The Periphery of Halakha – Lesson 10
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
- Privacy in recordings and completing the series
- Subjective Jewish law and “dream statements neither add nor subtract”
- Maimonides’ approach: an inadmissible source of information, not a reliability problem
- A person cannot incriminate himself, a litigant’s admission, and liability affecting others
- Self-imposed prohibition and vow versus credibility
- Legal reasoning that determines Jewish law without an explicit source
- Despair over a lost object as an example of non-probabilistic reasoning
- Sticking bread in the oven: Tosafot and the reasoning that a prohibition people will not obey is nullified
- Additional examples: a fire on the Sabbath, “its ways are ways of pleasantness,” and “the Torah did not speak so as to create a stumbling block”
- Slippery slope, decrees, and halakhic authority
- Ruling by stringency/leniency, conservatism/innovation, and policy considerations
- Questions from the audience and the end of the lecture
Summary
General overview
The lecturer explains that he is changing the way the recording works so that only his image appears, in order not to expose participants who appear on screen and ask questions. He concludes a series on “peripheral categories” in Jewish law through examples showing how considerations that are not “classic Jewish law” in the sense of a verse, an interpretive derivation, or an explicit enactment nevertheless affect actual rulings and decisions. He suggests that Jewish law ignores subjective information that is not accessible to the public, emphasizes the role of “legal reasonings” that are not probabilistic, and criticizes rulings that create new prohibitions based on a “slippery slope” or on a “policy” of stringency or leniency, arguing that a halakhic decisor has no authority for that beyond recommendation, while legislative authority belongs to the supreme religious court.
Privacy in recordings and completing the series
The lecturer says that some people are bothered that they appear in recordings of the lectures and were not asked in advance, so he understands that it is possible to record in a way that only his image appears by pinning his own name. He states that today he intends to finish the series on the peripheral categories and go through several examples relatively briefly in order to conclude.
Subjective Jewish law and “dream statements neither add nor subtract”
The lecturer cites the Talmud in tractate Sanhedrin 30 about someone distressed over money his father left him, and he was told in a dream how much there was, where it was, and that it was second tithe money. He stresses that there are strong indications of the dream’s reliability when the amount and location are actually found as stated. He argues that the standard explanation—“one cannot dream without idle matters”—is not sufficient here, and that even if correct information is mixed with incorrect information, there should still be a Torah-level doubt requiring stringency regarding second tithe. He presents the Tashbetz’s view, which frames the discussion as a monetary issue governed by “the burden of proof is on the claimant,” and distinguishes between money already in one’s possession and hidden money, noting that later authorities explain that the Tashbetz would concede that in the case of hidden money there would be room for stringency due to doubt.
Maimonides’ approach: an inadmissible source of information, not a reliability problem
The lecturer shows that Maimonides rules in Laws of Second Tithe, chapter 6, law 6, that if a person is told in a dream where his father’s second tithe is, then even if he finds it there, it is not second tithe: “dream statements neither add nor subtract.” He adds that in Laws of Acquiring Ownerless Property and Gifts, chapter 10, Maimonides says the same even when the dream includes “it belongs to so-and-so” as well as “it is second tithe,” and the signs are fulfilled. He suggests that Maimonides does not base the non-reliance on dreams on lack of reliability, but on the fact that a dream is a source of information that is not relevant and not legally valid in Jewish law. He explains that a dream belongs to the private domain of the dreamer, is not public and not accessible to others, and therefore has no legal standing with respect to others even if it is reliable.
A person cannot incriminate himself, a litigant’s admission, and liability affecting others
The lecturer uses the rule “a person cannot make himself wicked” to illustrate that information a person gives about himself may be reliable yet not legally admissible with respect to the public sphere. He argues that modern explanations based on police torture or the “right to remain silent” do not fit the Talmud, and mentions the influence of the Fifth Amendment and Miranda in Israeli court decisions. He contends that self-incrimination is intrinsically reliable as a matter of logic, but it still does not become objective evidence with respect to others. He compares this to the law that “a litigant’s admission is like one hundred witnesses” in monetary matters, alongside the rule that it is not accepted “where it creates liability for others.” He rejects the idea that collusion is the main reason and explains that the focus is on the admissibility of subjective information: it obligates the one admitting, but it cannot create liability for a third party.
Self-imposed prohibition and vow versus credibility
The lecturer discusses “self-imposed prohibition” in the case of a woman who says she is a married woman, and presents the dispute over whether this is a vow or a matter of credibility. He criticizes Mahari ben Lev, who explains it as a vow, and argues that there is no intention of making a vow here, only conveying information. Therefore, this is “subjective Jewish law” of credibility only with respect to herself, not with respect to others. He explains that this resembles a structure in which information that cannot be publicly verified binds only the source of the information.
Legal reasoning that determines Jewish law without an explicit source
The lecturer asks, “How do we know this?” regarding the disqualification of subjective information, and argues that there is no explicit source for it; rather, it is a reasoning that can even “permit Torah prohibitions” in terms of practical result. He broadens this into a category of “legal reasonings” that shape Jewish law without a verse or an interpretive derivation, and gives examples such as “there is no acquisition of something without substance,” from which problems regarding intellectual property arise. He presents the discussion of “migo,” particularly “migo as argumentative force” versus “migo of brazenness,” cites Rabbi Breisch in responsa Chelkat Yaakov who questions whether “migo as argumentative force” exists in the absence of a source or probabilistic reasoning, and suggests that what is involved is a legal intuition about presumptive possession, not an increase in probability. He illustrates that “the burden of proof is on the claimant” does not rest on probability but on a legal rule of refraining from action without proof.
Despair over a lost object as an example of non-probabilistic reasoning
The lecturer discusses the law of despair over a lost object and argues that it has no source other than “a decision of the sages” that someone who has despaired has “lost ownership,” even if afterward the owner of the lost object can bring identifying marks and prove that the item is his. He stresses that the consideration is not “factual truth” but a legal rule that defines ownership status in accordance with behavior and despair.
Sticking bread in the oven: Tosafot and the reasoning that a prohibition people will not obey is nullified
The lecturer cites the Talmud in tractate Sabbath about “one who stuck bread in the oven” and whether he may remove it before he comes to a prohibition punishable by stoning, and shows that the Shulchan Arukh, section 254, rules that he may remove it even if he acted intentionally, so that he not come to a prohibition punishable by stoning. He quotes Tosafot, who asks, “Obviously he will not listen to us if we forbid him,” and understands from this an assumption that if “any reasonable person” would not obey such a prohibition, it cannot really be prohibited. He brings the Rivah’s answer that if they did not permit him to remove it and he refrained because of the rabbinic prohibition, then he would not be liable to stoning, and emphasizes that the position permitting removal rests on the understanding that a prohibition that cannot realistically be obeyed by the public is not accepted.
Additional examples: a fire on the Sabbath, “its ways are ways of pleasantness,” and “the Torah did not speak so as to create a stumbling block”
The lecturer compares this to the laws of saving property from a fire on the Sabbath and notes that for most decisors the prohibition of extinguishing is “a labor not needed for its own sake,” which is rabbinic, while the prohibition on saving more property than permitted is a decree lest one come to a rabbinic prohibition. He questions how people are supposed to obey such a rule when all their property is burning. He argues that the practical leniencies of halakhic decisors rest on the same intuition found in Tosafot. He adds a family of considerations such as “its ways are ways of pleasantness,” arguing that the verse is a literary expression for the reasoning that the Torah does not demand aggravating conduct, and also mentions “we do not say that the Torah appoints an agent for a stumbling block” in the case of the birds of the metzora, as an assumption that reasoning requires that the Torah not create an obstacle for others.
Slippery slope, decrees, and halakhic authority
The lecturer argues that the consideration of a “slippery slope” in itself is not a halakhic consideration for an individual decisor, because decrees that obligate the public require the authority of a supreme religious court. He explains that decrees of the sages, such as poultry with milk, are legislation, whereas a decisor who forbids riding bicycles on the Sabbath “lest one come to repair them” is effectively creating a new prohibition without authority, and can at most recommend caution. He mentions the Chazon Ish’s question about decisors who say “this is not Torah-level, but it is forbidden rabbinically” without any source for such an enactment, cites the Chazon Ish’s attempt to found authority through “acting as their agents,” and contrasts this with the position that today there is no authority to issue new decrees, mentioning responsa of Rabbi Ovadia Yosef that we do not issue decrees today.
Ruling by stringency/leniency, conservatism/innovation, and policy considerations
The lecturer states that considerations such as “I want to be conservative,” “I want to be innovative,” “I am stringent,” or “I am lenient” are not relevant considerations in Jewish law, and belong to retrospective academic analysis rather than actual halakhic ruling. He attacks “halakhic policy considerations” whereby a decisor defines as forbidden what he thinks is actually permitted in order to promote a policy, calling this falsehood, while distinguishing it from the authority of the Sanhedrin to establish enactments and decrees whose rationale is policy but whose binding force comes from “do not deviate.” He clarifies that there is room for considerations grounded in Jewish law itself, such as “in a case of great need” or special laws such as a woman’s testimony in the case of an agunah, but not for inventing a prohibition on the basis of policy.
