Simplicity, Lecture 6
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Table of Contents
- Primary categories and derivatives as abstraction in tort law
- Degrees of freedom in generalization and choosing the relevant characteristic
- A derivative learned conceptually versus a causative derivative, and the Talmud’s conclusion
- Additional possible causative derivatives and a discussion of pebble-damage under goring
- Primary categories and derivatives on the Sabbath, quasi-primary categories, and labor not needed for its own sake
- The common denominator in the Mishnah and the preference for examples over rules
- His stone, knife, and burden, and the construction from fire and pit
- The common denominator as elimination and scientific generalization
- The Rosh on the exemptions of pit and fire in a derivative learned from the common denominator
- The Rosh’s approach: “they have all the laws of pit” and the lack of symmetry
- Conceptual construction versus the common denominator, and the example of spitting in the public domain
Summary
General Overview
The text presents the concept of primary categories and derivatives in tort law and on the Sabbath as a product of abstraction and generalization from examples, and emphasizes that the Talmud has freedom to choose what the essential characteristic is that defines a primary category and therefore dictates which cases will be included as derivatives. It distinguishes between a derivative learned from essential similarity to the primary category and a causative derivative that results from causation, and presents the Talmud’s conclusion that most tort derivatives are learned conceptually, except for half-damages of pebbles. It then analyzes the mechanism of “the common denominator” at the beginning of tractate Bava Kamma as an elimination of irrelevant characteristics, similar to scientific generalization, and contrasts that with a dispute in the Rosh about the laws of his stone, knife, and burden, and about whether a rule built from examples stands on its own or remains dependent on them. Finally, it proposes a third move in the Rosh, according to which there is no symmetric “common denominator” here, but rather a move of removing an obstacle and returning to pit, and formulates this as a distinction between “the common denominator” (cutting and elimination) and “conceptual construction” (unification and synthesis), with the example of one who spits in the public domain, which is learned as a combination of throwing and winnowing.
Primary Categories and Derivatives as Abstraction in Tort Law
The text opens with the four primary categories of damages: the ox, the pit, the consuming damage, and the fire, and states that the connection between a primary category and its derivative is created through abstraction from the example to a general principle. The text shows that goring and trampling are considered two separate primary categories, so the criterion is not “the ox did it” or the bodily organ involved, but rather an essential characteristic that the Talmud chooses as the definition of the primary category. The text defines goring as something unusual that is intended to cause damage, and explains that “unusual” means not the natural and normal way, and not necessarily something rare. The text explains that by virtue of this abstraction, butting, biting, crouching, and kicking are considered derivatives of goring even though they are done with the body, mouth, or leg.
Degrees of Freedom in Generalization and Choosing the Relevant Characteristic
The text states that in abstraction and generalization there is a degree of freedom in choosing the group that the particular case represents, and therefore one can generalize a donkey as a donkey, as a four-legged animal, as a living creature, or in any other group according to the chosen characteristic. The text identifies the Talmud’s move at the beginning of Bava Kamma as such a process of choosing what the relevant characteristic is, and points to the understanding of Nakhalat David, according to which the central dilemma is the type of relation between primary categories and derivatives. The text ties this to the framework of intension and extension, where an abstract definition creates a broad set of cases that fall under it.
A Derivative Learned Conceptually Versus a Causative Derivative, and the Talmud’s Conclusion
The text distinguishes between a derivative learned from the primary category because of similarity in essential characteristics, and a causative derivative that results from causally creating a new state. The text illustrates that on the Sabbath the relationship is conceptual, whereas in impurity the relationship is causative, because the primary source of impurity “generated” the first degree of impurity without any essential similarity. The text states that the Talmud discusses over the first two pages of Bava Kamma whether in tort law the relationship is conceptual or causative, and concludes that the Talmud’s conclusion on page 3b is that only one derivative is “not like it,” because it is causative. The text identifies this derivative as half-damages of pebbles, where an animal kicks a stone and the stone flies and causes damage, and states that this is a derivative of trampling because the foot created the damaging force.
Additional Possible Causative Derivatives and a Discussion of Pebble-Damage Under Goring
The text raises the possibility of pebble-damage under goring, where a gore sends something flying that causes damage, and notes a discussion in the second chapter whether this should be considered a derivative of trampling by virtue of a law given to Moses at Sinai and therefore pay half-damages, or a derivative of goring with payment of a quarter-damage, since an innocuous goring ox pays half-damages. The text notes that the Talmud also discusses other types of pebble-damage and even raises the possibility of pebble-damage under pit, and emphasizes that causation can appear not only in pebble-damage but in other ways as well. The text incorporates here the laws of an innocuous goring ox and the rationale of a fine, so that a person will guard his ox, and notes an amoraic dispute whether half-damages is a fine, while in practice the law follows that it is a fine.
Primary Categories and Derivatives on the Sabbath, Quasi-Primary Categories, and Labor Not Needed for Its Own Sake
The text focuses on conceptually learned derivatives as a product of abstraction, and parallels this to the primary categories and derivatives of the Sabbath, which are determined by similarity in the essential characteristic of the primary category. The text gives an example from the primary category of building, which has two derivatives, each resembling the primary category in a different aspect, though there is no similarity between the derivatives themselves, and states that similarity is not transitive. The text presents Maimonides’ concept of “quasi-primary category” as an act completely similar to the primary category but not the very same thing, and raises the question whether there is a halakhic difference, including the rule of one sin-offering for one lapse of awareness when one performs a primary category and its own derivative. The text cites the Talmudic example that sowing, selecting, and sifting could have been considered one primary category, but were counted as three because they were all in the Tabernacle, and presents a discussion about pruning, whether it is a derivative of sowing or a quasi-primary category, while distinguishing between pruning and harvesting by purpose rather than physical act. The text compares this to labor not needed for its own sake, such as digging a hole when one needs only the dirt, and notes the tannaitic dispute whether one is liable or exempt.
The Common Denominator in the Mishnah and the Preference for Examples Over Rules
The text moves to the Mishnah at the end of the opening of Bava Kamma, which formulates: “the common denominator among them is that their way is to cause damage, they are your property, and you are responsible for guarding them, and when they cause damage the damager is obligated to pay compensation from the best of the land,” and connects this to the law of the best land and the Talmudic discussion on page 9 about superior, intermediate, and inferior-quality land. The text emphasizes that the Talmud asks “what does this include?” even though there is already a rule, and interprets this as greater trust in examples than in rules. The text compares the Talmud’s mode of thought to British case-based law, in contrast to German top-down positivist law based on rules and deduction, and emphasizes the Talmud’s trust in analogy and induction even without deductive proof.
His Stone, Knife, and Burden, and the Construction from Fire and Pit
The text presents as an example of the common denominator the case of his stone, knife, and burden, which he placed on top of his roof and they fell in a normal wind and caused damage, and explains that the Talmud frames the case as damage caused after they came to rest in the public domain. The text explains that this seems to be pit, but it cannot be learned from pit alone because in pit “no other force is involved,” whereas here the wind is involved in creating the damaging object. The text traces the Talmud’s move of “fire proves it” and “pit proves it” and then “the law returns,” and interprets the structure as an argument from a primary category built from two verses.
The Common Denominator as Elimination and Scientific Generalization
The text defines the logic of the common denominator as denying the relevance of each primary category’s unique stringency through the fact that the second primary category is liable even without it, until a shared characteristic remains that explains the liability. The text describes this as a method of elimination parallel to scientific generalization, and illustrates it with generalization about objects falling to Earth while ruling out color and material and leaving “mass” as the shared property. The text raises the objection that one might instead formulate a disjunctive rule, “either X or Y,” and suggests in response a preference for the simpler theory in the spirit of Occam’s razor, while claiming that within the framework of the thirteen interpretive principles, “the Holy One, blessed be He, already knew in advance” how the derivation would work. The text qualifies this by noting that science can be mistaken and simplicity is not a guarantee of truth, and cites quantum theory as an example of an “absurd” theory that works, alongside Einstein’s rejection of it, together with the rule that one chooses the simplest among the theories that explain the facts.
The Rosh on the Exemptions of Pit and Fire in a Derivative Learned from the Common Denominator
The text cites the Rosh: “And some of the great authorities wrote that one is liable only for what both are liable for, and they are exempt for damage to vessels and for causing a person’s death as with pit, and for concealed property as with fire, since they come from the common side, we give them the lesser rule of the two.” The text explains that according to this logic, the derivative learned from pit and fire receives the exemptions of both, because in order to impose liability for a particular detail one must be able to learn it from both primary categories. The text notes that the Rosh adds, “and some were uncertain about the matter,” and interprets this as doubt whether, after formulating the rule “your property and its guarding is upon you,” the examples are no longer decisive, in which case the derivative may be liable even for concealed property and for vessels, because it is not completely similar to fire or pit so as to inherit exemptions that are special scriptural decrees. The text formulates the dispute as the question whether the generalization is merely a shorthand way of describing the examples, or an independent rule that replaces the examples.
