Halakha and Law – Lecture 7
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Table of Contents
- A metaphysical infrastructure in halakhic law and despair over a lost object
- Migo, migo of brazenness, and the force of a claim
- Rabbi Breisch’s and the Shakh’s critique, and an explanation of possession status
- Legal truth versus probabilistic truth, and examples from general law
- Admissibility in Jewish law: a person does not render himself wicked, and testimony of relatives
- Reflection on the legal idea as a source of reasoning
- A dichotomy between cognition and thought, and the rationalism–empiricism tension
- David Hume: induction and causality
- Kant: the synthetic a priori and separating the categories
- Hugo Bergmann and “the rationality of the world”
- The mysticism of the eyes of the intellect: non-sensory seeing as a solution to skepticism
- Application in science, morality, and Jewish law
Summary
General Overview
The text argues that halakhic law operates with a metaphysical infrastructure and not merely a system of social norms, and that some halakhic rules are derived not from verses but from reasoning, which raises the question of how the Sages and halakhic thinkers “know” such realities. It presents a distinction between evidentiary-probabilistic reasoning and legal reasoning that does not increase the probability of factual truth, yet still determines the law by force of “legal truth.” From there it builds a broader philosophical claim: that human beings possess a non-sensory cognitive ability, the “eyes of the intellect” or “eidetic vision,” which enables the apprehension of general ideas in science, morality, and law, and that this is the only alternative to a deep skepticism of the David Hume kind.
A metaphysical infrastructure in halakhic law and despair over a lost object
Halakhic law is described as a system whose norms derive from metaphysical states of reality such as ownership, acquisition, and transfer of ownership, and not merely from social conventions. The text points out that in the case of despair over a lost object there is no verse teaching that the moment the owner gives up hope, the lost object becomes ownerless property, and the Sages derive this from reasoning, which sharpens the question of how one can arrive at knowledge of legal “metaphysics” without a directed biblical text. The central claim is that there exists an ability to contemplate these metaphysical dimensions not through the eyes but through the “eyes of the intellect,” a metaphysical intuition or sixth sense in an intellectual meaning.
Migo, migo of brazenness, and the force of a claim
The text presents the example of migo with an unverified promissory note: although ordinarily the borrower is not believed to say “it was repaid” against a note, because “if your note is in my hand, what is it doing there,” when the note has not been verified one can claim “it is forged” by virtue of the rabbinic enactment requiring verification of documents, and therefore the borrower is believed to claim “it was repaid” on the basis of a migo from “it is forged.” The text distinguishes between the evidentiary dimension of migo, based on “why would I lie,” and cases in which migo has no evidentiary weight and yet still has a legal effect, foremost among them migo of brazenness, where the alternative claim (“it never happened”) is not a reasonable alternative for lying because it involves impudence. It notes a dispute whether such a migo helps in monetary law or only exempts from an oath, and describes the concepts “migo as force of credibility” and “migo as force of claim” used by later authorities (Acharonim), according to which the very possibility of prevailing with one claim gives one force to prevail with another claim as well.
Rabbi Breisch’s and the Shakh’s critique, and an explanation of possession status
Rabbi Breisch, in the responsa Chelkat Yaakov, is presented as challenging the idea of “force of claim” and wondering whether this is some kind of mechanism like “electricity” transferring force from one claim to another, concluding that it has no root in the Talmud and is an “invention.” The Shakh is brought as unwilling to accept at all the existence of a migo based on force of claim. The text offers a preferred explanation associated with the direction of Ketzot, according to which migo as force of claim turns the litigant into a “possessor” in the legal sense, because if he has the ability to prevail with the claim “it never happened,” then the power to prevail is in his hands and he is “dependent on no one,” and therefore the burden of proof shifts to the other side.
Legal truth versus probabilistic truth, and examples from general law
The text distinguishes between evidence whose goal is to increase the probability of factual correctness and “legal reasoning” that decides not for probabilistic reasons but for reasons of legal order or normative principle, calling this “legal truth.” It presents examples from general law of disqualifying good evidence because of the manner in which it was obtained, such as the “fruit of the poisonous tree” in the United States, and notes that in Israel the matter is not unequivocal and at times evidence obtained unlawfully is accepted. It gives the example of a confession obtained through torture, and distinguishes between a case in which the torture undermines the reliability of the confession and a case in which there is a strong indication of its truth, such as revealing the location of the body.
Admissibility in Jewish law: a person does not render himself wicked, and testimony of relatives
The text argues that in Jewish law there are disqualifications that cannot be explained through a probabilistic concern about lying or through long-term systemic considerations of law enforcement, because halakhic procedure is not built on police investigations and torture but on a religious court. It presents the rule “a person does not render himself wicked” as an absolute inadmissibility rule even when the offender comes to court and says, “I murdered,” and adds “a person is considered related to himself” as the rationale. It also notes that testimony by relatives is disqualified even where there is no concern for lying, even when they are righteous and bear no hatred, and even when they testify to the detriment of their relatives, emphasizing that the issue is admissibility and not evidentiary discretion. It cites the exposition “Fathers shall not be put to death because of sons” as meaning “fathers shall not be put to death on the testimony of sons,” and emphasizes that such an exposition rests on reasoning, so the question remains: what is the source of that reasoning?
Reflection on the legal idea as a source of reasoning
The text argues that many legal reasonings, including despair, disqualified testimony, and migo as force of claim, do not stem from verses and are not probabilistic, and therefore depend on cognition of a “legal idea” from which one learns what is legally “right” and “not right.” It raises the possibility that the source is contemplation of the legal sphere itself, in which it becomes clear that it is not right to convict on the basis of relatives’ testimony or self-incrimination, and that it is right to acquit someone who could have prevailed with another claim even if he does not make that claim. The text presents this as cognition, not as a subjective preference based on “that’s just how I’m built.”
A dichotomy between cognition and thought, and the rationalism–empiricism tension
The text describes a common distinction between cognition as sensory observation and thought as an internal process that does not create interaction with the world, and asks why thought alone should yield true knowledge of the world. It presents the rise of empiricism and modern science as a critique of dogmatic rationalism, and gives Aristotle’s error about the speed of falling bodies as an example of how reasoning that “sounds right” is no substitute for experiment. It argues that empiricism itself gives rise to skepticism because it casts doubt on everything not directly observed.
David Hume: induction and causality
David Hume is presented as showing that pure observation gives only particular observed facts, whereas laws of nature are generalizations not derivable from observation alone and therefore not empirically justified. He formulates the “problem of induction” as the question of what justifies generalizations beyond what was actually seen, and the “problem of causality” as the question of how we know a relation of causation at all, since observation does not present a causal connection but only a sequence of events. The text describes Hume’s conclusion as turning laws of nature into a statement about human habit rather than about reality itself, and the philosophical crisis this creates.
Kant: the synthetic a priori and separating the categories
Kant is presented as the one whom “David Hume essentially awoke from his dogmatic slumber,” and as the one who reformulates the problem through two distinctions: a priori / a posteriori as an epistemic division, and analytic / synthetic as a structural division of propositions. The text states that before Kant people assumed an overlap between the distinctions, whereas Kant argued for the existence of a third category, synthetic a priori propositions, which add information but do not rest on sensory observation. It presents laws of nature as a central example of the synthetic a priori, and formulates the Kantian question: “How are synthetic a priori judgments possible?”