Questions from the audience and the end of the lecture
A questioner presents the introduction to Nitei Gavriel, where the author declares a different policy of ruling depending on the area, and the lecturer responds that this at most binds those who choose to subject themselves to him, but “that is not halakhic ruling.” He distinguishes between policy and concern for the words of great authorities because they may be right. The lecturer concludes by saying he will send the topic for the next lecture in the WhatsApp groups and signs off with, “Goodbye, good night, Sabbath shalom.”
Full Transcript
[Rabbi Michael Abraham] Okay, by the way, with the recordings—there are people it bothers that in the recordings of the lectures they appear. After all, I didn’t ask people, I didn’t think about it, that in practice you see the people and they ask a question during the lecture and so on. Not everyone wants those things to appear in the recordings. So now I understood that it’s possible to make the recording so that only my picture appears. I pin my name, and then only my picture appears, so from now on I’m doing it that way. Okay, so let’s begin. Basically, today I intend to finish this series on the peripheral categories. And today I want to address several examples. No—on previous occasions each time I dealt with one topic. Today I want to cover several examples that can be done relatively briefly, go through them, and with that finish. So I’ll start with subjective Jewish law, which in principle is quite a long topic, but actually we already did it in one of the previous series. I spoke there about subjectivity and objectivity, so here I’ll just say what’s relevant to our subject. There’s a passage in the Talmud—maybe I’ll share the file with you so we can see it inside. Talmud, tractate Sanhedrin 30, up here. “The rabbis taught: one said to them, I saw…” never mind, various examples. I want to read only from here. Yes: “If one was distressed over money that his father had left him”—his father died and he knows there’s some money his father left him somewhere, and he doesn’t know where it is. He looks and looks, doesn’t know, but he knows there is such money. “And the master of the dream came”—who is the master of the dream? Interesting question. Some angel perhaps? Or the owner of the money came to him in a dream? There are various interpretations here. “And said to him: it is such-and-such an amount, in such-and-such a place, and it is second tithe.” It happened, and they said: “Dream statements neither add nor subtract.” Meaning, someone appeared to him in a dream, whoever it was, and said: just so you know, the amount was 158 shekels, and just so you know it’s under the bridge in Prague, like the famous story, yes? The Hasidic imitation of Paulo Coelho. And in such-and-such a place, and it is second tithe money. Yes, he also says that—just so you know, this money is second tithe money. What’s the law in such a case? Now notice that in such a case, one could say that a dream—well, one cannot dream without idle matters, and therefore you can never know whether this dream is reliable or not. The assumption of the Talmud and the medieval authorities (Rishonim) is that there are dreams that are reliable. Meaning, a dream is some kind of message from above and so on—but how do you know? It’s known in the name of the Vilna Gaon, for example, that he claimed one must not pay attention to all kinds of maggid angels. So they asked him about Rabbi Yosef Karo’s maggid angel. He said that in the Land of Israel it’s different. A maggid angel in the Diaspora confuses you; in the Land of Israel it’s something else. Fine. In any case, with a dream—as one cannot have grain without chaff, so too one cannot dream without idle matters. And that’s how most of the medieval authorities (Rishonim) and later authorities (Acharonim) explain why we do not relate to information revealed to us in a dream. Because who knows? But here that doesn’t work, because here we have an indication—several indications—that this dream is a true dream. First, I know that my father left money. It’s not that the dream suddenly invents this. I already knew that before the dream. Now the dream comes—I didn’t find it—and now the dream tells me what the amount is and where it is. And I go there, I dig in that place, and I really discover exactly the amount the master of the dream told me. I’m just going to mute so this won’t interfere here. So apparently we have excellent indications here that this dream is a reliable dream. So now if that’s so, then it would seem that if, for example, the master of the dream also tells me that this money is second tithe money, or that it belongs to so-and-so, that it belongs to someone else, then—I should believe him. Because here it seems we have indications that the message was reliable; he knows what he’s talking about. And if he tells me that it’s second tithe or that it belongs to so-and-so, then apparently that’s what should be. The Talmud says: it happened. There was an actual case like this. He came before the sages and they said: “Dream statements neither add nor subtract.” No—don’t worry that it’s second tithe, don’t give it to so-and-so, take the money and buy yourself Bazooka gum. Meaning, you have no problem, you don’t have to relate to the dream. The big question is why. With dreams in general there are questions whether to pay attention to them or not, but here I’m dealing specifically with this question, because here we’re talking about a dream for which there are direct indications that it is reliable. It gave me predictions that came true—yes, both the place and the amount and so on. Meaning, there are good indications here. More than that, I’d say—even if we wanted to say that the dream is mixed, as I said before, so what? It told me the amount and the place correctly, but the part where it says this is second tithe is just wrong. There is correct information mixed with incorrect information. Even if that were our concern, I assume we still haven’t escaped doubt. There is a Torah-level doubt here, which should require stringency; I should have treated this money as second tithe money at least out of doubt. Therefore, to say about this that “dream statements neither add nor subtract” sounds very, very problematic. So the medieval authorities (Rishonim) indeed struggle with this, and there are various explanations. The Tashbetz, for example, argues that really here, since it’s a doubt about a prohibition, one should be stringent, because there is doubt. The Tashbetz goes in that direction, that there is a mixture here, and therefore you’re in doubt. So what happens in cases of doubt? Doubt in prohibition goes to stringency, and in money matters the burden of proof is on the claimant. The laws of doubt should apply here. But the Tashbetz says: in the Talmud it says that if this money is second tithe money—if the master of the dream tells me this money is second tithe money—then I’m not supposed to pay attention to it, “dream statements neither add nor subtract.” So the Tashbetz asks: why? After all, there is a doubt about a prohibition here; second tithe is a prohibition. And since there is a doubt about a prohibition, I should have been stringent because of the doubt. Why do dream statements neither add nor subtract? The Tashbetz says: the discussion whether this is second tithe money or not is also a monetary discussion; it is not a discussion of prohibition. A big novelty, but that’s what he claims—it’s a monetary matter. The question is whether it belongs to me or belongs, so to speak, to the high domain, to second tithe—and that’s not an exact formulation, never mind—but still, there is some dispute here over the status of the money, and that is basically a monetary question, and the burden of proof is on the claimant. This money is mine, and therefore out of doubt they won’t take it from me. But here the later authorities (Acharonim) already point out that there would be a difference between a case where the money was hidden and the master of the dream told me where it was and how much it was and so on, and a case where the money was already with me and then the master of the dream comes and tells me, just so you know, the money you have is second tithe money. Why is there a difference? Because the Tashbetz claims that the laws of doubt should apply here. In monetary doubt, the burden of proof is on the claimant. So if this money was already with me, then it is presumed to be ordinary money that is mine, and I can do with it whatever I want. Now if the master of the dream comes and tells me it is second tithe money, then a doubt arises, but out of doubt they will not take money from me—there is a presumption that it is mine. But if the money was hidden, then there was no prior presumption that it was mine. And if now the master of the dream comes, reveals where it is, and says it is second tithe money, then according to the Tashbetz it should come out that this is doubt requiring stringency. And then, according to the Tashbetz, the phrase “it is in such-and-such a place and it is second tithe” in the Talmud would really have to mean not “in such-and-such a place and second tithe” but rather “either in such-and-such a place or second tithe.” Meaning, the Talmud is talking about a case where the money is already in my hands and the dream comes and says it is second tithe money. Because then there is a presumption that it is mine, and out of doubt they don’t take it from me. But in hidden money, then yes, we would indeed relate to the dream and be concerned about it at least under the laws of doubt. That’s what the later authorities say in the Tashbetz’s approach. But with Maimonides none of this can be said, because Maimonides brings this law in two places. In Laws of Second Tithe, chapter 6, law 6, he says this: “If they said to him in a dream, ‘The second tithe of your father that you are looking for is in such-and-such a place,’ even though he found there what was said to him, it is not second tithe; dream statements neither add nor subtract.” So here we see that it is not second tithe—not even out of doubt, but definitely not. How do I know? Because we’re talking about hidden money. And hidden money, according to the Tashbetz—as we saw—the later authorities claim that at least there a Torah-level doubt requiring stringency should have applied, if we were following the laws of doubt. And therefore the Tashbetz interprets the Talmud as dealing not with hidden money but with money that was already in my hand and then the dream says it is second tithe money. Then he wants to take from me money that had the status of my ordinary money, so the burden of proof is on the claimant. But if the money was hidden, it had no prior status. The moment the dream reveals to me that it is there and that it is second tithe, then once the money is exposed and enters discussion it already has the status of second tithe—there is no prior presumption—therefore there one should have gone to stringency. Maimonides speaks about hidden money and still says not to go to stringency. “Dream statements neither add nor subtract.” Also, Maimonides’ wording is very clear. He says, “Dream statements neither add nor subtract.” It’s not that out of doubt I leave the money in its current presumption. There is no doubt; it neither adds nor subtracts. I don’t pay attention to dreams at all. Okay? That expression also appears in the Talmud, and therefore even in the Talmud the Tashbetz’s words are strained. But in the Talmud you can