The Rosh’s Approach: “They Have All the Laws of Pit” and the Lack of Symmetry
The text presents the Rosh’s ruling: “And it seems to me that they have all the laws of pit,” and interprets this as assigning all the derivative’s laws to pit alone, including exemption for vessels and for people, and liability for concealed property. The text states that this seems logically strange in light of the structure of the common denominator, and proposes a reading according to which the Rosh does not see a real common denominator here, but rather an analogy to pit that is disturbed only by the involvement of the wind, where fire is needed only to remove that disturbance and restore the law to pit. The text notes that the phrase “and the law returns” fits such a move, in which “the law returns to pit” rather than a full symmetrical common denominator being built.
Conceptual Construction Versus the Common Denominator, and the Example of Spitting in the Public Domain
The text argues that the common denominator is a kind of cutting that neutralizes characteristics until only what is shared remains, whereas here there is another move that can be formally phrased in a similar way but is “completely the opposite,” because it is a synthesis that glues together unique components. The text gives the example of one who spits in the public domain in the laws of the Sabbath, which is discussed as connected to throwing and winnowing, and cites Rabbi Menashe of Ilya as saying that this is “both throwing and winnowing,” almost a unique case of a derivative from two primary categories on the Sabbath. The text explains that spitting is essentially similar to throwing across four cubits, and winnowing serves only to teach that the involvement of the wind does not exempt, so this is not a “common denominator” but rather an expansion and construction of the labor of throwing through a component taken from winnowing. The text formulates the distinction as follows: in the common denominator one performs elimination and arrives at a shared denominator, while in conceptual construction one performs a union of unique components to create a new concept, and announces that the implications will appear in later lectures.
Full Transcript
[Rabbi Michael Abraham] We’re in the middle of discussing abstractions, and last time I started the topic at the beginning of Bava Kamma, where the starting point was the relationship between primary categories and derivatives. The four primary categories of damages: the ox, the pit, the consuming damage, and the fire. I tried to show, again, how this connects to our issue: the link between a primary category and a derivative is of course a result of abstraction. The moment you ask yourself what the primary category is an example of—an ox’s goring, that’s an example, at least in the Talmud’s way of thinking, it’s an example. An example of what? An example of ox-damages in general? If so, then an ox’s foot should be a derivative of the ox’s horn, because the ox did both this and that. But no, the Talmud doesn’t see it that way. The Talmud sees goring as one primary category and trampling as another. So that means the similarity lies in what essentially characterizes the primary category called goring—that is, an ox’s goring. It’s not that the ox did it, but it’s also not that it was done with a horn, or whatever; you can come up with endlessly many possible generalizations or abstractions. And in fact that’s what abstraction is. The Talmud decides that the relevant abstraction for goring, for example, is something unusual that intends to cause damage. That’s the definition of goring-damages. And of course that has many implications. Meaning, a dog’s bite—even though it’s done with the mouth—but not a dog’s bite, an ox’s bite—why is that unusual?
[Speaker C] What does unusual mean?
[Rabbi Michael Abraham] It’s unusual because it’s not doing it in order to eat; it’s doing it in an unusual way. “Unusual” means not the normal way. A dog bites from time to time, but that’s not the regular action of a dog. When a dog eats something of yours, that’s normal, that’s a dog’s ordinary way; if you put it there, it’ll eat it. “Unusual” doesn’t mean rare; it means not the natural, normal way. So the definition of the primary category of goring-damage is something unusual and intended to damage, meaning it does it in order to damage, not for pleasure or something like that. Those are the essential characteristics of this primary category called goring-damages. And from that, of course, follow lots of consequences, because now all the derivatives—butting, biting, crouching, and kicking, as we saw in the Talmud—all these are derivatives of goring, even though kicking is with the leg, butting is with the body, biting is with the mouth. I might have said: that’s horn, that’s a derivative of trampling, and that’s a derivative of tooth. But no—the Talmud is clear that this is a derivative of goring. Why? Because the Talmud performed an abstraction. The Talmud took the example of goring-damages and says, okay, behind this there is really some general principle. And that general principle, of course, can be interpreted in many ways. The Talmud chooses this possibility for various reasons, but it seemed reasonable to it that these are the relevant parameters. And whenever we generalize and abstract—and we talked about the relationship between abstraction and generalization—whenever we make an abstraction or a generalization, there’s a degree of freedom, meaning in the question of how you decide, from the particular case, what the relevant group is that this particular case represents. You can generalize in many ways. You see a donkey: the group of donkeys, the group of four-legged creatures, the group of animals, the group of brown or gray beasts—I don’t know, you can generalize in lots of ways. And you have to decide what the relevant feature is that is really the basis for your generalization. And that is exactly what we see the Talmud doing at the beginning of Bava Kamma. And I said that really the whole flow of the Talmud can be seen, for example according to Nakhalat David—though it seems to me that this really is a wonderful plain-sense reading of the Talmud—that the dilemma in the Talmud is what kind of relationship between primary categories and derivatives we’re talking about here. There are two types. One type is the conceptual or learned relationship, where the derivative is learned from the primary category. It is learned from the primary category because it resembles it, it resembles it in the relevant parameter, which is the abstraction and generalization as I described until now. Ask yourself what the essential characteristics of the primary category really are, and then you say that anything that has those essential characteristics is a derivative of the primary category—what I called a learned derivative. Then there is a derivative that is a derivative of causation, a causal derivative. For example, in the primary categories and derivatives of the Sabbath, this is a learned derivative; in the primary categories and derivatives of impurity, it is a causal derivative. Meaning, a primary source of impurity that touches something else turns it into a first degree of impurity—not because it resembles it, but because it created it, generated it. So the relationship between the primary category and the derivative in the context of impurity is a relationship of causation, not a relationship of resemblance as a basis for analogy—that’s learning. And the question the Talmud discusses throughout the first two pages of Bava Kamma is: what is the nature of the relationship between primary categories and derivatives in tort law? Is it a learned relationship or a causative relationship? And the Talmud’s conclusion on page 3b is that the only derivative that is not like its primary category—that is, it’s a derivative that is not like the primary category—and we said, what does it mean that the derivative not be like the primary category? It means it’s a causative derivative and not a learned derivative. Because a learned derivative means exactly that they are similar, so their laws will also be the same. A causative derivative—just because I was caused by someone—that doesn’t mean my laws will be like his. It doesn’t mean I resemble him. So indeed the only derivative is in fact the only one that is causative and not learned, namely half-damages of pebbles, where an animal walks and kicks a stone and the stone flies and causes damage. So that is considered a derivative of trampling. Why is it a derivative of trampling? Because the foot created this damaging force. Not because it resembles the foot, but because the foot created this damaging force. Therefore it’s like the primary categories and derivatives of impurity, which are derivatives of causation. What matters for our purposes, of course, is the primary categories and derivatives of the Sabbath, and almost all the primary categories and derivatives of tort law, except for half-damages of pebbles, where the relationship is basically conceptual. Because the conceptual relationship between a primary category and a derivative is really the relationship of abstraction and generalization. You abstract from the primary category, you create a definition of a group of damagers all of whom share the essential characteristics of the primary category. So by means of abstraction you created a group. That is exactly the extension created by the intension we talked about.
[Speaker A] But could it be that you can find—or invent, however you want to call it—other causative derivatives in tort law? Why is that the only one?
[Rabbi Michael Abraham] So we talked about that too. For example, pebbles under goring. In a case where it gores and sends something flying, that really would be pebbles under goring, and there’s a discussion in the Talmud in the second chapter how to relate to them. Is it a law given to Moses at Sinai that this is still considered a derivative of trampling, in which case he pays half-damages, or is it a derivative of goring, and then he pays quarter-damages, because goring itself pays half, and pebbles under goring would be a quarter. So the Talmud discusses that. Meaning, pebbles from the body, pebbles of—the Talmud even discusses pebbles of pit somewhere, I think. I’m not sure how such a thing would come out.
[Speaker D] But then that’s included in causation and not in conceptual learning. What? So then it’s included in causation.
[Rabbi Michael Abraham] And causation—
[Speaker A] can exist not only through pebbles but in other ways too. Right.
[Rabbi Michael Abraham] No, what do you mean? Usually causation is pebble-type causation. What other causation is there, where a primary category of damage causes something else that itself goes on and damages? What I’m trying to think of is really when you send something flying and it damages, or I don’t know, maybe if an animal starts a fire, for example—maybe that could be something like this. Say my animal starts a fire, so the fire is one that I didn’t ignite, my animal ignited it. Maybe that too is considered—there is, by the way, a discussion of this in the Talmud. If it rubbed against a wall and the wall falls. Ah, that’s ordinary damage, not indirect damage, and its body is what damaged. So if it did this for its own pleasure, it needed to scratch itself, that’s a derivative of tooth. If it didn’t do it for its own pleasure but in the course of walking, then it’s a bit like trampling. The blow of the wall. The wall then goes and damages? Because the wall fell on something. That’s ordinary pebbles. Like a stone—what difference does it make?
