Halakha and Law – Lesson 4
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- Ownership as a metaphysical state and legal statuses as entities
- Rabbi Shlomo Fischer’s approach and the condition for a “hovering” legal status
- A critique of the “unity of opposites” and escaping from logic
- Paradox, intuition, and the dilemma between surrendering and fighting an argument
- The example of the blind man and the sighted man as a model for rationality relative to available data
- A critique of “where reason ends, faith begins” and the danger of uncritical thinking
- Trust in sages, trust in an expert, and restrained personal responsibility
- A metaphysical bond between a person and his property as a system of peripheries
- Impulse as an expansion of the self and the distinction between proper and excessive use
- Liability for damages caused by property: two frameworks and a proposal for liability placed on the property itself
- Liability and punishment for animals: Nachmanides, an ownerless ox, and the ox of the wilderness
- An ownerless ox that gored, seizure and acquisition, and the meaning of the verse
- The burden of proof: Chazon Ish, Pnei Yehoshua, and plausibility as shifting presumptive possession
- Inciting someone else’s dog and one’s own dog: grounds for exemption and an explanation through “liability on the dog”
- Breaking down the dichotomy: two main conditions, not “cause and condition”
Summary
General Overview
The text argues that in Jewish law, ownership is not merely a bundle of legal rights but a metaphysical state from which rights are derived, and that this state has real consequences in laws such as monetary damages and marital legal statuses. It rejects the tendency to justify religious contradictions with slogans like “the unity of opposites” and “beyond reason,” seeing them as evasions that weaken critical thinking and endanger our ability to filter out false claims. It proposes that the solution to apparent contradictions is to understand legal statuses as entities rather than properties, and it develops a halakhic reading that identifies a metaphysical bond between a person and his property, and even the possibility of liability being imposed on the property itself and only transferred to the owner under certain conditions.
Ownership as a metaphysical state and legal statuses as entities
The text states that in ordinary legal systems, ownership is a bundle of rights, whereas in the halakhic context ownership is first and foremost a metaphysical state from which rights are derived, and which has implications beyond legal rights. It describes a conception of legal status as a metaphysical entity, and explains that one can speak of a metaphysical bond between a person and an object even without describing it as an entity, but argues that the practical ramifications suggest an entity. It claims that oppositions apply between properties, not between objects, and therefore a situation in which a woman is both a married woman and divorced makes sense when one sees the “status of married woman” and the “status of divorced woman” as two entities resting upon her.
Rabbi Shlomo Fischer’s approach and the condition for a “hovering” legal status
The text cites Rabbi Shlomo Fischer, who describes a conditional legal status as a “hovering” status that does not descend onto the object until the condition is fulfilled. He describes a “destroying angel” as something that holds the legal status up above, and when the condition is fulfilled the “angel” is destroyed and the status descends. He presents these definitions as strange and seemingly mystical, yet argues that Rabbi Shlomo Fischer demonstrates them quite convincingly from halakhic consequences.
A critique of the “unity of opposites” and escaping from logic
The text rejects the feeling that religion exempts one from logic, and sees statements about the “unity of opposites,” “leaping into the vacant space,” and “living beyond reason” as expressions of confusion and intellectual laziness meant to evade the problem. It presents the solution as precise thinking that identifies legal statuses as entities rather than properties, thereby dissolving the apparent contradiction. It argues that in Haredi yeshivot the term “legal status” is used correctly, but usually without asking what exactly it is, and that conceptualization has an advantage similar to studying grammar rules after acquiring a natural language.
Paradox, intuition, and the dilemma between surrendering and fighting an argument
The text defines a paradox as an argument that appears logically valid but leads to a conclusion that is not true, and describes a situation in which a person knows the conclusion is wrong even though he cannot find a flaw in the reasoning. It distinguishes between two rational situations: one in which one should abandon a position because of a good argument, and one in which one remains with the position even though no refutation has yet been found, and it says he has no clear criterion for always distinguishing between them. It rejects the claim of “logicists” that one must give up any assumption for which there is a proof against it, and emphasizes that living only at one of the extremes—either “beyond reason” or “only logical arguments”—is an easy solution that evades real dilemmas.
The example of the blind man and the sighted man as a model for rationality relative to available data
The text gives a parable about a blind man and a sighted man who enter a sealed room full of furniture, after which the sighted man returns and claims the room is empty, while the blind man has a logical argument that it was impossible to remove the furniture. It says the sighted man will say, “With all due respect to logic, I see an empty room,” and that the blind man may cling to his argument, and that both are acting rationally relative to the data they have. It insists that the rational response is not to say “the furniture didn’t leave and yet the room is empty” as a parable of the unity of opposites, but to look for how the furniture nevertheless left or where the flaw in the argument lies.
A critique of “where reason ends, faith begins” and the danger of uncritical thinking
The text states that “where reason ends, nothing begins,” and presents the slogan as a means of self-soothing when one does not know how to locate the flaw in a counterargument. It argues that presenting faith as irrational and “beyond reason” shoots itself in the foot and is also dangerous, because it allows acceptance of “any nonsense” and neutralizes logical control. It ties this to phenomena such as cults and mass suicides, and to the mechanism by which one accepts something “because someone said so” and then explains that it is “beyond reason.”
Trust in sages, trust in an expert, and restrained personal responsibility
The text accepts trust in an expert as a logical possibility so long as it remains supervised and under the responsibility of the decision-maker. It compares this to trusting a doctor and to the ability to refuse even an expert when it is clear he is missing something, and emphasizes that the final decision remains the person’s own. It argues that the concept of “trust in sages” usually appears דווקא when the person feels that something “doesn’t seem right to him,” and therefore it requires oversight rather than manipulation that bypasses “the cognitive filter.”
A metaphysical bond between a person and his property as a system of peripheries
The text presents property as a distant periphery of the person, similar to the body, and cites non-halakhic and philosophical sources for this conception. It cites the Vilna Gaon on the Book of Esther, who interprets “to destroy, to slay, and to annihilate… and to plunder their goods” as four layers of the person: soul, spirit, life-body, and property, and parallels them to the four commandments of Purim: reading the Megillah, joy, feast, and gifts to the poor. It adds the rabbinic exposition of “with all your might” as meaning wealth, and cites Rabbi Tzadok, who argues that all of a person’s possessions “all stem from the root of his soul,” to the point of a view that ownerless possessions are the result of a root that has not yet been rectified.
Impulse as an expansion of the self and the distinction between proper and excessive use
The text proposes that all basic impulses are a tendency to enlarge the person and expand the self into reality, including eating, honor, wealth, and sex through having children. It argues that the impulse is not evil in itself, and that “to serve Him with both your impulses” is not the repair of evil but the avoidance of corrupting something good through incorrect or excessive use. It describes nationalistic impulse as the expansion of the “I” into the nation, and distinguishes between healthy nationalism and chauvinism as a negative impulsive state, while leaving the impulse toward idolatry as a complex question, since it seems like an expansion of divinity rather than of the self and is still problematic.
Liability for damages caused by property: two frameworks and a proposal for liability placed on the property itself
The text presents two views in understanding liability for damages caused by harmful property: liability because of negligence in guarding it, or liability because the damaging thing is a person’s property; according to both views it is agreed that both “my property” and negligence are needed in order to obligate payment, and that proper guarding exempts. It proposes two formulations: a metaphysical bond in which the property is a periphery of the person and therefore “a part of me caused damage,” or a framework in which there is a “status of ownership” on the property, creating room to say that the property itself incurred liability and the liability is merely imposed on the owner. It argues that the second framework has notable consequences, and introduces examples in which there seem to be liabilities imposed on animals themselves.
Liability and punishment for animals: Nachmanides, an ownerless ox, and the ox of the wilderness
The text cites Nachmanides on “from every beast I will require it,” raising the question of whether an animal has understanding enough to be punished, and answers, “It is a royal decree,” connecting this to the law of “the ox shall surely be stoned,” which is not a punishment of the owner’s property, because even the ox of the wilderness is liable to death. It emphasizes that this is about the death sentence of an ox judged by a court of twenty-three, and not merely killing it to prevent future damage. From this it presents a conception of liability imposed on the animal or property itself.
An ownerless ox that gored, seizure and acquisition, and the meaning of the verse
The text presents the ruling in the Shulchan Arukh: “An ownerless ox that gored, and before the injured party seized it someone else came first and acquired it, is exempt,” and likewise, “If his ox gored and he declared it ownerless before standing trial, and someone else acquired it, he is exempt,” but “if he himself reacquired it, then he is liable.” It emphasizes that the Talmud brings a verse to derive this law, implying that without the verse there would have been reason to say that the injured party could seize the ox even after someone else had acquired it, because the ox itself is “liable.” It proposes an understanding according to which, even if the ox is liened for payment, once another person acquires it there is no justification for harming him on account of the ox’s debt, and therefore the verse exempts the acquirer even if there was otherwise room to view the ox itself as liable.