still force all kinds of formulations. Maimonides is a law book; he speaks precisely. If he says, “Dream statements neither add nor subtract,” then he presumably means that one really need not pay any attention to the dream at all. Also in Laws of Acquiring Ownerless Property and Gifts, chapter 10, Maimonides writes similarly: “If one was distressed over money his father left him and did not know where he hid it, and they said to him in a dream, ‘It is such-and-such an amount, it is in such-and-such a place, it belongs to so-and-so, and it is second tithe’”—yes? Either it belongs to so-and-so or it is second tithe, various things—and he found it in the place stated to him and in the amount stated to him, meaning all the strongest indications were fulfilled—“it happened, and the sages said: dream statements neither add nor subtract.” So again Maimonides goes here with hidden money, and also in monetary law where they say it belongs to so-and-so, and also in prohibitions where they say it is second tithe—in both of these cases dream statements neither add nor subtract; we do not pay attention to dream statements at all. How are we to understand Maimonides’ approach? It seems to me we can explain it this way: what exactly is the status of the dream? Usually, all the commentators in these discussions explain that the difficulty in relying on dreams is because you don’t know whether they are reliable—that is, there is a problem with the reliability of the dream. In the situation before us, there is no problem with the reliability of the dream, because it gives good indications that it is telling the truth. But of course it still could be that some of the details—the part you can’t check, meaning not the amount and the place, that you can check, but the part that says it is second tithe—maybe that information is incorrect. Incorrect information got mixed into the dream. But as I said, if so, then the laws of doubt should apply here. Maybe it is second tithe, maybe yes maybe no—but at least you should have been concerned because of the laws of doubt. So it seems to me that what must be explained in Maimonides is that the information the dream conveyed to me is correct. I have no concern that the information is incorrect. And despite the fact that the information is correct, I do not pay attention to it. And in fact that is the plain meaning of the phrase “dream statements neither add nor subtract.” It is a categorical statement: I do not relate to dreams. The point is not that the dream is unreliable. Rather, the dream is an irrelevant source of information, a source that is not valid in Jewish law. That seems to me to be what—well, that just seems to be the expression. And Maimonides, what he writes seems to fit exactly this conception. Maimonides basically says: what was revealed to you in a dream, ignore it. We do not relate to information that comes from a dream. And again—even though it is information that has very strong legs, so to speak, for saying that it is reliable information. Meaning, the problem is not the reliability of the information, but the source of the information. Something like this—yes, right, there’s a quick comment here about what one does with the Vilna Gaon’s lottery, for example, regarding the identification of the fallen of the Convoy of 35 through the Vilna Gaon’s lottery—whether one may rely on such a thing. Fine. In any case, a dream and a lottery are not exactly the same thing, because a dream occurs on the subjective plane, while a lottery is a mystical matter. A dream is not a mystical matter; it is a subjective matter. I’ll say a bit more about that in a moment. In any case, the point is—what is the meaning of this? What is the idea here? It seems to me that the idea is that the dream belongs to the private domain of the dreamer. After all, none of us has access to what a certain person dreamed. Only he himself knows, if he even remembers. But only he himself can know what he dreamed. It is not accessible to anyone else. And as information that is not public, information not accessible to anyone else, it is information inadmissible in halakhic jurisprudence. That, at least, is my suggestion. That is my proposal for interpreting Maimonides’ words. Maimonides is basically arguing that although the dream may definitely be reliable—or at least it is doubtful whether it is reliable—that doesn’t matter. I do not relate to the dream at all. I do not relate to it because of the source of the dream, not because of its reliability. Let me give you maybe an example. There is a rule in the Talmud that a person cannot make himself wicked. Suppose a person comes and says: so-and-so lent me money with interest. Now the borrower too is wicked; he violates a prohibition, not just the lender. Okay? So when a person says, “So-and-so lent me money with interest,” he is not believed to make himself wicked. He is testifying about himself that he borrowed with interest. The Talmud says we do not accept his testimony about himself. His testimony about the other person is a dispute among the Amoraim—whether we split the statement and so on—but that doesn’t matter for us right now. Regarding himself, we do not believe him: a person cannot make himself wicked. Now the question is why. In the general world, when you read judges’ rulings that cite this, they always explain it in terms of concerns about the reliability of the confession. Usually they say, well, maybe the confession was extracted from him by force, under police torture and so on. That of course cannot be the interpretation in the Talmud. In the Talmud there was no investigative police process with torture and so on. People came to religious court, the judges asked and examined, and that was the investigation. There wasn’t one institution investigating and another judging. The investigation was conducted during the trial. So that was the investigation. Therefore, this interpretation that they suggest for the rule that a person cannot make himself wicked is of course not an interpretation that fits the Talmud. By the way, there’s an interesting anecdote here. There is the Miranda ruling in the United States, from which the Fifth Amendment comes—well, what you always see in the movies: when someone is arrested they say, you have the right to remain silent, you have the right to an attorney, and so on. That’s all the Fifth Amendment as shaped through the Miranda ruling, which basically protects a person’s right to remain silent. Okay? So also in Israeli judges’ rulings, when they cite the Talmudic rule that a person cannot make himself wicked, they do it through Miranda. They don’t know it from the Talmud. So they know it through the Miranda ruling, and then they also adopt the interpretation given by the non-Jewish judge, an interpretation that cannot possibly be correct in the Talmud. And it’s really embarrassing to see Israeli judges—this text should be much more accessible to them than to the American judge—feeding off him in order to understand that there is a Talmudic rule that a person cannot make himself wicked. Yes, I’m not talking about judges who are Torah scholars; of course there are judges who know this. But in a great many places you can see it this way. And the interpretation he gave was one of two things, really. Either police torture and so on—we do not accept self-incrimination. Or a person’s right to remain silent, not to incriminate himself. That’s a slightly different statement. Not because of torture, but because there is some sort of intuition saying: you cannot demand of a person that he provide information that incriminates himself. Find evidence—no problem. But you cannot build a conviction of a person on the person himself. At least you cannot demand it from him. If he gives you the information, fine. But he has the right to remain silent. He has a right to be silent. Okay? That too is not the interpretation in the Talmud. Why? Because when a person comes and says, “So-and-so lent me money with interest,” he did not exercise the right to remain silent. He gave us the information. So if this is only a right to remain silent, it’s not relevant here. Here he didn’t preserve his right; he came on his own initiative and gave us information. On the contrary, this may even be part of repentance. A person comes and says: I sinned, so-and-so lent me money with interest, I want to repent. So on the contrary, he does not want to remain silent; he wants to tell the truth. And we do not accept it. We do not accept it: a person cannot make himself wicked. Now here it is very strange—why not? After all, there are no such concerns here, no right to silence, so why yes? Now there is a contradiction in Maimonides on this matter. In one place—it’s a well-known Maimonides—he explains it indeed because of concern about the reliability of the confession, because after all, why would a person incriminate himself? It doesn’t make sense. So apparently he’s one of the crazies, right? He’s that kind. I don’t know, some fit of madness fell on him, and he suddenly decided to incriminate himself, and because of that—or at least we have some concern that this is the case—and therefore we cannot take his confession seriously. But even in the Talmud itself that cannot be the interpretation, by the way, and Maimonides himself in another place shows that he did not understand it that way. And there is a contradiction in Maimonides, and I’m not going into resolving it now. In any case, the plain interpretation, it seems to me, is that a person’s confession of self-incrimination is reliable. Just like a litigant’s admission in monetary law—nobody doubts its reliability; on the contrary, a litigant’s admission is like one hundred witnesses. If a person admits that he owes, then obviously he owes; otherwise why would he admit? The same thing if a person says, I committed an offense. Why would he admit something he didn’t do? There is no logic in that. Therefore it is clear—as jurists say—that confession is the queen of evidence. If not for the issues of torture and so on. But if a confession was made in front of all Israel—not in the dark where you don’t know what happened there—everyone saw it, a person came and confessed to an offense he committed, then it is the queen of evidence. Therefore the claim is that confession is in fact a reliable thing. And if so in money matters, then so too in criminal law; yes, also in self-incrimination, if a person incriminates himself, then apparently he really is guilty, otherwise he would not incriminate himself. So why is it not accepted? Because what a person says about himself can be relevant only to himself. That is why I bring up this whole matter. It is subjective information. We do not have objective evidence, evidence that anyone can see and know is really true. We have a person’s statement about himself. And a person’s statement about himself is a subjective statement; it has standing only with respect to the person himself. I’ll give you an example of this in monetary law. In monetary law we do accept a person’s admission that he owes. In self-incrimination we do not, in criminal law. But an admission that he owes money to someone, or that he damaged someone, or something like that—we certainly accept his admission. A litigant’s admission is like one hundred witnesses. Now the question is: so why there yes? If I say that a person’s information, his subjective information, is relevant only to him, and we are not prepared to recognize it in the legal sphere, then why in money matters yes? So there is a rule