic. I don’t want a brother putting his brother in jail. It’s not because he isn’t reliable—that’s not the point. It’s simply not supposed to work that way. In other words, you can call it not wanting conflicts to arise or something like that, but I’m saying it’s even beyond that. In other words, you want to convict someone? Bring independent witnesses to convict him. Don’t start playing with the person himself, with his brother, with whatever. Why exactly? It’s hard for me to define that kind of intuition—I’m not… When you try to force it into some logical framework, it usually won’t survive the factual test. Because in the Talmud you see that the logical tests don’t work. In other words, it’s not a credibility problem. And if he is forbidden to testify against him—and there are several examples; Moses and Aaron are disqualified, that’s the very example the Talmud itself brings. Moses and Aaron certainly are not suspected of lying, and even they are disqualified. Meaning, you can say “no distinction,” but the Talmud brings it as the law itself, not merely as a “no distinction.” “No distinction” is usually a rabbinic principle, but the Talmud says no—Moses and Aaron are disqualified, and that means testimony of relatives is not disqualified because of a credibility problem. Maybe one could still say it’s a kind of miggo? Meaning, if I come and say my brother is a murderer, then in a way I’m helping society because they won’t look for some other murderer, and they won’t put someone else—meaning, they can use that information for certain purposes, but I don’t want them to use it against my brother in order to punish him or something like that. Because after all, I could have remained silent. So what—you mean you don’t want them to use it against your brother? I’m saying I testify for the purpose—You testify that he is liable, and you ask them not to use your testimony? I could have remained silent. Meaning, testimony of my close brother. Fine, for purposes of confirmation. Fine, for purposes of—no, the question is whether that’s miggo. So miggo here is problematic, because if the alternative was difficult for you, then it’s not miggo. Fine, every miggo says: I could have made a stronger claim that was false, so believe me also when I make the weaker claim, which is true. No—you’re saying that anyway I’m lying. In ordinary miggo, you claim I’m lying now. If you already say I’m lying, then I could have lied better. It wouldn’t have been worse than now if I were lying, so why not choose the lie that would produce a better result? But here I come and give true testimony. Now you say: but I could have refrained from coming to testify. Yet there is an obligation to testify if you know testimony. So it’s not exactly miggo; I don’t think that works. No, if I understood correctly, the miggo may just be an analogy, but the point is that in order to encourage people to turn in their relatives so that we can prevent them from committing crimes… But we don’t encourage them, because if they come, we won’t hear their testimony. No, we won’t hear it—so I’m saying… For purposes of doing justice, no, but for deterrence—No, no, we won’t hear anything, we don’t hear them. No, but in the police it’s something else. Testimony is given not in the police but in a religious court. And precisely by not hearing them in court, we would enable them to complain to the civil police in order to stop them. What police? In the time of the Talmud there was no police. In the Talmud… before the king, huh? Before the king. The king may well judge even based on relatives. The king can do whatever he wants. Even if there are no witnesses and he is a murderer, but you know that he is a murderer, they put him in confinement. Not necessarily in every situation. I mean, putting him in confinement also has rules. Some of the medieval authorities (Rishonim) hold that even confinement has rules. It’s not every time you know he is a murderer that you put him there. You need one witness or… There are certain cases where they put him in confinement. It’s not agreed upon, I don’t remember the details anymore. This confinement is quasi-judicial; it also has rules. It’s not always… And of course, not by strict law—there can always be additions. Fine, I don’t know. In any case, how did we get to all this? Ah, to the claim that splitting the statement is also evidence that property is some kind of periphery of myself. Fine, up to this point that was basically the claim, more or less. I wanted to say more than that. Up to this point I basically said that I have some sort of metaphysical connection to my property. That’s the conclusion so far. And the legal consequences are consequences of the fact that I have a metaphysical connection. Okay? As opposed to the usual legal conception, in which ownership means a collection of rights. That’s ownership. There is no state of ownership of which the rights are a result. To be an owner means to have rights. Uh… no law will obligate my donkey to pay taxes. It will obligate me because my donkey is not paying taxes. And no law will impose obligations on the animal because it is my animal. That’s not how ordinary legal contexts work. Then I said—I moved to the next stage and brought Rabbi Shimon Shkop regarding conditions. I said there are two types of conditions in Jewish law: an “if” condition and an “on condition that” condition—a “from now” condition. An “if” condition is a condition where the act takes effect only from the time the condition is fulfilled. An “on condition that” condition—because “whoever says ‘on condition that’ is as though he said ‘from now’”—is a condition that takes effect now, provided that the condition is fulfilled. For example, if I say to a woman, “You are betrothed to me if it rains tomorrow,” then if it rains tomorrow she is betrothed from the moment the rain falls, not from now—from tomorrow. But if I say, “You are betrothed to me on condition that it rains tomorrow,” then that means she is betrothed from now, if it rains tomorrow. And if it rains tomorrow, she is betrothed from now. Of course we will only discover that tomorrow, but tomorrow it will become clear that she had been betrothed already from now. Okay? There is a prospective side and a retroactive side. There are also various distinctions like that in the legal world. Now, the question is what happens in a “from now” condition during the interim stage—or