[Speaker C] Why did you say trampling is half and trampling is full? What? Why did you say it’s a quarter? Like goring, half.
[Rabbi Michael Abraham] The Torah itself says so.
[Speaker C] Why?
[Speaker G] If it’s innocuous or forewarned.
[Rabbi Michael Abraham] “And they shall divide the live ox, and divide its money.”
[Speaker G] But that’s if it’s innocuous or forewarned.
[Rabbi Michael Abraham] An innocuous goring ox, yes. Goring, in the first three gorings, pays half-damages. And more than that: according to Jewish law, this half is also a fine. There’s an amoraic dispute in the Talmud, but in practice this half is a fine, and in principle, strictly speaking, one should pay nothing at all. But the Torah still imposed a fine so that a person would guard his ox, so it says: pay half-damages. So really, what I want to focus on now is that we’re dealing with conceptual derivatives, not causative derivatives. Because conceptual derivatives are basically the result of abstraction. You abstract, and the Torah always speaks through examples, and from the example we have to extract some principle, which is exactly the process of abstraction. And that principle can now be applied in additional forms. Those additional forms are derivatives. The same is true for the primary categories and derivatives of the Sabbath. The Torah speaks of the thirty-nine primary categories of labor—it doesn’t literally speak of them, but we derive somehow from the Torah the thirty-nine primary categories of labor—and all the things similar to them. Similar in what way? Similar in the essential characteristic that we understand to be essential within the primary category. Then those things will be derivatives. I once mentioned the derivative of building, which has two derivatives between which there is no similarity at all, right? The primary category of building has two characteristics. It might have, say, characteristic A and characteristic B. There is one derivative that has only characteristic A, so it resembles the primary category in part. There is a second derivative that has only characteristic B; it too resembles the primary category, but only in part. But between the two derivatives there is nothing. It’s not transitive. Meaning, this resembles that, and that resembles that, but there’s no resemblance between these two. Okay? Because the resemblance is from different aspects. Okay, so all of these are basically results of the abstractions we make. And the whole concept of primary categories and derivatives is basically the result of a process of abstraction. Meaning, we abstract from the primary categories, on the assumption that the primary category appearing in the Torah is an example of a more general principle, an abstract principle, and everything we derive from that principle will be called a derivative. There are things, however, that you have to understand are still not entirely simple. There are things that are completely similar to the primary category, and this is defined in Maimonides—and it’s not written in the Torah—but it is completely similar to the primary category. Not only in the essential characteristics, but completely similar. Then Maimonides calls it a quasi-primary category. It’s not called a derivative; it’s called a quasi-primary category. And the question is what the relation is between them, and whether there is a halakhic difference.
[Speaker A] And can a quasi-primary category also have separate derivatives?
[Rabbi Michael Abraham] Yes, but the derivatives of the quasi-primary category will presumably also be derivatives of the primary category itself. If they resemble it, they resemble it.
[Speaker A] Is there a halakhic difference? There’s also no halakhic difference between a primary category and a derivative.
[Rabbi Michael Abraham] No, there is. Someone who performs a primary category and its own derivative brings one sin-offering for one lapse of awareness. Now the question is: if he performs a primary category and a quasi-primary category, presumably he will also bring one sin-offering. What’s an example of a quasi-primary category? I no longer remember the examples Maimonides gives.
[Speaker C] Something completely similar, but not actually it.
[Rabbi Michael Abraham] Yes, completely similar but not actually it. The Talmud itself says, basically, that winnowing, selecting, and sifting should really have been considered one primary category, and they were counted as three different primary categories among the thirty-nine only because all three were in the Tabernacle. That’s all. But in terms of the relations of resemblance between them, it should have been one primary category. So that, for example, is a case of what Maimonides would define as a quasi-primary category, if the Talmud had not said it was an actual primary category. There’s also the issue of sowing and watering. There’s some Rabbeinu Hananel at the beginning of the seventh chapter of tractate Shabbat, where some want to argue about pruning. Is pruning a derivative of sowing, or is it a quasi-primary category? Because in Rabbeinu Hananel there there’s something about whether it’s a quasi-primary category or a derivative.
[Speaker C] Pruning resembles… not harvesting? Pruning is when he cuts?
[Rabbi Michael Abraham] Pruning, harvesting—and that is exactly the point. Harvesting: you harvest, say, fruit because you need the fruit. Pruning: you prune so that the tree will grow; you don’t need the leaves that you remove. So that is exactly not similar to harvesting, even though the action is the same action. And here’s another example of the meaning of abstraction. You abstract. Ostensibly the resemblance is a perfect resemblance to harvesting. But when you think about what the essential characteristic of harvesting is, beyond the question of what you’re physically doing, you want what you are harvesting. Here, by contrast, you are really throwing it aside so that the tree itself will grow, which is really to cause it to grow, so this is a derivative of sowing.
[Speaker C] So here the point is basically the purpose?
[Rabbi Michael Abraham] Right, exactly. The same with any labor not needed for its own sake, for example. This is labor performed exactly like the labor that was done in the Tabernacle, but for a different purpose. For example, someone who digs a pit and needs only its dirt. I dig a hole, but I don’t need the hole, I need only the dirt that comes out of it. So I’m doing exactly the same action, but I’m doing it for a purpose other than the purpose for which it was done in the Tabernacle. That is called labor not needed for its own sake. There is a tannaitic dispute whether one is liable or exempt. So we’re focusing on this issue of conceptual derivatives. Now in that context, we started the Talmud on page 6 and the Rosh. I began a little bit of the Rosh, and that’s where I want to continue from. The Talmud on page 6 talks about “their common denominator,” which is the end of the Mishnah at the beginning of Bava Kamma. After it brings the four primary categories of damages and explains why each one is not similar to the others, it says: “Their common denominator is that their way is to cause damage, they are your property, and you are responsible for guarding them, and when they caused damage, the damager is obligated to pay compensation from the best of the land.” Meaning there is some shared characteristic among all of them, that they are really your property, you must guard them, and if they caused damage despite your guarding them, you must pay from the best of the land. That’s the rule of—
[Speaker C] What is “the best of the land”?
[Rabbi Michael Abraham] So the Talmud itself on page 9 discusses at length: in tort law there is a rule that you must pay from the best. And “best” means either cash or something marketable—
[Speaker F] Or the best-quality land, no?
[Rabbi Michael Abraham] There is superior, intermediate, and inferior land. Something sharp, as they call it, something readily marketable. So that’s the rule the Mishnah brings at the end, and then the Talmud asks—and already on this point it asks a strange question—it asks why this rule is needed: what does it come to include? We have the examples; why do we need the rule? That’s the opposite of what we would ask. If you have the rule, why do you need the examples? The Talmud has more trust in examples. That too is connected to our subject; you have to understand that. It’s connected to our subject because even though examples would seem, ostensibly, to be a bad way to convey rules, since from any example—or even from several examples—you can create other possible generalizations, nevertheless the Talmud thinks that examples are a better way to convey the message than giving you the rule. Because the rule boxes you in too much; once you cling to the rule, you don’t really understand the insight behind it, and the examples give you that better. Which is of course a very interesting conception in the legal world. There are major debates about this. British law, for example, which is more casuistic—cases, according to cases—really does trust examples rather than rules. German law tends more toward a top-down approach, a positivist approach that says: we’ll give you the rules, and from them you will deduce the answers to the particular cases that come before you. So the Talmud’s conception, or the Talmud’s mode of thought, is more similar in that sense to British law: it is casuistic, it gives you cases. The commentators are always the ones who make the rules. Let’s see what rule stands behind the case. The Talmud brings a case. The Talmud discusses relatively few rules—comparatively few rules. And even here, where the Mishnah has already done us the favor of bringing the rule, the Talmud asks, what does the common denominator come to include, who needs the rule? So here we learn something more about abstractions: even though it seems a little loose, as though it’s all free-form and you can do whatever you want, the Talmud has great trust in abstractions. Meaning, the Talmud sees the process of abstraction as a process in which, all in all, if you’re skilled, you’ll reach the correct answer. In a modern eye there is often some reservation about such a thing. That is: give me the rule. From the example you can’t prove to me that this is the rule that emerges from it. נכון, there’s no proof. Induction is never something you can prove. But everyone understands that there are inductions that make sense and inductions that don’t make sense. Only many people have trouble admitting that, because it seems unfounded, irrational, illogical. What, he just thinks this and the other guy thinks that, and you can’t prove him wrong, so who says you’re right? Because I’m right, that’s all—why are you pestering me. In that sense, this kind of plain common-sense outlook. And in that sense I think this is very strong in the Talmud. There is great trust in the ability to infer conclusions by way of analogy and induction and these softer methods, not by some strictly compelled mathematical-deductive logic. And someone who believes in such a method adopts the British method. Meaning, he goes by way of examples and from the examples you infer the conclusions. The Germans are more skeptical; they are more scientific. There, everything is science. So legal science means you have to give the rules, and from them the answers to cases are derived deductively. There was even a time when people thought that in the end this would make judges unnecessary. Because after all it’s just mathematics. Give it to the computer and out comes the answer…
[Speaker A] Yes, give the rule and we’ll know immediately.