regarding a litigant’s admission that we do not accept the admission where it creates liability for others. Meaning, if his admission causes harm to a third party, then we do not believe him. We accept the admission only if it harms only the admitting party himself. For example, a person comes and admits that he borrowed money. He has no money to repay, so he thereby obligates the guarantor—there is a guarantor for the loan. So when he admitted the loan, it actually has implications for a third party. A litigant’s admission is like one hundred witnesses, and therefore he is believed. And if he is believed, then now we’ll go to the guarantor and tell him to pay the loan. They say no. Where it creates liability for others, where it imposes an obligation on others, harms others, we do not accept the admission. Now the question is why. After all, the logic of why a litigant’s admission is sensible is very clear. A person does not obligate himself unless he really is obligated; why would he do it? If that is the basis of his reliability, then why should we not accept it also where it affects others? Now there are those among the later authorities who want to say that it is because we suspect collusion. Meaning: I admit to you that I owe you a hundred shekels, I have no money to pay, you’ll collect from the guarantor and we’ll split it fifty-fifty. We’ll make some kind of collusive arrangement against the guarantor. But there are quite a few proofs that even where there is no suspicion of collusion, we still do not accept a litigant’s admission. I won’t get into too many passages, but there is some evidence, at least for a large portion of the medieval authorities (Rishonim), that the admission is not accepted even where there is no concern of collusion at all. Then the question is: why not accept it if it is so reliable? And my answer: because a litigant’s admission is subjective information. It is information exposed only to the person himself; therefore it is relevant only to the person himself. You cannot obligate someone else by virtue of your admission. And again—not because it is unreliable. It is reliable; we believe you that you borrowed. But that trust is based on subjective information, not information accessible to everyone, not information that can be checked. You say that you borrowed. If there is some physical evidence, there is a document or there are witnesses, then they can be checked; there is some publicity there, some objectivity, and then it is legally admissible. But if it is only your own statement that you borrowed, then we believe you—it’s not that we don’t believe you. There is a lot of logic in believing you. But there is a rule in Jewish law that information that is subjective is—therefore when you affect others, we do not accept your admission. But if you only obligate yourself, fine. You obligated yourself, so pay. Okay? We believe you, and with respect to yourself, that information is admissible. Now the same thing applies in the context of dreams, in my view. I think that is the idea of dreams. The idea of dreams, according to Maimonides, is that once you come with information that you dreamed—“we dreamed,” like in the old Israeli comedy sketch—if you come with some information that you dreamed, then even though there are indications that it is reliable information, nevertheless, since the only one who can encounter that dream, experience that dream, is you yourself, it is not accessible to the public, it is not public, it has no legal standing in the public sphere with respect to others. With respect to yourself, do whatever you think. But with respect to others, it has no standing. Therefore, dream statements neither add nor subtract. If you yourself want to be concerned about this dream and say, okay, I’m giving this money to the other person because I believe the dream that it is his—wonderful. But if you do not want to give it, and now the other person sues you—after all, he has proof from the dream that this money belongs to him—it won’t help, because with respect to his rights, the dream has no standing. He cannot bring evidence against me based on subjective information that I conveyed. I think that’s the interpretation of Maimonides’ words, and that’s what is written in the Talmud: dream statements neither add nor subtract. The subjective layer remains relevant only to the person himself. It has no standing with respect to other parties, second or third parties. That is basically the claim. Likewise, there is a rule in Jewish law called self-imposed prohibition. So if a person comes and says—if a woman comes and says that she is a married woman—we have no indication at all, and in matters of forbidden sexual relations you need two witnesses, okay? Therefore if someone has relations with her, he would be exempt. But she herself is forbidden to have relations with someone else. Why? Because she herself says that she is a married woman, so she has imposed a prohibition on herself. Now the question is how to understand this. There is a dispute—the Ketzot brings it, disputes it, he brings an opinion and disputes it—Mahari ben Lev. Mahari ben Lev claims that this is some kind of vow. It is simply a vow. Now it is very strange to understand this thing as a vow. When a woman says she is a married woman, she is not vowing to be a married woman; she is reporting to us that she is a married woman. For a vow to take effect there must be intention to vow. There is no intention to vow here. The woman is giving testimony. Okay? I think what he means is…
[Speaker B] What? But Rabbi, this is testimony that in practice—that prohibits her to other people. So it’s like a vow, as it were.
[Rabbi Michael Abraham] I didn’t understand. But is it a vow or not a vow?
[Speaker B] It is a vow, because she gives the testimony… what?
[Rabbi Michael Abraham] She didn’t intend to vow, so why is it a vow? Indirectly it’s like a vow? Because if I now forbid a loaf of bread to the whole world but never intended to vow, then will it become forbidden to them? Of course not. It’s not a vow.
[Speaker B] No, when a person—when a woman is betrothed to a man, then she is forbidden to the whole world.
[Rabbi Michael Abraham] If she really was betrothed. But we do not believe that she was betrothed. In matters of forbidden sexual relations you need two witnesses. Only on the side—so Mahari ben Lev says, right, you’re correct, you need two witnesses, but this has the status of a vow, and therefore it takes effect on her and not on others because she vowed. Okay? By the way, according to your approach it should also apply to others. But she vowed, and therefore it applies to her. I think there is a lot of evidence that this is not correct. It is not from the laws of vows, and it is not logical that it should be from the laws of vows. It really cannot be correct. I think what he means to say is that it is like a vow—meaning, this is subjective Jewish law. Subjective Jewish law in the sense that the woman is credible regarding herself. It has no standing with respect to other people. Other people do not need to be concerned about subjective information that the woman gives, information that cannot be publicly verified. Okay? But with respect to herself, it is like a vow she accepted upon herself. Not that it is literally a vow, but that it has a status like a vow. But basically this is credibility, not a vow. Those are the investigations they always discuss in yeshiva classes—whether it is credibility or a vow. Nonsense. There is no such thing as a vow here; it is credibility, period. You can’t say anything else.
[Speaker C] I want to understand, on this issue of—
[Rabbi Michael Abraham] If two witnesses come and say that he borrowed with interest, and he also comes and says, yes, I borrowed with interest—so what? I have two witnesses; I don’t need him.
[Speaker C] Eti Alon—that film about Eti Alon, where she came and one day she reported to the police and said, for the last seven years I embezzled funds from the bank where I’m the deputy manager. Is that called a person making himself wicked? No—they went and checked documents and all that, went to the bank manager, right?
[Rabbi Michael Abraham] No, no problem. If the person’s admission leads us indirectly to some objective, physical evidence, no problem, because it’s only the route to the evidence. All police investigations are built on that.
[Speaker C] They’ll prove that the criminal was here and not there, they’ll extract from him the—so you were here? Good, then you weren’t there.
[Rabbi Michael Abraham] If all I have is the confession, then the confession isn’t admissible. If that confession is only an investigative aid that later helps me get to witnesses and other things, that’s different. When there are witnesses, then of course you can convict. It’s not like someone admitting to a fine. In the case of admitting to a fine, that’s something else. There, even if witnesses come afterward, he still remains exempt, but that’s simply because they exempt him, because they forgive him, not because he lacks credibility. Here it’s a lack of credibility—or not credibility, a lack of admissibility, not credibility. Yes, I believe her that she is a married woman, but it isn’t admissible. Okay? But with respect to her, it is admissible, because we have subjective information here, so it’s relevant; it’s admissible only with respect to the subject who is the source of the information, not with respect to the objective world. That is basically the claim, and I think that’s also what Maimonides means to say regarding dreams. Since this is information whose source is subjective, it isn’t exposed to public view, to the objective observation of other people, and you can’t use it in the legal sphere. That is really the claim, and that is the meaning of the statement that words of dreams neither add nor detract.
Now the interesting question is—and here I’m getting to the connection to us—the interesting question is why that is true. Or where do we know it from? No source is brought for it. None. In the Talmud nowhere—there are a few passages that deal with the status of dreams—but there is no source for this anywhere. It’s a logical intuition. Which is very interesting. Fine, the intuition that tells me to obligate the person himself on the basis of information he himself gives—fair enough. But here there is an intuition that permits Torah-level prohibitions. In other words, suppose there’s a dream telling me that here there is money of second tithe, and I have good indications that this money really is second-tithe money. So in reality this is second tithe. Then the Sages come along, based on logic, and say: since the source is a subjective source, you may treat this money as ordinary money. Ignore the information from the dream. But the truth is that it is second-tithe money—that is the truth. So what does that mean? How can mere logic allow me to permit a Torah prohibition? Say I eat it outside Jerusalem. So how can they permit me, on the basis of this reasoning, to violate a Torah prohibition? To the Sages it was obvious that subjective information cannot play on the legal playing field. It was obvious to them by logic. Where does that idea come from, that reasoning? Where did it come from? I don’t know. Apparently some kind of legal reasoning. That’s why I call it a peripheral category, something that does not have a halakhic source in the Torah, or in a derivation, or anything like that. No. It’s simply logic, and on its basis we change Torah law and do many things.
