Innovation, Conservatism, and Tradition – Lesson 3

[Rabbi Michael Abraham] We’re in the topic of conservatism, innovation, and tradition. Up to now I’ve basically been dealing with the characterization of two models of conservatism: literal conservatism and midrashic conservatism. And I argued that although the midrashic conservative may perhaps be perceived as a heretic, a Reformer, someone who isn’t committed to the system or not fully committed to it, that isn’t necessarily true. In other words, it depends on the question of what justification he gives for the change he proposes. If we go back to the bathing-suit example, then someone in a cold region who switches to warm clothing can justify it by saying that he’s simply cold. He isn’t committed to the system. So he’s the heretic, the Reformer, the one who isn’t committed. But if someone says, I’m switching to warm clothing because he offers an interpretation—the interpretation is that one should wear clothing suited to the weather. The fact that our ancestors wore bathing suits is not because there is an obligation to wear a bathing suit, but because there is an obligation to wear clothing suited to the weather. So according to that, it comes out that now, continuing the path of our ancestors under the new circumstances means wearing different clothes. In other words, that’s actually the true conservatism. And according to this view, that’s what I called midrashic conservatism, because it is conservatism that preserves the instruction after it passes through some kind of midrash, an interpretation. It’s not the instruction as such—that would be literal conservatism. And I said that according to the midrashic conservative, the literal conservative is negligent. Negligent meaning not in his intention, but in his actions. In other words, he’s not really fulfilling the instructions. And therefore, contrary to what people often think, being a literal conservative is not playing it safe. The feeling is as though continuing as things were until now is the safe route. If you want to change, bring proof—who says you’re right? Maybe there are costs to it, maybe you’re wrong. But in exactly the same way one can say that maybe if you keep going as things were until now, you’re wrong—bring proof. Because if you’re supposed to wear clothing suited to the weather and you keep walking around in a bathing suit, then you’re not fulfilling the instructions. So you’re basically what I called negligent conservatism. There’s a sense that the conservative is always the righteous one, the one committed to the instructions, faithful to the instructions, not playing games with them. But no—there is such a thing as negligent conservatism. And again, I don’t mean intentions right now, that he intends to be negligent and deliberately walks around in a bathing suit even though he thinks otherwise. Rather, in practice what he is doing doesn’t fit the instructions. That’s what I mean by negligence in this context: not intentions, but actual conduct.

After that I spoke about the relation between the characterizations I gave, which are seemingly sociological characterizations, and characterizations of arguments. And I said that I’m aiming my comments toward trying to sketch a map of arguments, not a sociological map of groups. Groups and people are complex creatures. And those creatures can raise all kinds of arguments. Therefore, we’re supposed to assess an argument according to its logic, according to the reasoning in it, and not according to the nature or characteristics or label attached to the person making it. Focusing on the person making it is discussing the person rather than the issue. And therefore my goal is to characterize arguments, not groups. But there is some connection between different arguments and sociological groups. And I nevertheless think that connection sheds light on the topic. Even though it isn’t precise—it’s only a connection, not a full correlation—I think it illuminates the issue, and that’s why I touched on it briefly as well. And I said that literal conservatism can be identified with Haredi (ultra-Orthodox) culture. Midrashic conservatism would be, say, Modern Orthodoxy. I’m deliberately not including Religious Zionism here. I said Religious Zionism isn’t even on the map in this discussion. They have no opinion in this context. And I also said that, just like Religious Zionism, Conservatism is basically also a midrashic conservative position. And Reform is outside the game. So the claim is that there isn’t a separate category called Conservative; it too is midrashic conservatism, like Modern Orthodoxy. Maybe the difference is in degree, or maybe there isn’t even a clear boundary at all. And more than that, I said that the Haredi is also, in fact, a midrashic conservative. It’s just that the ethos he is used to putting before his eyes, or that somehow guides him, is an ethos of literal conservatism. But in practice he doesn’t really behave that way. Haredim certainly do change their customs and Jewish laws, just as other groups do. But the ethos within which they operate is an ethos of literal conservatism, and I gave examples—I won’t go back to that here. So that’s with regard to sociology. And again I say: you can hear from a Haredi person arguments of all kinds, from a Modern Orthodox person, from a Reformer; therefore there is no absolute identity between the type of argument you hear and the person making it. It’s a contingent connection. And one has to be careful not to go by, or cling to, the characterization of the person making the argument instead of discussing the argument on its own merits.

I also said—I think I said this too—that one cannot assume an original presumption in favor of the literal conservative. I spoke about that, right? Am I remembering correctly? The claim is that somehow the feeling is that the literal conservative is the default position. The burden of proof falls on the midrashic conservative. And why? Because he is the one coming to change things. He is proposing to change the behavior that existed until now. Therefore the burden of proof is on him. Whoever seeks to change is at a disadvantage. Doubt cannot override certainty; maybe he’s right, maybe not, so you don’t change things on the basis of doubtful arguments. That’s the intuition. But I said that this intuition is mistaken. It’s mistaken because according to the midrashic conservative, the literal conservative is the one changing what existed until now. Because according to the midrashic conservative, the instruction that had been fulfilled until now was an instruction to wear clothing suited to the weather, not to wear a bathing suit. And if you continue wearing a bathing suit in a cold region, then you are actually changing the state of affairs that existed until now. Suddenly you’re wearing clothing that doesn’t fit the weather. So the burden of proof is on you. Of course, that’s from the perspective of the midrashic conservative. So it turns out that both sides here—in a case of original presumption, monetary possession, or holding status, you have a situation where both sides agree who is in possession, except that here there’s a plaintiff trying to extract from the possessor. In our case there is no agreement about who the possessor is. The possessor, according to the midrashic conservative, is him, and according to the literal conservative, is him. Each one not only claims he is right; he also claims that he is the one in possession. That’s important to understand. Therefore it is an illusion to say that the one trying to change current conduct is the changer and so the burden of proof is on him. That’s not true.

Beyond that—and I also said this—there’s another common feeling, that conservative behavior has no cost. Therefore, first of all, it is preferable to be a literal conservative, and if the midrashic conservative isn’t right, that has costs, and so the burden of proof is on him. Now I’m not talking about legal presumptions but about concerns. About the idea that you’re advancing a claim with costs attached to it, so I won’t adopt it unless you prove to me that it’s correct. As if playing it safe is better. I already remarked earlier that this too is not true. The literal conservative is not proceeding more safely than the midrashic conservative. If the midrashic conservative is right, then the literal conservative is negligent. Not only is he changing and therefore he has no original presumption—that was my earlier point—now I’m also saying that he is negligent, he behaves incorrectly, and that has costs. And I gave as an example, beyond the cost of not doing God’s will and the question of who is right in Jewish law—for example, in the laws of evidence, where I spoke about women’s fitness for testimony. If there’s an incident where the only witnesses present were women—a murder in a ritual bath, for instance—then if the witnesses were only women and I disqualify them, in the end I’ll have a ruling here that is distorted, an incorrect ruling. Because there is testimony that in principle I should have accepted according to the midrashic line, and the literalist line says yes, but women are disqualified from testimony, so I don’t accept them. That has a cost. Because if I’m right, then the ruling he issued is a distorted ruling, not a just ruling. He left money in the hands of a thief, or he failed to punish a criminal or wrongdoer, or he failed to rely on testimony he should in fact have relied on. That cost is a heavy one. Beyond the religious cost—the question whether you are hitting on the correct Jewish law or not—here there are also consequences in the real world.