The burden of proof: Chazon Ish, Pnei Yehoshua, and plausibility as shifting presumptive possession
The text describes the standard practical implication regarding the burden of proof when the injured party sues and the damager claims, “I guarded it properly,” and presents Pnei Yehoshua as disagreeing and placing the burden of proof on the injured party. It states that the common explanation attributing to Chazon Ish the view that “the very fact that my property caused damage creates liability” and therefore the burden of proof lies on the damager is incorrect according to Chazon Ish’s wording, because Chazon Ish explains that the burden of proof is on the damager since it is implausible that he guarded properly if the ox caused damage. It sharpens the point that Chazon Ish’s innovation is that presumptive possession can shift according to the plausibility of the claims and not only according to actual monetary possession, and it parallels this to the idea of “removing from a presumption” also in the areas of ritual purity and non-monetary presumptions.
Inciting someone else’s dog and one’s own dog: grounds for exemption and an explanation through “liability on the dog”
The text presents the Talmudic topic of “inciting,” where a person incites someone else’s dog against a third party’s property, and says there is an opinion that exempts him because it is indirect causation and the dog is not his property, so there is no ordinary liability of damages caused by property here. It notes that later authorities raise a surprising possibility that even if he incited his own dog he is exempt, and presents this as extremely difficult in light of an a fortiori argument from liability for negligent guarding. It proposes an explanation in which the fundamental liability is placed on the property itself, and the owner pays because he is “the deep pocket,” but only when there is justification for imposing the property’s debt on him through negligence in guarding; when it is a case of incitement there is no “liability on the dog” in that sense, and therefore there is nothing to transfer to the owner even though on the level of guarding he behaved even worse.
Breaking down the dichotomy: two main conditions, not “cause and condition”
The text criticizes the yeshiva pattern of framing conceptual inquiries as a dichotomy of “either this or that,” and argues that in damages caused by property both components are jointly fundamental: both that one’s property caused damage and negligence in guarding it. It proposes a division of roles in which “my property caused damage” creates liability on the property, and “negligence in guarding” allows the liability to be transferred to the owner instead of sparing him as an innocent third party. It concludes that within this framework, both the question of burden of proof and the question of inciting do not prove either extreme by itself, because liability is created only through the combination of both components, and each one, when missing, leads to exemption.
Full Transcript
[Rabbi Michael Abraham] The claim was that unlike the accepted ways of thinking in ordinary legal systems, where when we talk about ownership we mean a bundle of rights, in the halakhic context ownership is first of all a metaphysical state from which rights are derived. And that metaphysical state has implications beyond legal rights. We saw Bentham’s approach, we saw payments for damage caused by one’s property, and today I’ll talk about that a bit more. And in the end we also saw that this metaphysical state, at least in Jewish law, is treated in some way as a kind of metaphysical entity. Because you can speak about some kind of metaphysical bond between us and an object not necessarily in terms of a metaphysical entity. But because of the opposites and the practical ramifications moving around in the field, I said that relations of opposition exist between properties but not between objects. And when people say that a woman is both a married woman and divorced, apparently they see it as though the status of married woman and the status of divorced woman are upon her, meaning as though there are two entities, so to speak, resting on her. And I also mentioned Rabbi Shlomo Fischer, who even says that the legal status hovers. When you make something conditional, then the legal status hovers. And when the condition is fulfilled, then the legal status lands on the object. He calls this a destroying angel, meaning that something holds the legal status up above and does not let it descend below, and then if the condition is fulfilled that angel is destroyed and the legal status can land. Now that sounds like strange, mystical kinds of definitions, but I think he shows it quite convincingly from halakhic implications. Meaning, I think there’s something interesting there. That’s roughly where we got to.
And I mentioned, when I began the previous lecture, it was after some riddle I asked at the end of the one before it: how can it be that a woman is both a married woman and divorced at the same time? So I’ll just comment on that with something we already discussed in the past. Very often there’s a feeling that if we are dealing with religious matters, with divinity, then maybe we are exempt from logic. Meaning, fine, there’s a contradiction, everything is okay, we’re above that, all kinds of amorphous statements like that, which sometimes sound very deep, but in my opinion their purpose is to evade dealing with the problem. When you live with opposites and the unity of opposites and leap into the vacant space and all kinds of sayings of that sort, which for some reason always sound incredibly profound to people—to me it just expresses a kind of mental confusion. Meaning, a collection of words that says nothing, and in a certain sense expresses laziness. Instead of thinking about the matter and trying to suggest a solution, we’re above the… I don’t know what, rolling our eyes upward. A solution, for example, is the sort of thing I talked about before—that we understand that at the foundation legal statuses are treated as entities and not as properties. And then it seems to me that suddenly it looks completely fine to be both a married woman and divorced.
So I think that very often—and I also spoke about the terminology of the yeshiva world, say in Haredi yeshivot—I said that in Haredi yeshivot they use the term legal status correctly. But I think people don’t ask themselves—I know, I’ve spoken with people—they don’t ask themselves what exactly the legal status really is. Meaning, they don’t define for themselves that legal status is an entity and not a property. But there’s a correct intuition about how to use it. Meaning, I do think people understand this even without conceptualizing it and defining it clearly. And there’s a downside and an upside to the natural, simple, intuitive approach. In a certain sense it’s like speaking a language. Someone who learns a language at home speaks correctly; he doesn’t need rules and definitions to help him speak. But on the other hand, I think that after thinking it through and defining it, it still sheds additional light on the matter. Meaning, you understand why these intuitions you have intuitively suddenly become clearer. Like with language: after you define the rules, suddenly you see that your linguistic intuitions become clarified. Meaning, you understand where to apply them, how to apply them, what exactly you’re doing here, why this is so and that is so, even though naturally you often won’t make mistakes. But still, conceptualization and definition help define things.
So those who evade dealing with questions, very often it’s not that they’re really in trouble and are just sweeping things under the rug. They sense correctly. Meaning, these are people who understand there isn’t really a problem here. Meaning, they have a very strong intuition that clearly everything is fine, only when you present them with the formulation, that jams things up. Meaning, you don’t know what to do with it. Fine, but then we live beyond reason, and then all the chatter and slogans start. But I think very often it is built on a certain intuitive feeling that yes, I understand this—meaning, something about the question here is defective. I don’t know how to answer it, but something is defective.
Quite a few people have already asked me: what do you do in a situation where someone asks a question, you have no answer, but it’s clear to you that he’s wrong? Meaning, you understand that he’s wrong, but you can’t find any bug; it looks completely correct. That’s often what the notion of paradox is. And the concept of paradox is basically that you present—we once talked about pilpul—you present an argument that looks good, convincing at the logical level, but its conclusion is not true. That’s basically a paradox. And a paradox, by definition, assumes that you remain with the claim that the conclusion is not true, even though you found no bug on the way to that conclusion. In practice the conclusion isn’t true—you know that. But here there’s a logically valid argument in which you found no refutation and no flaw.
It’s not like that? Then you should give in. No—sometimes there’s an intuition that says, okay, I’m not sharp enough to grasp where the problem is, but it’s obvious to me that there’s a problem in this argument because this conclusion doesn’t seem correct to me. And then all these slogans start about living beyond reason and so on. So I’m saying: when people talk about living beyond reason, sometimes they’re saying nonsense and remaining with nonsense, and the excuse is that they live beyond reason. But very often they’re not saying nonsense. Meaning, they’re saying something correct, and someone attacks them with an attack they don’t know what to do with—they don’t know where the bug is—and then they say these slogans. Those are different situations, and it’s not always clear, and that itself is a dilemma. If you accept that these two situations really exist, the question is how to decide when you’re in this situation and when you’re in that one. Someone presents you with a good argument, but its conclusion seems obviously incorrect to you. Sometimes I understand that maybe it only seems incorrect to me, but apparently I was mistaken. The argument is good and I need to give up my conclusion—meaning, then apparently it’s not correct. And sometimes I say no, no, it’s obvious that this is true; there’s something wrong with the argument even though I can’t put my finger on where. I don’t know when you say this and when you say that, but there are two such situations.
The logicists, those who cling to logic, very often preach that you should give up any assumption for which you have proof against it. It’s just a prejudice, and that’s it. I don’t agree with that, even though many times I myself relate that way to people’s arguments—when I present some argument and they tell me, no, no, but this is certainly true, I say, you’re talking nonsense, there’s a mistake here. But that’s only because in my opinion, in that particular case, the argument really is a good argument and has no bug in it—not that there’s a bug that I simply haven’t found. I don’t know how to formulate the criterion for when we decide it’s like this and when we decide it’s like that. And therefore other people may think differently. So I’m saying, I can’t tell you clearly when to do this and when to do that. One thing is clear, though: to say that we live beyond reason and so on—that doesn’t help at all. That’s not an explanation. You can say: look, there’s a problem here, I haven’t yet figured out where the bug in your argument is, but I still haven’t been convinced that this conclusion isn’t correct. I still think it is correct. That I completely accept. But these explanations about living beyond reason and so on—they’re just evasions. It’s simply a desire not to deal with the difficulty.