Now there are many things of this type. For example, that acquisitions do not take effect with regard to something that has no physical substance. Where did that come from? There is no source for it, and yet it is ruled as Jewish law by all the halakhic decisors, in Maimonides, Laws of Sale, everywhere. The entire problem of intellectual property really begins from this: that according to Jewish law there is no ownership over something that has no physical substance. Where did that come from? Just a logical intuition of the Sages, that ownership has to be over some tangible object over which I can have possession; I cannot have possession over ideas, or smell, or air, or things that are not tangible. A logical intuition. And that intuition determines all sorts of Torah laws. It isn’t a source from the Torah, not a derivation, not anything—just logic.
Or migo by force of a claim. With ordinary migo—“why would I lie?”—one can still discuss whether it has a Torah source or not; “the mouth that prohibited is the mouth that permitted.” But migo by force of a claim certainly doesn’t seem to. We also had a series on migo, and there I said: what is migo by force of a claim? Migo means that I make a weak claim, while I could have made a better claim and won. So they say to me: since I could have made a better claim and didn’t make it, apparently I’m not lying, because if I were lying I would have chosen the best lie. Proof that I’m not lying—that’s a logical intuition. Fine, that’s logic, I understand.
But now they tell you—the medieval authorities (Rishonim) and later authorities (Acharonim) say this, and it is also precise from the Talmudic passages—that even where that logic is absent, the migo still helps. For example, what is called an impudent migo. What is an impudent migo? Say someone comes to me and claims money from me, and I tell him, “I repaid you.” Or “I repaid half,” or whatever the case may be. And I could have said—he has no document, okay?—I could have said to the person, “It never happened.” The Talmud says this is an impudent migo. After all, the man lent you the money. So what, you’re going to lie to his face and tell him, “You lent me money and I owe you nothing”? Therefore the alternative claim, which is supposedly the better one, is not really better, because it involves a certain brazenness, and a person is uncomfortable being so brazen in front of someone who did him a favor. So in such a case, the fact that I could have said “it never happened” doesn’t prove that now I’m telling the truth. Because what am I saying? I’m saying: believe me that I’m making the weaker claim because I could have made the stronger claim. Not true. The reason you didn’t make the stronger claim isn’t because you’re such a great truth-teller; it’s because you didn’t want to be brazen in front of your creditor. That’s all. Not because you’re such a truthful person. It’s just more comfortable for you to lie an indirect lie that doesn’t directly contradict what he says. Okay? Therefore, in such a case, migo does not have that logic called in the Talmud “why would I lie?”—that if I wanted to lie I would have chosen the better lie. And nevertheless, that migo can still help. For monetary matters it helps; to exempt from an oath it does not help—that is a dispute among medieval authorities (Rishonim)—but for certain things even an impudent migo helps. The question is why.
So later authorities (Acharonim) define it this way: there is here a migo by force of a claim. The very fact that I could have won with the alternative claim—even though it isn’t a better one, still I could have won if I had made it—means that I also win with the weaker claim. Rabbi Breisch, in responsa Chelkat Yaakov, asks about this: where does this come from? There is no Torah source for it, and there is no logic behind it. So how do you know it’s true? How can you invent such a thing, which has no logic and no source in the Torah? Why say such a thing? It makes no sense. Therefore he argues that there is no such creature as migo by force of a claim, and he tries to explain all the proofs differently—explanations that, in my opinion, don’t really hold water, but that’s what he claims.
It seems to me that what lies behind this too is what I once called legal reasoning. There is a kind of legal intuition, let’s call it that, which says that if I could have said “it never happened” and kept the money in my hands, then I also win with the weaker claim. Because really one can formulate it this way: who is considered the current holder? After all, when he comes and claims against me, he can’t extract from me if I’m the one in possession, right? So why do I need migo? Apparently without the migo he actually could extract from me. He really could succeed. In other words, he is effectively considered the one in possession, and the burden of proof is on me. Okay? Even though the money is in my hands. Never mind, in various situations.
Now I come and say: yes, but I have a migo in my favor. That migo turns me into the one in possession. Why? Because what is “the one in possession”? It’s the one who can keep the money in his hands; if he chooses, he can keep the money. Here, had I made the “it never happened” claim, I would have kept the money. Since I have the ability to keep the money, I am considered the one in possession, and therefore the burden of proof shifts back to you. And that is the logic of migo by force of a claim, as Kehillot Yaakov and others explain. I think that is the simple explanation of migo by force of a claim. That is the logic. Where did that logic come from? From the overheated minds of the Sages. But this logic changes Torah law; it allows you to take money—you don’t pay money that you are apparently obligated to pay—just because of some legal intuition like this.
There are such intuitions that are not probabilistic intuitions. After all, when I have such a migo, it does not increase the probability that I am right. Because there is no such probability here, since the alternative claim is not a better claim. So in terms of the probability that I am right, it is the same probability as before. The migo does not change it. But there is a legal intuition, not a probabilistic one, that from a legal standpoint it is correct to act in a way that leaves the money with me. Like “the burden of proof is on the one who seeks to extract from another,” for example. The same thing there: someone claims money from me and I am holding the money, and they tell me: the burden of proof is on the claimant. The question is: why? Why is the burden of proof on the claimant? Is it that there is a greater chance that I am right than that he is right? The fact that the money is in my hands means he’s a liar? Why? Why is there a greater chance that he is lying than that I am lying? So what if the money is in my possession? No—there is some legal intuition. That intuition says that if you want to cause the religious court to take action, to remove money from him, then give them a reason to take that action. So if the claimant wants the court to remove money from the defendant, let him give the court a reason to do that. What reason? Proof—you have to bring evidence. If you brought no evidence, then I don’t know who is lying here and who is telling the truth. But I have no reason to act. The religious court will take no action if it has no reason to act; passive omission is preferable. So it leaves the money with the one in possession. That is legal reasoning, because this reasoning does not say the money remains with me because probably I am right. The probability that I am right is fifty-fifty. There is no reason to assume he is the liar rather than me. We both have a presumption of propriety, and it is impossible to know who is lying here. But still there is a legal reasoning—not a probabilistic reasoning—that this is the proper legal way to conduct oneself. Even though probabilistically it is exactly the same.
So there is an entire category of such reasonings. At the end of my pamphlet on migo—it’s on the website—I added an appendix on legal reasonings, and there I explain this whole matter. The claim is that there is such a thing, such a category in Jewish law, called legal reasonings. For example, despair. How do we know—just more examples keep coming to mind—how do we know, regarding a lost object, that if the person despaired of recovering it, then he lost ownership? Meaning, I don’t have to return the lost object to him. He despaired before I took it. So I don’t have to return the lost object to him. Where do we know that from? There is no source for it at all. Just a decision of the Sages. No source whatsoever. Their logic says that if the person despaired, it’s no longer his. Why?
Think about it. I found a wallet full of money, I don’t know, ten thousand shekels. Fine? Now the owner appears, and it had been lying in the public domain, in a place full of gentiles and people who don’t return lost objects, and the man despaired of ever getting such a thing back. So now I picked up the wallet, and it is mine. Then the man comes and gives identifying marks for the wallet. Meaning, he proves that the wallet really is his. Okay? And still I do not have to return the money to him. Why not? The money really was his. True, he despaired because he thought it would never be returned, but look—the fact is that now it can be returned, so why shouldn’t we do that? After all, it is his. Because there is a logical rule of the Sages that if he despaired, he lost ownership. What? With no source, no verse, nothing at all. Why? Again, this is an example of legal reasoning. Complete despair is legal reasoning. Despair has become more convenient, as they say.
So this category of legal reasonings, I think, is the category to which also belongs the category I mentioned earlier: that information whose source is subjective has no standing in the objective legal world. That too is a legal reasoning. And on the basis of that reasoning we permit Torah prohibitions; we allow money to be extracted, or held, even though it may not even be likely that it is not yours. That’s it: on the legal plane we have no way to deal with subjective information; subjective information has no standing. That is basically the claim. Okay, so that is one example. It took me longer than I thought. That is one example of another peripheral category: legal reasonings, subjective information, all these things, despair, and so on.
Another example I want to deal with is a Talmudic passage in tractate Shabbat. I’ll share the screen with you. Let’s start with the Talmud. “Returning to the matter itself, Rav Bibi bar Abaye asked: if someone stuck bread to the wall of an oven, did they permit him to remove it before he would become liable for a sin-offering, or did they not permit him?” Yes? Someone stuck bread into the oven on the Sabbath, and now the bread is baking. Meaning, he stuck dough there. Now the bread is baking. If it finishes baking, then he has violated a prohibition punishable by stoning if done intentionally, or if done unintentionally he is liable for a sin-offering. Okay? Now he wants to take the dough out of the oven before it bakes, so that he won’t incur liability for stoning or a sin-offering. Is he allowed to remove the bread or not?