really also in an “if” condition, depending on what exactly is involved there. So this can be discussed in both kinds of conditions. What happens in the interim stage between the moment I did the act and attached the condition and the actual event of the rain itself, tomorrow? In the meantime, what is the woman’s status? Rabbi Shimon Shkop brings various examples of strange rulings by the medieval authorities in order to argue that the situation in the middle is not so simple. Usually we understand that, say, in a “from now” condition, essentially she is a married woman from now, I just don’t know it. Because I simply haven’t yet lived through tomorrow. But the Holy One, blessed be He, already knows today that she is a married woman, because He knows what will happen tomorrow. And I don’t know, so for me it’s a doubt, but in principle the issue is just that I don’t know. But the state is one of “it becomes revealed retroactively,” meaning: it becomes revealed retroactively that she was betrothed. Rabbi Shimon Shkop brings several proofs that this cannot be the explanation. What I brought is correct—namely, “if I do not return within twelve months,” one who divorced his wife if he does not return within twelve months. He brings several examples there; this is one of them. Maimonides says that if he dies after one month, she is still not divorced. The twelve months have to pass. Now that is very strange, because if he dies within a month, then obviously he won’t come in the next eleven months either, right? We know he won’t come—he’s dead. The non-arrival has to actually occur in practice, so says the Maggid Mishneh on Maimonides. Meaning, the non-arrival—that is, the fulfillment of the condition—must occur in actuality in order for the legal effect to take place. Now if fulfillment of the condition were merely an indication that resolves a doubt in my knowledge, then we’ve already resolved the doubt in my knowledge. In other words, after one month, when he dies, from the standpoint of my knowledge I already know: the man will not return. Fine, so clearly she should be divorced. From there Rabbi Shimon proves that according to Maimonides, the condition—its fulfillment—is not merely revealing the state and resolving the doubt I had been in; rather, it causes the result, even though it causes it backward in time. In other words, we have here a situation where the cause is later in time than the effect. The cause—tomorrow’s rain—produces the betrothal that takes effect today. The falling of the rain is the cause, and the application of the betrothal is the effect. The cause appears one day after the effect. That is what happens with a condition. There are various proofs for this point, quite a few from the words of the medieval authorities. So then she cannot remarry? Right, she cannot remarry until the twelve months pass. Even though they know the man died? Yes. And only after twelve months pass is she divorced already from twelve months earlier. In other words, she already… A divorced woman is not a widow. A divorced woman is not a widow. That’s true in any case; the only question is from when. After one month is she already considered divorced, or only after twelve months is she considered divorced? Maybe in some sense it is to fulfill the husband’s will? The husband’s will—it’s not about will. He said: if I do not come, she is divorced. Fine, clearly he won’t come. If I do not come after twelve months—and he won’t come because—Right, but the reality that he died after a month is not the reality he had in mind for himself. He was thinking of twelve months. Maybe. But his intended scenario is not what matters. What matters is whether it has been fulfilled that he will not come for twelve months. That certainly has been fulfilled. There is no injury to the husband’s rights here; it’s not that he is losing something. The question is whether what he demanded be fulfilled has in fact been fulfilled. The answer is yes, it has been fulfilled; we know that it has been fulfilled. But “it becomes revealed” after one month that she is divorced. If this were a case of retroactive revelation, then already after one month she could remarry, because after one month it is already clear that he will not come. But from here Rabbi Shimon Shkop says: no, this is not revelation; the mechanism of a condition is not retroactive revelation. The condition—the fulfillment of the condition—does not reveal a state that already existed. It causes it. It is the causal factor in producing that state, even though it causes a state that occurred before the cause. So once again we ask: what status does she have now, until the condition happens? What is the woman’s status now? What is she during those days, if backward causation is possible? What I always thought about is why, when someone prays that his wife will have a boy—we said that his wife will have a boy—then they say that this prayer isn’t worthless, but maybe the fact that he prays for it is what causes it, is the reason that he will in fact have a boy. So why is that a blessing in vain? Say it yourself: I claim there is no backward causation, so what’s your problem? You claim there is, so that’s a major question. No, it’s simply if I didn’t know—can the Sages not make mistakes? No, I agree, they certainly can make mistakes. I think in this case they didn’t make a mistake. But in the meantime I heard a midrash that says about—what was his name—Obed-Edom the Gittite, that when he received the Ark of the Lord into his house, and then they transferred it to the house of Obed-Edom the Gittite. And after three months they saw that Obed-Edom the Gittite was blessed in all his household. Then they apparently understood that it was God’s will to take the Ark, and they took it. And that was proof after nine months. What? Because a pregnancy necessarily takes nine months. In the text about Obed-Edom the Gittite it doesn’t explicitly mention pregnancy, but the midrash says the intent is that there were many births there. Usually “his household was blessed” means births. That’s what the midrash says, and then the question is: how can that be? The explanation I once heard of that midrash is that it explains that there really is backward causation, meaning that the mourning… There may be other explanations. Like what? For example, that in that period there were pregnancies, and in that era some pregnancies didn’t