[Rabbi Michael Abraham] Today nobody really believes that, but for a certain period that was the ideal. Anyway, the Talmud asks: what does the common denominator come to include? And then the Talmud brings a whole series of examples that we learn from the common denominator. What does that mean? It means that if the Mishnah at the end had not said what the common denominator is, I would not know that one is liable for this. Why? Because it doesn’t resemble any one of the primary categories. You need to create this derivative—or learn it, in this case it is learned, not caused—so it is a conceptual derivative. But it’s a conceptual derivative not of one primary category, but a conceptual derivative of two primary categories; in this case two, though in principle it could also be of three or four. Okay? Now what are these examples? One is, for example, his stone, knife, and burden, which he placed on top of his roof, and they fell in a normal wind and caused damage. Meaning, he put some stone or object on top of his roof, and a normal wind came—a wind he should have anticipated, otherwise it would be considered unavoidable accident—and the normal wind knocked it down and it caused damage. Now whether it caused damage while moving or after it came to rest, the Talmud discusses that. It doesn’t matter. But in principle, it caused damage. So what then? In the end… the Talmud concludes, just so we understand one case for example, that it is talking about a case where they caused damage after they came to rest. Meaning, the stone or knife fell by force of a normal wind into the public domain, and then someone tripped over them or something like that and was injured. Okay, so it really became a pit. But apparently pit alone can’t teach this, so we need the common denominator. Why? The Talmud says: according to Samuel, who says that all of them we learned from pit, isn’t this pit? This is something lying in the public domain, an object of yours lying in the public domain—say a banana peel. If you threw it into the public domain and someone slipped on it, you’re liable because of pit. That’s not the common denominator; that’s a derivative of pit. It’s even actually pit, if I… But here it’s not similar to pit. Why? “And they are not similar to pit. What is unique to pit? That no other force is involved in it. Will you say the same here, where another force is involved in them?” In the end, the damaging object here was created by the wind—or by the wind together with me. I put it on the roof and the wind blew it off the roof down below. So in the creation of the damaging object—not in the act of damage itself, notice, but in the creation of the damaging object—the pit itself, how was it created? It was created with the help of the wind. And since another force is involved here, you might think perhaps here he should be exempt. Because the pit written in the Mishnah is a pit that I myself dug, I made it. A place where the wind dug the pit, or at least took part in digging the pit, I cannot learn that from pit. Therefore we need the common denominator. So how does this work? It works like this. We try to compare it to pit. We say: no—what is unique to pit is that no other force is involved in it; can you say the same here, where another force is involved in them? So from pit you can’t learn it. Fire will prove it. Fine, so let’s learn it from fire. What is unique to fire? That its way is to go and cause damage. Fire, for which one is liable because it damages, is something that advances quickly; there’s no control over it. Therefore with fire you must be very, very careful, and they impose on you very strict responsibility. And you’re liable for fire-damages. Here, true, another force is involved in them, but it’s not something that goes and damages and can spread easily. In that sense it’s not similar to fire. It doesn’t have the tendency to go and damage. Once it came to rest, it came to rest.
[Speaker C] It fell from the roof, reached such-and-such a place, and that’s where it is.
[Rabbi Michael Abraham] At first the Talmud rejects the possibility—it raises the possibility that it caused damage while moving, in which case it would really resemble fire, and therefore it shifts to a case where it caused damage after it came to rest. Okay. Then the Talmud says: what is unique to fire? That its way is to go and damage. You can’t learn this from fire, because fire is very highly likely to damage, the chance that it will cause damage is very high, and therefore they impose heavy responsibility on you. Whereas with his stone, knife, and burden, once they came to rest, they’re at rest, they’re there. Usually passersby can watch out. It doesn’t go and seize fields, and you have no control over it. So perhaps there you wouldn’t be liable. You can’t learn it from fire. So the Talmud says: pit will prove it. Pit comes back and proves it. But we already saw that pit also isn’t similar. How can pit prove it? The Talmud says: and the law returns. That’s always how the common denominator works, and it’s a logical miracle, this thing. It’s a logical miracle because in the common denominator what happens is that you have two teachers—in our case pit and fire. And you have the damaging category that is the derivative, right? Those are the two primary categories. Now we’re trying to produce a child that is the child of two fathers. It can’t be the child of one father, because neither of the two fathers alone can teach us about the child. Why? Because each one of the two fathers has some characteristic that is a stringency in the father, and perhaps only because of that the father is liable. The child, which does not have that stringent characteristic, perhaps there the Torah would not impose liability. So you can’t learn it. The objection always points to a characteristic that is more stringent in the father than in the derivative. Now in both fathers, each one has a stringent characteristic, and therefore from neither one alone can you learn the derivative. The Talmud says: true—but if you take the two together, then there is no problem. Why is there no problem? This one can’t teach because it has one problem; that one can’t teach because it has another problem. Fine, but who says—let me formulate it this way—why can’t I raise an objection to the learning from pit and fire together to his stone, knife, and burden that caused damage? How would the objection go? What is unique to fire and pit? That in each of them there is some stringent characteristic: in fire, that its way is to go and damage; and in pit, that no other force is involved in it—
[Speaker A] That its creation is originally for damage.
[Rabbi Michael Abraham] Right, that too. So therefore, therefore, you can’t learn from the two of them together. What kind of miracle is this? What kind of miracle can produce something where each teacher alone fails to teach the derivative, but you combine the two together, without adding anything at all, just the mere fact of combining the two together succeeds in teaching the derivative? Something in the logic here doesn’t work. Now… this is what is called an argument from a primary category built from two verses, one of the thirteen interpretive principles by which the Torah is expounded.
[Speaker C] What was that last phrase he said there?
[Rabbi Michael Abraham] “And the law returns.” What is that? It’s abbreviated. In places where the full formulation appears—the Talmud is simply speaking in shorthand here—so it says “and the law returns,” meaning: “This case is not like that case, and that case is not like this case; their common denominator is that their way is to cause damage and the responsibility for guarding them is upon you; so too anything whose way is to cause damage and whose guarding is upon you is liable to pay.” But the Talmud doesn’t have the energy to write that out every time, so it says “and the law returns,” etc. Now this miracle basically creates a situation here—by the way, there are places in the Talmud, in tractate Makkot page 4, in Ketubot page 32, and in several other passages, where the Talmud raises this objection. It says: what is unique to the two teachers? That in each of them there is some stringent side. So you also can’t learn the derivative from the two together. And there the medieval authorities discuss: if you can raise such an objection, then there is no such thing in the world as an argument from a primary category built from two verses, because that is the logic of such an argument everywhere. The question is what is special there, and I won’t get into that here; I also once wrote an article about it. So the point is this.
[Speaker C] It’s funny to call it a miracle. They decided that’s what it means. What? It’s funny to call it a miracle. Why? Because it’s something they decided, and it’s not understood. Okay, they didn’t just decide arbitrarily; there needs to be—
[Rabbi Michael Abraham] —some logic to it. What—
[Speaker C] they just decided it’s a miracle?
[Rabbi Michael Abraham] So really there is no logic in it. Okay, that’s the question: what is the logic here? When I said “miracle” I meant, ostensibly, no logic—how did they decide? Not of course a miracle in the sense of some supernatural change.
[Speaker C] Right, no, I didn’t understand what the miracle here was at all.
[Rabbi Michael Abraham] Fine. The point is this. I think that generally the common denominator—and this is an important introduction to what I’ll say later—generally the common denominator is exactly the classic case of generalization, like scientific generalization. What are we really saying? We are really saying that each of the primary categories—in this case, say, pit and fire—has one characteristic that makes it more stringent. Say pit has the characteristic that no other force is involved in it; it was created by the digger’s own hands, the wind was not a partner in it—that is the stringent side of pit. And fire has the stringency that its way is to go and damage, that there is no control over it, and one must guard it well. Now what does this mean when I come to learn from pit? What am I really saying? I am really saying: I want to learn from pit that his stone, knife, and burden too are my property, they caused damage, their guarding is upon me, and I am liable to pay. You object: no, because in pit no other force is involved in it—maybe that is exactly why you are liable to pay? Okay? That is basically the meaning of the objection. Then we say: fire will prove it. Why? Because fire goes and damages. What? Fire goes and damages, and yet when another force is involved in it one is liable. True—but fire’s way is to go and damage; maybe in fire that is why one is liable. We prove from pit that pit does not go and damage, and yet one is liable. What have we proven here? We have proven that the two characteristics through which we thought to explain the liability are not relevant, because the stringent characteristic of primary category A does not exist in primary category B. So how can you say that that is the characteristic because of which they are liable? Here, primary category B doesn’t have that characteristic, and nevertheless one is liable. And the stringent characteristic of primary category B is not the reason one is liable, because in primary category A it isn’t there, and nevertheless one is liable.