As background, you have to remember that there is a prohibition against removing bread from the oven; this is a rabbinic prohibition. Removing bread and sounding the shofar are skills, not labor. These are things not prohibited as labor itself, but they are rabbinic prohibitions. Okay? Now the question is whether they permitted a person to violate this rabbinic prohibition so that he would not come to liability for stoning.
So the conclusion, after the Talmud discusses whether this is intentional, unintentional—at the conclusion: “Rather, Rav Ashi said: it is always a case of intentional action, and read it as follows: before he comes to a prohibition punishable by stoning.” We’re talking about a case where the person who stuck the bread in did so intentionally. And now, before the bread bakes, he wants to save himself from the punishment of stoning, so he wants to remove the bread. Removing the bread is a rabbinic prohibition. If he leaves the bread there, he violates a Sabbath prohibition punishable by stoning, and they’ll execute him. Okay, and they discuss here how warning works and so on, not important now. “Rav Acha son of Rava taught it explicitly: Rav Bibi bar Abaye said: if one stuck bread to the oven, they permitted him to remove it before he comes to a prohibition punishable by stoning.” In practice, they permit him to remove it before he comes to a prohibition punishable by stoning. Look in the Shulchan Arukh—it rules this as Jewish law; Maimonides too; everyone rules this as Jewish law: “If he placed it there on the Sabbath, even intentionally, he is permitted to remove it before it bakes so that he not come to a prohibition punishable by stoning,” Shulchan Arukh, section 254. That is how it is ruled.
Now look at a fascinating comment by Tosafot. “Before he comes to a prohibition punishable by stoning”—this refers to the question. Tosafot asks: “And if you say, what kind of question is this, whether they permitted him to remove it? It is obvious that he would not listen to us if we prohibited him.” Tosafot asks: what was Rav Bibi wavering about—whether they permit him to remove it or not? Think about a person in this situation. He knows that if the bread finishes baking, tomorrow morning he is going to be stoned to death—and not in a pleasant way. Now he has another option: to violate a rabbinic prohibition by removing the bread before it is fully baked. Now suppose we were to rule that it is forbidden—we do not permit him to remove the bread even at the price of stoning. Do you really think he would listen to us? Would he obey that prohibition? It is obvious that he would not listen to us, says Tosafot.
So what? What do you mean, “obvious that he would not listen to us”? So what if he wouldn’t listen to us? Fine, so he wouldn’t listen—but he would be a sinner. He also stuck the bread in the oven on the Sabbath; he didn’t listen to us there either. So because of that it becomes permitted? The fact that he won’t listen means it is permitted? What’s the connection? What is the question? We are wondering whether it is permitted or forbidden. It could be forbidden and he still won’t listen to us. Fine—it’s forbidden and he won’t listen to us. Tosafot assumes that if it is clear the person won’t listen to us, then there is no prohibition. We do not impose such a prohibition when it is clear the person won’t listen to us. Even though there is a prohibition on removing bread, understand, there is no question here whether there is in general a prohibition against removing bread on the Sabbath. Of course there is; that is clear, ruled by all the halakhic decisors. There is no question about that. Tosafot is asking whether that prohibition still exists in a place where it is coming to save me from liability for stoning. That is what the Talmud is asking. Tosafot says: what do you mean? He won’t listen to us, so clearly there is no prohibition. And what do you mean, so what if he won’t listen to us? Fine, he won’t listen, so he’ll be a sinner, but the prohibition still exists. Tosafot assumes that where every reasonable person would not listen to us—not some specific criminal, but if every reasonable person would not listen to us—such a thing cannot be forbidden. It is not a prohibition. Therefore Tosafot asks: so what is the Talmud’s question? Obviously it is permitted, because he won’t listen to us. Therefore it is obviously permitted. Strange. In a moment we’ll come back to that.
“And the Rivah answered that if they did not permit him, he would not be liable for stoning, since he refrains from removing it because we prohibit him from doing so.” The Rivah says an interesting novelty. He says: no, it doesn’t work that way. If we prohibit him from removing it, then he will not remove it because he obeys the prohibition, and consequently he also will not incur stoning, because the whole reason he did not remove the bread is only because the Sages prohibited it to him. For such a thing one does not incur stoning. Meaning, if you were forced into liability for stoning because you obeyed the Sages regarding a rabbinic prohibition, then you are not liable for stoning. That is a major novelty, because here we are speaking about someone who intentionally stuck the bread in the oven; he put himself into this situation. So the fact that he obeyed the Sages and did not remove the bread—ultimately the initial fault is still his, and even so Tosafot says there is no liability for stoning. He brings various proofs for this from other Talmudic passages; I won’t go into them now. That is his claim.
Now I ask a different question. If so, then according to Jewish law—as we saw, also in the Shulchan Arukh—we rule that they permit him. Now I ask: why did they permit him? Presumably because they want to spare him the prohibition punishable by stoning. But Tosafot says there is no liability for stoning. We could simply choose not to permit him, and if he did not remove the bread, then the bread would bake, but because his not removing it resulted from obeying the rabbinic prohibition, he would not incur stoning. So why permit him to remove the bread? He wouldn’t incur stoning anyway. Leave the prohibition against removing bread intact. There is such a prohibition. It’s not that you need to permit it—you simply need not permit it. That prohibition exists. The prohibition of removing bread exists. So why permit it in this situation if even if you leave the prohibition in place, in the end there is no liability for stoning?
I think what Tosafot is really saying is that the side in the Talmud that says they permitted him to remove it presumably holds that there would be liability for stoning if we did not permit him. Tosafot only explained the side that says they did not permit him to remove it. “They did not permit him to remove it”—well, he won’t listen to us. No, no, he would listen to us because there is no liability for stoning. So the side that says they did not permit him—that is that side. But in practice we rule like the side that says they did permit him. And the side that says they did permit him presumably holds that they permitted it so as not to entangle him in liability for stoning. Meaning, that side understands that if we had prohibited him and he got stuck and the bread baked, then he really would be liable for stoning, and therefore they permitted him to remove it to prevent that liability.
To this I return and ask Tosafot’s question—or rather, I return to highlight Tosafot’s point. It seems to me that then indeed, why did they permit him? I think because even if they had prohibited it, he would not have listened to us anyway, as Tosafot said. And since that is so, the side that permits removal says: fine, then there is no point in prohibiting it. A prohibition that nobody would obey was never prohibited. That is the reason they permitted him to remove it.
And now I ask myself: where did Tosafot get this from? There is a prohibition against removing bread. Tosafot says, no, no—how can you want to prohibit him from removing it when he won’t listen to us? Tosafot assumes that if no reasonable person would listen to us, then there cannot be a prohibition. Where did that come from? The Sages say there is a prohibition. What’s the problem? Again, Tosafot, by force of an external intuition, says: if clearly no person at all will listen to such an instruction—no reasonable person will listen to that instruction—then the instruction is null. He nullifies Jewish law by force of some logic that says: there cannot be such a law, one that no reasonable person would obey.
By the way, I once had all sorts of difficulties about this. For example, you know that if a house catches fire, it is forbidden to extinguish it on the Sabbath. And not only is it forbidden to extinguish it on the Sabbath, but it is even forbidden to rescue things from the house, apart from food for three meals for that Sabbath, and the clothing he needs for that Sabbath, and sacred writings. Beyond that, it is forbidden to save anything. Now understand that even if he extinguishes the house, it isn’t a Torah prohibition. This is labor not needed for its own sake. Extinguishing where you do not need the charcoal, but only need the fire to stop, is labor not needed for its own sake, and that is a rabbinic prohibition. And Jewish law follows Rabbi Shimon—except for Maimonides—but according to most halakhic decisors, Jewish law follows Rabbi Shimon that labor not needed for its own sake is only a rabbinic prohibition. And here, saving things from the house is not even a rabbinic prohibition; it is a decree lest he come to violate a rabbinic prohibition. Lest he come to extinguish, and then there would be a rabbinic prohibition. They even prohibited a decree lest one come to a rabbinic prohibition.
Now ask yourselves what you would do in such a situation. Your house is burning; all your property is going up in flames; everything you accumulated in your life on this earth, okay? And what stands against that is the concern lest you come to violate a rabbinic prohibition. Wouldn’t you violate that? I would say: I’ll take the risk. I’ll violate the concern lest I come to a rabbinic prohibition in order to save all the property I accumulated in my life on this earth. As for me personally, I would even extinguish the house. I violated a rabbinic prohibition but saved my property. Understand: because of this rabbinic prohibition of extinguishing—this labor not needed for its own sake—the person loses everything he has, including his house. He is condemned to live a life of miserable poverty until the day he dies, apparently. Why? Because there is a rabbinic prohibition of labor not needed for its own sake.