Hugo Bergmann and “the rationality of the world”
The text refers to Hugo Bergmann, Introduction to Epistemology, chapter nine, “The Rationality of the World,” as a framework reviewing historical answers to the question of the world’s fit with reason. It describes Bergmann as rejecting those answers and ending with the claim that there is no answer, so that rationalism remains correct even though the challenges of empiricism remain powerful. It presents a state of “a broken philosophical trough” that requires searching for another justification for trusting non-sensory insights.
The mysticism of the eyes of the intellect: non-sensory seeing as a solution to skepticism
The text argues that the only way to justify general insights about the world is to adopt a “mystical” thesis of non-sensory seeing, according to which a person “simply sees” the general law or idea through the “eyes of the intellect.” It clarifies that this is not absolute certainty but a kind of seeing similar to seeing from a distance, which may turn out to be mistaken in light of new observations, but is not “a shot in the dark.” It presents this as a solution that merges cognition and thought, in that part of thinking is abstract cognition that interacts with the world.
Application in science, morality, and Jewish law
The text applies the idea of the “eyes of the intellect” to moral cognition and argues that there is an ability to see the “idea of the good” and distinguish moral from immoral not as a subjective feeling but as observation. It applies this also to legal cognitions in Jewish law, presenting legal reasonings and metaphysical legal states as the product of intellectual observation in the legal sphere, which yields legal truths that are not probabilistic. It argues that the agreement of many thinkers around such insights is an indication of their objectivity, and concludes that legal justifications need not be probabilistic but can arise from contemplating the legal idea itself.
Full Transcript
[Rabbi Michael Abraham] A suggestion for what to do today is to look, from a philosophical point of view, at the picture I described. Basically, the claim was that unlike a regular legal system, in halakhic law there is some kind of metaphysical infrastructure in the background. Meaning, in the background there are certain metaphysical facts: whether someone owns something, how ownership is acquired, how ownership is transferred. All these things are not just social agreement or a collection of norms, but also some kind of actual state of reality, some metaphysical state, from which the norms are derived. Now, that sounds a little mystical, and it raises a question—and maybe one more sentence: I also spoke about despair and a lost object. I said that despair regarding a lost object has no source. Meaning, the Talmud does not bring a verse as the source for the idea that the moment the owner gives up hope, the lost object becomes ownerless. The Sages derive that from reasoning. That is even more surprising. Fine, when there is some metaphysical reality and the verses tell me that reality is such-and-such, then I can maneuver in light of the data I receive. But if there are no verses, then how did the Sages know the metaphysics? Thinkers in Torah, medieval authorities (Rishonim) or later authorities (Acharonim), or anyone thinking about the passage—if in fact when we think about the passage we are doing some kind of metaphysical diagnosis, then the question is: how do we do that? What, are we all communicating with aliens like all the New Age stuff today? How exactly does this business work? How do we perceive these kinds of metaphysical realities? So the basic claim is that we have some kind of ability or faculty to contemplate these metaphysical dimensions in reality. That’s the claim. And of course the contemplation is not contemplation with the eyes but—well, I don’t know—call it a sixth sense or metaphysical intuition or something like that. But the claim is that what we are talking about here is the eyes of the intellect. What? Yes. The eyes of the intellect. That’s exactly what I want to talk a little about today. The claim is basically that this is a kind of contemplation. And we simply observe metaphysical reality, and from that we derive who owns what, how ownership is created, and what exactly all those meta-legal reasonings are that I spoke about. Maybe I can add one more aspect to this that I didn’t talk about—maybe it’s worth giving it a few sentences. I’m talking now about what are called legal reasonings. We talked about this when I spoke about migo. Partial admission and migo. We had a whole series on that issue. And there I talked about the fact that in Jewish law there are reasonings that ostensibly belong, for example, to the laws of evidence, but in truth they don’t really have evidentiary weight. For example, in this matter of migo. So let’s say I say about a certain promissory note—that someone presents me with a note saying that I borrowed money from him—and I say to him: repaid. I repaid the note. Obviously I’m not believed to say “repaid” against a note, because “if your note is in my hand, what is it doing there?” Meaning, if you repaid, then why didn’t you take back the note in exchange for the money you paid? So once the note is in the lender’s hand, it is always treated as evidence against the borrower. But in a case where the note has not been verified, then after all I could have claimed against it that it is forged. The claim that the note is forged. Then there is no question of why it is in the lender’s hand—he forged it. And he has no way of verifying the note. It’s an unverified note. So I can claim forgery. By the way, strictly speaking one also cannot claim forgery against a note, but the Sages instituted that notes require verification. So one can claim forgery against a note. Now, I am not claiming forgery, I am claiming repayment. But since I could have claimed forgery, I am believed to claim repayment by a migo from forgery. Meaning, by a migo that I could have claimed forgery.
[Speaker C] Is that the Jewish law? What? Is that the Jewish law?
[Rabbi Michael Abraham] Yes. If the note hasn’t been verified. If the note has been verified, then there’s no migo, because you can’t claim forgery if there are two witnesses confirming it. I’m saying this is a rabbinic enactment that documents require verification. Meaning, at the Torah level a note has the same validity even without verification. Meaning, witnesses need to have signed it—or in his own handwriting, if he admits it’s his handwriting. Witnesses need to have signed it. But now when you come to court, it may already be years after the note was written, and the witnesses are gone. They aren’t testifying now. But at the rabbinic level they established that the note must be verified, and if it hasn’t been verified then it isn’t used. So as a result I can claim against it that it is forged, and therefore I can also claim repayment by a migo from forgery. That’s the issue of migo. Now with migo we talked about the fact that there are two aspects. One aspect is the simple evidentiary aspect, which is the reasoning of “why would I lie?” Meaning, if I wanted to lie, I would choose the more effective lie. I would say “forged.” If I say “repaid,” then apparently I’m not a liar, because if I were lying I have a better version of the lie available. That is the straightforward logical evidentiary argument, and that is what gives migo its evidentiary weight. But there are situations in which migo has no evidentiary weight and yet still has a legal consequence. For example, migo of brazenness. Meaning, let’s say someone sues me over a loan—an oral loan, for the sake of discussion—and I say: I repaid you. And I use a migo from “it never happened.” I could have said: there was no such thing; you never lent me anything at all. The Talmud says that such a thing is called a migo of brazenness. Why? Because what am I claiming? I’m claiming that if I wanted to lie, I would have claimed “it never happened.” But to lie by saying “it never happened” is brazen. Meaning, the person did you a favor, lent you money, and you lie to his face and say “it never happened”? That’s not plausible. Meaning, that’s brazenness. Now, clearly a person can lie; if he were to claim “it never happened,” then he’d claim it. But more than that: if he claims “it never happened,” that even works in his favor, because to say he is lying when he says “it never happened” is not plausible—that’s brazenness—so apparently he is telling the truth. Meaning, that consideration strengthens the claim “it never happened.” But if I claim “I repaid,” and then I say: look, if you think I’m lying, then I would have lied with the claim “it never happened”—that’s a weak claim. Because we can say to you: look, you’re not lying with “it never happened” because you don’t have the nerve to lie with “it never happened”; you’re uncomfortable lying with “it never happened.” So you’re not refraining from that because you’re such a great truth-teller, okay? Therefore this migo is a weak migo. Because in terms of the question, “if I wanted to lie, I would have lied with the claim ‘it never happened,’” that is a weak consideration, because I’m not lying with “it never happened” because I feel uncomfortable—he did me a favor, how can I lie to his face? Now, despite that, this migo still helps—perhaps to exempt from an oath. There is a dispute whether it helps in monetary law or only helps to exempt from an oath, but it helps; under certain circumstances this migo helps. And the later authorities (Acharonim) ask: why does this migo help? After all, it lacks the evidentiary dimension of migo. And then the claim is that there is what is called the force of claim or force of credibility; we talked about this in that series. And basically there is here some kind of almost mystical principle that says