succeed, whereas here all the pregnancies in that period succeeded, all survived. The survival rates of children in that era were low. It seems to me that even so—I don’t think it says that all the babies were born alive, it just says they gave birth. “They gave birth” means they were born. Pregnancies also end before birth. Fine. In any case, Rabbi Shimon’s claim raises the question of what happens during the interim. And Rabbi Shimon argues in different lines in different places that in one place he says she is both divorced and a married woman at the same time. And I told the guys in Yeruham in a class—I once told them when we studied the passage—yes, she is both divorced and a married woman, and I moved on. That’s exactly it—I acted as though, what’s the problem? Yes, she is both divorced and a married woman, now let’s move on. They stop me and say: wait a second, we didn’t understand. How is she both? What do you mean? If she is divorced, she is not a married woman. If she is a married woman, she is not divorced. That is a logical contradiction—like both a triangle and a circle. What does it mean for a woman to be both divorced and a married woman? How can there be such a thing? And I got stuck for a second. I said, wait, something here had seemed completely natural and unproblematic to me, and suddenly the emperor has no clothes. These guys, who weren’t used to the less ordinary discourse—say, yeshiva discourse—were in fact making a very apt point. As if I were just rattling off nonsense. But it was clear to me that I wasn’t. It was clear to me that it had a clear meaning. I just had never conceptualized it for myself because no one had ever held up a mirror to me. And I think that’s what happened. I opened the article that I wrote following that class—I wrote an article in Tzohar, Tzohar 2, on “What is a legal effect?” That’s the article we’re talking about today. And I opened the article by saying that only in a hesder yeshiva would someone ask such a question; in a Haredi yeshiva they wouldn’t ask it. In a Haredi yeshiva they wouldn’t ask it and everything would be obvious. On the other hand, I said: after all, it really is nonsense. Meaning, if you asked them, they wouldn’t know how to answer—the Haredi yeshiva students. But on the other hand they have a healthy intuition. They are used to this discourse and they understand that it’s meaningful. But if they had to give an explicit account—meaning to conceptualize what is obvious to them—I assume they wouldn’t succeed. And it’s a good question; it’s just that people who aren’t used to this yeshiva-style discourse ask good questions. Very often these are exactly the questions you ask because you aren’t used to it. I once told how Einstein said that the reason he suddenly overturned all our concepts of time was that he matured late. He said: we mature early, and by the time we grasp the concept of time in its full significance, we’re already adults. We’re no longer at the stage of asking questions. We’re already used to things, already kind of dried out. But when he reached the stage of grasping the concept of time, he was still a child—he hadn’t matured yet—so he asks, wait, why? Who said it isn’t the opposite? And then suddenly he began to question maybe it’s not as I thought. That’s what he once claimed. In any case, they asked this question and I got stuck for a moment and tried to think what exactly was going on here. Then I told them, and eventually I think I understood and formulated the answer for myself, and then I wrote the article. And my claim was this—and it came from another background. Yes, that’s what I asked you at the end of the previous class: what do you say, how do we solve such a paradox? So we wrote about it afterward. There’s that picture where some people see a wolf and some see a farmer. Fine. So it’s not both a wolf and a farmer; it’s either this or that. The fact that there is an optical illusion is an optical illusion. The question is whether it is a wolf or a farmer. Apparently a farmer. You can look at it this way, you can look at it that way, and it’s both. Again: those two ways of looking capture different aspects, however you want to put it. But it’s not simultaneously and it’s not the same thing, at the same time and from the same angle. That would be a logical contradiction. It’s like the parable of the elephant—seeing it from one side—there’s that story, right? About the elephant: one feels it from one side and another from another side, and each one describes the elephant differently. That gives a different aspect of the elephant. That is not a logical contradiction; these are simply different aspects. But if you talk about the same aspect and say two opposites, that cannot be. So I told them this: I have a good friend with whom I really liked philosophizing about all sorts of topics; he’s not religious. One time we talked about this, and I asked him whether there is anything that has no opposite. Is there anything that has no opposite? I couldn’t find any. Everything I thought of, I found an opposite for. An opposite or a negation? What? Tell me: sweet—what’s the opposite of sweet? Bitter or… sorry, sour. What’s the opposite of sour? Sweet. We said sweet. Why not? What’s the opposite of justice? Maybe injustice. What’s the opposite of justice? The injustice of justice? Maybe injustice. Maybe. I don’t know, something. I don’t know. There’s another flavor here. No opposite. What’s the opposite of negation? It depends what kind of negation we’re talking about—contradictory negation or contrary negation—but there’s no opposite there. There’s no opposite there. I don’t know, we’d have to think about it. In any case, in my opinion most predicates have no opposite. Right, could be, but I’m aiming in another direction. So he gave me a whole list of examples that have no opposite. And I couldn’t understand how I had missed so many simple examples. He said: dove—no opposite. Chair—no opposite. I started thinking: wait a second, so what? This was years before that class. I started wondering how I had missed it, and then I understood that he was giving me objects. Objects have no opposites. Properties have opposites. Yehudit says not every property does either. Maybe I’m mistaken there. But it’s clear that opposition is a relation between properties, not between objects. One object is not the opposite of another object. Either they have opposite