By the way, it is no wonder that in fact the halakhic decisors say that since there is some remote concern for saving life—that the fire may spread to other apartments, and so on—today this prohibition does not apply, and somehow they are lenient in any case, whether there is concern for danger to life or not. Clearly behind that leniency sits the very logic of Tosafot on page 4 that we just saw: a person will not listen to us. Even though there the Talmud does not permit it, the halakhic decisors somehow get there by way of legal maneuvering. But this logic is a logic that, I don’t know where it comes from, it has no source, yet it is clear to the Sages that this is what ought to be true. It is something like what I said about the categorical imperative in one of the previous classes. That too is an external reasoning, some philosophical consideration of Kant, but that consideration projects onto halakhic rulings; it permits Torah prohibitions in various contexts, as I at least claim. Why? Because the reasoning says that the categorical imperative—my legal intuition—tells me that something I would not want to become a universal law cannot obligate me. As Tosafot says here, something that nobody would listen to—it isn’t reasonable, it cannot be that such a thing is forbidden. These are kinds of reasonings we draw from other sources, not even Torah sources. They can come from philosophical reasoning, ethical reasoning, whatever, legal reasoning, and that reasoning is enough to permit me to violate Torah prohibitions. Torah prohibitions too?
[Speaker C] Not only rabbinic ones?
[Rabbi Michael Abraham] Yes, Torah prohibitions too. For example, what I said in the previous class: that the police may desecrate the Sabbath for needs that are not life-threatening, or maintain the foreign service—the example of Yeshayahu Leibowitz—maintain a state’s foreign service on the Sabbath, at a minimal level, so there will be someone to talk to, because there is no such thing, it cannot function without that. Or the prohibition of secular courts that I brought up—I brought many examples. The prohibition of going to secular courts, one of the gravest prohibitions there is, like planting an idolatrous tree beside the altar. Okay, true—but you can’t exist without it. But it’s not saving life. Correct, but the reasoning says that if a community cannot exist without it, then there is no prohibition. That’s all. You see that all these examples have a very similar structure. Some kind of consideration arrives such that, if you were to bring it up directly, they would stone you for it. “What are you inventing here? And on that basis you permit Torah prohibitions?” But the fact is that you do see such things in the halakhic sources. And still, people today recoil from doing this, and I think there is no justification for that; one should do it today as well. As I said about serving in the police and all these things. And again, this is an example of the intervention of peripheral principles into halakhic ruling.
Okay, so that is another point. Beyond that, there is an entire family of considerations that I don’t know whether to call peripheral considerations, but for example what the Talmud says: “Its ways are ways of pleasantness.” There are things we permit, or we disqualify a thorny myrtle branch or something like that, because “its ways are ways of pleasantness.” Meaning, there is something there: the Torah does not expect us to live in a way that is bothersome, in a way that is unpleasant. Okay? And therefore “its ways are ways of pleasantness,” and we permit various prohibitions, or disqualify myrtle branches, or whatever various things, on the basis of some consideration.
Now, to take the verse “Its ways are ways of pleasantness” and infer all sorts of conclusions from it of this kind—that is not something a halakhic decisor would do today, it seems to me. And I think that the medieval authorities (Rishonim) and the Talmud, who made use of that consideration, did not really derive something from the verse “Its ways are ways of pleasantness.” It is not a law. The verse “Its ways are ways of pleasantness” is the illustration, or literary form, for expressing the logic. And the logic is again of the same kind of logic I’ve spoken about here: it is not reasonable that the Torah demands from us behavior of this sort.
For example, what the Talmud says: “We do not say that the Torah sent [one] to stumble.” There are the birds of the metzora that the metzora sends away. Then the question arises: what if someone catches them? Is he allowed to slaughter them and eat them? Or since they are the birds of the metzora, are they forbidden to eat, or even to derive benefit from? The Talmud says it cannot be that this would be forbidden. Why? Because the Torah did not say, “send [them] away” in order to create a stumbling block. After all, the Torah told you to send away the bird. Now when you send away the bird, you have no idea who will catch it at the other end of the world; you have no control over that. If it were forbidden to eat it, it could not be that the Torah would say simply: send it away, and that’s it. If the Torah said to send it away, it cannot be that by its own hands it is creating a stumbling block here. Therefore it is clear that it is permitted to eat these birds. All kinds of considerations of this type, as you can see, which permit prohibitions—even Torah prohibitions—because it is obvious to us that this is not what the Torah wants. Where is it so obvious to you from? I don’t know. My logic says so. Okay? So that too is another example. “Its ways are ways of pleasantness,” I think, is also from that family. It is another kind of these categories that are peripheral categories entering into Jewish law.
I am not talking here about categories like “that you may walk in the way of good men,” or pious conduct, or going beyond the letter of the law, because that does not really enter into Jewish law. That is a peripheral category that remains in the periphery. Okay? I am talking about peripheral categories that enter into Jewish law—that is, they have an effect on halakhic ruling.
One more point, and with this I’ll finish—or rather, a point that also spreads across several examples. There are all kinds of considerations—for example, slippery-slope considerations. Can a slippery-slope consideration be a halakhic consideration? My claim is that, in principle, no. Now, we know slippery-slope considerations. After all, all the decrees of the Sages are basically slippery-slope considerations. The Sages prohibited me from eating poultry with milk lest I come to eat meat with milk. That is true, but that is when an authorized religious court, the Sanhedrin, established it. They have authority to legislate laws. Their motivation is the slippery slope, but the prohibition is not because of the slippery slope; the prohibition is because the court established it. The reason the court decided to prohibit it was concern over a slippery slope. I am talking about something else.
I am talking about a decree that, for example—think about it: is it permitted to ride a bicycle on the Sabbath? Many halakhic decisors say it is forbidden because you may come to repair the bicycle. And who appointed you to establish that prohibition? What are you, the Great Court? A halakhic decisor decided there is a slippery slope here, so he decided—so what? I’m not saying there is no slippery slope, or no such concern. There is such concern. So what? Then be careful not to come to repair the bicycle. But in order to create a prohibition against riding a bicycle lest you come to repair it, you need to establish it as a decree. And only the Great Court can issue decrees. A decree that obligates the entire public—say, a decree of a local court for its own locale, maybe that can be done—but a decree that actually enters Jewish law and binds the entire public, only the Great Court has that authority. Therefore when a halakhic decisor says such a thing, in my view it is simply nonsense. There is no such thing. He cannot say such a thing; it is outside his mandate. He can say: listen, I recommend that you not ride a bicycle because there is concern that you won’t notice and will come to repair it—the chain may fall off or something and you’ll come to fix it. A recommendation is perfectly fine. But a slippery slope is a peripheral consideration that remains in the periphery. It cannot enter into Jewish law unless the Sages establish it as a decree. If the Sages say: we prohibit riding out of concern lest one come to repair, then the concern lest one come to repair is only the reason they decreed it, but the reason it is forbidden is because it was decreed, not because of the slippery slope. If there is a slippery-slope concern that was never decreed in a court, it is not enough to prohibit. So that, for example, is a case of something that is a peripheral principle that many decisors use, and I think that use is improper. It is not forbidden in any halakhic sense; you have no authority to establish such a prohibition. You are not the Great Court, you cannot issue decrees on your own initiative. You can recommend not doing it because there is concern that we may come to a prohibition. Fine. You cannot determine that it is forbidden. There is no such thing.
[Speaker B] Rabbi, but if all the halakhic decisors want to draw that from the Great Court—like, if there really is some kind of consensus about this point—doesn’t that give it a little life?
[Rabbi Michael Abraham] What consensus? Where is there such a consensus? There is no such consensus. There are halakhic decisors who say it, and I don’t agree with what they say. I think they exceeded their authority. They cannot create new prohibitions. If there were a Great Court, it could establish a prohibition here where the reason was a slippery slope. But the mere existence of a slippery slope does not make something forbidden. Otherwise, think about it, the court never would have had to prohibit poultry with milk. Poultry with milk would have been forbidden from the creation of the world. There would be no need for a decree of the court, because after all the mere fact that there is a slippery slope lest you eat—just the existence of a slippery slope does not do that.
Now there is the Chazon Ish—never mind, there are halakhic decisors—the Chazon Ish, by the way, sensed this, though not in the slippery-slope context. He asks another question, and Rabbi Daniel Nadel also cites it in his name, but it is also written in the Chazon Ish itself. He asks there: there are many places where you ask a halakhic decisor, say, whether it is permitted or forbidden to do something on the Sabbath. So he says: look, there is no Torah prohibition here because it does not meet the criteria of a Torah prohibition, but it is rabbinically forbidden. What do you mean it is rabbinically forbidden? Do you have some specific clause by virtue of which it is rabbinically forbidden? No. But it can’t be that this is entirely permitted. True, it is not a Torah prohibition, but it is rabbinically forbidden. Many times halakhic decisors answer this way. As if—this can’t be totally permitted; there is an element of prohibition in it, so it is rabbinically forbidden.