that if you have the power to come out acquitted with the claim “it never happened,” then that power also gets you acquitted with the claim “I repaid,” even though you do not have the logical consideration that if I wanted to lie I would have lied with the claim “it never happened.” There is no logical alternative here. But the very fact that you can claim “it never happened,” even if it is brazen and even if it is not plausible that you would make that claim falsely—still, you can do it, and then you would prevail. If so, then you also prevail with the claim “I repaid.” So this is what the later authorities (Acharonim) call migo as force of credibility or migo as force of claim. And about this Rabbi Breisch asks—I brought this—he asks in the responsa Chelkat Yaakov, Rabbi Breisch, a very important halakhic decisor from the second half of the twentieth century, father and son I think. He says: what is this? I don’t understand—what is this, electricity? What, does electricity transfer current? Meaning, the claim “it never happened” gets me acquitted, so that transfers the power to the claim “I repaid” so that I’ll also be acquitted? What is the meaning of this? What difference does it make if I could have claimed “it never happened”? Fine, then claim “it never happened.” But you claimed “I repaid.” So why does the fact that I could have claimed “it never happened” help me when I’m not claiming that at all? I’m claiming “I repaid.” If there is the logical argument that if I wanted to lie I would have lied with the claim “it never happened,” then fine. But when there is no logical argument because this is a migo of brazenness, then what difference does it make that I have an alternative way to win—an uncomfortable alternative way to win? Why does that give me power to win with my present claim? Therefore he says: that can’t be, it’s an invention, it has no root in the Talmud, it isn’t plausible. So I explained there that there is some principle here that, in a certain sense, turns me into the possessor. That’s my favorite explanation. The Ketzot goes in that direction; there are some somewhat different explanations too. But this is a place where you can understand the legal mechanism underlying migo as force of claim. The point is that if I could have claimed “it never happened” and won, then basically it is in my hands to win. I’m not dependent on anyone. If I had decided to, I would have won. If so, then I am the possessor. Meaning, even though at the moment there is—after all, he lent to me, and we all agree there was a loan. I am not denying that there was a loan, and then it turns out that really he is the possessor. And the burden of proof is on me to prove that I repaid. Now I say: I bring a migo. This migo proves. Meaning, first of all, we do not say migo to extract—meaning if you say migo is being used to extract from someone in possession, it doesn’t help. But this migo is also not really evidence, so how does it help? My claim is that migo turns me into the possessor in his place. Meaning, if I have a migo, I become the possessor. Why? Because what is a possessor? A possessor is the one with the money in hand. That is the basic definition of possession status. A possessor is the one with the money in hand. So what if the money is in his hand? Why does that give him an advantage? There is the presumption that what is under a person’s hand is his. We talked about that, but that doesn’t always exist. And that is a logical presumption. Meaning, if you are holding something, it is reasonable to assume it is really yours. In most cases that’s true. But it doesn’t always hold. There are situations where it doesn’t hold. We talked about goats that wander around, meaning goats that move around, so the fact that they’re with me proves nothing. Tomorrow morning they’ll be with someone else. The claim is that in fact the one in possession does not need the court, because if he does nothing, the money stays with him. I don’t need anything. Meaning, the one who wants this legal proceeding to happen is the claimant, not me. I’m holding the money. If nothing happens, the money stays with me. I don’t need anybody. That is why the burden of proof is imposed on the other party. Because the court is basically saying to him: you want us to do something. Meaning, you want us to take the money from the possessor. Give us a reason to do something. To do something you need a reason. To do nothing you do not need a reason. And if no one brings evidence and I have no reason to act, we leave the situation as it is. And the way to leave the situation as it is is to leave the money in the hands of the one holding it. That is why the possessor has the advantage. Now the claim is that in migo of—in migo as force of claim, when I can—if I could have won with the claim “it never happened,” that essentially means I had the ability to win. It is entirely in my hands. If I had decided to, I would have won this case. So I count as though the money is with me. In effect, legally, the money is with me. So I am the possessor. And therefore the burden of proof shifts to the other side. Meaning, that is how a migo of “it is in his power” works. So a migo of “it is in his power” basically turns me into the possessor. And once I become the possessor, then naturally the burden of proof is no longer on me but on the other side. And he does not bring proof, so I prevail in the case. Meaning, this is a novelty in the laws of possession status: migo as force of claim. Fine, I’m just mentioning this briefly because I’m trying to show something else here too. Here there is something a bit different from the realities I spoke about in the last few lectures, but it still raises a similar question. Because where does this principle come from? Migo as force of claim also has no source in the Torah. It is a decision of the Sages, if at all, because this is only an interpretation by later authorities (Acharonim) of what medieval authorities (Rishonim) say and what the Sages say. It does not appear explicitly in any source. And as I brought earlier, for example the Shakh is not willing to accept it at all. He claims there is no such thing as a migo of force of claim. It is just an invention of the later authorities (Acharonim), it has no logic, and we do not accept it. And I claim that it is true that it has no evidentiary weight like an ordinary migo—no evidentiary weight—but it does have logic. The logic is not in the probabilistic sense, that it increases the probability that I am right. That is what usually happens with evidence. The function of evidence is to increase the probability in favor of the side bringing the evidence, the probability that he is right. But here I am talking about legal reasoning, not probabilistic reasoning. Legal reasoning is reasoning that says there is legal sense in ruling in your favor not because there is a greater chance that you are right, but for other reasons. I don’t know exactly what reasons, but there are some other reasons that say it makes legal sense to decide that way. If you have migo as force of claim, you will prevail in this case not because you are more right. It doesn’t increase the odds that you are right, because there is no logical reasoning here that if I wanted to lie, I would have lied that way. So there is no added probability that you are right. But still I claim—there is no verse, so where did they get it from? Clearly it is logic. They did not derive it from verses. But it is a logic that is not probabilistic. So what other kind of logic is there? Meaning, two people come before you, and you need to decide who is right: was there a loan, was there not a loan, was there repayment, was there not repayment. You are looking for reality. The tools for searching for reality are probabilistic tools. I look for evidence that increases the probability in favor of one of the sides. What else could there be? And the claim is that there is also such a thing as legal truth. Meaning, there is legal reasoning that says it is right to rule in his favor even though the odds are not better. And still the legal reasoning says to rule like him. Now, we are familiar with legal reasonings also in the context of ordinary legal systems. There are of course legal reasonings; “the burden of proof rests on the one seeking to extract from another” exists in every legal system.
[Speaker C] But there is also inadmissible evidence. Let’s say a wiretap obtained with warning—by warning? No, did I say warning? You hear someone saying yes, I stole, but it’s a wiretap.
[Rabbi Michael Abraham] That’s taking evidence that is actually good and disqualifying it. I’m talking about taking evidence that is not good and accepting it. That’s migo as force of claim. Yes, but in the end you’re right: in both cases the legal layer overrides the probabilistic layer. Meaning, either to disqualify the evidence or to accept the evidence. Now, in the legal world there are usually explanations in terms of legal order. And that makes sense; anyone can understand it. “Fruit of the poisonous tree,” what you mentioned for example, where I make an illegal recording. So the court is not willing to accept it as evidence even though it knows that this is the truth and there is a recording here. But it won’t accept it as evidence in order not to open the door in the future to people recording things illegally. You’re not allowed to record. If you accept that evidence, then everyone will break the law and make illegal recordings. So there is a simple logic for why such evidence is not accepted. By the way, there are disputes about this; it’s not so simple. In Israel, for example, I’m not sure that’s how it works. In Israel there are disputes about it. In the United States I think that is a clear doctrine—fruit of the poisonous tree. In Israel there are cases where evidence is accepted even though it is fruit of the poisonous tree.