We already mentioned that The Unity of Opposites is the title of a book by Nicholas of Cusa, a Christian theologian, who advocates this idea there. More generally, in Christianity there’s a strong current of this sort—Tertullian, who says “I believe because it is absurd.” Not “despite the fact that it is absurd,” but “because it is absurd.” Meaning, faith by definition is supposed to be absurd. And somehow, in recent generations, I think מאז the Hasidic movement— in my opinion it had a bad influence in this regard—this somehow penetrates into the Jewish world, Jewish thought. Rabbi Kook speaks about the unity of opposites, and I really think that in the end what people mean is something meaningful. Rabbi Kook, for example, was very far from being stupid, right? Meaning, it’s obvious that when he said such a thing he felt that it was true; he just didn’t know how to formulate why there was no problem here, even though it appears to be a contradiction, and then he talks about the unity of opposites. And yes, in my opinion it is a great mistake to do that. Say: you haven’t convinced me; it still seems correct to me. Fine. But “unity of opposites” means: I’ve raised my hands, I’m not willing to think. He says it, and that’s all. It doesn’t help anything.
[Speaker C] There’s also that saying, “where reason ends, faith begins.”
[Rabbi Michael Abraham] Yes, exactly. Where reason ends—where reason ends, nothing begins. Where reason ends, there’s nothing more. And if faith begins there, then you’re mistaken. By the way, there too, many times when people say “where reason ends, faith begins,” what they mean is: I believe intuitively even though there are maybe some good arguments against it that I can’t quite put my finger on what’s wrong with them. And again, that’s a kind of expression like “the unity of opposites.” And then you calm yourself down: where reason ends, faith begins. What you really mean to say is that the formulation attacking faith has not convinced you to give it up. You don’t know how to put your finger on what the problem in it is, but it hasn’t convinced you to give it up. And that seems legitimate to me, as I said. Meaning, sometimes a person can’t find where the problem is in an argument raised against him. But statements of that sort, which drift even further in that direction, are dangerous too. They’re dangerous because from there you begin accepting any nonsense. Meaning, then you completely lose logical control, because in that area basically anything goes. And then if some baba or some other guru tells you something, you immediately accept it because where reason ends, faith begins, and in fact you aren’t activating any critical control at all. And that is very dangerous.
The fully reductionist position that says that wherever there is a good argument one must give up what one thinks—I think that’s also not correct. The point is that life is complicated. Meaning, you can’t always make decisions by criterion. Fine. If I once mentioned the example of the Chabad repeater, Rabbi Cohen, who used to stay in Yeruham, and when Rabbi Blumentzweig wasn’t there, I hosted him there a bit, and he spoke there in the study hall, gave some talk in the study hall. In that talk he gave a parable that I’ve used more than once, because it really struck me—a fascinating Jew, by the way. He gave a parable there about a blind man and a sighted man who enter some sealed room. It has no doors, no windows, nothing—just call it phenomenological. And they find that it is full of furniture. Full of furniture. Okay. They go outside, lock the door. It’s the only opening to the room. They lock the door, put two chairs against the door, sit down. Fine. After an hour the sighted man gets up, goes into the room, opens the door, enters, and tells his blind friend: listen, the room is empty. All the furniture disappeared, there’s no furniture. So the blind man says to him: what nonsense are you talking? The room is sealed, it has no entrance, an hour ago it was completely full of furniture, and during that whole hour we were sitting by the opening, nobody passed there and removed furniture or anything. Conclusion: there is now lots of furniture in the room, as was to be proved. A logical argument. Okay?
Now, about the blind man, I don’t know what he should do in such a situation. Should he accept the testimony of the sighted man who sees? Or he has a logical argument? And that really is a dilemma; I don’t know what he should do in such a case. But what the sighted man should do, I know. The sighted man will say: with all due respect to logic, I see an empty room. An empty room. Fine? Your logical argument has no refutation; I don’t know where the refutation is. But the room is empty—I see. Okay? Maybe sight deceives? In theory it could be that my sight is deceiving me. But I say: with all due respect to logic, I see. And again, this is an expression of something true: both of them can behave in a completely rational way. The blind man may not believe him, and the sighted man may remain with his position that the room is empty. And both are right. Right not in the objective sense, but right in the sense that they are behaving rationally. Meaning, each one according to the data he has, I think he’s making the decision that follows from his data. That’s fine. Meaning, both are making reasonable decisions. Just don’t explain to me that it’s beyond logic. It’s obvious that there is some bug here that you missed. If the room is empty, that means the furniture left it. It’s not that the furniture didn’t leave and nevertheless it’s empty. That’s not it. Okay? It could be that you didn’t understand—there is after all some way to remove furniture from a room like that, I don’t know, maybe you missed a door, maybe there’s a way to evaporate furniture, I don’t know exactly what. But you can assume all of that and reject the logical argument because you see that the room is empty. Fine? Don’t tell me stories—no, no, no, the furniture didn’t leave, you’re right, and nevertheless the room is empty—as a parable for the unity of opposites, yes? That’s nonsense. If you’re a rational person, then look for what the problem is, meaning, how the furniture nevertheless left—
[Speaker B] The furniture—and it really requires a very high level not to be convinced by what… What? You need a very high level of certainty in order to…
[Rabbi Michael Abraham] Yes—sight, or certainty. Meaning, you have to be very, very convinced in order for the logical argument not to… right? Right. Therefore very often you have to check yourself whether this isn’t just some habit that is convenient for you not to give up, and therefore you don’t relate to logical arguments. And that’s simply cheating. Because very often, yes, there is a good logical argument and you need to give up what you think. Again, the game is a delicate one. To run off to one of the two sides—to say that it’s beyond reason, that’s one escape; to say that everything is only logical arguments, that’s a second escape. It’s very easy to live either way. You’re exempt from dilemmas. But the truth is that there are dilemmas. Very often we find ourselves in such a situation, where someone raises a good argument and you don’t understand what the problem there is, but it’s clear to you that… yes? An argument like weakness of will, which we also discussed, is in my opinion a very strong argument. I suggested some explanation for it on the website as well; I’m not fully convinced that that explanation is a good one. I also explained there why I don’t think it’s completely good. But it’s obvious to me that there is such a thing as weakness of will, that we act against our will, even though the argument is, in my view, a very strong one.
Okay, so that was only a remark about what to do with contradictions, and this tendency to live peacefully with contradictions in religious contexts. I think this tendency is, first, a lazy tendency, and second, here we see that whoever continues living peacefully loses out. He loses these insights that tell us what legal status really is, and that behind Jewish law there is metaphysics. We learn—or at least that’s how the sages saw it—we learn a great deal from this kind of analysis. The person with healthy intuition doesn’t know that, even though he uses the term legal status correctly; still he lacks clarity. Meaning, thinking about these problems and trying to crack them, to see where the logic isn’t working, teaches you something. Even if it won’t change the way I use the concept of legal status. So say the person who intuitively lives in peace with the concept of legal status will say: the woman is both divorced and a married woman. You ask him: wait a second, if she is divorced she isn’t a married woman; if she is a married woman she isn’t divorced. He says: she is both divorced and a married woman. So the person who says we are beyond reason is right—in the sense that it is true that you can say that, and he will continue using it and he will be right, and in fact the person attacking him from the side of logic is wrong. But the fact that he doesn’t bother to think why he is right—that’s his loss. He loses some dimension that he could have clarified for himself, or gained something more.
[Speaker D] It’s really like what you said earlier about faith—as if those who don’t come to faith through logic, but… as if that language doesn’t speak to them. There are two fairly familiar approaches: there’s the Maimonidean approach, let’s call it that—okay, everything has to be logical and understanding faith is logical. And there’s the approach of the Kuzari, say, which tells you: listen, this doesn’t work through logical persuasion.
[Rabbi Michael Abraham] No, the Kuzari didn’t say that—not as far as I know, at least. I’m not an expert in the Kuzari, but as far as I know, his logical persuasions are not philosophical but historical and traditional, which is also logical persuasion. He says: if the tradition is transmitted and a father passes it to his son, that’s an argument. He raises an argument. He doesn’t say, accept this because—I don’t know what—just because. On the contrary, the Kuzari tries to persuade you of it; he doesn’t tell you just to accept it. It’s a book meant for thinking, but the thinking is not philosophical. His thinking is not philosophical but rather historical or social or things like that.