[Speaker A] No, but there’s a list of characteristics—it’s enough for you to have one of them, and here it has none of them.
[Rabbi Michael Abraham] I’ll get there in just a second, step by step. So the logic basically says that we are ruling out the relevance of the characteristics, exactly—that’s precisely the process of abstraction. We’re trying to understand which of the characteristics of a pit or of fire is the essential characteristic because of which the Torah obligates payment. Maybe the fact that “its creation was for damage” is the essential characteristic, and then his stone, knife, and load would not fit? That’s not true, because in fire another force is involved in it. So he says no, that can’t be it, because in fire another force is involved and yet one is still liable, so that cannot be the essential characteristic. It’s a method of elimination; it’s exactly elimination, right? Now I do reverse elimination: in fire, “its way is to go and cause damage”—maybe that’s the characteristic? Not true, because in a pit its way is not to go and cause damage, and yet one is still liable, so that too is not the essential characteristic. What remains? What essential characteristic still remains, and is common to both? That both are your property and their safeguarding is your responsibility, and because you did not guard them and they caused damage, you must pay. That also exists in his stone, knife, and load. The special characteristics that we ruled out—if they could have been the characteristics that generate liability, then there would have been a problem; I couldn’t derive the subcategory from them, because the subcategory doesn’t have those characteristics. But I showed, by way of elimination, that these are not the relevant characteristics. So what remains? What remains is the common characteristic of the two primary categories: that they are your property and their safeguarding is your responsibility. And that is also true of his stone, knife, and load. Therefore, in the case of his stone, knife, and load, he has to pay.
[Speaker C] But that’s also true of the other two primary categories.
[Rabbi Michael Abraham] Correct, so—
[Speaker C] So why bring—no—
[Rabbi Michael Abraham] But here, from the other two primary categories I had no initial thought at all to derive it from them.
[Speaker C] Okay.
[Speaker H] But who is the primary category?
[Rabbi Michael Abraham] Wait. Here we’ll get to the Rosh, whom I already mentioned last time, but here I want first to give a certain introduction, and we need more detail in order to understand the Rosh. So here’s the detail. Now Shmuel asks, justifiably, that one could build a different theory. A student once asked me this in Yeruham, in the first cycle there in Yeruham, and that’s what got me thinking about this whole issue. He said to me: what do you mean? There’s no logic here at all. You can build a theory that either characteristic X or characteristic Y creates liability: whoever has one of the two must pay. Either the characteristic that no other force is involved in it, or the characteristic that its way is to go and cause damage. If either one exists, you are liable to pay. That explains liability for fire, because it has the characteristic that its way is to go and cause damage—even though not the first, but the second. In a pit the first exists and not the second, but one of the two exists and that obligates. It’s a bit like medical or psychiatric diagnosis: sometimes with complex things they say, if you have seven out of ten symptoms, we declare that you have such-and-such disease. Not all the characteristics are always present. We don’t know how to describe it exactly, but if you have seven out of ten, you’re already sick.
[Speaker C] There’s quite a bit of psychopathy like that.
[Rabbi Michael Abraham] Also in many things—there are all kinds of partial diagnoses. And that’s basically to say: we have a set of characteristics; if one of the two, or seven of them, or whatever, is present, that too is a definition. Okay, now if that’s really so, then the logic of the common denominator is still problematic. That’s what Shmuel asked earlier. Because what’s the problem? Who says the relevant characteristic is that “it is your property and its safeguarding is your responsibility,” the common denominator? Maybe not. Maybe it’s one of the two unique sides, not the common side. Let me put it in the language of variables. We have two sources, A and B—those are the primary categories. We have the subcategory C, his stone, knife, and load that he placed on the roof. The primary categories are pit and fire. Okay. Now both primary categories have characteristic Z, and the subcategory also has characteristic Z, so that’s why I try to derive C from A, because both have Z; I try to derive C from B, because both have Z. I can’t derive it from A because A has characteristic X, and C doesn’t have characteristic X. I can’t derive it from B because B has characteristic Y, and C doesn’t have characteristic Y. So I say: fine, then clearly X and Y are not the relevant characteristics, because for the two primary categories, each one has only one of them—one has only X and the other has only Y—and yet in both cases there is liability. So it can’t be that Y is specifically required, and it can’t be that X is specifically required. Therefore they are not relevant. What remains is the common characteristic, Z. It characterizes both, and it exists also in the subcategory, and therefore it can be derived. And that’s why it’s called the common denominator. There are aspects that are not equal in the two source categories; we reject them, neutralize them through elimination, and we are left with what is common to both—that is, what characterizes both and also exists in the subcategory, and therefore we derive from it. Except that against this there is a difficulty: there is an alternative theory, namely that either X or Y suffices. That too is a theory. Why say it’s Z? That you cannot rule out—either X or Y. You can rule it out, of course, if you bring me a third primary category that has neither X nor Y. But then I might find there some Z. Exactly—no, Z is the common factor, so maybe W. Fine? Then I’ll build a more complicated theory: either X or Y or W. I can always do that. So who says it’s the common denominator and not an either-or union of the two non-common, unique sides? Now here the answer is that we go with the simpler theory. Occam’s razor. Basically we say there are two theories. One theory says either X or Y determines liability. The second theory says Z determines it—one characteristic. Now which is simpler? The second theory is simpler, so I prefer it. And the assumption is that this—now here it’s more than just “I prefer it.” Because if the Holy One wrote the Torah on the assumption that we would construct an analogy from two sides—that is one of the thirteen interpretive principles, deriving a principle from two texts—then the Holy One already knew מראש that if He put two texts there with different characteristics, we would take the common denominator. In other words, here it’s not even a risk, because if we have such an interpretive principle, then the Holy One also writes it in a way that will work out. So you can even be calm that you derived it correctly. But notice: this is exactly how we make scientific generalizations.
[Speaker C] But Z can be terribly complex.
[Rabbi Michael Abraham] No, here Z is simple.
[Speaker C] What was our Z here? What’s the characteristic?
[Rabbi Michael Abraham] “It is your property and its safeguarding is your responsibility” is a derivative formulation. Anything that is your property and whose safeguarding is your responsibility—that’s just words. So just words.
[Speaker C] So not only must the wording be simple; the thing itself also has to be simple.
[Rabbi Michael Abraham] What do you mean?
[Speaker C] The thing itself has to be simple.
[Rabbi Michael Abraham] Yes. If that thing is complex, then we’ve gained nothing. Unless—well, no, it depends. This is already a comment for connoisseurs. If that thing can also be defined as A and B and C, that’s not a problem. Because “either X or Y” is less simple than one thing. But any one thing you can break down. What does “your property” mean? That you acquired it lawfully, and you possess it, and it’s registered in the land registry. So that too is complex. What does “your property” mean? Right, but that’s complexity made up of “and” requirements. It’s made up of a requirement of “and,” and that is one requirement. I don’t care, understand? If it’s “either X or Y,” then that’s one of two requirements, and that is more complex. So let’s look at scientific generalization. In scientific generalization, basically, let’s say we want to generalize the law of gravity. So I take this book, let go of it, and it falls to the earth. Now I take this thing, let go of it, and it also falls. So I say: fine, now let’s see whether this cup will also fall. So I say: I don’t know; let’s learn it from these. Okay? Both of them are made of plastic, right? So here—you see, if this falls to earth, this too falls to earth. Someone says no—what about the fact that it is black and the cup is transparent? So I say: the book will prove it. The book is not black; it is white, and it also falls. Someone says: but the book is made of paper and not of plastic. So then you can’t learn from the book to paper. But fine—this one is not made of paper and it also falls. So what do you say? Apparently neither being made of paper nor being black causes the fall. What do these two have in common? These are the two primary cases. They have mass. And this too has mass. I prefer the common denominator of the two over the theory that says maybe anything that is either black or made of paper falls. That too would explain all the data—assuming those are my only data, yes? That too would explain all the data. Why do I prefer this theory? Because it is simpler. So I say: the common denominator of the two is a simpler theory than hanging it on the unique side of this one or the unique side of that one or the unique side of that one. Therefore every scientific generalization is built this way as well. The common denominator is nothing other than abstraction or scientific generalization. That’s all. And the logical move of the common denominator is elimination of irrelevant parameters, and that is exactly what we do in science. And what do we do in science? If someone had seen those—what do you call them—those amps falling to earth, he might have said: okay, maybe electronic devices fall to earth. What do you do in science to test whether that’s true? You take something that is not an electronic device and check whether it also falls to earth. If it does, then we have ruled out the relevance of being an electronic device. That is not the reason it falls to earth. So what is? Something else, I don’t know, we have to search. What will it turn out to be? We’ll choose what is common to all the objects we have seen falling to earth. The more diverse a set we choose, of course the better. Because then it means we have ruled out more and more unique properties, and we will reach the most basic property common to all the objects we observed.