[Speaker B] Rabbi, in the time of the Sages, two thousand years ago, when they established the norm that women are disqualified from testimony—if there was a murder in a ritual bath, would they listen?

[Rabbi Michael Abraham] I think I mentioned this: there’s Terumat HaDeshen and Noda B’Yehuda, and both of them write that if there’s a murder in a ritual bath, women’s testimony is accepted. One of them—I no longer even remember which one says what—one of them says this is Torah-level, and you could even execute on the basis of that testimony, and the other says it’s a rabbinic law simply so there won’t be a loophole like this, where a crime can effectively be committed without fear of punishment. So then it’s just some rabbinic enactment, or punishment outside the law, or something of that sort. But look, the point is—I think the point is this: there’s a Talmudic passage at the end of the first chapter of the Mishnah—really the end of the first chapter of Makkot—where Rabbi Tarfon and Rabbi Akiva say: Had we been in the Sanhedrin, no person would ever have been put to death. Because if we had seen a murderer, we would ask the witnesses: did you see that there was no perforation exactly where the sword entered? Maybe the person who was killed was already mortally wounded anyway. It doesn’t matter—various kinds of clever little questions like that. And since the witnesses of course couldn’t answer affirmatively, we would acquit the murderer, or not impose the death penalty. Yes—if we had been in the Sanhedrin, nobody would ever have been executed. So Rabban Gamliel says: They too would increase bloodshedders in Israel. If you conduct things that way, there is no deterrence, and then you increase bloodshedders in Israel. What is the difference between the two views? I think the difference is first of all one of perspective. Rabbi Akiva and Rabbi Tarfon were not in the Sanhedrin, right? That’s what Rabban Gamliel says to them—and what they themselves say: had we been in the Sanhedrin. They weren’t in the Sanhedrin. Rabbi Akiva was the son of converts, so they weren’t in the Sanhedrin. Now then, they were basically scholars sitting in yeshivah, or researchers at a university in Jewish law, with all sorts of interesting proposals. Rabban Gamliel is the head of the Sanhedrin; he’s supposed to run things here. He bears responsibility. So with all due respect to the musings of scholars, in the end he has to run an effective legal system here. And I think this difference in outlook is extremely important. There are many things that in yeshivot somehow get waved through very easily, and my feeling is that they get waved through easily simply because we’re sitting in yeshivah. If we were sitting in a religious court, we would never imagine ruling that way. There are all sorts of examples of this.

[Speaker C] But Rabbi, according to the ordinary Jewish law that’s also a problem, because they say you need two witnesses and warning, and the person has to say, yes, I know, and nevertheless—this is also something that can’t really happen if he’s a murderer and not talking.

[Rabbi Michael Abraham] We punish—

[Speaker C] Outside the strict law.

[Rabbi Michael Abraham] What? We punish outside the strict law, we put him in confinement or something like that. In other words, we find solutions. But that’s the law; what can you do. We don’t change the Jewish law—I’m saying again—we don’t change the Jewish law because we have problems. At most we make a decree.

[Speaker C] According to the Jewish law, the only person executed is someone who admits, I am prepared to be executed, I say—

[Rabbi Michael Abraham] I understand, I know that, I’m familiar with it. But the point I want to emphasize—I didn’t say here, again I’m saying—I’m not claiming here that one should change Jewish law in order to solve practical problems that arise. If that is the Jewish law, that is the Jewish law. I’m only saying: don’t give me some hairsplitting sophistry when the whole system doesn’t work—if it doesn’t work, I won’t accept it. In other words, Rabbi Akiva and Rabbi Tarfon aren’t presenting an argument that shows us that this really is the Jewish law; they’re presenting a possibility. If I want to save someone from the death sentence, here’s one possible argument to do it. Rabban Gamliel says to them: I’m not looking for possibilities like that. There are things that are Jewish law and are imposed on me, so yes, it creates problems for me, and I have to solve them somehow, but I won’t just change the Jewish law because it causes me problems. That isn’t the claim. Okay? But to say that—

[Speaker B] To say, for example, what the rabbi said, that Terumat HaDeshen or the other one said women can testify on a Torah level—that’s really something extreme, no? Right, the—

[Rabbi Michael Abraham] Terumat HaDeshen—you’re right about that point. One of the two, again I don’t remember who is who, the one who says it’s Torah-level really is almost taking the step I mentioned earlier, the one we don’t take—namely, changing the Jewish law because some problem has arisen. The one who says it’s a rabbinic enactment is in fact doing what I said earlier—solving a problem by means of a rabbinic enactment, or punishment outside the strict law, or something like that. So yes, to say it’s Torah-level is definitely going quite far. But okay, those are two existing views.

In any case, why am I saying this? Because at the end of the day, to just pass over the fact that women are disqualified from testimony and move on to the next Tosafot—that’s a privilege reserved for people sitting in yeshivah who bear no responsibility. If a religious court or a Sanhedrin were sitting there—one that both legislates and judges, the people responsible for the functioning of the legal system—and every time there was a murder in a ritual bath, the person walked free, then murdering a woman would always be possible—at least a God-fearing woman who goes to the ritual bath, okay? It would always be possible; there’d be a safe way to do it. You understand that this wouldn’t happen. So I don’t know whether they would make a change in Torah law, like the view I mentioned earlier, but they certainly would solve it somehow in some other way. Okay? Therefore there are many things like this.

I once gave another example concerning relatives’ testimony. Maimonides and the Shulchan Arukh—it’s really a Talmudic passage in Bava Batra—but Maimonides and the Shulchan Arukh say that the fact that the Torah disqualified relatives’ testimony is not because they are not trustworthy, but a scriptural decree. In other words, related witnesses are trustworthy; they speak the truth. There is simply a scriptural decree not to accept their testimony. Fine. We check the box: scriptural decree, nice, and move on to the next Tosafot. Now I ask: tell me, what would you do if two witnesses came and testified that Reuven murdered Shimon, and then two relatives came and invalidated them? In other words, if two relatives came and testified that Reuven murdered Shimon, that’s a somewhat easier problem. It’s still a problem, but easier. Why? Because I don’t accept their testimony, so at most I fail to punish the murderer. I don’t know, maybe I’d imprison him or come up with some extra-legal solution. But in principle, failing to punish someone who deserves punishment may be easier to live with. But if two relatives come and invalidate two valid witnesses who convicted someone of murder—now, the relatives are subject to a scriptural decree not to accept their testimony, but I know they are truth-speakers, they are trustworthy; there is merely a scriptural decree not to accept their testimony. Which means I actually know that Reuven did not murder Shimon. Would there be a religious court that would execute Reuven even though it knows he did not murder Shimon, because there is a scriptural decree not to accept the testimony of the related witnesses who invalidated the first witnesses? If there were such a religious court, in my opinion it should be executed for bloodshed. Obviously not. In other words, if you actually had to do this in practice, I have no doubt it wouldn’t be done. No doubt at all. But somehow, for some reason, this sounds to people like a tremendous novelty, some point they never thought of before, when it’s the most elementary thing in the world. When you sit in yeshivah, you don’t think about it because you don’t really see in front of your eyes someone you have to execute even though you know he’s innocent. It’s simply inconceivable that someone would do such a thing. Now clearly, if someone were sitting on a religious court—anyone certainly—they would not do it, that’s obvious, because there they would see in front of their eyes what is about to happen; they would even be deciding the matter, okay?