[Speaker D] But someone who says, “I believe because I feel that I believe”?
[Rabbi Michael Abraham] No problem. In my view that is completely rational. The distinction between intellectual faith and, I don’t know, emotional faith—or whatever you want to call it—is again a confusing distinction.
[Speaker D] No, I’m not on the logical playing field at all. I’m just not in the logical playing field.
[Rabbi Michael Abraham] No, I don’t accept that. There is no other playing field. My claim is that—or rather, the logical playing field is a bit narrower. More precisely, let me formulate it better. My claim is: look, logic is built on premises,
[Speaker B] right?
[Rabbi Michael Abraham] So even if I am in the logical playing field, ultimately the argument that leads me to faith in God is based on premises. And where did I get the premises from? From intuition. So someone could say: I have an intuition that there is a God. Why do I need intuitions for premises and from there reach the conclusion? That is a completely logical move. I have no problem with such a move. No problem at all—it’s a logical move. An argument in which the premise itself is the conclusion is still an argument; it’s the banal case of an argument, yes? X implies X, meaning premise X, conclusion X. It is a valid argument. Whoever accepts the premise must accept the conclusion, so it’s a valid argument. Of course it’s a banal case of a logical argument, but it is a logical argument. It only means that he has no other premises that are clearer, from which he derives the faith; rather, the faith is the premise that is clear to him. And that’s perfectly fine. It’s a completely logical move, fine.
But very often people think that in order to justify that they need to explain that these are mystical, ecstatic experiences of one sort or another. Leave it—our whole rationality is also built on intuitions that we do not know how to prove, but it is simply clear to us that they are true, and that is perfectly fine. That is part of reason. That is exactly the point. And therefore I say: very often these people are right. It’s not that they aren’t right. They just formulate it in a language that both shoots themselves in the foot and is also dangerous. It shoots themselves in the foot because then it presents faith as something irrational, and I think that is not true. And second, it is also dangerous because if you really accept things even though they are irrational and beyond reason and so on, then you will also accept other things like that.
Just now on the way here I heard on the news—they had some segment on the news they launched today, every Thursday, about things happening in the world. They talked about suicides in mystical cults. Jim Jones, forty years ago—nine hundred people committed suicide there in South America. Americans—that’s about as American as it gets, right? They committed suicide in South America. And of course there was Koresh, and all those crazy cases. That is the result. That is the result of what I’m talking about. When you’re willing to accept something because it is beyond reason. Because Koresh told us that this is so, therefore it is so. Oh, it isn’t logical? It has no support? Where did he even get it from? It’s beyond reason. Uncritical thinking is a very dangerous thing. It’s very dangerous. Besides the fact that it’s incorrect, it’s also dangerous. And very often in the religious outlook people demand that others be uncritical, because otherwise you’re not a true believer—you’re going with reason. Anyone can go with reason. Where is your religiosity? Religiosity is only where reason ends and faith begins. And that’s how you get to all the bizarre things, from ISIS to Koresh to I don’t know what, all those lunatics—because those are exactly the people who accept things just because someone said so.
[Speaker B] So they’ll tell me: “trust in sages,” and “left is right”…
[Rabbi Michael Abraham] No, I think trust in sages is fine, so long as it is supervised. I personally don’t have so much trust in sages, generally, but that doesn’t matter—that really is a personal matter. I’m willing to accept people who say, “Listen, this person impresses me, he seems wise to me, I’m willing to go with him.” That seems fine to me; I don’t think it is invalid on its face. But again, always in some critical sense. Look: is he really wise, or is he charismatic? Do you have indications that he is wise, or is this just some sort of… Even the things you do not through logic, not through a constructed logical argument, still need to be under supervision. That’s what I mean. I have no way of defining it exactly, but in the end the point I mean is that ultimately you are always the responsible party. That is the point. If you make the decision because you rely on him, that is perfectly fine. So you relied on him and therefore decided to do it. But the decision is yours. He is not supposed to manipulate you in a way that doesn’t pass through your cognitive filter at all, so that he makes the decisions for you. That is a problematic state. You make the decisions, and trust him. I also trust a doctor who prescribes me a medication and I don’t know how it works. Absolutely. I trust that he knows and that he probably doesn’t intend to abuse me, so I trust him. But truly, if in some situation I come to the conclusion that I don’t accept what he says, then I won’t do it, even though he knows more than I do. I’ve already had such cases. A doctor lowered the dosage of some medication I take. I didn’t lower it. He told me it was dangerous; I didn’t lower it. It was clear to me that he was missing something, and I knew what he was missing. Later he also understood that he had missed it and retracted.
So I’m saying: as long as it is critical, I have no problem with your believing a person who knows more, or who is wiser. That’s perfectly fine; it’s also logical, in my opinion. If you go to someone in a certain area—not a professional area, but you see a wiser person and he says something different from what you think—I can understand someone who says, “Okay, I don’t understand why, but he is probably right and not me.” And that’s fine. As long as you decided that, and you understand that there are indications he really is wiser, and in a place where you still won’t agree, then despite his wisdom you still won’t do it—meaning, as long as the control remains in your hands, I don’t think it’s… it’s fine. I’m not alarmed by people who hold of others that they are wise. That’s perfectly okay. What happens is that whenever people use the term “trust in sages,” it’s usually in situations where people feel it doesn’t really seem right to them. Because if I already think that way anyway, no one is going to come to me with trust in sages. Meaning, I’m already doing it. When do they come to me with trust in sages? When what is being suggested here doesn’t seem right to me and I’m not going to do it, and then they tell me, “But trust in sages.” But trust in sages… what?
[Speaker B] It’s similar to what the Rabbi said—trust in a doctor or trust in an expert.
[Speaker B] Right, exactly. You test a few things. There was once a children’s encyclopedia—long ago I read a few entries there that I understand and thought I understood, and then I said: wow, if it’s like this in entries I know, then apparently the rest are like this too.
[Rabbi Michael Abraham] That’s how it is. Either good or not good. Yes, right. In the media too, you know, when you see a certain case in the media that you know firsthand, you can start getting a sense of what media reporting is worth. Because there you also know it yourself, and I’ve happened to know a few such cases, and little by little I understood that really, it’s unbelievable what comes out. I mean, it’s truly amazing, the things presented as simple facts. You say: what, that’s the fact? Forget the interpretations—I’m not even talking about interpretation anymore… facts. He’s lying to your face! So very often, yes—and even if they rounded off a few corners a bit—but really that’s not… that’s not the truth, and that’s very problematic. All right, in short, that’s the critical foundation, and circumstances have to be dealt with, not avoided by saying vague things and even leaving behind some bit of wisdom that will come later. Okay, I want to continue with another passage on this matter, about one of the indications I brought for the metaphysical connection between a person and his property: the obligation to pay for damage caused by one’s property. I said there are two views on the question of why a person is liable when his ox causes damage, when his property causes damage. One view is that it’s because of negligence in guarding. These are the kinds of conceptual analyses of later authorities (Acharonim) and all that. And the second view says it’s because of the very fact that it is his property. The very fact that it is his property—if it causes damage, then I have to pay. Both views agree that it has to be my property and that there has to be negligence in guarding in order to obligate me. The whole question is: which is the obligating principle, which is the cause of the obligation, and which is the side condition. They both agree that if I guarded properly I’m exempt, and they both agree that if it isn’t my property then I’m also exempt. That’s agreed by everyone; those are facts from the Talmudic text. The only question is the relation between these two requirements: that it be my property and that there be negligence in guarding. Is the fact that it’s my property what obligates me, only that if I wasn’t negligent then I’m exempt—there’s an exemption—but the core obligation is by virtue of the fact that my property caused damage? What does that mean? I said that it’s a wider periphery of the person; just as the body is really only a periphery of me, so property is a somewhat wider periphery. There’s a section here in an unpublished article; I brought several non-halakhic sources here on this point. There’s the Vilna Gaon on the Book of Esther: “And letters were sent by couriers to all the king’s provinces, to destroy, to kill, and to annihilate all the Jews, young and old, children and women, in one day, on the thirteenth day of the twelfth month, which is the month of Adar, and to plunder their possessions.” Also the property—they take the