properties. Sugar is not the opposite of salt. Salty is the opposite of sweet, but sugar is not the opposite of salt. Okay? So if I say that in a dish it is both sweet and salty, that cannot be. That’s a logical contradiction. I’m saying it is both completely salty and completely sweet. Of course it is possible that it has both a salty dimension and a sweet dimension. But for it to be both totally salty and totally sweet—that cannot be; that is a logical contradiction. But to say that a dish has both salt and sugar? You’re assuming from the outset that “completely sweet” means it has no other taste. But when I eat, say, a pretzel coated with chocolate, it’s sweet and salty at the same time, fully. What does “fully” mean? It’s sweet and salty. Right, fully. Two things side by side. So what you’re saying now is not both salty and sweet. “Fully” means only salty. Not only salty. So now we understand the disagreement. No, we don’t understand the disagreement. Only salty and only sweet. Salty and only sweet together—that is a logical contradiction. Yes, that’s what I meant. “Fully” didn’t mean that the saltiness is complete, very salty, but that it is only salty and nothing else. So I understood that opposition is really a relation between properties, not between objects. Okay, let’s return to the class. What I told them, in essence, was that a woman cannot be both permitted to a priest and forbidden to a priest. As a divorced woman she is forbidden to a priest, and as an unmarried woman she is permitted to a priest. She cannot be both permitted to the world as an unmarried woman or a divorced woman, and also forbidden to the world as a married woman. That is clear. Why? Because those are properties—properties of the state, legal properties of the state: what is permitted and what is forbidden. Either it is permitted or it is forbidden. It cannot be both permitted and forbidden. But she can indeed be both a married woman and divorced. Because “married woman” and “divorced woman” are not properties. They are legal effects. On the woman there can rest both—there can be both salt and sugar, or she can be both sweet and salty. She has both salt and sugar in her. What do I mean? When I say a woman is divorced, I am not saying she is forbidden to a priest or permitted to everyone. That’s not the point; those are consequences. When I say a woman is divorced, I mean that there rests on her the legal effect of being divorced. She has a pack, carries on her back a sort of spiritual-metaphysical pack, yes? called “the legal effect of divorce.” Okay? Whoever carries that pack is forbidden to marry a priest, permitted to marry the rest of the world because she is not a married woman, but to a priest she is forbidden. But those are the consequences of the fact that there rests on her the legal effect of divorce. As I said about ownership, yes? This metaphysical state is basically some metaphysical object called “the legal effect of divorce” that sits on the woman. Once it rests on the woman, it has legal and halakhic consequences. Now the same is true of a married woman. “Married woman” is not a legal status; “married woman” is a metaphysical state. There rests on her the legal effect of being a married woman. It has legal consequences: if she is a married woman, she is forbidden to the world; there are all kinds of things, mutual obligations, all kinds of consequences to the matter. But being a married woman is not the collection of consequences. Being a married woman is the metaphysical state; she has a connection to me. What is that connection? I imposed upon her the legal effect of being a married woman. She has another pack too—the pack of “married woman.” Whoever carries such a pack has all sorts of legal consequences, just as I said before about ownership—that ownership is a metaphysical state with legal consequences. But now I’m taking another step. This metaphysical state is not only a relation between me and the object, but some kind of spiritual object resting on the object. A spiritual property that the object has, a spiritual state that the object has, a metaphysical state. I call it, figuratively, a pack that it carries. Okay? Once it rests on it, all sorts of consequences follow. What do I gain from this? The point is not only that there is metaphysics behind the laws. More important is that this metaphysics consists of metaphysical objects. Not metaphysical predicates. They are entities. The legal effect of being a married woman and the legal effect of being divorced are two entities, two packs she carries on her back. And there is no problem whatsoever in saying she carries two packs on her back. Like saying there is both salt and sugar in the dish—there is no problem with that. To say that it is both salty and sweet—that’s different. Therefore I say: to say she is both permitted to the world and forbidden, that you cannot say. But to say she is both a married woman and divorced is to describe two kinds of status. I still haven’t said what is permitted or forbidden for her to do; we’ll see that in a moment. As for the two statuses, there is no problem at all saying it. She is both a married woman and divorced; she carries both packs, both the pack of divorce and the pack of married womanhood. That’s all. Now the question is what we do with that in terms of the halakhic consequences. That is a different question. There you can’t have contradiction. What is permitted is permitted, what is forbidden is forbidden, because those are properties. The properties of the metaphysical state are the legal consequences. Therefore at the level of properties, once there is a contradiction, you cannot live with contradiction. You have to choose one of the properties. But there is no problem there. Why? Because if a woman is both a married woman and divorced—she carries both packs—what am I really saying? Let’s see, for example, regarding permissibility to a priest. A married woman and a divorced woman are of course forbidden to a priest in any case—whether due to the married-woman pack or the divorced-woman pack. Now her husband dies. In practice she is both a married woman and a widow; she is both divorced and a widow. Will only the prohibitions apply and not the permissions? Ah. So really what Rabbi Shimon Shkop calls a doubt—we go stringently. But I’m sure he doesn’t mean doubt, because it is a mistake to define such a state as a doubt. Because