But this theoretical perspective in yeshivah, in theoretical research or whatever it may be, is a certain angle that actually has value. There is value in detaching from practical constraints and thinking coolly, in a detached way, about the issue in order to try to understand it at the logical level. But after that one also has to understand what happens when you implement it. In the end, one also has to be aware that there are questions of implementation, implementation constraints, and that is very important when we come to put some Jewish law into practice. Therefore, for example, I think that today I am mortally afraid of the establishment of a Sanhedrin. If there were any way I could prevent the establishment of a Sanhedrin, if it were on the table, I would do everything in my power to prevent it. And why? Because I have no trust whatsoever in the people who would sit there. Those who today are considered, say, the leading rabbis—yet alongside that thought, there always gnaws at me not even a concern but the opposite, a hope, that when they sit on the seat of the Sanhedrin and the responsibility is on them, they won’t talk the way they talk today. Today it’s very easy to talk. The responsibility isn’t on you; you’re just sitting in the seat of the state comptroller. You criticize everything that’s happening here; you know how to do everything better. Me too, by the way. And in practice you have no responsibility. It’s very easy to be a theoretician. It’s important to be a theoretician—I’m the last person to disparage theoreticians. I’m only saying that one has to know, to be aware also of the limits of theoretical thinking, and to put the matter through one more test before it moves to action, before it moves to implementation. Okay? And I think that in a certain sense, when responsibility is on these people, it will also do something. It’s not that these are evil people or people detached by definition. If these people bear responsibility, I believe they will also weigh things properly. It’s not—yes, there is also a difference between a halakhic decisor and a yeshiva head, even apart from the question whether there is a Sanhedrin or not. A decisor thinks differently from a yeshiva head, in many cases at least, or in many examples, especially of yeshiva heads. There are yeshiva heads who think more like decisors, or who are also aware of the practical aspects, but as a category, theoretical yeshiva heads can be wonderfully brilliant, and yet they can say nonsense. Like—who was it? I no longer remember—Oscar Wilde, maybe, who said there are absurdities that only intellectuals can utter. Nonsense so great that only intellectuals can say it. And that’s very true also of Torah intellectuals, not just philosophers and the like.

[Speaker C] By the way, but there are admission requirements for the Sanhedrin—not just anyone can be there. You know, one has to know seventy languages and so on and so forth. You don’t need to worry; they won’t be there. Okay. No, seventy languages isn’t so simple. You can—actually you—

[Rabbi Michael Abraham] It could be that overall, within the Sanhedrin, there are seventy languages, not that every single person knows seventy. So that has already even been written about. All these initiatives to establish a Sanhedrin had to say what they would do with all these constraints of that sort. Things have already been written about it; there are solutions. In other words, the principle is that they need to sit—you can say that three judges receive testimony, and then the ruling is rendered by twenty-three. The judges who receive the testimony need to hear it in the original language. So for that it’s enough to have three for each language, okay? You don’t need all twenty-three to know all the languages, and so on. There are various practical solutions here.

Okay, all that is a parenthesis. Back to our subject: the claim is that there are costs to literal conservatism as well, and not only to midrashic conservatism. Therefore this intuitive feeling, this instinct that says the changer is at a disadvantage—the midrashic conservative, the burden of proof is on him—I don’t agree with it. For the two reasons I described here, I don’t agree with that. And I think I also said the additional thing, that in the end—maybe I’ll come back to that later; maybe I didn’t say it. Fine, so let’s move on.

In the end, what distinguishes an argument of literal conservatism from an argument of midrashic conservatism is the existence of the midrash. That is—sorry—between midrashic conservatism and Reform, the distinguishing feature is the existence of the midrash. The midrash basically says that yes, I am changing, but I make an effort to ground it in an argument that shows that this change is not really a change—it is faithful to the instructions. As opposed to a Reformer or a heretic, who doesn’t present a midrash; he simply changes things, period, because he isn’t committed. Okay? In other words, to define someone as a conservative, there must be a midrash in the background. I called it a conservative midrash. Because without that, you’re not a conservative.

Where does this whole matter of the midrash come from? Here I want to sharpen things a bit. Let’s return to the argument about women’s fitness for testimony. Usually when we build an argument of this sort—and I’m actually writing columns about this now, so apparently I didn’t even remember I was doing both things in parallel, but it must have been sitting in my head and that’s probably why I wrote about it too. In any case—the argument for changing Jewish law is usually built like this: The Sages disqualified women from testimony. In the past, women were not educated, or not involved in society, commerce, and so on. Today women are involved, educated, and so forth, and therefore today women should be validated for testimony. That is usually how the demand for change in Jewish law is presented. But as I presented it here, that demand is actually expressed in an invalid argument. The premises of the argument are factual premises: women used to be such-and-such, today women are different, they are like this and like that, therefore one must change the Jewish law. But the demand to change the Jewish law—the conclusion—is a normative conclusion, while the premises are factual. This is the ought-is fallacy, the naturalistic fallacy. You cannot derive a normative conclusion from factual premises. You need to add another premise in order for the argument to be valid; you have to add another premise. What should the nature of that premise be? It has to be a principled premise.

[Speaker B] A premise about the world, no?

[Rabbi Michael Abraham] No, a premise—on the contrary—not a purely factual premise, but a premise that connects the factual plane to the normative plane, that allows me to move from the factual premises to the normative conclusion. In our case, such a premise could be that the disqualification of women—that’s the midrash I spoke about—the disqualification of women from testimony stemmed from their lack of education or lack of social involvement. Okay? You have to add that premise for the conclusion really to follow from the argument, namely that one should change things or validate them for testimony. Without adding that, so what if in the past women were uneducated and today they are educated? So what? Who said that today we should validate them for testimony? Only if you assume that education is the parameter because of which they were disqualified from testimony, and then if that has changed today, then today they should be validated. So you need to add another premise here—the premise saying that their disqualification from testimony is because of lack of education or lack of involvement.

[Speaker B] But they never disqualified men at that time for being uneducated.

[Rabbi Michael Abraham] Wait, wait—that’s the objection. First let me explain the logic.

[Speaker C] But how do you know that’s the reason they disqualified them?

[Rabbi Michael Abraham] I didn’t say I know; I’m saying that’s what the proposal has to contain. It has to contain that premise too, because without it the proposal doesn’t stand. I haven’t yet said that I accept it either, but at this stage I want to understand whether the proposal even stands. Without that additional premise, there is no proposal. There’s no need to discuss whether I accept it or not; there’s nothing to accept. Once you add that premise, now the discussion begins: should one accept it or not. And is that true of men as well? What is the nature of that premise?

[Speaker B] And is it also true of men? What? I mean, lack of education is also true of men, not only of women.

[Rabbi Michael Abraham] Again, you’re going back to the previous question. I said I’ll come back to the questions—first let me show the logic. What is the nature of this assumption? It’s a bridge assumption, right? It says: the disqualification, the norm, the disqualification from testimony, stemmed from lack of education, from the fact itself. In other words, lack of education causes disqualification—that’s really the meaning of this assumption, right? It’s an assumption that connects facts with norms. And now the argument is valid. Women were disqualified from testimony. That was because of lack of education. Today women are educated. Conclusion: today women ought to be valid as witnesses. That is a valid argument. A valid argument still does not mean that its conclusion is true. For its conclusion to be true, you have to accept the premises. The validity of an argument only means that the conclusion follows from the premises. I haven’t yet discussed whether it’s actually true; I’m only talking about validity. When you make a proposal, the proposal has to hold water. That still doesn’t mean it’s a correct proposal, one we should accept. But first of all, there has to be a proposal before us. As long as there is no valid argument, there is no proposal here. There’s nothing to discuss, whether I accept it or not—there’s nothing to accept.