people, the family, and the property. All these are peripheries of the person. The Vilna Gaon says: The explanation is that a person has four things: nefesh, ruach, neshamah, and body. And the nefesh and the body are one, as it says in the Zohar that the nefesh is partnered with the body. And the fourth is possession. He says that really… nefesh, ruach, neshamah, and body are not four things but three, and the nefesh is the body. Meaning, the order here is reversed: the neshamah is the highest, ruach is beneath that, and nefesh is beneath that, and that is the body, and the nefesh is one thing with it. And that’s what the Vilna Gaon says. And nefesh is basically, in a certain sense, biology as opposed to physics. So it is still within the scientific realm. But when there is a living body—or in the biological description, the living body—it doesn’t even refer to the soul. Physics and biology. Okay? Say vitalism is a dirty word today, even though in my view there’s no real basis for that, but that’s what’s accepted. But still we all understand that there is a difference between the physical living body—physiology—and physics. There is something else there; it’s not another substance, we’re not talking about another kind of material, but there is something in this material body that turns it into something alive, so that it’s not an inanimate body but a living one. That is what is called nefesh. Therefore nefesh still belongs to the scientific, biological realm. Ruach and neshamah are already the spiritual parts within us; that’s why it’s called spiritual, because it is ruach. Therefore he said that nefesh and body are the same thing; a living body is simply another kind of material, and therefore it is one thing. And what is the fourth thing? The fourth thing is acquisition, our property—that is the periphery. Essentially, the neshamah is the person himself, the ruach is the close periphery, nefesh and body—which are one thing—are the next periphery, and the even more distant periphery is possession, property. That’s what the Vilna Gaon says. And it is known that the soul is central for its commandments, and Haman wanted to uproot everything—to destroy those commandments that correspond to the soul. “To destroy, to kill, and to annihilate.” “To destroy” corresponds to the soul; “to kill” is the spirit, the spiritual ruach; “to annihilate”—even the living body should disappear from the world, so that no Israel would remain there; and “to plunder their possessions” is possession. Meaning, “to destroy, to kill, and to annihilate, and to plunder their possessions” corresponds exactly to those four things, to dismantle, so to speak, to wipe out the Jews. And corresponding to them, on Purim we were given four things: the reading of the Megillah, where an additional commandment was added, corresponding to what he wanted… and corresponding—wait—corresponding to what he wanted to destroy, the soul; and corresponding to the ruach, which is in the heart, as was said, “my heart shall rejoice,” we were given joy, because one must rejoice on Purim; and corresponding to the body, we were given feasting. Reading the Megillah, joy, feasting—that’s the body. And corresponding to “to plunder their possessions,” we were given gifts to the poor. Interesting. That’s a typical Vilna Gaon-style insight. Right? I mean, he draws it from the verses themselves. It’s very beautiful. Four circles around the person, four things Haman wanted to do, and corresponding to them four commandments were instituted for the four peripheral circles, the three peripheral circles around the core. And also what is written: “And you shall love the Lord your God with all your heart, with all your soul, and with all your might.” So the Sages expound in Berakhot that “with all your might” refers to property. Again, there are several circles here, and the outermost circle is one’s property. And Rabbi Tzadok also said: Everything that belongs to a person—his wife and children, his manservant and maidservant, his ox and donkey, his tent, his silver and gold, and all that is his—all of it is from the root of his soul. For even all the inanimate, plant, and animal realms have roots in the human soul, and the root of their vitality comes from him, as is known. And what is acquired by him is that their root of vitality comes from him. And ownerless acquisitions, and every living creature and bird, are so only because he has not yet rectified the whole root of his vitality. Meaning, his claim is even more far-reaching. He says there is really no such thing as ownerless property. Ownerless property exists only because there is some person who has not yet found within himself, has not yet been rectified, has not yet found within himself the root that attaches that property to him. That is a much more far-reaching claim. But that is what he argues. And therefore, as the person is, so is his property, as they said in Chullin: “As for the animals of the righteous, the Holy One, blessed be He, does not bring mishap through them,” and the donkey of Pinchas ben Yair. Likewise, in Noah’s case, all the species that were in the ark, which he fed, presumably were from his root. That’s already Hasidism. Elsewhere he wrote some… there is also this in the writings of the Ari and in the foundations of Rabbi Charlap in Mei Marom. In short, there are several aspects here, several sources that say this idea. But I want to sharpen a bit more this matter of a person’s obligation—and now I’m returning to the legal issue—the obligation of a person to pay for damage caused by his property. It’s interesting, by the way.
[Speaker B] Where did they get this from? At first I thought it was just a fiction they created in order to justify things. Where did they get the idea that…
[Rabbi Michael Abraham] No, this claim—that’s what I’m saying—it isn’t a fiction. At least that’s how they understood it. Maybe in the market they didn’t understand it that way, I don’t know. They understood that behind this there is a metaphysical reality. A person’s property is me, like my body, just a more distant periphery than the body, but still a circle connected to me. The satellites orbiting around me—my property, my body, my nefesh—all of this is basically the person. By the way, I once thought that a person’s drives, fundamentally, are always things by which he tries to enlarge himself. A person’s drive is to become bigger. The drive to eat is simply to be. Honor too, and of course again, is to enlarge oneself. And also the drive to take control of wealth, of property. All the drives are in some sense the person wanting to expand, to make himself bigger, over more and more parts of reality. Therefore at the root of all human drives—even, by the way, the sexual drive—the sexual drive is to produce children. And that’s what he says: his children and his wife—and all of that is the person’s periphery—and he wants to enlarge himself through that, by having children. Not all drives are bad, I’m saying. Only excessive use of drives is problematic, but drives do have a function. Meaning, I’m not using the term “drive” here to denote something bad; rather, a person has some natural tendency to enlarge himself. Now the question is how he does it and in what measure, okay, that already—you have to control that. But it’s interesting to look at it in this sense: that basically all our basic drives are, in some sense, to enlarge ourselves. That is the fundamental movement of the drive.
[Speaker E] What about the drive toward idolatry?
[Rabbi Michael Abraham] The drive toward idolatry? The drive of idolatry—that’s an interesting question. I’m not so familiar with it, because we don’t really have it anymore; they abolished it long ago. But the drive toward idolatry—that’s an interesting question—it’s as if to enlarge, or broaden, divinity, not to broaden me. Meaning, to see divinity in more and more places. So in that sense it looks like a lower drive, but in a certain sense it is a higher drive. Meaning, the drives I spoke about earlier are to enlarge myself, whereas the drive of idolatry is to see more of the world as divinity. Now that is very problematic, because what is not divine may not be seen as divine, but still it has a side to it that is higher.
[Speaker B] Okay, but that’s also seeing divinity as like me, I mean—
[Rabbi Michael Abraham] Yes, it resembles me. It’s not in the sense that it is me; it resembles me. So I don’t think that’s an enlargement of me, in the sense that seeing something as similar to me is not a drive that enlarges me. It doesn’t mean that because you are similar to me, I want myself to be big. I don’t know, this drive toward idolatry is very interesting. But I think that’s where it fits on the map. Meaning, to see more—so it’s enlarging, not me, but enlarging divinity. In that sense it really is a subtler drive, a subtler drive.
[Speaker D] But yes, usually the view is different: the drive is evil—basically every drive. Except what? If you didn’t have the sexual drive then no new life would be created; if you didn’t have the drive to eat maybe you wouldn’t eat, you’d wither away and die. And that’s what I said, that it isn’t bad.
[Rabbi Michael Abraham] That it isn’t bad—only excessive use of it is bad. On the contrary, the basic drive is not bad; this basic tendency is not bad. If you use it improperly, that’s what’s bad. And that’s what people mean when they say it’s not bad, “to serve Him with both your inclinations, the good inclination and the evil inclination.” Usually people think: fine, let’s fix the evil inclination by some special piety, let’s fix the evil inclination by making good use of it too. I think that is the opposite of reality. It’s not an evil inclination at all; if you make proper use of it, you aren’t fixing anything—it’s simply the right thing. On the contrary, if you use it wrongly, then you are corrupting it. So they look at it as something bad that needs to be repaired, but why? It’s something good that just shouldn’t be corrupted. Meaning, those are two different ways of looking at it. Okay. In any event, there is also a nationalist drive. That’s the same thing; it’s definitely the same thing. Meaning, it’s to enlarge, enlarge myself in the sense that now the whole nation is me. Yes, I think that is certainly also enlargement, self-enlargement.
[Speaker B] A nationalist drive?