it is not a doubt whether she is a married woman or divorced. She is both a married woman and divorced. That is not the same thing. I’ll show you the implications. Usually it will look like a doubt. If I ask whether she is forbidden to the world, she is certainly forbidden to the world, because from the married-woman aspect in her she is forbidden to the world. The fact that from the divorced aspect in her she is permitted says nothing. From the married-woman aspect she is forbidden. So she is certainly forbidden, not doubtfully forbidden. Meaning, if someone has relations with her he is liable to death; it’s not a doubt. Huh? No, she is completely a married woman and completely divorced. Not that half of her is a married woman. So this isn’t the case of a Canaanite maidservant who is half slave and half free—that’s a bit different. But then he’ll say he had relations with the other pack? But he had relations with the same woman, and that woman carries two packs. You can’t choose packs; they’re both on her. So what happens is that in such situations, the laws are usually laws of presence and absence, almost always. In all the situations I can think of, or almost all. There aren’t situations where both possibilities are positive laws. For example, a divorced woman is forbidden to a priest, right? But an unmarried woman—it isn’t that the priest is obligated to marry her. He is permitted to marry her, and also permitted not to. Okay? So if from the unmarried-woman side she may marry him and may also refrain, and from the divorced side she is forbidden to marry him, then the result is that she is forbidden to marry him. There is no dilemma, right? And it’s always like that. Whenever there is such duplication, one side gives a positive law, and the other side gives an absence, and therefore the consideration will always be that the direct positive law applies to her. Usually that will be stringent, since usually prohibition is a positive law and permission is an absence, generally speaking. And what about the property of every substance? So how can you say—why can’t I say about something that is both salty and sweet that salty, in fact, isn’t salty, but rather there is some metaphysical state resting on it? But why with a married woman can you say that? Well, there too I can say that. That’s what I’m saying. There is both salt and sugar in the dish. The result apparently should be that it is both salty and sweet, but in fact that does not happen at the level of result. It is not both salty and sweet in the sense of only salty and only sweet, yes. There is no such thing as “only.” Only salty and only sweet, yes. And I’m saying there is a metaphysical state that is only salty, and another state resting on it. “Salty” is the description of the state. Maybe there is some reason why the state is what it is. No, but by what criterion do you decide that for a married woman you can say there is some metaphysical state? Well, I’m willing to say that there too there is a metaphysical state. But the metaphysical state is not “being salty.” “Being salty” is the result of the metaphysical state. The metaphysical state itself is that there is salt in you. That isn’t metaphysical; it’s physical. The metaphysical state—why can’t I do the same thing you did with the married woman, with the dish? You can, but it won’t create any problem. The confusion, I think, is that you’re mixing levels. Because when I say it is both salty and sweet, I’m talking about properties. Clearly those are properties. You can say that underlying the properties there is a metaphysical root. No problem. The metaphysical roots can indeed coexist—for example, there is both salt and sugar in the dish. So at the level of properties it cannot be both only salty and only sweet. In other words, at the level of properties we have to find some solution that coheres. Therefore it really will be the same there too. I’m only saying that salty and sweet are properties, not the metaphysical entity itself. And what I wanted to say—what I was innovating here—is that with saltiness and sweetness this is obvious to us. But what I’m innovating is that in the legal context we think we’re dealing with properties. So how can she be both divorced and a married woman? I said: no. Underlying the properties, in the legal world too—not only in the physical world—just as obviously if something is salty that’s because it contains salt, right? There has to be some reason why I experience saltiness. So too in the legal world, if I am permitted to marry a woman or have such-and-such rights or legal consequences, there is some reason for that. It doesn’t just happen. The reason is some metaphysical state. That is really the claim. Therefore I really am drawing an analogy—absolutely, yes. Then the important point is not that it is metaphysical, but that it is an entity and not a predicate. It’s a metaphysical entity, but that’s not the important thing; the important thing is that it is an entity. Because once I say we are dealing with an entity and not a description, then there is no problem whatsoever with having both together—that she is both divorced and a married woman. If she has to immerse for her husband—there’s an obligation—and on the other hand say it’s Sabbath or a Jewish holiday or something. So the fact that as a married woman she must immerse, and as a divorced woman it is forbidden for her—No. Once there is an obligation upon her, it becomes a prohibition. She has an obligation because of her divorced side? Because of her married-woman side. Once there is an obligation, there is a prohibition. Again, the prohibition is a derivative of the question whether I have an obligation or not. Okay? So first I have to decide whether I have an obligation or not. I decide that through the direct law. Then there also won’t be a prohibition. If it were half and half, like one who is half slave and half free, then that would really be problematic. Because the free half violates a prohibition, whereas there is also the slave half. Here I’m saying: the whole woman is both this and that, so it’s not the same thing. So here we see another implication of the claim that underlying the laws or halakhic norms sits a metaphysical reality. Now I’ve advanced one more step beyond what I said in the previous class. In the previous class I said there lies some metaphysical state. Now I’m claiming that that state is