[Speaker C] Although it could always be that we were wrong—like a helium balloon.
[Rabbi Michael Abraham] Yes. Sometimes it could turn out that I was wrong. We may discover there are things that won’t fall to earth despite having mass, like a helium balloon. Of course that’s because of the air; in a vacuum it too would fall. But I’m only saying on the principled level: we can be mistaken. We have no guarantee that our generalization is correct. More than that: no one standing next to us guaranteed that the simple theory is the right one. There are very complicated scientific theories that are the correct ones. Quantum theory—no one would say it is the simplest theory imaginable. It is far from that. But the fact is that it explains the facts. What? It explains the facts.
[Speaker A] A Japanese physicist there said—Michio Kaku—that yes, it’s the most absurd theory ever born, but it works.
[Rabbi Michael Abraham] The only advantage in its favor is that it works.
[Speaker C] What’s nice is—what’s nice is also true—Einstein.
[Rabbi Michael Abraham] And about that—
[Speaker C] He refused—that’s why he refused to accept quantum theory.
[Rabbi Michael Abraham] Right. And that shows that, with all due respect, the Holy One doesn’t always work for us. Meaning: among the options that explain the facts, you choose the simplest option. But you can’t say the simplest option is the truest if it doesn’t explain the facts. There are simpler options; they just don’t explain the facts. Right?
[Speaker C] Maybe that is the simplest option that explains the facts? What? Maybe quantum theory is the simplest option that explains the facts, so you’re still back at the same point.
[Rabbi Michael Abraham] No, I’m saying it is the simplest option—
[Speaker A] Among those that explain the—
[Speaker C] The facts, right, same point, true as of today. Yes, exactly. Always with us. No, that’s why I’m saying, you—
[Rabbi Michael Abraham] Among the options that explain the facts, you choose the simplest. But to say that a theory is true because it is the simplest is nonsense. First you have to check that it explains the facts. Among those that explain the facts, you choose the simplest. That’s a very common mistake. Newton is much easier than Einstein’s theory of relativity—much simpler. Yes, but it doesn’t explain the facts. There are some of the facts it didn’t explain. From that one needs to assume that—well, okay, let’s not get into those arguments—
[Speaker C] Ancient arguments. Let’s just keep going. I wanted to say that at some point.
[Rabbi Michael Abraham] So in the end, coming back to our topic: we choose the simplest explanation, and that’s one of the indications of how we generalize, or how we abstract. You take the characteristics—or the common denominator—the simplest or most basic common side among all the examples you know. Now, that’s not all, of course. Many times you have some kind of instinct that tells you what might be relevant and what might not. We have a sort of intuition like that, which helps us sort things out. I think I mentioned the example of Carr in history and puerperal fever—didn’t I mention that? With Dr. Semmelweis. We have some kind of intuition, even before we gathered the facts, about what might be relevant and what might not. Some would say that this too is the result of accumulated experience. I’m not entirely sure about that, but at least that is the accepted view—that intuition too is the result of experience. Like the Messiah, right?
[Speaker C] He will decide by smell, “and he shall smell with the fear of God.”
[Rabbi Michael Abraham] Right, that he will smell who fears God and who does not.
[Speaker C] Exactly. Here too it’s really something basic.
[Rabbi Michael Abraham] In any case, this is basically the result of generalization. So the common denominator that the Talmud uses here is a classic structure of generalization, like the kind of scientific generalization or scientific abstraction we make. What is abstraction? I take the example that this falls to the earth, and I say: fine, this object has lots of characteristics. We talked about the fact that abstraction means removing characteristics. It has characteristics that are irrelevant: that it is made of paper, or that it is white, that it is thick, that it is thin—irrelevant. The only characteristic that ends up relevant after we finish the analysis is that it has mass. That’s all. That is called abstraction. Abstraction means removing characteristics or removing information. We said that removing information expands the group described by the label. The less information it contains, the more objects it refers to. Right? Therefore abstraction or generalization is basically the removal of characteristics, and the removal of characteristics is the process of elimination that yields the common denominator. We move aside characteristics—we remove, sorry, we remove the characteristic that another force is involved in it, we remove the characteristic that no other force is involved in it, we remove the characteristic that its way is to go and cause damage, and we remain with only one characteristic: that it is your property. And then we have made a generalization, or an abstraction.
[Speaker C] The word “abstraction” also means “simple,” and also that you strip it of all the wrappings.
[Rabbi Michael Abraham] It’s the same thing, not two things. To make it simple means without wrappings; that too is a kind of simplicity.
[Speaker C] And it also means stripping off garments.
[Rabbi Michael Abraham] Garments, yes—what are called garments, yes. So that’s the common denominator here, and that’s the common denominator throughout the Talmud.
[Speaker C] 5759.
[Speaker E] 5756. 5756 is simple.
[Rabbi Michael Abraham] 5759.
[Speaker C] Fine, but “simple”—page 60. Page 60a, and we have pepper.
[Rabbi Michael Abraham] Okay. So last time we saw in the Rosh: “And some of the great authorities wrote…” Now he is talking about the case of his stone, knife, and load—his stone, knife, and load. What I said until now was only background, though important background, but now the Rosh will be built on that. “And some of the great authorities wrote that one is liable only for that for which both are liable, and exempt from damage to vessels and from killing a person, like a pit, and from hidden items, like fire, because since they come from the common side, we give them the lenient element of both.” What does that mean? We talked about the fact that each of the primary categories has its own special exemption. Fire is exempt for hidden property. If fire burned a stack and something was hidden inside it, you don’t have to pay. That is written in the Torah or derived from the Torah. A pit is exempt for “ox and not person, donkey and not vessels.” A person injured in a pit—exempt. Vessels damaged in a pit—also exempt. Okay? For animals one is liable, but ox/person/vessels—exempt.
[Speaker E] A pit—
[Rabbi Michael Abraham] Ten, a pit of nine—but let’s not get into the details. Now the question is: I have the damaging agent of his stone, knife, and load, which is derived jointly from pit and fire. Now if his stone, knife, and load damage hidden property or damage vessels, will there be liability or exemption? That is basically the question the Rosh is dealing with. On the pure logical level, the opinion I just read is the intuitive one: that it should have both exemptions, like the exemptions of the pit and also the exemptions of fire. It has to be that way, because if you need both primary categories in order to derive the subcategory, then both must be liable. Think, for example, if I now want to make the subcategory liable for damage to hidden property. Fine? Let’s see why I would obligate payment. After all, I need to derive it from fire and pit. But fire is exempt for hidden property, so it can’t teach me that. Fire here cannot contribute to the derivation—only pit can. But you can’t derive from pit, because in pit no other force is involved. I need fire too in order to derive it. Therefore it is clear—at least from an initial logical perspective—that the result of the process I described until now is that the subcategory will have all the exemptions that both primary categories have: both the exemptions of primary category A and those of primary category B. Otherwise the logic won’t work. You can’t derive in the subcategory liability for hidden property or liability for vessels. So the “some of the great authorities” whom the Rosh brings—that is apparently the straightforward conclusion. But the Rosh continues: “And some were uncertain about the matter.” What does that mean, “uncertain about the matter”? They think maybe that isn’t true. So what is the other side? What’s the alternative? That it should also have one exemption—
[Speaker H] One would be enough.