[Rabbi Michael Abraham] Yes, certainly, it’s a strong drive. Fascism is a very instinctive thing. And again, I’m saying, national feeling and national identification—so there too there is something healthy, as with every drive. You need to identify with your people. But nationalism, as distinct from national identity, already marks the state in which this is being used problematically. There the drive is expressed in its negative sense. But there is such a drive, of course there is; nationalism is a very sweeping thing. Nationalism is a very sweeping thing; you can see nationalism running wild and expanding. It’s a very drive-driven thing. In any case, I want to talk a bit about damages, what happens—turns out—let’s go a bit deeper into this matter. One can formulate the relation between a person and his property in two ways, and I presented it as two stages, but in fact one can see it as two forms. One form is that there is a metaphysical bond between me and the property. And the second form is that there is something on the property itself, some entity, as I said before, such that this metaphysical bond is a kind of entity. There is—I’m still saying it may be the same thing, just that if we formulate the first one more precisely it will bring us to the second. But one should pay attention to this point: when I pay for damage caused by my property, one might have understood that these two formulations are different formulations in this context. Why? Because if I see the property as my periphery, then this basically means that I am liable for this payment, and it is my periphery that caused damage—meaning, some part of me caused damage, just like my body, so too my property. The obligation is on me. If I say that there is some legal status of my ownership resting on the property, then one could say something else. One could say that the property itself became obligated in payment, but if I am its owner then they impose it on me. Okay? That’s a different formulation. In a moment I’ll show you the practical differences and implications. But first I want to preface with several places where we see that obligations rest on animals. There are obligations on animals. Nachmanides writes, actually on the Mishnah in Bava Kamma 44, where it discusses an ownerless ox that killed a person. It says there that it is liable to death. There is a dispute among the tannaim, but the Jewish law is ruled by Maimonides that an ownerless ox is liable to death. The ox is liable to death. Usually we are accustomed to saying that they obligate the owner to kill it, or they kill his ox so it won’t cause further damage. But what does it mean that the ox is liable to death? “As the death sentence of the owner, so the death sentence of the ox”—it is judged by a court of twenty-three. Meaning, they are not just killing it so that it won’t continue to cause damage. So Nachmanides, on the flood, on the portion of Noah, says as follows: And perhaps so too with regard to human blood alone: every animal that tears him apart shall itself be torn apart, for “from every beast I will demand it”—that is the language of the verse. “From every beast I will demand it” means that the obligation is on the beast itself. If an animal killed a person, the Holy One, blessed be He, demands the person’s blood from the animal. I wonder, if the demanding is literal—from the animal, just as from the human—such that there is punishment involved, does an animal have understanding to be punished or to receive reward? What sense does it make to come with claims against an animal? So he says: it is the decree of the King. They do come with claims against the animal. This is the meaning of “the ox shall surely be stoned and its flesh shall not be eaten,” and it is not in order to punish its owners financially, for even a speaking ox is liable to death. That’s the Talmudic text I brought earlier. A speaking ox and an ownerless ox are also liable to death. Meaning, this is not meant to punish the owners; it is a punishment on the animal itself. And similarly, by the way, one could discuss this in all kinds of places where one needs to ask… what happens if an ownerless ox gores—not kills, but damages another ox, say by goring, where the obligation is on its body, where in the case of a tam ox the payment comes from its body, such that the obligation is on its body. Now it has no owner. So what then? One could have said that the ox itself becomes obligated; it has no owner, fine, let the injured party take half of the ox’s body. All right? Of course the injured party can take whatever he wants; after all, it’s an ownerless ox, he could take the ox even if it never gored anything. What is the meaning? The meaning is that if the ox gored and someone else got there first…
[Speaker D] What? If someone got there first and took the ox?
[Rabbi Michael Abraham] Exactly. If the ox gored and someone else got there first and took it, then he can’t take it, because it already belongs to me. That’s the implication. Now the Talmudic text ultimately concluded that one can take it and he will be exempt. It says so, and this is in Bava Kamma 13, and it is also ruled by Maimonides and in the Shulchan Arukh. The Shulchan Arukh writes: If an ownerless ox gored, and before the injured party seized it someone else came first and acquired it, he is exempt. Likewise, if his ox gored and he declared it ownerless before standing trial, and someone else acquired it, he is exempt. But if he himself acquired it, then he is liable. Fine, you yourself acquired it. And someone else who seized it is exempt. But the Talmudic text brings a verse for this. They derive it from a verse. Meaning, it sounds like were it not for the verse, there is at least a possibility in the Talmudic text that he would be liable. Meaning, the person would not be able to seize the ox because the ox belongs to the injured party, even though it has no owner—it is ownerless. More than that: the whole dilemma is, fine, but there is a verse. Were it not for the verse, it would have been so—but there is a verse. The question is what the verse teaches. Does the verse teach that that person’s seizure is invalid? Or does the verse say that even though that is the concept, nevertheless the law is such? How can such a thing be? Why is it in fact that the one who seized it is exempt even though the ox itself is liable? The answer is that if the person seized it, then now if you take the ox you are harming him, and he is not guilty. So therefore it may be that in principle the ox is indeed liable, and the injured party can take it, but if someone else came first and seized it, now you can no longer take it because you are harming me, since you are collecting the ox from me. In other words, in principle you really can take the ox. It doesn’t belong to you—you would have been able to take it; if it did belong to you then when I seized it I would not have seized what was mine. But you can take it, collect from it. However, if someone else already seized it, there is no justification for harming the person who seized it, and therefore the verse exempts—not because the ox is truly not liable.
[Speaker B] And if a tam ox pays from its own body, then isn’t the point that the body of the ox is liened?
[Rabbi Michael Abraham] Liened, yes, but not yours. That’s exactly the point. You can take it, like in a loan, you can take it. But if the person got there first, you can’t punish him for what the ox is liable for. The ox is the problem, but the person is not guilty. Therefore the verse exempts. Maybe—that’s another possibility.
[Speaker B] Why do I say no? What? It would be like someone taking in a loan where there were liened assets from which one can collect? Yes.
[Rabbi Michael Abraham] So the question is whether this looks like liened assets or not. If a lien applies by Torah law, then even liened assets—there is no lien. It depends whether lien is by Torah law or not by Torah law.
[Speaker B] Of course there are assets that have a lien by Torah law. What? A tam ox that pays from its body—certainly the lien…
[Rabbi Michael Abraham] No—whether the lien by Torah law means that it is effective against the purchaser. Why? Because even personal obligation is by Torah law according to everyone in a loan. What you owe me is by Torah law, and still there is an opinion that if you sold it then he is not liable by Torah law, only by rabbinic enactment. Why am I saying this? Because I want to explain this with respect to a certain law, specifically about the person himself, not about the one who seized it. I said there are two possible explanations for why a person is liable for damage caused by his property. One possibility is that negligence in guarding is what obligates him, though of course if it is not my property then I am not obligated to guard it. So it has to be my property for there even to be a duty to guard it. A second possibility is that the very fact that it is my property obligates me in payment, but if I guarded it properly then I am exempt. What is the practical difference? I think I already mentioned: there is no practical difference. Usually, as they grind this up in the yeshivot and all over Bava Kamma—but usually when you really test it and dig into it, it turns out there is no practical difference. Almost every suggested practical difference can be rejected. One practical difference can only be rejected in one direction out of the two, but even that one is not complete, and that is a practical difference regarding the burden of proof. That is always the practical difference everyone brings—the Chazon Ish and the Pnei Yehoshua. In section 46 of the Chazon Ish and in the section… also on Bava Kamma. The question is: if my ox damaged your ox and you sue me, and I say I guarded it properly. My ox caused damage, but I’m exempt because if I guarded it properly, I’m exempt. And you say no, you didn’t guard it properly. On whom is the burden of proof? On this the Pnei Yehoshua and the Chazon Ish disagree. The Chazon Ish says the burden of proof is on the damager, and the Pnei Yehoshua says the burden of proof is on the injured party. Usually they explain that this dispute is this very question. Why? Because if negligence in guarding is the cause of liability, then as long as you, the injured party, have not proved there was negligence in guarding, you have no claim at all—one who seeks to extract money from another bears the burden of proof. Prove that there was negligence in guarding. Okay? Of course we all agree that the ox is mine, that’s clear. The question is whether there was negligence in guarding or not. So the Pnei Yehoshua holds that the burden of proof is on the injured party. Why? Because he is the one trying to extract money; he wants me to pay him money, compensation for the damage, right? Now the burden of proof is on you. Why? Because negligence in guarding is the basis of the claim, and as long as you haven’t proved that I was negligent, I’m not even talking to you. The Chazon Ish argues that the burden of proof is on the damager. Usually people are used to explaining him as follows, and Shmuel and others write this: why is the burden of proof on the damager? Because the very fact that my property caused damage obligates me in payment. Only if I guarded it properly will I be exempt. Fine, so if I want to be exempt, the burden of proof is on me. There is already an obligation on me—my property caused damage, so that’s it. Now I want to be exempt, and for that I need to prove that I guarded it properly; the burden of proof is on me. That is ostensibly the dispute. But with the Chazon Ish, that is not correct. Everyone brings it, like a small flask of oil, everyone runs after Shmuel and whoever first brought it. It’s not correct. When you look in the Chazon Ish, you see that it isn’t right; he doesn’t write that. Rabbi Feinstein once told me. In the Chazon Ish it says that the burden of proof is on the damager because if the ox caused damage, then it is not reasonable that you guarded it properly. Otherwise how did it cause damage? Now, it’s not that it can’t happen; it can be that you guarded it properly and nevertheless the ox caused damage. But it is unlikely. And since it is unlikely, the burden of proof is on you. So the Chazon Ish does not say that the very fact that my property caused damage obligates me in payment—that is, on the contrary, not his view. He argues that negligence in guarding obligates me in payment. Except that there is a presumption that if it caused damage, I was probably negligent. If I want to prove that I was not negligent, I have to prove it because the alternative is unlikely. And that is a novelty. The Chazon Ish wants to claim that despite the rule that one who seeks to extract money bears the burden of proof, and despite the fact that they have not yet proved that I was negligent, so he is the extractor and the burden should be on him—but in a place where it is unlikely that I was not negligent, possession-status shifts to him. Now the burden of proof is on me. And that is a novelty: that presumptive status is not determined only by the question of who holds the money and who comes to extract it, but can also be determined by the question of whose claim is more reasonable. All right? But that is what the Chazon Ish writes; if you read it you’ll see, that is what he writes. So even this one practical difference, in the Chazon Ish, doesn’t work.