a kind of entity. In other words, the legal effect of being a married woman means some metaphysical entity resting on the woman, or the legal effect of divorce, or the legal effect of ownership. Now let’s return to all legal effects: the legal effect of betrothal, everything I talked about in previous classes. All of this basically becomes the creation of metaphysical states that have halakhic and legal consequences. And this also sheds a different light on what I said regarding betrothal, with the dispute I had there in the article I wrote. The claim is that why do you need an act of acquisition to apply something that isn’t ownership? Since even with ownership, the act of acquisition is required not because the product is ownership, but because there is a metaphysical product. How is it created? There has to be a construction of the metaphysical legal effect. How do I create that legal effect? The act of acquisition creates that legal effect. Okay? That legal effect can be one of ownership, or another one—agency, partnership, whatever you want, contract, it doesn’t matter. So every such thing, since at the basis of the legal world, the world of norms, there sits a metaphysical world, a world of realities, of entities, it becomes clearer why I need to do acts in order to apply halakhic norms. Because the acts are now acts that build the metaphysical infrastructure whose consequences, whose derivatives, are the legal norms. Okay? What about admission-based acquisition? Maybe when you acknowledge something to someone—no. There are cases where matters are established by speech. There are acquisitions that work by speech. That means the speech creates the legal effect. There are such cases. But generally, in the simple conception, speech expresses settled intent, and what creates the legal result is the settled intent. In situations where speech is enough to verify settled intent, no problem—that too can create the legal effect. The act works through the settled intent, which creates the legal effect, and not because of the act in itself. Some say the act has significance not only as an indicator of settled intent, but the common view is not like that. So the claim, once again, is that “both a married woman and divorced” involves no logical contradiction at all, because what I’ve described here is not the laws but the metaphysical state. Regarding the laws, we really will always go after the direct positive law. By the way, if it happened that the positive law were lenient, we would go leniently and not stringently. In principle the question is whether it is a positive law or an absence; it’s not about stringency. Usually prohibition is a positive law and permission is an absence, right? I say: I am forbidden to eat pork—that is a positive rule; I am forbidden to eat it. The permission to eat cow meat is not something positive. There just isn’t a prohibition. Prohibition is something—it’s a halakhic norm. Permission is the absence of a norm. Okay? With permission, you do what you want. We once spoke about leniency—it’s the same distinction between leniency and stringency. Stringency is to say something; leniency is that I have nothing to say. Do what you want. Leniency doesn’t obligate you to take the easy option. Leniency allows you to take the easy option. You can also take the stringent option if you want. Stringency obligates you to take the stringent option. There is an asymmetry between stringency and leniency. And if it were obligation versus prohibition, theoretically if you found some side—Ah yes, then there would be a problem, and we would have to deal with it through other laws. A question of whether a positive commandment overrides a prohibition, or some more difficult dilemma to resolve. But in almost no situation—I’m sure there are situations where it can happen—but in almost no situation I can think of does that happen. Priestly acquisitions? What? No, if there are, say, both “married woman” and “divorced woman” together and now her husband dies without children, okay? So now from the widow side she requires levirate marriage, and from the divorced side she doesn’t require levirate marriage. She doesn’t require levirate marriage, but it’s forbidden to her. From the divorced side that’s the married-woman side, that’s “brother’s wife.” But she is obligated in levirate marriage from the other side. From one side she is obligated and from the other side it is forbidden to her. The prohibition of a brother’s wife is not generated by her being divorced but by her being a brother’s wife. So does it always work out? What? Not always, no. There can be situations where there is a duplication of positive laws. We’d have to think. But almost no case I can think of is like that. Could be there is such a case. Right, there could be. But not certain—my feeling is that such situations can exist. Once I spoke about something similar; I don’t know if it will be one-to-one. I spoke about the yeshiva joke regarding an abandoned infant. Do you remember? In yeshivot, people often slack off in a way that soothes their guilty conscience. So how do they slack off? They talk in learning. Meaning, some random question, some random answer. They don’t have the energy really to learn the Talmud and dig in and think and organize the medieval and later authorities, so they “talk in learning”: throw out some question and some answer, maybe this way, maybe that way. Chit-chat like that—it’s not demanding learning. So the yeshiva joke says that “talking in learning” is wasting Torah study with rabbinic approval. So the joke goes like this: at the end of the first chapter of tractate Ketubot it says that if they find an abandoned infant somewhere and don’t know whether he is Jewish or gentile, we go by the majority. If the majority of the surrounding population are Jews, then the assumption is that he is Jewish. If the majority are gentiles, the assumption is that he is gentile. What happens when it’s fifty-fifty? Rabbi Yonatan’s question, yes—what happens when it’s half and half? Then it’s a doubt. A Torah-level doubt is treated stringently. So what do you do? We always go stringently in a doubt. People ask: what do you mean, go stringently? What do you do regarding Torah study or Sabbath observance? Regarding Torah study, if he is Jewish he is obligated, and if he is gentile, it’s not just that he is not obligated—it is forbidden to him. Same thing