Now, after I added the bridge principle, the discussion begins. What is the discussion? Now pay close attention. What is a discussion like this usually about? I’m continuing with this example, but it’s a typical example. It’s true in almost every case of a discussion about changing Jewish law. The discussion is about which of the—after all, it’s clear that if the plain conservative doesn’t accept the conclusion, and the argument as I’ve presented it now is a valid argument, he can’t challenge the argument’s validity, so clearly if he doesn’t accept the conclusion, he has to point to which premise he doesn’t accept. Right? And then, if he doesn’t accept the premises, then even though the argument is valid, he doesn’t have to accept it. Which premise will he usually dispute? He usually won’t dispute the facts. Very often these people do in fact argue with the facts too, but—I’m talking about an enlightened plain conservative, okay? One you can talk to. So someone you can talk to is someone who recognizes the facts. He knows that in the past women generally were not educated, and today they generally are. There are always exceptions, but generally in the past women were not educated and today they are. That he agrees with. So why does he still not accept that today they should be validated as witnesses? Because apparently he doesn’t accept that the disqualification of women from testimony stemmed from lack of education, or that lack of education is the cause of the disqualification. In other words, he doesn’t accept that very assumption that was missing when I first presented the argument.

That’s why it’s so important to distinguish, or to understand, that the factual premises are not enough in an argument of this kind; you have to add the bridge assumption. Without it, we won’t even understand what the dispute is about. The dispute usually revolves around that assumption. And by the way, that assumption—that is the interpretive move. The conservative interpretive move is really to add that assumption. That’s what I called conservative interpretation. Because what did the conservative interpretation say? That the reason Jewish law disqualified women was because of lack of education—or in other words, they didn’t disqualify women; they disqualified the uneducated. Okay? That is really the conservative interpretation, from the perspective of conservatism versus reform. But here I’m now looking at it from the perspective of the validity of an argument. The conservative interpretation is the assumption that completes the interpretive conservative’s argument and makes it a valid argument. Without that, there is no such thing as interpretive conservatism. And this is an important point. Why? And this already touches the question not only of whether it’s valid, but whether it’s true.

Because of course there’s some kind of automatic reaction, or automatic instinctive response, against arguments of the sort I’m making here. I’m saying this from rich experience. I assume some of you are probably already feeling it now, but I’ve known this for many years. What’s the issue? The issue is that the feeling is that this way you can basically abolish all of Jewish law. For any law I can invent one argument or another and show that it belonged to the past and doesn’t belong today. Right? That’s reform in broad terms. Not for nothing is the feeling toward such arguments that these are reformist arguments. So I claim no—it’s interpretive conservatism, it’s not reform. But what do you mean? So you can turn over all of Jewish law without saying the word reform. But de facto, what’s the difference? Only the type of reasoning? That’s true, it is only a difference in the type of reasoning—and it’s a very important difference. Why? Because those who fear slippery slopes, who fear that people will do this to all of Jewish law, are ignoring a very important point.

Because this additional assumption is an assumption that I can of course present, but nobody is obligated to accept it. The assumption has to be reasonable in order for the argument to hold water. I could say that women were disqualified from testimony because this was the era of the first century CE, and therefore it’s not relevant today because today it’s the twenty-first century. That’s an unreasonable argument. It would make the claim unreasonable. It would make the argument valid if you add that assumption. There is a proposal here that rests on a valid argument. But that assumption is completely unreasonable. So that’s nonsense. I’m talking about situations in which one can raise an argument where the bridge assumption, or the conservative interpretation, is a claim that is definitely reasonable. True or not true? We’ll discuss it. But you can’t dismiss it out of hand. It’s not just some nonsense you made up. When you make up nonsense like that, clearly it’s a reformist argument. You’re a reformer using arguments as a cover for your reformism, because the arguments don’t hold water, so I don’t believe that you yourself believe them. It’s nonsense. But an argument of this kind about validating women as witnesses—it seems to me that even if you don’t agree, you can recognize that I do believe it. It’s not a stupid argument. You can agree, you can disagree, but it’s not a stupid argument.

Now, an argument of this kind cannot be made about all Jewish laws. That’s simply not true. I don’t think there’s a reasonable argument for changing all Jewish laws. A formal argument that could propose some bridge assumption that would change all Jewish laws—there’s no problem finding one. But that’s not interesting. Obviously, with formalism you can go very far. We’re not talking here in a formal world. I’m talking about addressing reasonable proposals. It’s still not certain that they’re correct—we have to hash it out, and in a moment we will—but these are reasonable proposals. Reasonable proposals. And now we have to see whether to accept them or not. Unreasonable proposals are not on the table. So don’t tell me that if we accept reasonable proposals, then unreasonable proposals will be raised. If they’re unreasonable, I won’t accept them. Usually that’s where arguments like these are meant to shut people up—slippery slope arguments. No, I’m not afraid of slippery slopes. Usually. There are exceptional cases where I am. The Torah says, “You shall make a safeguard for My safeguard.” The Sages enacted ordinances here and there; sometimes you have to close breaches. But I don’t accept shutting people up across the board because of some general fear like that. I just don’t accept it. Certainly not in a place where the fear is not serious. And if someone really is a reformer and uses arguments of this kind as a cover, then he’s a reformer. What am I supposed to do with him? Fine. In any case he does whatever he wants. So he won’t have the cover—fine, he won’t have it. Because of that I’m supposed to act incorrectly? If my argument is correct, then that’s what should be done. Therefore, in my view these fears are formal fears. A whole ministry of slippery slope. No need to exaggerate. There is room for slippery slope considerations, but very limited, qualified, bounded. No, there is no room for hysteria about slippery slopes.

Now maybe I’ll answer what Shlomo said earlier. That’s the logic. What Shlomo said earlier—fine. “But I have an objection to the…” Now we move to the question: okay, there’s a reasonable proposal, there’s a valid argument—now how do we decide whether it’s true or not true? In the end, you have to bring evidence. Because you can make this claim, and you can also claim that it isn’t true. You have to bring evidence. We spoke earlier a bit about the burden of proof. I’ll come back to it, but for the moment I’m suspending that. We’ll return to it in a moment.

What evidence can one bring? For example, one piece of evidence is what Shlomo mentioned earlier. We do not find that the Sages disqualified uneducated men from testimony. Even cattle herders, say—right?—that’s not because they’re uneducated, it’s because they’re lawbreakers. In other words, people who are literally uneducated were not disqualified. But by the way,

[Speaker C] Or an imbecile.