[Rabbi Michael Abraham] No, I think the intent is that if he doesn’t specify anything, I assume the second side is that one is liable for everything, both for hidden property and for vessels; there would be no exemptions at all. Either it has both exemptions of the two primary categories, or it has no exemption from either one, right? I think linguistically that’s what it means—he raises no other possibility. Why not specifically pit, specifically fire—say something. Rather, they were uncertain whether it has the two exemptions or no exemption at all. What is the idea behind that? We understood the first side of the doubt, the one held by the great authorities. But we have to understand the second side of the doubt—what is its internal logic? Why should there be no exemption here at all? Here we return to what we discussed in the Talmud. Because it could be that once we have learned the common denominator of the Mishnah, we then forget the examples. It’s like Baron Munchausen’s ladder: he climbed the ladder and then threw it away. Okay? Same here. We created the common denominator by generalizing from the examples. Fine? Now we already have the common denominator. Anything that is your property and whose safeguarding is your responsibility—you have to pay. This definitely meets those criteria. His stone, knife, and load are your property, their safeguarding is your responsibility, you are liable to pay. Right? For that I no longer need pit and fire. Pit and fire were only the scaffolding on which I built the rule. Now what determines the law is the rule. So why do we still need the primary categories? For their own specific laws, as the Talmud says on page 5. On the contrary: if you now want to exempt this thing you created—his stone, knife, and load—from hidden property, then it would have to resemble fire. But it doesn’t resemble fire; it resembles it only partially. So you cannot exempt it for hidden property. The hidden-property exemption means… in other words, you learn the exemption from fire, not the liability. Okay? You learn the exemption from fire, and therefore it would need to be completely similar to fire in order to receive fire’s exemption. It is not completely similar to fire. And the same applies to the exemptions of pit. It is not completely similar to pit in order to—meaning, the difference between this and the method of those great authorities is the question of how we view generalization. And that’s why it relates to our topic. Is a generalization merely a shorthand way of listing all the items from which it was built, or not? Once I’m done with the items, does the generalization stand on its own? Now this is the rule. The items only helped me formulate or understand the rule. Now I threw them away, and now it stands on its own. The “some of the great authorities” understood that the generalization really is—and by the way, that’s the straightforward sense of the Talmud. The common denominator—what do you… why do you need the common denominator? Basically, the examples matter. Why do we need the common denominator? To derive something from two primary categories, pit and fire. The simple approach really is that the common denominator does not stand on its own, the rule. The rule is only a general way of formulating what the examples say, but in the end you are deriving from the examples. And if that is really so, then there must be the two exemptions, both the exemption of fire and the exemption of pit, as those great authorities say. Those who were uncertain read the Mishnah in a way that is not simple. There are reasons they do that—I won’t go into them now—but they read it in a very non-obvious way. They claim that once the rule has been formulated, it is actually the examples that become unnecessary. Because the rule tells you: anything that is your property and whose safeguarding is your responsibility, you are liable to pay. His stone, knife, and load certainly meet that criterion. You are liable to pay. Why exempt them for hidden property? This is not fire. It has nothing to do with fire. If you want to exempt it for hidden property, that would only be if it were completely like fire, because in fire there is a scriptural decree that it is exempt for hidden property. This is not completely like fire; it is only partially like fire. So you cannot exempt it for hidden property. And similarly with pit: you cannot exempt it for vessels or for a person, because it is not completely similar to pit. Okay? For exemption you need to compare it to the primary categories—not for liability, according to this approach. And that is the doubt of those who were uncertain about the matter. Now the Rosh himself comes and says a third approach. By the way, I haven’t found anyone who—usually they learn the Rosh as if there are only two views here. In my opinion there are three. And the Rosh himself says: “And it seems to me that they have all the laws of pit.” It is completely like a pit. It has only the exemptions of pit. Meaning, there will be liability, but for vessels and for a person there will be exemption, exactly like pit. And what about hidden property? For hidden property there will be liability, because pit is liable for hidden property. Right? Fire is exempt for hidden property—not relevant to me. They have the law of pit completely.
[Speaker A] Which is very strange on the logical level.
[Rabbi Michael Abraham] What do you want from pit? Why specifically pit? First of all, why do some learn in the Rosh that there are only two views and not three? Because they think that “those who were uncertain about the matter”—no, that those who were uncertain were uncertain between the first approach and the third: between whether it has both exemptions or only the exemption of pit. And they never entertained the possibility that there would be no exemption at all. But according to the order in which the views appear in the Rosh, it’s clear that this is wrong. Because otherwise the Rosh should have said: there is one view that it has both exemptions, one view that it has only pit, and one view that is undecided between them. Since he says that they were uncertain before he states what the second side of the doubt is, clearly the other side of the doubt is the obvious one. And the obvious one is that there are no exemptions at all. I claim there is my own new view here: that they have only the law of pit—they have the law of pit completely. Therefore I claim that there are three views here in the middle, not two between which there is only uncertainty. What is the idea behind this? In my view, he understands the process of generalization differently, and all of these are really approaches to how one understands abstraction and generalization. That’s why I like this sugya. How do we understand abstraction and generalization? What he is basically claiming is this: I want—how is the common denominator structured? I begin by deriving the child category from one of the primary categories. Right? From pit. Okay. Why derive it from pit?
[Speaker D] Because it’s really a pit.
[Rabbi Michael Abraham] Think about it: his stone, knife, and load that fell from the roof in a common wind. So what is there now? Now there is a stone in the road, and you trip over it, just like a pit. It is completely a pit. Except what? There is something in the history that bothers me. What? Because this pit was created not by a person digging it, but by the wind, which partnered in the creation of the pit, in the formation of the pit. Right? So in the formation—not in the mode of damage, but in the formation of the pit—there is some limitation. You cannot see this simply as a pit and that’s it. If there were only pit in the Torah, you wouldn’t know that there is liability here. Okay? But basically, when you look at it, it is a pit. It has nothing to do with fire at all. The way the thing causes damage has nothing at all to do with fire. The formation of the damaging agent happened also with the help of the wind. But the damage itself is pit-damage in every respect. Therefore, says the Rosh, this is not a common denominator at all, contrary to the Talmud’s formulation. It is not a common denominator. The common denominator is basically a derivation built like this: I take the two source categories, neutralize their unique traits, and remain with the common denominator, with the common trait, namely that it is property. Right? Here, no. It is pit—not a common denominator. Except that when the analogy to pit bothers you, because here the wind was involved in the formation, that I will show you from fire—that it need not bother you. From fire itself I cannot derive it at all; it is not similar to fire at all. Because “its way is to go and cause damage”—that is not similar to fire at all. Fire merely serves me here to remove a problem in the analogy to pit. There is a problem in the analogy to pit because in pit the wind is not involved. I will show you that the involvement of the wind does not interfere. I will show you that from fire. Now once I have removed that side-problem, what are we left with? We are left with an ordinary pit. So, says the Rosh: it is a pit.
[Speaker A] But that explanation means the use is not symmetrical. We only go in one direction. Right. The Talmud’s wording is not like that. Why? “What about this and what about that…” No, therefore—you see the total lack of symmetry.
[Rabbi Michael Abraham] Judith asked earlier: how does it end there? “And the law returns.” Right? There’s that little short phrase and they stop in the middle. “And the law returns.” Usually when they make a common denominator—and that is in almost every place—they continue the whole sentence: “And the law returns; the aspect of this is not like the aspect of that, and the aspect of that is not like the aspect of this; the common denominator between them is such-and-such, so this too is such-and-such, and therefore the law is such-and-such.” That whole sentence usually appears. The abbreviation here may be for this reason. Because really in “and the law returns” they do not say “and the common denominator between them is such-and-such,” because this is not a common-denominator derivation. The law returns to pit. The law returns to pit, exactly. Because through fire I showed you that you can return to pit. The problem with pit is not so severe. And therefore the Talmud did not accidentally omit the continuation of the sentence, because the continuation creates the common denominator. Here it is not a common denominator, the Rosh would say. Not true. It removes an interference in the original analogy. The original analogy is the correct one. This is basically a pit. You could only have raised a side objection—fine, but here the wind is involved. I will show you from fire that that is not correct. What do you want? So basically what you have here is the removal of an interference; it is not a common denominator. But you have to notice well: this is not smooth. It is not smooth, because what you can show from fire is that when the wind is involved, that does not interfere with liability—as long as it is not hidden property. But with hidden property it does interfere with liability. So there would still be room to say that although this is entirely a pit, it is a pit that should be exempt for hidden property. Because your proof that the wind does not interfere is only as long as we are not talking about damage to hidden property. But with hidden property you cannot prove that. Maybe whenever the wind is involved there will be exemption for hidden property. Right? Fine—keep calling it a pit, but it will be a pit exempt for hidden property. Because you cannot prove to me that the involvement of the wind does not interfere in cases of hidden property, because in cases of hidden property, evidently it does interfere. So the logic of the Rosh here is not a complete logic. And it seems to me that if I go one step further—and maybe this is really for next week’s lesson; I probably won’t have time to get to it today—basically what the Rosh is saying here may be some kind of what I once called in an article conceptual construction. It is not the common denominator; it is almost the opposite of the common denominator, although the medieval authorities (Rishonim) do not make this distinction, and therefore there are difficulties. Next lesson I’ll show you how difficulties get resolved once you understand this. It looks very similar, but it is something entirely different. Even though it looks very similar, you can formulate it in almost the same way. It is a completely different derivation. I’ll perhaps bring an example I already mentioned, because through it maybe one can explain this more easily. I spoke about spitting in the public domain, remember? The Jerusalem Talmud writes that one is liable. Liable. Why liable? There are two possibilities: either because of throwing. What? Spitting in the public domain.