with Sabbath observance, right? Here there are not two positive sides—there is no way out. So the yeshiva joke says that we’re talking about “learning”: don’t study Torah, but also don’t waste time. Meaning, that’s the yeshiva world poking fun at itself. But that is an example of a case where it is a doubt between two possibilities that are both positive, not one positive and one absence, okay? So there are such situations in Jewish law. We’d have to think how that would happen in the context of conditions, but I assume it can. I assume if I really thought it through, I could construct some such case. But most cases are not like that. Okay? Now, what is the difference between this and an ordinary doubt? Fine, there is a difference even without my finding such situations; certainly there is a difference. But we have other differences. What happens if I’m dealing with a condition regarding a rabbinic betrothal? A rabbinic divorce, whatever it may be. So I have a rabbinic doubt whether she is a married woman or divorced. Okay? Now in rabbinic law, if it’s just a doubt, a rabbinic doubt is treated leniently. But here I claim there is stringency even though it is rabbinic, because this is not a doubt. Because if she is a married woman, then she is forbidden to the world rabbinically. And if she is divorced, then she is permitted to the world, right? So what do we do? This is not a doubt. If it were a doubt, she would be permitted, because a rabbinic doubt is treated leniently. But here it is not a doubt. She is forbidden because of the married-woman aspect in her, rabbinically; she is forbidden with certainty. But because of the divorce aspect in her there is no prohibition. Okay, but because of the married-woman aspect in her there is a prohibition, so she is forbidden rabbinically. And that is the difference from a doubt. Why did Rabbi Shimon Shkop say there is a doubt? He calls such a state a doubt because in most practical consequences it behaves like a doubt. Usually we will go stringently because the direct positive law usually comes out stringent. But in rabbinic implications, or in situations where the positive law would be lenient—let’s think how exactly that happens—then no, it won’t be like that. So this is not a state of doubt. Clearly it is not a state of doubt. It is a state of both-and. It’s like a tumtum and an androgynous person—whether he is both male and female, or whether it is a doubt whether he is male or female. There are such differences. Just as twilight is subject to a dispute whether it is both day and night, or whether we just do not know whether it is day or night, or whether it is neither day nor night—there are various options. And an ontic rabbinic doubt is treated leniently? What? An ontic doubt, meaning a doubt in reality. If it’s a doubt, then yes. But maybe it’s not a doubt. For example, if he betroths one of two sisters and betroths an unspecified one through intercourse. That’s an ontic doubt, so in such a case you can say it’s not a doubt. It’s like here, that they are both divorced, betrothed and not betrothed; it’s really just like here. By definition, doubt is epistemic doubt. Why would he betroth one of two sisters without saying which one? So the point is that what we learn from here is, again, another implication of this idea: the halakhic or legal norms in Jewish law are a derivative or consequence of some metaphysical state of legal effect—what they call ḥalut. Therefore, to say that there rests on the woman the legal effect of being a married woman and to say that she is a married woman are not the same thing. To say she is a married woman is usually to describe her legal state. To say that there rests on her the legal effect of being a married woman is to describe the metaphysical state that has legal consequences. And we already saw that sometimes there is a legal effect of ownership, and saying that I am an owner is not the same thing. Because in the case of a slave whose bill of manumission is withheld there is a legal effect of ownership, but I am not an owner—I have no legal rights over that slave whatsoever. Okay? So sometimes the two can come apart, which is why the distinction matters. If they always appeared together, I wouldn’t care, but the implication comes whenever one appears and the consequences do not. In any case, we once talked about Zeno’s paradox, and I said something similar there. I said that velocity is the potential for change of place, not the actual change of place. It is the potential for change of place; therefore there is velocity at a point. Change of place always exists over some small segment, however small you like, but still a segment of time. There is no change of place at an instant of time, but a body does have velocity at an instant of time. Velocity is the potential for change of place. Why is that important? First, it solves Zeno’s paradox. And beyond that, it explains how a body can have velocity and yet not undergo a change of place. Think of a body reaching a wall: you throw a body at the wall, it reaches the wall with a certain velocity, and the wall stops it. What does that mean? It does not let it translate its velocity into change of place. It does not allow it to continue moving and changing place. So that energy will come out as heat or in some other form, or it will bounce back if it’s elastic, whatever—it will emerge in some other form. Meaning, you see from that that velocity is the potential for change of place, but it is not the actual change of place itself. Okay? Metaphysics. They describe it differently, but philosophically I think that is the correct description. In physics they say that when it hits the wall its velocity is zero, because it isn’t moving. Because in physics they define velocity as change of place, whereas I claim that is only an operational definition, not an essential one. In other words, if you want to calculate velocity, then yes, calculate it through change of place over however much time it takes. But what is velocity? The essential definition, not the technical definition of how to calculate it. What is velocity? It is the potential for change of place, not change of place itself. Therefore Zeno’s paradox is not a paradox in my eyes. Because it’s not—say a giant and a dwarf. A giant has dimensions much larger than average, let’s say, and a dwarf the opposite. Now those are two objects, right? Aren’t they