[Rabbi Michael Abraham] Someone who is not engaged in the functioning of society is disqualified from testimony—dice players and pigeon racers. They are not engaged in the functioning of society. And not being engaged in the functioning of society is already very close to someone who is not integrated into social life, the marketplace, commerce, because he doesn’t understand responsibility, he doesn’t have an understanding of the consequences of things, what things mean. That is indeed very similar. But let’s leave that aside for now. That’s just a side remark. What is the claim? The claim is that we did not find men who were uneducated being disqualified, or men who were not socially integrated or something like that. My response to that is: correct, because Jewish law, as Maimonides says, speaks according to the majority pattern. Jewish law has to establish some sort of global rules. You can’t check each individual to see whether he’s educated enough or not—give an education test to every witness who comes to the religious court. So if we know generally that there is a group that is a group of uneducated people, say the women of the past, then we disqualify that group from testimony categorically. True, there will be exceptions. Beruriah, the wife of Rabbi Meir, was an exception and also studied Torah. Yet women are still prohibited from studying Torah. Why? After all, there are women who can. Fine, but Jewish law speaks generally. By the way, sometimes they really do allow those exceptions to deviate. Sometimes not. There are rules—“no distinctions” or whatever you want to call it.

Therefore I don’t think this is such a strong objection, the fact that we did not find exceptions regarding educated women or regarding uneducated men. It’s the same question as with Meiri, right? Why don’t we find, regarding righteous gentiles, that all the laws of sanctions against gentiles were canceled with respect to righteous gentiles? After all, Meiri says that the gentiles in his time behave properly, and therefore all the Talmudic laws that discriminate against gentiles are void with respect to them. So the same question arises with respect to him, right? Why? Wasn’t there some individual righteous gentile in the time of the Sages? Dama ben Netina, whom they bring as an example of honoring parents. Right? A righteous man, a righteous gentile, trustworthy. Okay. So should we validate him for testimony as well? We don’t find such a claim—perhaps in the gentile courts where they won’t damage their own credibility, but not with an individual gentile. Why? Because Jewish law speaks about groups. Jewish law does not speak about individuals. That’s the nature of a legal system in general, and also of Jewish law. As Maimonides says, Jewish law speaks according to the majority pattern, okay? It doesn’t deal with exceptions. Here and there there is reference to exceptions, but that’s only in certain cases. Usually, therefore, in my opinion that’s not really an objection.

All right, so now really: how do we decide? Has this proposal now reached the point of being reasonable? How do we decide whether it’s true? So here, ostensibly, we’re supposed to look for evidence. Evidence, say, from the Talmud—it doesn’t matter—from the medieval authorities (Rishonim), each person according to his conception of Jewish law, but we need to look for evidence in our sources and see whether indeed the disqualification of women from testimony is because they are uneducated, not integrated into society, and the like, or not. Because without evidence, ostensibly, everyone can say whatever he wants. But I want to say: let’s say we didn’t find evidence. If there is evidence, wonderful. We didn’t find evidence. The big question is what happens when there is no evidence. When there is evidence, then even plain conservatives usually won’t argue, or at least won’t be plain conservatives with respect to such questions. Plain conservatism clashes with interpretive conservatism in places where there is no evidence for the interpretation. There is a reasonable interpretation—that much I said earlier; there has to be. The interpretation must be reasonable in itself, in terms of logic. But evidence for that logic, or for that bridge assumption, that additional assumption, for that conservative interpretation—we haven’t found evidence. So what do we do then?

That brings us back to what I spoke about earlier. Do we go by presumption? There is no presumption here. Do we go by minimal cost? There is no minimal cost. On the contrary—usually the cost of conservatism is higher than the cost of innovation, because innovation is generally based on the idea that the new thesis is better than the old one. And the conservative wants to say: maybe you’re right, but by default I trust the wisdom of the generations. If it was that way once, then apparently there’s something right about it. So you understand that what we really have here is a dispute between a path that seems to us more reasonable and conservatism. So why not follow the more reasonable path? After all, by definition, when the objection is a conservative objection without offering a refutation of the logic of the conservative interpretation that I proposed, then that is a weaker thesis, a less convincing thesis. Because I’m offering you something rational, something with lower cost, and you tell me, yes, but maybe you’re not right, or yes, but our rabbis acted differently. So first of all I tell you that it’s not true that our rabbis acted differently. Our rabbis acted exactly as I say: they wore clothing suited to the weather, and they disqualified uneducated people. Therefore it’s not true that they acted differently. But I’m also saying, regarding costs, as I said earlier: being a plain conservative sometimes carries heavier costs than being an interpretive conservative. Because, as I said earlier—that was my point—why are the costs heavier? Because the plain conservative is really acting in a way that even he agrees is not rational.

After all, he too agrees that my proposal is more rational. He only argues: yes, but maybe it’s not true, maybe there is some hidden reason why we wear swimsuits and not because it suits the weather, or disqualify women because of some hidden reason and not because of some logic we can understand. So you yourself understand that behaving as you do is also less reasonable and also carries a heavier cost. So if there is no evidence for either you or me, all my logic says to do what the interpretive conservative proposes and not what the plain conservative proposes.

[Speaker B] Rabbi, and if the Sages established that women are disqualified from testimony, and in the plain meaning of the Torah we didn’t find such a thing—they only set up the…

[Rabbi Michael Abraham] They gave some interpretation, the midrash: “Then both men who have the dispute shall stand before the Lord,”

[Speaker B] Yes, but the Torah always speaks in the masculine, always in the masculine. Right. So I can say that back then it really fit the reality that—

[Rabbi Michael Abraham] So you’re making a different claim. You’re claiming that this interpretation that disqualified women from testimony is a dubious interpretation. Not dubious, simply… No, a dubious interpretation. And I’ll say more than that: doubly dubious, a baffling interpretation, really astonishing. “Then both men who have the dispute shall stand before the Lord”—those two men are the litigants, not the witnesses. Right. More than that: usually when the Torah says “men,” it means both men and women—Scripture equated woman to man regarding all punishments in the Torah. The Torah speaks in the masculine but means everyone. This whole story looks bizarre, and that actually strengthens the claim of the interpretive conservative even more. It basically says that the Sages wanted to disqualify women for reasons they genuinely understood by logic, and they hung it on some… dubious hook. They hung that coat on a dubious hook, yes, on this strange interpretation, some sort of supporting interpretation I would say, I’m not exactly sure. But if that’s so, then it only strengthens—maybe it doesn’t prove, but it strengthens—the claim that the disqualification didn’t stem from there. The disqualification stemmed from the logic by which they said women are not…

[Speaker C] I once heard an explanation in the opposite direction, saying they wanted to protect women, so they wouldn’t come to court, because it wasn’t honorable for them and not…

[Rabbi Michael Abraham] Okay, but today that’s no longer true.

[Speaker C] That psychologically it wasn’t good for them to be in such a situation. That’s not true—testifying about a murder has nothing specifically to do with a woman.

[Rabbi Michael Abraham] I’m saying, but that too is no longer true today. That has also changed today. Today women are in court and function, I assume, more or less like men. I don’t think there is some very clear difference. It’s possible that here and there there are differences…

[Speaker C] Still, it’s unpleasant to be interrogated and all that; it’s not a pleasant situation.

[Rabbi Michael Abraham] I agree, okay—men also don’t enjoy being interrogated. Fine.

[Speaker C] All right, that’s what I heard from… sort of a religious-conservative line.

[Rabbi Michael Abraham] No, you can propose all kinds of suggestions, but a large part of those suggestions won’t change our issue, because that too has changed today. So I would change it on the basis of those suggestions as well. I only brought examples; I’m not committed specifically to these examples. Again, the point is that it’s less important to me to validate women as witnesses than to see the logic of the argument and how reasonable this logic is, that it’s acceptable. It’s not a reformist issue and not an unreasonable issue. It is completely reasonable and acceptable. Now, you can agree, you can disagree—that’s another argument—but I don’t think anyone can claim there is something unreasonable or illegitimate here. You can say that you don’t agree, for this reason or that reason, don’t understand why, but you can say that you don’t agree. Fine, okay. So that point is more important to me than convincing you that women should be valid. For me it’s only an example.