[Speaker C] Like what’s happening now with David Bitan? Right. His main claim, David Bitan’s, is that the recording was made in—
[Rabbi Michael Abraham] I don’t know, I’m not familiar with the case. I do know that at least as of two or three years ago, when I looked into the matter a bit, in Israel it wasn’t simple. Meaning, there is unlawful evidence that was accepted. It depends on the circumstances. I don’t know exactly when yes and when no. In the United States it is apparently a categorical disqualification. Meaning, anything obtained unlawfully is not accepted as evidence.
[Speaker C] Also in the Duma trial now. What do they say there with, let’s say, a confession obtained through torture? What does that mean? There may be a confession and so on, but it was obtained—
[Rabbi Michael Abraham] Well, there it’s something else. Because torture leads to the conclusion that maybe the confession isn’t true.
[Speaker C] I’m not sure. It hints in that direction.
[Rabbi Michael Abraham] I don’t know the details there either. But torture sometimes undermines the evidence itself.
[Speaker C] Exactly.
[Rabbi Michael Abraham] Therefore that’s something else. But true—say there is torture, but the confession you extracted has indications that it is true. For example, he revealed where the body is. If he reveals where the body is under torture, then it really doesn’t matter. If you know where the body is, that’s a sign you murdered. So that’s a good example. Because here they might disqualify the evidence because it was obtained through torture, even though it’s clear that the evidence is good evidence. Torture doesn’t undermine the validity of the evidence itself. So there are situations—I’m not familiar—you’d have to ask people who understand this, I don’t, but I know that in Israel it isn’t unequivocal. There are cases where yes, and cases where no. So in the legal world this isn’t all that surprising. Because in the legal world, after all, everyone understands the logic of sometimes not acting according to probabilistic considerations, because in the long run you are looking for legal order, for not undermining various social institutions and patterns of behavior, and so on. So it is very understandable why sometimes legal reasoning overrides probabilistic reasoning. But in the halakhic context, in a large number of cases, I don’t see explanations of that kind. Meaning, why not accept self-incrimination, for example? “A person does not render himself wicked.” In the legal system they usually explain that by asking how that self-incrimination was extracted from him. Meaning, maybe he was tortured, maybe he didn’t sleep, I don’t know, all kinds of things like that. Therefore they don’t accept self-incrimination. But in Jewish law it isn’t like that. In Jewish law there are no investigations, no torture, no police, nothing. Everything is done in the religious court. Meaning, the offender comes and blurts it out.
[Speaker C] He comes to court and says, “I murdered.” It’s not that he came from police interrogation. “A person does not render himself wicked.” But right, you also prevent testimony of relatives—you prevent that too. Right. Even though if someone filmed his father committing a crime, the religious court would not accept it.
[Rabbi Michael Abraham] Of course. Filming in general is no use. But never mind. Right, a relative is not accepted.
[Speaker C] So what are you trying to say from that? No, I’m saying that even though there is evidence that this is the absolute truth…
[Rabbi Michael Abraham] That’s exactly what I’m saying. Another example of what I’m saying. I’m saying the same thing here too. Also in self-incrimination, even in situations where it’s clear the confession is true, in Jewish law they don’t accept it. Because a person does not render himself wicked; a person is considered close to himself, as the Talmud says—even a private case of being a relative, because a person is close to himself. I think I mentioned this, that ironically in several Israeli court rulings they quote Maimonides on “a person does not render himself wicked” by way of the Miranda rulings in the United States. The Fifth Amendment, after all, is the basis of the Miranda rulings, and that non-Jewish judge there quoted Maimonides and the Talmud on “a person does not render himself wicked.” But he explained them in this way, in a logical way—that is, self-incrimination isn’t accepted because who knows how it was extracted. Now in Jewish law that is certainly not the case. But the Israeli judges are fed by Miranda; they don’t know Maimonides and the Talmud, so they too explain the same thing, they quote “a person does not render himself wicked” and explain it in the way that is the accepted legal explanation. But in general, in Jewish law this is inadmissible, period. It’s a problem of admissibility; it has nothing to do with the question of suspicions about whether it’s true or not true. So again, all these examples show that in Jewish law there are situations in which there is a legal reasoning that can go against probabilistic or logical reasoning, but here at least I can’t manage to see explanations like the ones you see in ordinary legal contexts. That is, why go against probability? Why disqualify the testimony of relatives, for example? Why disqualify the testimony of relatives if you have no concern that they’re lying? Then there’s no problem. But in Jewish law they explicitly say, even if there is no concern that they’re lying, and even if they’re the greatest righteous people in relation to one another and not enemies of the litigant, that too disqualifies them, because of Moses and Aaron; and in testimony by relatives against relatives they also disqualify them. Meaning, all the indications show that the problem is not the concern lest they lie, but rather that it is absolutely inadmissible. Meaning, it’s not related to discretion and the question of how reasonable it is; it’s inadmissible. The question is: where do these principles come from? Where does this come from? In the Talmud, by the way, this disqualification of relatives is brought from a verse, unlike other principles that really come from reasoning. “Fathers shall not be put to death because of sons”—they expound it as, “fathers shall not be put to death by the testimony of sons.” That isn’t what the verse means; the verse says something else. The exposition says: fathers shall not be put to death by the testimony of sons. But exposition, we already spoke about this, exposition is always based on some kind of reasoning. The question is where that reasoning comes from. What is the meaning of that reasoning? From the standpoint, again, of probabilities—after all, we’re not talking about a case where we suspect the relatives are lying, so the probabilistic issue is not that they’re lying and therefore we won’t accept it. Why not? There’s no long-range explanation here—let’s try to prevent future problems and so on—I don’t see explanations of that kind. And the question is how to understand these principles. And I want to argue that there too, exactly as in the context of realities, of the metaphysical statuses we spoke about, there is some kind of contemplation that yields legal reasoning. You contemplate the legal sphere and you understand that it is not right to convict a person on the testimony of relatives or on his own testimony, in self-incrimination. It is not right to convict a person in such a way. Or migo as the power of a claim—you understand that if he has a claim by which he could win, then even if he doesn’t make that claim but makes another claim, he ought to win. Why? Just because. There’s no verse, nothing—but it makes sense. Because if it didn’t make sense and there’s no verse, then why did the sages say it? Where did the sages get it from? Clearly it seemed reasonable to them. And the question is: what is the meaning of that reasonableness? It is not probabilistic logic, it does not come from a verse, so what is it? My claim is that again we are dealing with some kind of contemplation. That is, there is some, let’s call it now, a legal idea, okay? And I contemplate the legal idea and understand that this is the right way to act or this is not the right way to act, and that’s what I do. This is called legal reasoning; it is a certain kind of cognition.