The Chazon Ish asks an excellent question. He says: what do you mean? You cannot decide on your own initiative that something is rabbinically forbidden. For a prohibition to be a rabbinic prohibition, there has to be a court that establishes it. Then there is “do not deviate,” and you must obey. The fact that you think it is proper to forbid it—wonderful. When you sit in the Great Court, establish that it is forbidden. But the fact that it is proper to forbid something does not make it forbidden. Yet this is a daily occurrence; halakhic decisors do this all the time.
So the Chazon Ish wants to make some kind of claim—a classic Chazon-Ish-type claim. He wants to say that the ordained courts empowered the halakhic decisors of all generations to forbid things that are proper to forbid, something like a law of acting as their agents, yes? As though they appointed them as emissaries. Where did this appointment as emissaries come from? What is the source for it? Some kind of invention that I don’t know where he got from. I think he is wrong. In other words, there is no basis for it, and you cannot prohibit things that were never prohibited. Rabbi Ovadia has responsa on this—several responsa—that one cannot issue decrees today. However much sense there may be in it, we have no authority to issue new decrees today. If you fit it into an existing decree by way of interpretation, fine. But to issue a new decree—you cannot.
And one final note, which also belongs somewhat to this family. I was once at some gathering in Gush, on a panel with two other rabbis, and one of them said—we were talking about ruling in a certain area—and then he said: look, you have to be a little innovative; you mustn’t be so conservative, and therefore you should rule such-and-such. I said to him—I don’t remember in what context it came up—and then a penny dropped for me, which I later wrote about in a few places. It seems to me that considerations like “I want to be conservative,” or “I want to be innovative,” or “I want to be stringent,” or “I want to be lenient,” are all considerations irrelevant to Jewish law. They are external considerations—call them not even peripheral. It is forbidden to use such a consideration when you rule Jewish law.
A halakhic decisor cannot say to himself: okay, I am stringent, therefore I will choose the stringent view here. He can say: it seems to me like the stringent view, and therefore I rule accordingly. Then some scholar at the university, who writes a dissertation on that decisor, can come and say: this decisor was stringent. Fine. The classification of styles of ruling into a stringent decisor, lenient decisor, conservative decisor, innovative decisor—that is the business of scholars. The decisor cannot use those considerations in order to determine Jewish law. Neither to be conservative nor to be innovative, in any direction. That is not a relevant consideration. You need to determine what seems correct to you. If it seems to you that it is forbidden, say it is forbidden. If it seems to you that it is permitted, say it is permitted. The question whether you are stringent or lenient—leave that to your scholar. Let your scholar decide whether you are stringent or lenient. That is not a consideration that can be relevant among your set of considerations when you rule Jewish law. It is not relevant. It is a consideration that has to remain outside.
So here too—just a second—this is an example of the kind of considerations that do not enter. They are peripheral considerations, but they must remain peripheral as well. They cannot enter into the halakhic framework. Now again, in the subconscious it exists for many halakhic decisors, obviously. And over the subconscious one has no control. As long as the decisor sincerely thinks that this is what seems correct to him as Jewish law, that is what he should rule. We afterward can think that he has a tendency toward stringency. Fine, that may also be true; I’m not saying it isn’t true. But it is not relevant. He cannot say: I rule this way because I want to incline toward stringency. There is no such thing. You need to say what is true. Not where you are inclined, and not considerations of halakhic policy.
People greatly praise halakhic decisors who also take halakhic policy considerations into account. In my opinion, halakhic policy considerations are an outrage. Halakhic policy considerations can belong to the Sanhedrin, which by force of policy considerations can determine that something is forbidden or permitted. But a decisor who uses policy considerations is a liar, because he tells me that something permitted is forbidden because he has a policy consideration—but the truth is that it is permitted, so you are a liar. What you can tell me is: it is permitted, but I strongly recommend being stringent and not doing it. That you can say. You cannot tell me it is forbidden, because then you are a liar; it is not forbidden. It is permitted. And many halakhic decisors do this. And many scholars of halakhic ruling and thinkers about Jewish law and so on lavish praise on decisors who know how to take policy considerations into account. In my opinion, anyone who uses policy considerations is blatantly exceeding his authority. I say again—except for the Sanhedrin. The Sanhedrin, yes, can use policy considerations, because it determines that this is the law. Then it is binding not because that is the policy, but simply because it established it as an enactment or decree. Its consideration was policy. But a halakhic decisor cannot forbid permitted things on the basis of policy considerations.
[Speaker B] If the Sanhedrin established it as Jewish law because of policy considerations, then that’s exactly the same principle, exactly. It’s just some historical distinction, I don’t know. Not a historical distinction.
[Rabbi Michael Abraham] Because the Sanhedrin has authority to establish new laws. Why should I care that it’s a policy consideration? The stated rationale of the verse. That’s the reason they established it, but now they established this law and it is binding. But a halakhic decisor in our time can say: it would have been proper to establish this as forbidden, but he has no authority to establish it as forbidden. That difference is very important. Understood. Okay, before we continue, does anyone want to ask or comment? Yes, now. Can I ask a question? Yes, yes.
[Speaker D] Hello. I read the introduction to the book Nitei Gavriel on the laws of modesty, if I’m not mistaken, or something like that, and there he writes explicitly in the introduction exactly what the Rabbi was talking about. He says: in places involving vacation and recreation I chose to be lenient; in places involving medicine or assistance for the elderly I chose to be stringent. From the outset he says: this is my way and this is my policy throughout the whole book. So we said he’s a liar—he has that right. Yes, that’s it. I mean, just exactly what the Rabbi was talking about: from the outset he says that I’m mixing policy in here. And as I understand it, I’m interested to hear the Rabbi’s view: really, this doesn’t obligate everyone; it obligates whoever chooses to subordinate himself to that decisor.
[Rabbi Michael Abraham] Whoever chooses can do whatever he wants, but that is not halakhic ruling. Whoever chooses to do what I tell him can do what I tell him, health and happiness to him. But when I issue him a halakhic ruling, I tell him what he is obligated to do, not what he chooses to do.
[Speaker D] Yes, because there are several opinions; in every matter there are several opinions.
[Rabbi Michael Abraham] Where there is an opinion that seems correct to you—and if you have no position, then there are the laws of doubt.
[Speaker D] So the question is whether to rely on the lenient opinions or to rely on the stringent opinions, so he says: according to the circumstances, that’s how I chose.
[Rabbi Michael Abraham] Which one seems more convincing to you? Which one seems more convincing to you? Rule accordingly. If there isn’t one that seems more convincing to you, then there are laws of doubt. I’ll say again: there is room for considerations in a case of major loss, in a case of need, things like that, because that is grounded in Jewish law itself. A woman’s being chained to a marriage, they permit her on the basis of one witness. Fine, in testimony regarding a woman. Because Jewish law itself says to be lenient in a case of a woman being chained to her marriage. So there’s no problem. That was established by the authorized religious court: that you choose the lenient opinion when you need to free a woman from being chained to her marriage. That’s fine, because that is already part of the halakhic rule itself.
[Speaker D] Yes, but there are very many examples that I keep learning, where halakhic decisors write.
[Rabbi Michael Abraham] There are lots of examples, and I object to all those examples.
[Speaker D] I understand, I understand. I’m saying there are many examples of halakhic decisors who write: I don’t agree with this opinion, but nevertheless I say one should take his view into account because he was a great and important rabbi.
[Rabbi Michael Abraham] No, that’s something else. That’s something completely different.
[Speaker D] So I
[Rabbi Michael Abraham] am saying where there is
[Speaker D] a great need, I chose not to take his view into account.
[Rabbi Michael Abraham] That’s something completely different. Because the person is saying: since he was a great rabbi, then there is a reasonable chance that he is right even though I don’t understand why, and then he says: if he is right, then that is the Jewish law. That’s not the same thing as a policy consideration. Here this is the halakhic truth; he’s just saying, look, I’m not such a great genius—if Rabbi Akiva Eiger says something else, I’m very concerned that maybe I made a mistake here and he is right, and therefore I instruct you in Jewish law in accordance with Rabbi Akiva Eiger. That seems fine to me.
[Speaker D] I understand what the Rabbi is saying. But what I understood at the time when I read the book was that this is really what guides him—how much to take into account all kinds of opinions of halakhic decisors.
[Rabbi Michael Abraham] I’m saying
[Speaker D] again, each thing on its own merits.
[Rabbi Michael Abraham] If he takes policy considerations into account, then he’s a liar. If he is concerned about the opinions of great halakhic decisors because they are great and therefore it may be that they are right, that is completely legitimate, that’s his right. That’s fine, that’s legitimate. I don’t think one should do that, by the way; I don’t think one should do that. I think a halakhic decisor should rule according to how he understands it. But someone who thinks otherwise than I do about this—that’s a legitimate opinion that I disagree with. To rule according to policy considerations, in my view, is not legitimate—not only do I disagree with it. It’s simply falsehood. Okay. Anyone else? Okay, so I’ll send a message about the next topic that we’ll start next Thursday, a message in the various WhatsApp groups. Goodbye, good night, Sabbath peace.
[Speaker B] Good night, thank you very much.