[Speaker C] And that would make him liable? What?
[Rabbi Michael Abraham] No, no, not on the Sabbath, not on the Sabbath. When I throw something in the public domain, I’m liable—four cubits, then I’m liable. If I—no, sorry, let’s put it this way: if I carry something four cubits in the public domain, I’m liable. Okay? That is a subcategory of carrying out. A person’s four cubits are considered like his own domain. Once you walk four cubits, you’ve left your domain; that is a subcategory of carrying out. Fine? One who carries four cubits in the public domain. What happens if I throw something in the public domain? That is a subcategory of carrying. Fine? A subcategory of carrying, maybe carrying itself or a subcategory—I won’t get into that now—but it is a subcategory of carrying. What happens if I spit? What is the difference between throwing and spitting? In spitting, the force by which I propel the spit does not take it four cubits. The wind takes it. Without the wind it would land after one cubit.
[Speaker C] There are those who—
[Rabbi Michael Abraham] Doesn’t matter, but there the case is one where you need the wind too. So what then? Among the later authorities who bring that Jerusalem Talmud, it is brought as Jewish law in the Rema and the Shulchan Arukh, and the later authorities who discuss why there is liability there—some say… maybe even in the Jerusalem Talmud itself it says something like that it is because of throwing, and some say because of winnowing. Throwing or winnowing—there are variant readings; it seems to me these may even be readings in the Jerusalem Talmud itself. Rabbi Menashe of Ilya, a student of the Vilna Gaon—the Mishnah Berurah brings him, either in the Bi’ur Halakhah or Sha’ar HaTziyun, I don’t remember—says it is both throwing and winnowing, not two variant readings. This is the only case in the laws of the Sabbath that I know of—I think I looked and asked; I don’t think there is another case, not in the medieval authorities (Rishonim), not in the later authorities (Acharonim), not in the Talmudic texts, nowhere—where a subcategory is learned from two primary categories in the laws of the Sabbath. In tort law there are several examples here. On the Sabbath there are only subcategories of one primary category. There is no example of a subcategory of two primary categories except this one—except according to Rabbi Menashe of Ilya. Meaning that Rabbi Menashe of Ilya claims that spitting is a subcategory of both throwing and winnowing together. Now let’s try for a moment to understand what winnowing is. Winnowing is when I take the kernels with the chaff, throw them upward, and the wind blows away the chaff because it is light, and the kernels drop down clean. The meaning of the act is basically separating the food from the waste, right? Separating the kernels from the chaff—I use the wind to do it. Okay? What is throwing? Throwing is basically moving the object a distance of four cubits in the public domain; that is the act of throwing. Now what is spitting really similar to? I am not separating anything from anything. Winnowing is one of the forms of selecting. The essence of winnowing is selecting; it separates the kernels from the chaff. You did it in a certain way, so it counts as winnowing, right? Yes, with the aid of the wind. But the essence of the act is separation between two kinds. In spitting there is nothing like that—it is irrelevant, has nothing to do with it at all. If I need to compare spitting to something, clearly it is not to winnowing; it is a kind of throwing. Except what? I cannot derive it—because here the wind helped me; I didn’t do it solely by my own power. That’s what winnowing comes to tell me. In winnowing you see that although the separation of kernels from chaff is done with the help of the wind, that does not interfere with making you liable. The fact that the wind is involved does not exempt you. I take that over to throwing and say: spitting is a kind of throwing in which the wind helps. From winnowing I learn that such a throwing is also throwing; the involvement of the wind does not interfere. When you ask me in the end what it resembles, obviously it resembles throwing and not winnowing. It has nothing to do with winnowing at all. Winnowing is an act of separation. Here you are doing no separation.
[Speaker A] Winnowing comes in—it’s really the same structure as here.
[Rabbi Michael Abraham] It is very similar to the Rosh’s method here. Exactly. And that’s why I’m bringing it. Winnowing basically comes only to tell you: don’t worry about the involvement of the wind. The involvement of the wind does not exempt. That’s all. But what does it do? It basically defines and expands the category of throwing. It is not a derivation by common denominator. In the end it defines and expands the category of throwing. What does it say? Take the component of throwing—
[Speaker A] They don’t have a common denominator between the two.
[Rabbi Michael Abraham] Exactly. The component of throwing means moving an object four cubits in the public domain. That is the essence of the act of transfer, so to speak—creation, it’s an inferior labor category, but that is the essence of the labor on the Sabbath. What happens if I do it with the wind? I take a component from winnowing and say: there is this component, the involvement of the wind; I show that it does not interfere, and I insert it into throwing. Throwing with wind is like winnowing with wind. Just as in winnowing it doesn’t bother me that it is with wind, so too in throwing it doesn’t bother me that it is with wind, and therefore this is expanded throwing.
[Speaker C] Isn’t there a parallel here to hidden property? What? The matter of hidden property.
[Rabbi Michael Abraham] No, no, this is in the laws of the Sabbath. But the logic of the derivation is exactly the same as the Rosh. The Rosh learned this way here too. And as you are noticing, this is not a common denominator. Listen, formally I could formulate it as a common denominator. I could say: let’s derive it from throwing. Then I say: but in throwing the wind is involved. So I say: winnowing will prove it. What does winnowing prove? That we should derive spitting from winnowing? No. If throwing did not exist in the world, no one would ever have thought to derive spitting from winnowing. What connection is there? Winnowing is separating two things; spitting separates nothing. I can say, as if, “winnowing will prove it,” and then say: but winnowing involves separating two things—what has that to do with spitting? So formally I can do that, but it’s nonsense; it’s not a refutation. It means the whole thing never gets started. There is no initial thought to derive it from there. Rather, this is not really a symmetrical derivation. In the common denominator there is a symmetrical derivation: I derive from this, reject it with a refutation; derive from that, reject it with a refutation; combine the two and say this is the common denominator. Here there is no symmetrical derivation. I derive only from one side. The second side only adds a component that you can implant or assimilate into the first primary category, to produce a new primary category composed of one component taken from here and one component taken from there. You fuse them and create a new primary category: throwing with the help of wind—and that is spitting. This is the exact opposite of the common denominator. It is very similar; one can formulate it that way, but it is the opposite. In the common denominator you neutralize components. You say: in this primary category, component X is not relevant, so only Z remains. In that primary category, component Y is not relevant, so only Z remains. Therefore what remains for me is only Z; only Z is relevant. You strip away the wrappings and remain with the core that is in both. Here you do not remain with a core that is in both. There is nothing at all that is common to both. Is there anything common to winnowing and throwing? Nothing. What is common to them? Nothing at all. On the contrary: I take a component that exists only in throwing—moving four cubits in the public domain—and a component that exists only in winnowing—the involvement of the wind—and I join them. I do not strip away. I take precisely the unique component that is here and the unique component that is there, not clean them off and remain with the common factor. On the contrary: I take the unique component that is here and the unique component that is there, glue them together, and create a new primary category. That’s why I call it conceptual construction and not common denominator. Even though I could have formulated it formally in exactly the language of the common denominator, it is the exact opposite. The logic is reversed. There it is elimination—
[Speaker C] Here it’s really not elimination; it’s synthesis. In the holy tongue, they also talk about roots of two letters.
[Rabbi Michael Abraham] And here—
[Speaker C] There is the matter that both have zayin and resh. And apparently there is something common in them.
[Rabbi Michael Abraham] There is a claim—I once saw someone make this claim—that all things that have zayin and resh have some common feature—
[Speaker C] I don’t remember what he said there, tsadi and resh and all that—
[Rabbi Michael Abraham] Maybe. I don’t remember what he said there, so I can’t try to say it. In any case, when you look at the two labors, they have nothing in common, and you’re not taking a common denominator either. What common denominator is there between winnowing and throwing that also exists in spitting? Nothing. They have nothing in common. On the contrary: they have two different components, and you take the unique one from this one—let’s say we start with the same setup—both primary categories… this one has unique characteristic X, that one has unique characteristic Y. In the common denominator, both also have common characteristic Z, and the learner also has it. Right? And what you do is say: X is not relevant, Y is not relevant, so you are left only with Z. That is called the common denominator. In conceptual construction it works the opposite way. There is no Z at all. Here there is X and here there is Y. You take X and Y together and say: let’s fuse them together and create a primary category that has both X and Y together—that is what exists in the subcategory. And I derive the subcategory from the combination of the two sources, not from the intersection of the two sources, but from the union of the two sources. Okay? So I could have formulated it in a sentence very much like the common denominator, but that would be nonsense; that would just be formalism. It is simply the opposite. One is intersection and the other is union. And this is conceptual construction, and that is common denominator. And in the coming lessons we will see implications of this issue.