Now here I want to sharpen a bit what exactly this means. We are usually accustomed to making a sharp distinction between cognition and thinking. Cognition is creating an interaction with the world. I look by means of my senses—sight, hearing, touch—and in this way I know the world, meaning I understand, I learn facts about the world; that is cognition. Thinking is thinking about ideas. I have this idea or that idea, which is not drawn from observing the world, but is a result of thinking. If indeed some conclusion follows from pure thought, that is, without an empirical dimension, without an observational dimension, then there is no reason at all to assume that it is true. Why does the fact that I think in a certain way testify in any way to what is happening in the world? As Mark Twain said, “The world owes you nothing; it was here first.” Meaning, if I think something about the world, why does that mean that that’s really what happens in it? If I see, then I see. I simply look and see that this is what is happening in the world, so I learn that this is the correct fact. But if there is something that I think, it takes place inside my head with no interaction with the world, then it is simply a result of how I am built. Why assume that this process yields insight that correctly describes the world? It would require some marvelous fit between what I think and what happens in the world. There is no reason—no reason—to assume such a fit.
Now if you really take that claim at face value, you run into a difficult problem. Because—and I think I spoke about this once as well—about the tension between rationalism and empiricism. In the scientific-philosophical world up to the sixteenth century, the rationalist view ruled the roost. The rationalist view said that we can basically draw conclusions about the world by means of thought, contrary to what I just said. In the fifteenth and sixteenth centuries, criticisms of that view began to develop, and in the philosophical world what later came to be called empiricism was born, and together with it modern science was born. Modern science, basically its main innovation, is that we do not advance without observation. That is, the fact that I think something means nothing. The question is what I see. Yes? The clearest example of a rationalist failure is Aristotle’s claim that a stone falls to the ground at a speed proportional to its weight, or as we would say today, its mass. Now this sounds terribly logical: that a heavy stone will fall quickly and a lighter stone will fall more slowly. But if you do an experiment, you’ll see that it isn’t true. All stones fall at the same speed. And to do that experiment you don’t need to be high-tech. Go up to the roof of a building, drop two stones, one light and one heavy, and you’ll see that they fall at the same speed. Aristotle didn’t do that. Why did Aristotle think the speed of falling is proportional to weight? He could have done a simple experiment and seen that it wasn’t true. The answer is that Aristotle didn’t need to do an experiment. It sounded logical, so why do experiments? It sounded very logical. So from his point of view, if something seemed logical to him, then apparently it correctly described what happens in the world. Why do an experiment? The innovation of modern science is: very nice that it seems logical to you—check it experimentally. That is, see whether it works or not. If you haven’t seen it, it’s speculation. And that’s what you think—you think. There is no reason at all to assume that the world itself behaves that way.
Now, I said, in the sixteenth century empiricism was basically born—at the end of the sixteenth century—and modern science began to develop together with it. But a hundred years later some kind of crisis happened. And this crisis found its sharpest expression, I think, in the writings of David Hume. David Hume was one of the most prominent empiricists—the empiricists were mainly British, by the way. David Hume was one of the leading empiricists, and he suddenly realized that empiricism leads us to very great skepticism. Even though on the face of it it seems the opposite. Because if you’re an empiricist, you measure everything, you check everything by observation, you stick to the facts, you don’t engage in speculation—it seems like the opposite of skepticism. But no. Empiricism comes together with skepticism. The reason for empiricism is skepticism toward everything I have not seen. What I saw is fine, but anything I merely think, or have some hypothesis about—who says it’s true? I’m skeptical about it. The reason to cling to the scientific method, to observation, to the empirical, is because of skepticism toward all the other tools. I cast doubt on all the other tools; therefore I am an empiricist.
Except that if that is really so, then we have to examine more deeply what actually follows from pure observation, pure observation with no additional element of thought. And when David Hume tried to analyze these things, he suddenly discovered that there are almost no such things. That is, the only things I can say come from observation alone are simply the things I saw directly with my eyes. I saw a certain stone fall to the ground, so I see that that stone fell to the ground. Okay, that I understand. That’s pure, kosher empiricism. Fine. There are skeptics who cast doubt even on what the eye sees, but I’m ignoring radical skepticism right now, so that’s kosher. But the claim that all stones fall to the ground is a speculative claim, because I have not seen all stones. I saw some of them. Or that all objects with mass fall to the earth—that is a speculative claim. So David Hume basically says, wait a second, in fact every scientific law is based on some kind of generalization. Right? We see examples, do an experiment, see examples, and produce a generalization that gives me a general scientific law. But that generalization is an act of thought, not an act of cognition. Because cognition is only the facts. Moving from the facts to the general law—that is a thinking process. It is not a process that is the result of observation. Who says it is true?
[Speaker C] Well, even the representative of empiricism didn’t claim that you need to measure all the stones in the world and only then conclude…
[Rabbi Michael Abraham] That’s exactly what Hume asked. Why not? That is exactly what Hume asked. Why? After all, as an empiricist he asked this. If we stick only to what we have seen, then induction has no justification either. What justification is there for generalization? You don’t accept conclusions of thought that are not through observation. So for example, stick only to observation. What did you see? You saw five cases of a stone falling to the ground; you know that those five cases occurred. And that’s all. Any generalization you make beyond that is solely your own responsibility. Meaning, that is thinking. Thinking does not have to track what happens in the world.
[Speaker C] Until proven otherwise.
[Rabbi Michael Abraham] Why until proven otherwise? Why assume it is true until proven otherwise?
[Speaker C] That’s just the empiricist doctrine, sort of.
[Rabbi Michael Abraham] No, that is not the empiricist doctrine. That’s just what people do. And David Hume asks why. After all, until the sixteenth century, the doctrine that ruled was rationalism. Then the empiricists come and say, wait a second, why do you think what your intellect tells you really describes the world? Empiricism sits on that question. So David Hume says, friends, we need to be intellectually honest. If we direct that question at the rationalists, we are not exempt from it. We too use thought-processes that are not observational, and for some reason we do accept them. So why not rationalism? Then let’s go with rationalism. But what happened? David Hume kept narrowing more and more all the things we really do, and tried to distill from them only the things that are really the result of pure observation. He was left with very little. Then he tried to explain to himself—after all, we cannot do science without generalizations—so he tried to explain to himself how we actually ground our trust in generalizations or in general laws of nature. He claimed that this is a statement about us, not about the world. That is, truly, it’s correct: I cannot know that in the world all objects with mass fall to earth. But as you said before, until proven otherwise I assume that, because that’s how I’m built. If I’m proven wrong, I’ll give it up, but as long as it hasn’t been proven otherwise, I go with it. But when you really examine that claim, what it says is that I don’t really believe that all objects with mass fall to earth; rather I merely acknowledge my weakness, that this is how I am used to thinking. So I allow myself to go with it, because I don’t know what the truth is, until it’s proven that I’m wrong and then I’ll give it up. But I can’t really claim that this is what happens in the world.
[Speaker C] People, practically speaking, need to build some device, bake a cake. Okay, the same technique that worked yesterday and the day before, and for my grandmother who cooked—
[Rabbi Michael Abraham] Fine—why do you think that same technique will work today?
[Speaker C] And I’ll do the same, and look, the cake came out—
[Rabbi Michael Abraham] Fine, and it will come out well again, and tomorrow, and the day after tomorrow. It’s obvious that we work with induction; that’s obvious. The question is: what is the justification for induction? What is the justification for relying on induction? The rationalists also worked with their intellect, and all in all they functioned—let’s say there wasn’t highly developed science in the Middle Ages, but they worked, they functioned in the world, everything was fine. Then the empiricists come and tell them, friends, you’re talking nonsense. So what if you think in a certain way? It’s just habit. It says nothing about the world. So David Hume says, first correct yourself. Meaning, you empiricist, apply to yourself what you demand of the rationalist. You too should not use things simply because you are used to them; those are habits. Then you’re left with very few things, basically only the things you saw directly.