[Speaker C] One more thing to support what you said—that women can testify about… forbidden foods, where there is no problem with a woman’s testimony. So why here yes and there no?

[Rabbi Michael Abraham] One witness is trusted regarding prohibitions, yes. That’s one of the proofs people want to bring that a woman’s disqualification from testimony is not because she is not trustworthy. Because if it were because she is not trustworthy, then also regarding prohibitions, and also regarding a woman’s testimony in permitting an agunah, yes, we would not accept women—but there we do accept women. So it’s apparently a formal disqualification, or a disqualification for other reasons, not because of the reliability of the testimony. All right, by the way, one can argue with that proof, but some of the later authorities (Acharonim) want to claim this.

Anyway, the claim in the end—what I want to claim, and notice this is a novelty—is that a proposal from an interpretive conservative is ostensibly supposed to do two things. First, it is supposed to rely on a reasonable bridge principle, on a reasonable conservative interpretation, and not just on formalism that comes to cover a reformist argument. Second, one would also think that it is supposed to be based on evidence. That’s what we would ostensibly think. What I’m claiming now, what I argued in the last few sentences, is that the first is true and the second is not. It does not have to be based on evidence. Of course if there is evidence, wonderful. And if there is evidence, I assume there will be fewer disputes too; there won’t be plain conservatives here. The dispute mainly flares up when there is no evidence. A reasonable conservative interpretation—you need that. You need to offer a reasonable explanation for the change you are proposing, why it continues the principles of Jewish law and does not deviate from them. But evidence for your reasonable explanation, the evidence for that reasonable explanation, you do not necessarily have to provide. If you have no evidence, in my opinion you still have an advantage over the plain conservative, for the reasons I described earlier.

[Speaker B] The Talmud sometimes says, “If there is logic, why do I need a verse?”

[Rabbi Michael Abraham] Yes, okay.

[Speaker B] Maybe that also applies in this triangle?

[Rabbi Michael Abraham] Yes, yes. Now, another objection can be raised from the side of the reason for the verse. The Torah disqualified women from testimony. We do not derive Jewish law from the reason for a biblical verse; in practice we do not derive Jewish law from the reason for a verse. It’s the dispute between Rabbi Shimon and Rabbi Yehuda, and Jewish law is ruled like Rabbi Yehuda, that we do not derive law from the reason for a verse. What does that mean? It means we do not shape laws according to purposive interpretation. We don’t say that this law came to achieve such-and-such a goal—yes, that is deriving from the reason—and therefore I can now change it because here that reason doesn’t apply. For example: “You shall not take in pledge a widow’s garment.” That’s the example the Talmud brings. “You shall not take in pledge a widow’s garment”—if you lent to a widow, you don’t take the widow’s clothing or bedding as collateral. Now Rabbi Shimon argues that we do derive law from the reason for the verse. What does that mean? Why not do it? Because a widow is presumably poor and has no alternative garment, so don’t take her only garment or the only pillow she has. But if there is a wealthy widow, then yes, you may take it. That’s not exactly what Rabbi Shimon says, but for simplicity I’m presenting it this way. So from a wealthy widow you may. Rabbi Yehuda comes and says no—we do not derive law from the reason for a verse, and therefore even though the Torah’s concern was really for poor widows—you see interpretive conservatism here, right? After all, Rabbi Shimon is sort of making an interpretation of the Torah’s principle. The Torah says don’t take a widow’s garment in pledge. Rabbi Shimon says no, it’s only because she’s poor—but wealthy widows, no problem. Women because they were uneducated—but if women are educated, then not. You see? It’s the same structure as the conservative interpretation.

But Rabbi Yehuda disagrees and says we don’t make such interpretations, and Jewish law is ruled like Rabbi Yehuda, that we do not derive law from the reason for a verse. But that’s true regarding—

[Speaker D] Everything. That’s true for all the differences between men and women.

[Rabbi Michael Abraham] I understand.

[Speaker D] Women don’t go up to the Torah reading. Women are not obligated in positive time-bound commandments.

[Rabbi Michael Abraham] Okay, so today what—

[Speaker D] Why not?

[Rabbi Michael Abraham] If you explain to me why in positive time-bound commandments women were exempt then, and show me that today that has changed, then there too there is room for such an argument.

[Speaker D] Why hasn’t it changed?

[Rabbi Michael Abraham] What changed? Tell me what your conservative interpretation is. Here, this is a wonderful example—you see?

[Speaker D] I’m not saying it changed. I’m saying the issue of testimony also hasn’t changed.

[Rabbi Michael Abraham] No, again, I’m trying to show—you raised an excellent question because it will help me illustrate what I said earlier. We are now talking about changing two laws that relate to women: validating them as witnesses, and obligating them in positive time-bound commandments. I claim there is a big difference between these two proposals, and this is exactly the non-slippery slope I described earlier. Why? Because the proposal to validate them as witnesses is a reasonable proposal, while the proposal to obligate them in positive time-bound commandments is not reasonable, or at least not on its face. Why?

[Speaker D] Or in your view it’s not reasonable.

[Rabbi Michael Abraham] Fine. I haven’t heard from you a reasonable proposal yet—we’ll see in a moment. Why? Because regarding validating them as witnesses, I made a conservative interpretation. I said that they really are disqualified from testimony because their testimony genuinely wasn’t worth much, but today that really has changed. In other words, what I proposed here is a reasonable bridge assumption or conservative interpretation. You may reject it, but you can’t say it isn’t reasonable. But regarding obligating them in positive time-bound commandments, you haven’t proposed any conservative interpretation. Explain to me what exactly exempted them then, and then show me that that thing has changed today, and then I’ll accept your proposal. But you haven’t presented any conservative interpretation.

[Speaker D] Back then they were taking care of the children, they were responsible. And today they don’t take care of children? No, today there is equality; the men also take care of them, and they go out to work.

[Rabbi Michael Abraham] First of all, even today there isn’t equality.

[Speaker D] First of all, even today there isn’t equality. No, but we’re moving toward equality.

[Rabbi Michael Abraham] A trend? So when we get to equality, we’ll talk. That’s one thing. Second, I don’t accept this claim that they took care of the children. By the way, this claim appears in Abudarham.

[Speaker D] By the way, they were constantly giving birth.

[Rabbi Michael Abraham] Fine. But Abudarham explains the exemption of women from positive time-bound commandments exactly this way: because they are occupied with household work, caring for children, and so on.

[Speaker D] Okay, so there’s your conservative interpretation.

[Rabbi Michael Abraham] No, I claim it’s an unreasonable interpretation and I don’t accept it. Not reasonable, simply not convincing.

[Speaker D] So we have a dispute.

[Rabbi Michael Abraham] Excellent. I have a dispute with Abudarham too; you’re in good company. I claim it’s a far-fetched explanation. It’s a far-fetched explanation because you can see that the exemption given to women from positive time-bound commandments has no connection whatsoever to occupations. It’s a formal discussion whether the commandment is time-bound or not time-bound, and according to that comes the question whether women are obligated or exempt. After all, counting the Omer is a positive time-bound commandment, straightforwardly—Maimonides says it isn’t. What, women can’t count the Omer because they’re taking care of the children?