[Speaker B] Still, there would be a practical difference for someone who doesn’t learn reasonableness like the Chazon Ish. What? There would still be a practical difference for someone who wouldn’t want to.
[Rabbi Michael Abraham] Yes, but then it’s no longer a necessary practical difference. You can no longer know—if someone says such a thing, you no longer know whether it’s because he learns like the Chazon Ish or because he thinks that damaging property itself obligates me in payment. So it’s not a practical difference in the sharp sense, such that if you see someone say it, then apparently that is how he understands it. Okay? Now I want to argue that even in the Pnei Yehoshua it is not a practical difference.
[Speaker D] He narrows the whole issue of “one who seeks to extract money bears the burden of proof” very much.
[Rabbi Michael Abraham] In a place where the two claims could each be more or less plausible, where there isn’t something blatantly implausible, then one who seeks to extract money bears the burden of proof. And “one who seeks to extract” doesn’t mean extracting the money, but extracting from the reasonable state. It’s not always about taking money out; rather, it means departing from the reasonable state. You come to claim that the reasonable state is not what it was—you come to alter it, to remove it. Many times in Jewish law it means removing from a presumption, not from monetary possession but from a presumption. For example, to remove a mikveh from its presumption of being valid. If you saw that it’s invalid, fine, but as long as you didn’t see that, it has a presumption of validity. And now that is called “to remove,” but it isn’t from monetary possession; it’s from the known state, from the reasonable state, such that proof is needed to claim that this is not the state. And the Chazon Ish argues that even in monetary law there is sometimes a concept of “extracting,” namely extracting from the presumption of what is reasonable, not extracting money from the person holding it. Okay?
[Speaker D] So is that basically the plain meaning of “one who seeks to extract money bears the burden of proof”?
[Rabbi Michael Abraham] No, that’s sometimes the plain meaning. Meaning, he says that sometimes it will be the one who holds the money, but sometimes when the claim is implausible, you will be considered the extractor even though the money is with you. It can go either way, because basically the idea is always this: if the money is with you, then the assumption is that it is yours. So the reasonable state is that it is yours, and someone wants to extract it; that is indeed the simple meaning of “one who seeks to extract money bears the burden of proof.” Essentially, the foundation is removing from a presumption, whether a legal presumption or a logical presumption. Okay? And someone holding the money is one example of a state from which you want to remove something. The reasonable assumption is that the one holding the money owns it—there is a presumption that what is under a person’s control is his. So if he is holding it, it is presumably his. You want to claim it isn’t? Bring proof. Fine. So that is regarding the Chazon Ish. What about the Pnei Yehoshua? With the Pnei Yehoshua it seems compelling. Someone who says that negligence in guarding—wait, how does it go there? Someone who says that “my property caused damage” obligates me in payment, and negligence exempts me, certainly has to say that the burden of proof is on the damager, right? Someone who says that negligence in guarding is what obligates—in that case it remains open. Okay? And now therefore I say that even the Chazon Ish, who says that the burden of proof is on the damager, that still doesn’t prove anything; it could be that he holds that negligence in guarding is what obligates. But the reverse—someone who says that it is my property having caused damage that obligates me in payment—he will certainly say that the burden of proof is on him, on the damager. He will rule like the Chazon Ish. Fine? The Chazon Ish won’t necessarily say that, but someone who says that certainly will rule like the Chazon Ish. Fine? Now I want to examine the Pnei Yehoshua a bit and show that there too matters are not simple. There is a Talmudic text that speaks about inciting. I take my fellow’s dog and set it on the property of some third person. Okay? So the question is whether I’m liable or exempt. And there is a dispute there in the Talmudic text. According to one view I’m exempt. Why am I exempt? Because I’m only an indirect cause. Meaning, I incited it—but the dog isn’t mine, it’s not my property after all. It has to be my property in order for me to be liable. And of course he isn’t liable, because he guarded it properly. I incited the dog. Therefore neither he is liable nor I am liable. There is such a view in the Talmudic text. Okay? Now several later authorities ask—the Shakh and the Chazon Ish discuss it, and the Pnei Yehoshua discusses it, everyone discusses it—what happens if I incited my own dog? All these dear Jews raise the possibility that even if I incited my own dog, I’m exempt. Now that is utterly unbelievable. Simply unbelievable. Why? Because if I don’t incite the dog, but merely fail to guard it properly and the dog goes out and causes damage, I have to pay. Right? That is damage caused by my property. Now not only did I fail to guard it properly—I incited it. I did something much worse. And now I’m exempt? It’s impossible to understand such a thing. How can that be understood? Now several later authorities say this. I’ve never seen anyone explain it. They say it because according to some formal accounting, but it is extremely strange. It is a kal va-chomer with no answer. If when you are negligent in guarding you are liable, then if you actively incite it you are exempt? Now the Pnei Yehoshua also says this, and the Chazon Ish says it too; here they both agree. At least they raise such a possibility. I claim that the explanation is this.
[Speaker B] Wait, why should he be liable? After all, he guarded it…
[Rabbi Michael Abraham] I didn’t guard it! No, I incited it!
[Speaker B] Guarding! From the angle of guarding! What is guarding?
[Rabbi Michael Abraham] Inciting it is not called guarding! If I opened the door in front of it, that’s called not guarding it. Now if I incited it through the door, is that called guarding it?
[Speaker B] It’s a deficiency in guarding. The problem isn’t in what you failed to guard; the problem is that you incited it.
[Rabbi Michael Abraham] The opposite! I interfered with the guarding actively—I incited it. That is called not guarding it, only I did it by inciting it. If I incited it, then I didn’t guard it. Leaving a door open is called not guarding, so actively causing damage is called guarding? That can’t be. So listen to what I’m saying. In my opinion this is the only possible explanation here. In my opinion it is a beautiful explanation. The claim is this: why in truth am I liable to pay when my property caused damage? I claim that the obligation is on my property, as Nachmanides said. My property is obligated to pay. I’ll even bring “a speaking ox is liable to death.” Rather, if I am its owner, then I’m the deep pocket. Meaning, they come to me so that I should pay the debt of the ox. Fine? Therefore, a speaking ox that caused damage—or killed—is liable. Because the obligation is on the ox itself, not on me because of the bond between me and it. Remember the two distinctions I mentioned earlier? This is not an obligation on me because of the bond between me and it. The obligation is on it. It has to pay. As long as it belongs to me, then they come to me and collect the money from me. What difference does it make whether they take the ox or take money from me? It’s all the same. So they collect the money from me. And if I want, I can pay by means of the ox, since money is like money, of course. I can also pay with it. What happens if the ox is ownerless? Then the obligation is on the ox. But then, if someone seized it, there is a verse that says no. Were it not for the verse, the ox would have had to pay. Again, that is proof that the ox itself is liable. Once someone has seized it—if the ox is liable, then by taking it I am harming you. So why do they fine me as the owner? For that you need my negligence in guarding. If I was negligent in guarding, then I cannot say, “Listen, if the ox is liable, why are you harming me?” I was negligent in guarding. Therefore, according to this approach, you need both things. The ox itself has to pay because it has to pay. It has to be mine, because only then am I negligent, only then am I obligated to guard it. If I was not negligent in guarding, I’m exempt. Why am I exempt? Because then I am like another person. The ox itself remains liable, but they won’t take it, because there is no justification for harming me. What do you want from me? It’s my ox, what am I to blame that it gored? After all, I guarded it properly. So I am basically like another person. Therefore they do not take it from me, just as they would not take the ox from another person, because he was not negligent. Therefore they do not take it from me. When do they take the money from me, or the ox? When I was negligent. Because then there is justification to transfer the payment onto me. The negligence is not the reason for the payment. What obligates payment is that the ox is liable for payment. The negligence is only the reason why they do not spare me and instead impose the ox’s debt on me. Therefore it has to be mine, it has to have caused damage, and there has to be negligence. Without negligence I am not liable. Now look at the implication. If I incite my dog—does the dog become liable? Once the dog is not liable, then the fact that I didn’t guard it is not enough. After all, they don’t obligate me for not guarding, and if I incited it then of course I didn’t guard it. But the obligation on me is not because I didn’t guard it. The obligation is the obligation of the ox, only it is transferred to me insofar as I was negligent. Here I was negligent. If there were an obligation on the ox, they would transfer it to me—but there isn’t. There is no obligation on the ox because it was incited. Therefore I am exempt.