And then he formulated two main questions, two main questions. One is the question of induction—sorry—and the second is the question of causality. He asked: how do we know the principle of causality, that everything has a cause? And how do we know, or believe in, the principle of induction—that we can make generalizations and believe they will hold? Regarding causality, it’s even more than how we know the principle of causality, the principle that says everything has a cause. How do we even know the concept of cause? That isn’t obvious. Because we can never actually observe a causal relation directly. When you throw wood into the fire and then the wood burns, you don’t see that the fire… but how do you know that event A is what causes event B? The causing, the causal relation between the two events—you can’t see that in observation. That’s your assumption. And again Hume asks himself: okay, that’s my assumption or my mode of thought—why assume it’s true? The fact that I’m used to thinking that way, what does that say about the world itself?
The problems David Hume raised, of course, did not bother scientists, because while philosophers say things, they have never bothered scientists; scientists keep advancing without noticing. But in the philosophical world this created a real crisis. In the philosophical world it suddenly became clear that empiricism does not deliver the goods. That is, we thought we were producing a more reliable, more logical, more grounded process instead of the speculative rationalism of the Middle Ages—basing ourselves on empiricism, taking the safe route, being grounded. And suddenly it turned out that this too is not grounded. It is not grounded any more than rationalism. Meaning, we didn’t gain much; we gained nothing, really. And the philosophy of science—or philosophy in general—entered a major crisis following David Hume’s questions.
Now Kant, who lived a bit after him, describes his standing before the problems Hume raised and says that David Hume basically awakened him from his dogmatic slumber. That is, we are all in a dogmatic slumber; we do what we are used to doing and everything is fine. Like what you told me: what do you mean? This is what we do; we even baked cakes this way until yesterday, so why not bake them this way today too? That’s slumber, says Kant. Meaning, so what if you are used to it? Who says it will work? Why do you assume it will work? A cake you can bake—at worst the cake won’t come out; not a big deal, you’re not taking much risk. But getting on an airplane is already more problematic. Because if you think the plane won’t work—I don’t know—you’re not crazy; the plane will crash. Right? Here the danger is serious. And when we get on a plane, you cannot explain that by habit. We get on a plane because we trust that it really works. It’s not just because we do it until proven otherwise. I do not take a risk with my life in that way, not a significant risk with my life. I’ll do it, and if it’s proven otherwise, then of course there won’t be a second time.
[Speaker C] Exactly the same thing. You don’t get on the plane for that reason.
[Rabbi Michael Abraham] No, you don’t get on—
[Speaker C] Because there have been millions of flights.
[Rabbi Michael Abraham] That’s the justification you give yourself, but it isn’t true. You don’t get on the plane because of that. You get on the plane because you think it really works. You think. And why do I think it works? Because it worked until now.
[Speaker C] But the fact is, I didn’t study aerodynamics—
[Rabbi Michael Abraham] At the Technion, I didn’t study the things they studied.
[Speaker C] So why do I get on? Because you believe them.
[Rabbi Michael Abraham] And that’s all? No.
[Speaker C] So what then? I believe the statistics.
[Rabbi Michael Abraham] What statistics?
[Speaker C] That planes don’t fall. It’s the same thing; they too believe in induction. I believe in induction. That’s it, I believe in induction. It’s the same thing; aeronautics too comes from induction.
[Rabbi Michael Abraham] They do experiments and build a theory, and that’s induction, same thing. And in the end you believe it. Not that you say, this is my habit until proven otherwise. You really do—again, we do the same thing. Both those who make Hume’s claim—“I act with my habit until proven otherwise”—and those who go with the view I’m proposing, who say, “I think it’s true,” not “I do it this way until proven otherwise”; I think it’s true because I believe in the principle of induction. Okay? In practice we conduct ourselves in the world in exactly the same way. Meaning, you won’t be able to see a difference in our conduct in the world. But the conduct of the first person is unfounded. He says: it isn’t true, but this is what I do because this is what I’m used to. I say I don’t believe him. I don’t believe him because he would not take a risk with his life just because this is what he’s used to—not a significant risk with his life. Rather, he really does trust it. And then I ask: what is that trust based on? How well based is that trust? Trust in induction.
So when Kant asked that question, he basically reformulated it. He joined the question of induction and the question of causality, and reformulated this question. He put it this way: there are here—he proposed two divisions of judgments: a priori and a posteriori judgments, and analytic and synthetic judgments. The division between a priori and a posteriori is an epistemic division. Meaning: how do I know the fact? Do I know it a priori, that is, in a way prior to experiment, or do I know it following experiment? Okay? A priori means without experiment, and a posteriori means as a result of experiment—it’s empirical. That is one division, an epistemological division, meaning how I know this claim or this fact. Then there is a division between synthetic and analytic. The division between synthetic and analytic is a division between two kinds of judgments. An analytic judgment is what’s also called an explicative judgment; analysis means breaking down. It’s a judgment where you can say, for example, “The bachelor is unmarried.” “The bachelor is unmarried” is an analytic judgment, because part of the bachelor’s properties is that he is not married. He has the property of being male, say, unlike a bachelorette. A bachelor is male. Right, but in particular he is also unmarried. Okay? So if I say that the bachelor is unmarried, I don’t need any information beyond the definition of the concept bachelor. Therefore this judgment is analytic. If you analyze the concepts involved in the judgment, you will know the judgment.
A synthetic judgment is a judgment that says Moshe is married, or he is not married. In Moshe’s definition there is no such thing. You need to look and see, and if Moshe is unmarried then you learn from observation that Moshe is unmarried. Okay? That is a synthetic judgment. Why? Because you cannot extract whether he is married or unmarried from the definition of that object. You need to see; you need to obtain some information in order to know that judgment. To say that a sphere is round is an analytic judgment. To say that the sphere is heavy is a synthetic judgment. Because the sphere is heavy—its heaviness does not follow from the definition of a sphere, but its round shape does; a sphere is round. Fine?
Now, before Kant they thought that these two divisions were overlapping divisions. Even though on the face of it they look completely different. The division between analytic and synthetic is a difference between two kinds of judgments. The division between a priori and a posteriori depends on the question of how I know the fact. It doesn’t depend on the structure of the judgment. So ostensibly these are two independent divisions. But before Kant they thought these divisions were overlapping. Every analytic judgment is a priori, and every synthetic judgment is a posteriori. And vice versa. Meaning, these are overlapping divisions. And why? What is the idea behind this? The idea behind it is very clear. If you have an analytic judgment, say “the bachelor is unmarried,” then of course it is a priori, right? You don’t need to observe him in order to see that he is unmarried. If you know he is a bachelor, from the definition of the concept bachelor you can learn that he is unmarried, so you do not need observation. So an analytic judgment doesn’t need observation, therefore it is a priori. Similarly, an a priori judgment presumably ought to be analytic. Why? Because if it were not analytic, then how would I know it without experiment? If it does not follow from the properties of the concepts themselves, then how could it be that I know it without experiment? Therefore, basically, even though on the face of it these divisions seem different, before Kant they thought they were overlapping divisions. Every analytic judgment is a priori, and every synthetic judgment is a posteriori. Always.