[Speaker D] Yes, they’ll forget to count. What? They’ll forget to count.

[Rabbi Michael Abraham] They can also forget, I don’t know, to do all sorts of things that are not time-dependent. That’s not—Torah study too they can forget. Torah study isn’t time-dependent, but they can forget that too. It’s not connected. If there were a fixed time in the day, then you could tell me that at that time she’s preparing supper, say. But here it’s not connected at all—count at night, count in the day, it’s not even in that realm. It’s time-bound not because it is located at a certain time in the day. It’s time-bound because it is located at a certain time in the year. So why should I care if it’s located at a certain time in the year? What does that have to do with child care? Exempt women from commandments that are not time-bound too, because they care for children as well. What, child care doesn’t interfere with their fulfilling positive commandments that are not time-bound? What does this have to do with anything? It’s a completely far-fetched explanation.

[Speaker D] So why, then why don’t they have to fulfill positive time-bound commandments?

[Rabbi Michael Abraham] I have no idea. I have no idea.

[Speaker D] So why do you have an idea regarding testimony?

[Rabbi Michael Abraham] Because regarding testimony I have a reasonable explanation; here I don’t. Fine. If that’s… that’s exactly what I’m saying. In order for me to propose a change, I need to offer a conservative interpretation. You can’t do without it. Without it, it doesn’t hold water. But understand that this is exactly the claim against plain conservatism, because plain conservatism is constantly afraid that I’ll do this to every law. And I’m showing you that that’s not true. There are many laws where there is no reasonable conservative interpretation, so there it really won’t get off the ground. But where the conservative interpretation is reasonable, why not?

By the way, someone on the website mentioned—I wasn’t familiar with it—he brought that Rabbi Uziel writes this. Tzadok wrote this, yes, Levinger. He brought there in the name of Rabbi Uziel that Rabbi Uziel writes that the reason women were disqualified from testimony is this, and today women should be validated as witnesses as a matter of basic law. That’s what he wrote; I haven’t seen it inside. It’s a completely reasonable claim.

[Speaker D] I have no objection.

[Rabbi Michael Abraham] No, again, it’s not about objection. I’m saying: the claim is a reasonable claim. Okay? Yes, “seven clean days” is the source—according to Tosafot at least—it’s the source for the rule that one witness is trusted regarding prohibitions. So earlier they said: because a woman is trusted regarding prohibitions, then apparently there is no problem with her trustworthiness. Okay? So that is basically the claim… So I return to us. The question that arises here is: then why, how can it be that we are deriving from the reason for a verse here, when Jewish law follows Rabbi Yehuda, who does not derive from the reason for a verse? And in fact the interpretive move we are making here is really deriving from the reason for a verse.

The answer is—and this is a common mistake, in my opinion it’s a mistake; that it’s common is obvious, but in my opinion it’s a mistake—that “we do not derive law from the reason for a verse” is said only regarding laws that are written explicitly in the Torah. If something is written explicitly in the Torah, then we do not make purposive interpretations; we do not derive from the reason for a verse. But laws that come out of interpretations—of course we derive from the reason for the verse there. Why? Because the interpreter himself who derived the law certainly relied on the reason. How did he derive this law disqualifying women from testimony? Because he had some logic that women should be disqualified from testimony; he anchored it in “Then both men” and made an interpretation. But he didn’t exclude from the category of “men” children, or I don’t know, disabled people, or whatever else you want. “Then both men” and not those who cannot stand. Fine? He didn’t say that.

[Speaker D] That’s already a much broader argument, because in practice the Sages decided what we observe and how we observe it. The thirty-nine categories of labor are not written in the Torah.

[Rabbi Michael Abraham] Exactly, and therefore I claim: anything not written explicitly,

[Speaker D] Whatever the Sanhedrin decided—everything the Sanhedrin decided is open to interpretation.

[Rabbi Michael Abraham] Not only the Sanhedrin—any sage who interpreted, yes. So that is exactly my claim: when there is a law written explicitly in the Torah, the rule is that we do not derive law from the reason for a verse. By the way, all the examples brought in the Talmud for that rule are only laws written explicitly in the Torah. And it’s clear that this is so, because in such laws you do not enter into purposive interpretation for all sorts of reasons; it doesn’t matter now. In my opinion, that’s not because of fear of error either; I explained that elsewhere. But with laws that are the result of interpretation—after all, the original interpretation itself was based on the reason for the verse. It was based on a reason—not the reason for a verse exactly, because this isn’t the verse, it’s the interpretation. It was based on a reason. So if that reason served the original interpreter, why shouldn’t I use that reason to understand what the interpreter said? After all, the interpreter who decided to disqualify women—why did he decide to disqualify women? Or “You shall fear the Lord your God”—to include Torah scholars, okay? So how did he decide to include Torah scholars—why not include chairs? Because he understood that Torah scholars are the thing most similar to the Holy One, blessed be He, and are worthy of reverence, right? That’s logic.

Now, where there is a Torah scholar who is not God-fearing, who is not worthy of reverence, what will you tell me? We do not derive law from the reason for a verse, so one must revere him too because we do not derive from the reason for a verse? Of course not. After all, the interpreter who said that one must revere Torah scholars himself relied on logic. So you can’t tell me not to use that logic in order to interpret the very law that he created there. That’s not like a law written in the Torah, where you may not know its reason. Here it is clear there was a reason. Maybe I don’t necessarily know the reason, but if I propose a reasonable reason, you can’t tell me that we do not derive from the reason for a verse. Why didn’t the Sages write the reason for the interpretation? Sometimes they did write it, sometimes they didn’t. There were times when they did. Perhaps because they thought it was obvious. For example…

[Speaker D] Or they didn’t want people to cancel things too easily when they’d think the reason had ended.

[Rabbi Michael Abraham] Okay, possible, but that’s a common explanation among the medieval authorities (Rishonim), and I don’t agree with it, because it leads to opposite errors. Opposite errors that are more serious, exactly as I said earlier. But that already enters the question of deriving law from the reason for a verse. In my article on the fifth root you can see a lengthy discussion of all these questions. One second. Yes?

[Speaker C] There’s, say, the commandment of the priests’ blessing, right? That’s from the Torah. A priestly commandment. So how is it that in the area where I live, in Haifa, in the north, there is no priests’ blessing? How is that? They say we are in sorrow and so on, but isn’t that kind of an interpretation of an explicit law? How can that be?

[Rabbi Michael Abraham] The custom of Rabbi Tevyumi—that custom already appears in the Talmud.

[Speaker C] But what is a custom against the Torah?

[Rabbi Michael Abraham] It already appears in the Talmud. That means the Talmud apparently understood that the Sages who lived in Haifa learned that one does not recite the priests’ blessing every day. For some reason they apparently had some rationale. Just as in the place of Rabbi Yosei HaGelili they ate poultry with milk—even though that’s rabbinic—they ate poultry with milk, fine, because the sages of that place ruled that way. Well, the Hasidim never say supplication prayers, under any conceivable assumption—they don’t say supplication prayers on a single day of the year.

[Speaker D] Except on Independence Day.