[Speaker D] But that’s not right, Pinchas, it’s not damage by an ox, it’s fire damage. What is it? It’s damage—if you send it, it’s like “he sent forth his animal”; you are setting it on him.
[Rabbi Michael Abraham] “He sent forth his animal” is tooth damage.
[Speaker D] Okay, so not fire.
[Speaker B] It’s like I said at the beginning of the lesson—that logically you’re right, but something here is bothering me.
[Rabbi Michael Abraham] I’m saying, I don’t know whether I would rule this as Jewish law. But when there are such opinions, there is no other explanation for those opinions. Meaning, that is the explanation of that opinion. Whether you accept it or not is another matter, but that is the explanation of that opinion. It is clear—there is no other explanation. Okay? What this basically means is that this opinion necessarily—and this is the necessary practical difference—is necessarily based on the conception that the obligation is not for negligence in guarding. Because if the obligation were for negligence in guarding, inciting is the father of all negligence. That is certain. This is the sharpest practical difference possible in favor of liability because the property itself caused damage. So why is it always asked: if the obligation is because the property caused damage, then what difference does it make whether I was negligent or not negligent? This also gives an explanation for that. Because if the obligation is because the property caused damage, then so what if I wasn’t negligent? The property still caused damage. What is this game with two parameters? The point is that if the property caused damage, that is an obligation on it. The question is why transfer it to me. After all, another person who causes it to damage there is indeed exempt, as the Talmudic text says he is exempt. So why am I not exempt? Well, in truth, if I was not negligent, then I am like another person: I am exempt and they will not transfer it to me, even though the ox is liable. Fine? Therefore, for example, if I declare it ownerless afterward, then one will be able to take the ox, even if I guarded it properly. That is a practical difference. An ox that caused damage, and I guarded it properly, and now I declared it ownerless—one can collect from it. Even though while it was under my ownership I was exempt. Because the ox itself is liable; they just did not transfer it to me because I was not negligent. But if I was negligent, then there is justification to transfer the ox’s obligation to me. Okay? So negligence is not what creates the payment obligation. What creates the payment obligation is the damaging property; negligence is what justifies transferring the payment to me. Now I don’t know whether this is only in the case of goring or in every category. In goring, it pays from its body, so there may be room to wonder whether the obligation is on the ox itself or not. But at least in goring I think that is the point. Now look at something nice. So that is the understanding in the case of inciting.
[Speaker D] In goring—what about it?
[Rabbi Michael Abraham] To say that one who incites is dealing with goring, after all it pays half-damages from its body? Yes. The question is how the dog caused damage. The dog simply caused damage, and it’s not as if it… It caused damage with intent to damage. So that’s goring, that’s goring damage. The whole sugya there is not…
[Speaker D] Doesn’t it resemble an arrow that a person shot?
[Rabbi Michael Abraham] No. As I said earlier, I said it’s not an arrow. It’s not an arrow; it’s damage by property, not damage by a person. Because the dog went and caused the damage. It’s not an arrow, where my force is inside the arrow. What ultimately damages there is the energy that I put into the arrow. With the dog, I caused it, but in the end it caused damage with its own power and entirely on its own; I only caused it, I incited it. That’s psychological influence; my force is not in the damage itself. So the Talmudic text says no—this is damage by property, not damage by a person. Fine? Now even in the case of placing an animal, on 56b, placing an animal on another person’s standing grain, there is a dispute between Tosafot and Rashba whether that is damage by a person or damage by property. Rashba claims it is damage by a person, and Tosafot claim it is damage by property. Meaning, Tosafot do not accept that such a thing counts as damage by a person, even though I took the animal, put it on the grain, and said to it: eat. And still, it is damage by property; it is not that I caused the damage. That is Tosafot. Fine? But in principle, let’s continue the line of thought for a moment. I said that this law is stated by the Chazon Ish, the Pnei Yehoshua, many later authorities. Both the Chazon Ish and the Pnei Yehoshua. But this law is based on the conception that the obligation is because the property caused damage, not because of negligence in guarding, right? Yet my earlier conclusion was that they—the Chazon Ish and the Pnei Yehoshua—hold that negligence in guarding is the obligating status, the obligating cause. Ah—so now what do we do? And in general, in yeshiva-style analysis, they don’t really pursue this position, but the truth is that one should pursue it if one wants to understand the view. So I claim that this is a defect of yeshiva thinking: whenever it raises a side in a conceptual analysis, in some analytical framework, it says either this or that in a dichotomous way. Why not both? I claim that… both the Chazon Ish and the Pnei Yehoshua, and maybe really everyone, say that what obligates in payment is both this and that. You need both; there is no principal thing and condition. Both are required to obligate: both that it be my property and that I was negligent in guarding. Do you need to say that the negligence in guarding is the main thing and “that it is mine” is a condition, or that “it is mine” is the main thing and the condition is that I be negligent in guarding? No. I’m saying that both are primary. What obligates is the combination of the two—both negligence in guarding and the fact that my property caused damage. By the way, you also see this in the explanation I gave earlier. Why are both primary? Because you need that my property caused damage, and you need negligence in guarding in order to transfer it to you. Both are primary, and it is not a mere condition. Now look—if I understand it this way, then it explains two things. Because if either one is missing, then one is not liable to pay. It is enough that one of the two be missing, and I’m exempt. Okay? Now when I speak about the burden of proof, I’m speaking about the Pnei Yehoshua. When I speak about the burden of proof, it is clear that if both elements are not present, the burden of proof is on the injured party. For purposes of burden of proof, if you require both, that is like requiring negligence in guarding. Right? Because as long as you haven’t proved that I was negligent in guarding, you have no cause of action, because for you to have a cause of action you need both. So that it is my property is agreed, but negligence in guarding—as long as you haven’t proved that, the burden of proof is on you. You are suing me and haven’t proved that you have a cause of action. So even if it is both, that explains the Pnei Yehoshua and also the Chazon Ish, although with the Chazon Ish he says there is a cause of action only because it is implausible. Fine, that explains them both. What happens with the dog? With the dog it works the other way. With the dog, if you require both, then basically it’s exactly as I explained earlier. The obligation is really imposed on the dog, but as long as you were not negligent in guarding, they do not transfer it to you. Therefore it also fits with this law. Meaning, both the law that the burden of proof is on the injured party and the law that one who incites his own dog is exempt—both are resolved according to the side that says it is negligence, according to the side that says it is both negligence and damage by property.
[Speaker B] Here the property didn’t cause damage, exactly. Okay?
[Rabbi Michael Abraham] And therefore what is happening here is—notice the methodology, it’s not directly connected to us—that one has to be careful with conceptual analyses, with the dichotomy of conceptual analyses, where it is either this or that. Sometimes it’s both. Why assume it has to be either this or that?
[Speaker B] You were also negligent in guarding it, and your property caused damage. Once you incite it, then your property caused damage and you were negligent in guarding it.
[Rabbi Michael Abraham] Right, but the other side that I was talking about—what role does each one of these requirements play? The fact that my property caused damage places liability on it, and the fact that I was negligent transfers the liability to me. I’m also explaining what each requirement does. It’s not just that two requirements create liability; rather, each one takes one step until the liability reaches me. And then, if I incite the dog against someone, no liability is created on the dog itself, and in any case there’s nothing to transfer to me. Everything I explained before. And that explains why you need these two requirements. But you still need both of them. And once you need both of them, in short, all our premises collapse, all the—there’s nothing. Meaning, the burden of proof is simply these two things; there’s no conceptual inquiry here that it’s either this or that. The burden of proof can also be explained if it’s these two things, and inciting can also be explained if it’s these two things. So this whole conceptual inquiry collapses completely. Okay, but for our purposes, what matters is what I want to say: that in fact there is some claim here that it’s not only that they obligate me for what the dog did; there is some liability on the dog itself. There is some conception that my property has some legal status even in itself, before the question of what that means in relation to me. Only what? They don’t take it, because that would harm me. It’s my property. If you take the dog—the dog really is liable—but if you take it, that harms me, so you need justification to harm me. Therefore you need my negligence in guarding it. Okay? So that’s another way of looking at this issue of why I have to pay for the dog.