opposites? No. The opposition is not between the objects but between their properties. Being giant is a property of a person, but the giant himself—look at the giant—is not the opposite of the dwarf standing next to him. When you speak about the concept “giant,” you are not speaking about a concrete person; you are speaking about an idea. An idea is the form of the person, not the person. Opposition between ideas—certainly. They are his properties. Giantness is a property of the giant, but the opposition is between giantness and dwarfness, not between the giant and the dwarf. Between the ideas, not between the objects. Objects are not opposites. There is no opposition between objects. Like human and animal. Humanity and animality can be opposites in some sense, but a human and an animal are simply different, not opposites. They are simply not the same thing. That says nothing about whether they have the same properties or not; that is another question. Leibniz and the identity of indiscernibles—we also once spoke about that. He says that two objects with the same set of properties are the very same object, because he identifies objects with a collection of properties. Therefore he says that if there are two identical collections of properties, two objects that have the same set of properties, then those two objects are one and the same object. And that is a mistake, because an object is not a collection of properties. The object is the bearer of the properties. Therefore there can be two objects with exactly the same set of properties. They are two only in the sense that A is not B, that something differs from B. “Different from B” is not to say that it has different properties. To say that it is not B is only to say that it is simply another object—not a different object in the sense of different properties, but another object. It may be completely identical in terms of its properties. You know that in physics too we once talked about this. In physics, for example, there are two kinds of particles: fermions and bosons. Bosons are particles that can have exactly the same set of properties. There can be a whole set of particles all with exactly the same properties, including being in the same place too—everything exactly the same, same charges, everything identical, even their being in the same place. Fermions, no—each particle must have some different property. In other words, there cannot be two particles with the same properties. So the existence of bosons exactly refutes Leibniz’s principle. It essentially shows that there can be particles with exactly the same set of properties and still they are two particles. Leibniz might define that whole gas of bosons as one object; I don’t know exactly. Maybe there is some way to wriggle out of it. But philosophically he is wrong regardless of physics. Here too I’m saying exactly the same thing. My claim is that there is an object and it has properties. To identify the object with the set of properties is a mistake. The object is the bearer of the properties, that which holds onto those properties. Same with a married woman: the legal effect of being a married woman is an object. It has properties: whoever has the legal effect of being a married woman is subject to all sorts of laws or legal or halakhic properties that pertain to the matter. Just as change of place is a property of bodies that have this potential called velocity. And the property is that they change their place. But the velocity is not a property; velocity is the cause of that property. Very often we identify a thing with its properties, and that is not correct. The properties are properties of the thing; they are not the thing itself. If a person acquired certain good character traits and then dies, do the traits die too? Are the traits part of him? The traits don’t die. Objects die, not properties. A person dies, not his properties. Never mind whether he goes on to the World to Come—fine—but now there is no longer the body inhabited by those properties, the bearer of that quality. Those properties no longer characterize him, and it’s not that the property died; the object no longer exists. By the way, I also once talked about that. I once discussed the principle that the sanctity of the body does not expire on its own, in the Talmud in Nedarim 29. The Talmud says that bodily sanctity cannot lapse without an act. So I said: what if there is a sacrifice sanctified with bodily sanctity, and after a week it evaporates? Some magician comes and vaporizes it. How can that be? The sanctity of the body does not lapse on its own. Bodily sanctity does not just dissipate. The answer is: that’s reality. It didn’t lapse on its own; the object lapsed, not the sanctity. Now the sanctity has nothing to characterize because there is no object. But it is not that the sanctity died—that was your question. The sanctity did not die; the object died. Therefore the sanctity no longer characterizes the object because the object no longer exists. But it is incorrect to say that the sanctity died, or that the sanctity disappeared. So your whole definition is epistemic. Yes, because sanctity is not an object. It has no ontic standing—maybe epistemic, but not ontic. Sanctity is not something that belongs to ontology. In other words, sanctity is a property of objects. Meaning, we understood. Wait, before we said that a legal effect is something that is a metaphysical essence above all, above the man, above the person—an entity. So sanctity is also like that, no? Or not sanctity in this context? No, I’m talking about the sanctity of the object, not the concept of sanctity. No, no, obviously. The bodily sanctity is also a metaphysical essence. Okay. But the legal effect may hover in the air, if you want to keep talking about it further. But the object—the thing that disappeared here—is the object. So now there is no sacred object anymore. Sanctity itself—I don’t know, maybe it’s hovering around looking for a new sacrifice. I have no idea. On a new sacrifice that would make sense, yes. But it’s an interesting idea, because apparently it looks as though even sanctity as an essence dissipates. Rabbi Fisher in Beit Yishai, section 35, deals with conditions. And there he argues—he has some Talmudic source or something like that—he argues that the condition, until the legal effect takes place, if I betroth a woman on condition that it rains tomorrow.