Now Kant argued that these divisions do not overlap. There is a third category: synthetic yet a priori. Meaning, judgments are not divided into two kinds but into three kinds. There are a priori judgments—analytic a priori judgments—and there are synthetic and a posteriori judgments, which are the two categories known even before Kant, but Kant claims there is another category: the synthetic a priori judgment. What does synthetic a priori mean? A judgment that is not merely analytic, meaning it is not enough to know the definitions of the concepts in order to know the judgment, but it also does not require experiment, it doesn’t require observation. It is a priori, not a posteriori. It is synthetic מצד one side and a priori מצד the other.
Now first of all Kant identified the fact that there is such a type of judgment. Where do we see such judgments? All of Hume’s problems basically concern this type of judgment. All of Hume’s problems. For example, laws of nature: all bodies with mass fall to earth. That claim is of course synthetic. From the fact that a body has mass, from the definition of mass, it does not follow that it falls to earth. Right? If the earth had no mass, it wouldn’t fall toward it. And this is an observational fact. Okay? Meaning, it is a synthetic judgment, not analytic. But on the other hand it is also not a posteriori because of Hume’s criticism. Because you cannot know from observation that all objects with mass fall to earth. From observation all you can know is that those bodies you saw fell to earth. Stick to what you saw. The generalization, the general law that all bodies with mass fall to earth, is a generalization that is mental, not observational. So Kant basically argued that all laws of nature, which are always general judgments, are always claims of the synthetic a priori type. All of them. And now he basically reformulated Hume’s problems. And how did he ask them? He asked: how are synthetic a priori judgments possible? Let’s say there are such things. If they are synthetic judgments that do not follow merely from the definitions of the concepts, how can I know them without experiment? You understand that this is a translation of the question of rationalism.
[Speaker B] It’s a bit, a bit similar to axioms in Euclidean geometry. Just for example, somewhat similar in that sense. Almost the same thing. Two parallel lines won’t meet in a plane.
[Rabbi Michael Abraham] Right, even though you see it with your eyes and it’s hard to say it’s analytic, but right, I agree that it’s synthetic a priori. Yes. So the claim, Kant’s claim basically, is that all of Hume’s questions can be formulated in one general way: how are synthetic a priori judgments possible? Now that question—how are synthetic a priori judgments possible?—is basically a new translation of the question of the rationalists versus the empiricists. How is it possible that we know facts about the world not from observation?
[Speaker C] And that conscripts—apparently the a priori touches the analytic, meaning they really overlap, and therefore he had no difficulty.
[Rabbi Michael Abraham] Right. And Kant argues that they do exist; the divisions do not overlap, there is a third category. And that is what needs explaining: how is there such a category? After all, the overlap between the divisions is very logical. If something is analytic, then you don’t need observation to see it, so it is also a priori. And if something is a priori, you don’t need observation, then it is quite clear that it is analytic, because otherwise, if it gives me information beyond the definitions of the concepts themselves, then how do I know it without experiment? How can I know that this ball is heavy if that does not follow from the definition of ball and I also have not observed it? How can I know it is heavy? Meaning, it is very logical. So Kant first of all just did the analysis in order to reformulate this question. And that is the answer—I mean, that is the question: how can synthetic a priori judgments be possible?
Now regarding this question, in Hugo Bergmann’s book Introduction to Epistemology, he has a ninth chapter called “The Rationality of the World”—that the world fits our intellect, meaning that it works according to how our intellect is built—which is basically the question of the synthetic a priori. How can it be that things that come from my thinking teach me something about the world? Meaning, they give me facts. How can it be that I can learn new facts by means that are only thought, without observation? You understand that this is basically a regression to rationalism, but this is giving up empiricism and returning to rationalism. Suddenly the rationalists understand that I really can learn things about the world just by thinking, without observation. It turns their revolutionary wheel back around. To go back to rationalism. It is a very interesting process from a historical perspective.
Now, so Hugo Bergmann there in the ninth chapter of the book surveys all the answers that were given to this question throughout the history of philosophy. I think he brings eight or nine answers there, maybe more, several answers. He rejects them all. And in the end he says there is no answer to it. Or in other words, what he wants to say is that rationalism is right even though empiricism’s objections to it are excellent objections, and we have no answer to them. Fine, but then we are standing before a broken philosophical trough. How can it be anyway—so what is the basis for believing it? Why believe things that are only the result of thought, with no interaction with the world, no observation?
It seems to me that the only way to offer a justification for this is to embrace mysticism. Here I return to the mysticism with which I began. To embrace the mystical thesis that says that we simply see synthetic judgments. This is indeed the result of observation, but not sensory observation. Rather, it is not observation through the senses; we have some ability to make a more abstract kind of observation. Not observation with the senses—observation with what I called the eyes of the intellect, or whatever, this has received various names among different philosophers—but several philosophers have spoken about this human capacity.
Now on the face of it this sounds terribly mystical, and it really is mystical, but on the other hand the alternative to it is complete skepticism. Meaning, if you do not accept this thing, you are a skeptic. Meaning, many people think that because they are rationalists, that is your only solution against skepticism. To this day, people who are not sufficiently immersed in philosophical issues think that science or empirical tools are the tool for dealing with skepticism. That is a mistake. Meaning, if you are a skeptic, then you do not believe that either—only what you saw, if even that. But science is much more than what you saw. Science deals with a huge number of things that I never saw and never even dreamed of. Those are conclusions that derive from generalizing from specific experiments that I conducted. And how can I believe that?
The only way is basically to claim that I can see. If we return, say, to Hume’s problem: I ask what the justification is for the generalization I make. How do I know that all bodies with mass fall to earth? I saw a few isolated cases, and from that I made a generalization. My answer is: I simply see that this law is true. Not with my eyes. I see it with the eyes of the intellect. I simply—I look, I see that different bodies fall to earth, and through those phenomena, which I do see with my eyes, through the phenomena I actually see that there is some general principle here, that bodies with mass fall to earth. And that “seeing,” in quotation marks, is seeing—
[Speaker B] Until some new observation comes and overturns your seeing.
[Rabbi Michael Abraham] Certainly. It’s not… again, I’m not saying this mechanism is certain. Without question, I’m not claiming certainty. But I am claiming that it is not a shot in the dark. Meaning, I really do see something here; it’s not just a speculation I’m thinking about. True, it is a kind of seeing—think about seeing at a distance. When I see something from far away, that too is seeing, but it is unclear seeing. It may be that when I get closer it will turn out that I was mistaken in what I saw. But still, when I said there is something there, I said something that was the product of observation; I didn’t say… it wasn’t speculation. So it isn’t clear because it’s far away. When I get closer it may turn out that I was mistaken. So that’s only a parable, of course. I’m saying the same thing here. I’m not claiming certainty for this thing, but I am claiming its cogency. That it is something grounded.
I’m basically saying that each of us understands that we have the ability to see abstract things, to see general laws, to see ideas, to understand the ideas behind things. But understanding is always interpreted by us as a concept belonging to the intellect. Understanding is thinking. No. I’m talking about seeing these insights. I simply see them. These are insights about the world; otherwise there is no reason at all to assume that they really describe the world itself, that they are true. It seems to me there is no other solution to this question. By the way—well, never mind, that’s another discussion. I discussed this at length in Theologica, this move. But that’s a separate matter.
In any case, seeing of this kind is our only way to maneuver between rationalism and empiricism. Because basically what I want to claim is that synthetic a priori judgments—again, I’ll go back over what synthetic a priori judgments are—these are judgments that I know without observation, and now I’m already adding: without sensory observation, but they still give me claims about the world. Okay? So there is something here that does not work if I accept the dichotomy between thinking and cognition. Thinking and cognition are two different mechanisms and never the twain shall meet. If you start from the assumption that this really is a dichotomy, then you are stuck with synthetic a priori judgments. What I want to claim is that part of our thinking is cognitive. Our thinking deals not only with wheels spinning around inside the head, some inner thought process we do inside ourselves; it also has a dimension that is more of an interaction with the world. We observe the world; there is a cognitive part of thinking. And that is what yields synthetic a priori judgments. Or in other words, if you ask me how I know insights about the world, the answer is: they are the result of observation. But not sensory observation; rather observation with the eyes of the intellect. Therefore people think this is thought and not cognition, and then they get tangled in the problem. I argue that it is cognition, but abstract cognition. Not sensory cognition, but cognition that is perhaps, I don’t know, beyond the senses. Okay?
Maimonides, for example, at the beginning of Guide of the Perplexed, speaks of the eyes of the intellect. And Rabbi HaNazir calls it “auditory logic.” Hearing is a sense, right? Hearing is a sense. And logic is thought. Again, putting those concepts together comes to say that there is a cognitive element in the intellect. That the intellect not only thinks but also cognizes. Same thing with the eyes of the intellect. That the intellect has some kind of eyes. The intellect also sees, not only thinks. In Husserl too there is a similar description; it is called eidetic seeing. Meaning, I can observe ideas. I see the specific objects, but through them I see the ideas.
Why am I saying all this in our context? Because I think that this cognitive faculty is also what underlies our legal cognitions. By the way, also what underlies our moral cognitions. Meaning, the hesitation, for example, around morality—how do you know this is moral and that is not moral? What, I feel that way? You feel? So what? The fact that you feel that way says nothing. Because that’s how you are built, because that’s how you were born, you are wired in a certain way—so what does that say? If you had been wired differently, you would have thought murder is wonderful. So what? The fact that you are wired in a certain way says nothing about the question of what is right. This skepticism regarding morality is completely parallel to the skepticism I have described up to now. And I think the solution is parallel too. I have some ability to see what is moral and what is not moral. It is observation, not thought. Because thought is the result of how I am built, and that says nothing about whether it is true or not. I claim that there is some kind of observation there. I simply observe the idea of the good or the idea of morality, and this observation shows me what is right, what is proper, and what is improper to do. Again—there is no certainty, and one can argue, of course—but in principle what I want to claim is that it begins with observation. It is not thought, because thought would say nothing.
I want to claim the same thing about the legal aspect. Because our view of this halakhic mysticism, as it were, that I described, also basically draws from that same dichotomy between thinking and cognition. I said: look, I have logical thought, I have probabilistic thought—I understand, because that I can show says something about the world. But if there is something that is not probabilistic, but just simply seems right to me—inside me it seems right that the burden of proof rests on the one seeking to extract from another, or it seems right to me that migo as the power of a claim gives a person the power to prevail in court even though there is no evidence in his favor. There is no greater chance that he is right than anyone else. So it seems right to you? It seems right because that’s how you are built? Then someone else is built differently and thinks differently—so what? On what basis do you remove money from someone because that’s how you are built? There is no logic in that.
There too I think the only solution that can answer this is to accept the mystical assumption, in quotation marks, that I have some ability to observe these metaphysical ideas or these moral ideas, and the observation yields right and wrong just as physical observation does. Therefore I can derive legal truths by means of intellectual observation. And that is basically the claim. And when I say that migo as the power of a claim works, exempts from an oath or something like that, it is not based on the logical or probabilistic calculation of migo in the sense of “why would he lie?” Rather, I see with the eyes of my intellect—I look at the legal sphere or the legal idea and I see that this is the correct way to act. This is legal observation.
And this is basically how the sages derive that despair renders an object ownerless from its owner, that relatives are disqualified from testimony, that hazamah is not accepted, and all the legal reasonings I spoke about earlier, including observation of the statuses that I defined as some kind of metaphysical entities. So how do I know there are such entities? How do I know? And we saw that there are legal implications to the assumption that these are entities and not pure norms, right? How do I know that is true? From observation. It is observation with the eyes of the intellect, but it is observation. The fact that very many people who engage in this topic come to understand that it really seems right to them gives some indication that apparently this really is not just some form of “that’s how I’m built,” but that there is something objective here that we observe, even though it is not done by the senses. And therefore it arouses a bit of discomfort or a certain skepticism, a skeptical way of seeing—but my claim is that we have to accept our intuition, this intuition that says we have the ability to observe non-sensory aspects of the world, not by means of the senses. And therefore this is basically the only way to validate various claims about the world that do not derive from sensory observation—whether in science, in morality, and in—
[Speaker C] In the legal world, or the halakhic legal world.
[Rabbi Michael Abraham] So many times, when you’re looking for a justification for some legal principle, we’re used to being captive to probabilistic kinds of justifications. So we look for a probabilistic justification, to see how this thing really increases the probability that this side is right or that the other side is right. But no, there’s also another kind of justification: legal justifications, not probabilistic justifications. And those justifications are the result of simply looking at the legal sphere. I don’t know how to describe it in a way that sounds less mystical, okay? But that’s what we’re actually doing. And here there is right and wrong. It’s not a subjective question of, this is how I’m built, so this is how I do it. Just like in the physical world, you don’t accept that Humean claim that says: I do this because that’s what I’m used to, until it turns out I was wrong. We believe this. Why do we believe it? Because we see that it’s true. We see—not with the eyes, with the mind’s eye. This is what Shmuel mentioned earlier about the axioms of geometry; you could say the same thing here. How do you know that two parallel lines never meet? Did you ever go all the way with those two lines, out to infinity, to see that they don’t meet?
[Speaker B] If you had gone, it wouldn’t be an axiom.
[Rabbi Michael Abraham] What? Yes, exactly. And you’d also never get there. It would take until infinity. But assuming they don’t meet, you’d never get there. If they do meet somewhere, then you reach the place where they meet. But the point is, it’s obvious to us that it’s true—that even if we go on, they’ll never meet. Why? Because it’s obvious. So what is this—habit? Is it only habit? No, it’s not habit, it’s true. That’s my claim: that this really will happen. Even if you follow them all the way, they won’t meet. They won’t meet—I guarantee you they won’t meet. I’d bet you they won’t meet, okay? Meaning, I see something here that is true in the world itself, but it is not a sensory perception.
[Speaker C] The word “parallel” is entirely analytic. No.
[Rabbi Michael Abraham] Why is it entirely analytic? It’s a synthetic claim. I’ll tell you the concept of parallelism. Right. The concept of parallelism is when two straight lines have the same distance between them at two different points.
[Speaker C] So what am I saying? What am I saying? If they meet, it’s like a bachelor…
[Speaker B] No.
[Rabbi Michael Abraham] It could be that they have the same distance between them at two different points, and if you keep going farther, somewhere far, far away, they will meet. Why not?
[Speaker B] If it weren’t defined as an axiom, why shouldn’t that happen?
[Rabbi Michael Abraham] You’re claiming that parallelism means they don’t meet. Fine, so I’ll define the concept of parallelism for you without resorting to the fact that they don’t meet. I’m saying they have the same distance between them at two different points. Fine, that’s the definition of parallelism. Who says maybe in the end they won’t meet after all? It’s obvious to us that they won’t. Why is it obvious to us that they won’t? So you’ll say it’s thought. But if it’s thought, the world doesn’t owe us anything. Thought cannot generate insights about the world.