[Rabbi Michael Abraham] There’s always some rabbi you can… only on Independence Day they say it. There’s always some tentative idea about some rabbi who thought he was about to die and didn’t, so they don’t say supplication prayers in memory of the tentative idea. All right. Anyway, I’m in favor. In any case, the claim that we do not derive from the reason for a verse, as I just said, is relevant only to laws written explicitly in the Torah. And in such laws there really is room for plain conservatism because of the problem that we do not derive from the reason for a verse. But in laws that come out of interpretation—and that’s the overwhelming majority of laws—or interpretation, exegesis, or where the Sages are involved in the law, there I think the claim about the reason for the verse is not relevant.

I think I brought… did I bring the example of the presumption that a person does not repay before the due date? I don’t remember anymore; I no longer remember what was in the article and what was in the lecture.

[Speaker D] Not in the lecture, not in this series.

[Rabbi Michael Abraham] Okay, then I’ll bring two examples so that things are more concrete. There is a Talmudic passage in Bava Batra 5a. The Talmud says there is a presumption that a person does not repay before the due date. A person who receives a thirty-day loan—there is a presumption that he does not return the money before the time he is obligated to return it. So if he claims he paid back after a week, he is not believed unless he brings proof for his words. If someone sues me over a loan and I say to him, “I repaid you,” and it is still within the term, the due date hasn’t yet arrived, I am not believed. Now you have to understand that the claimant here is him; I am the defendant. In other words, I am the one in possession, and in principle the burden of proof is on him, not on me, okay? But because there is a presumption that a person does not repay before the due date, the burden of proof shifts to me. I have to prove that I repaid. There is a presumption that I did not repay.

Now let us assume for the sake of discussion that nowadays people do repay within the term. Reality has changed. For example, you took out a mortgage, okay? If some large amount of money suddenly falls into your hands, sometimes you will pay off the mortgage earlier, before the stated date. You want to get rid of it. Why is that? Because today, of course, there is interest. They call it a sale permit business arrangement—it doesn’t matter—but in practice you pay interest. So if you are paying interest, there are definitely people who will repay within the term if they have money, if money comes their way. Now suppose a case comes before a religious court. Someone—the bank—sues me over the mortgage before the due date, okay? And I tell them—I don’t tell them, “Wait until the due date and I’ll pay.” I tell them, “I paid you, what do you want? I settled the mortgage.” Will the religious court say to me, “There is a presumption that a person does not repay before the due date; you are not believed”? Of course not. Why? Because I’m saying: assuming reality has changed, right? Assuming reality has changed and today people do repay within the term, then clearly we will not act according to the law written in the Talmud. Why? Because it is a different presumption.

[Speaker B] Now that’s the presumption.

[Rabbi Michael Abraham] Right. Not that there is now a presumption that people repay within the term, but there is no longer a presumption that they do not.

[Speaker B] Right, but in any case there’s the time—now that interest rates went down, there’s a presumption everyone refinanced, repaid whenever, all that.

[Rabbi Michael Abraham] What we’re really doing here—so maybe I’ll ask another question—if that’s so, can we erase the passage in Bava Batra 5a? Is it no longer relevant in our time?

[Speaker B] My answer is no.

[Rabbi Michael Abraham] The topic is relevant, and what it teaches is not the presumption that a person does not pay before the due date. The presumption that a person does not pay before the due date is a factual claim. Human psychology. Go check reality and see what the facts are. The Talmud isn’t coming to teach me facts, not Jewish law; the Talmud, the Torah, are not here to teach me facts. So what is it doing? The Talmud is coming to say that a presumption, the existence of a presumption, can change the burden of proof, reverse the burden of proof, place the burden on the person in possession. That is the Talmud’s innovation. It used a particular presumption—that a person does not pay before the due date—to demonstrate this, but the Talmud has no special interest in that specific presumption. If that presumption no longer exists, then it no longer exists; there is nothing sacred about it. The presumption that a person does not pay before the due date is not a halakhic determination; it is a factual determination. The halakhic determination is that if there is a presumption, it reverses the burden of proof. Good, so if that’s the case, notice that I’m doing interpretive midrash here, right? Now what happens today? Today there is no such presumption, and therefore the burden of proof is not reversed. That’s all. You see? It’s exactly like the swimsuits. This is interpretive conservatism. But here, notice, I think almost every religious court, or every religious court, would do this. There won’t be literalist conservatives here, it seems to me; and if there are, then they really are complete fools, unfit to judge. I don’t think—almost, I can’t imagine—that there would be any serious religious court that would not act this way, with interpretive conservatism. That’s on the one hand. On the other hand, there is the presumption of “better to sit as two than to sit as a widow,” meaning maybe on the other side you would say: why is it that here everyone agrees to interpretive conservatism? Because it’s obvious. Because the presumption itself says the interpretation—it says there is a presumption that a person does not pay within the allotted time. In other words, it states the factual claim; this is not an interpretation that I have to produce. Here it’s right on the surface. It’s not like the disqualification of women, where I raise the possibility that they disqualified women because they were uneducated. Here they tell me: he is not believed because people do not pay before the due date. I don’t need to do some hidden interpretation here. Okay? So therefore this is still not proof that there are conservative interpretations. Because I wouldn’t even call this interpretation. It’s not interpretation; it’s right there in the body of the matter. But—and here I come to the second presumption—what about the presumption of “better to sit as two than to sit as a widow”? Yes, a woman whose husband beats her right after the wedding, okay? Now she wants to annul the kiddushin on the claim that on that basis she never consented to be betrothed. If she agreed to the kiddushin, she didn’t know he was a violent husband; if she had known he was a violent husband, she would not have consented to the kiddushin. Therefore she asks the religious court to annul the kiddushin: this is a mistaken transaction, mistaken kiddushin. Okay? Usually they answer her: “better to sit as two than to sit as a widow.” There is a presumption that a woman wants a relationship at any price. That is what is written in the Talmud. She is willing to accept even a husband afflicted with boils, anything you want, so long as she has a relationship. That is what the Talmud says. Now you understand that factually this is not true. Most women, at least in our time, do not want a violent husband. That’s obvious. And if it isn’t obvious to someone, I’d send him to do a statistical survey. Okay? But the fact is that religious courts are not willing to use this interpretive move, this conservative interpretation. They continue to rule “better to sit as two than to sit as a widow,” and they do not annul the kiddushin in 99% of cases. There are rare religious courts, in rare cases, that allow themselves nonetheless to annul. By annul I don’t mean finding a disqualified witness, in which case it turns out there never was kiddushin in the first place, but to annul on the claim of “on this basis she never consented,” against the claim of “better to sit as two than to sit as a widow.” Okay? There is almost no religious court that does this. Even in the most extreme cases, where it is absolutely clear that the woman did not consent to the kiddushin, still they do not do it. Now, in my opinion this is no less obvious than the presumption that a person does not pay before the due date. But for some reason here they recoil from making the conservative interpretation. Even though here too it is transparent and on the surface, exactly like the presumption that a person does not pay before the due date. That means there is apparently something else going on; it is not only the question of how transparent the interpretation is. Here, in my view, it is mainly politics. Politics not in the low sense, but politics in the sense of policy considerations. They are afraid of women’s equality, afraid of undermining the institution of kiddushin—let’s call it halakhic policy, not politics. Okay? All kinds of things of that sort. But that is not a substantive argument. On the substantive level, these kiddushin are void. So I’m showing you that this whole business mixes in a great many policy and sociological considerations and struggles—internal and external religious power struggles—and it is not only the question of which argument is legitimate and which is not. Since I deal not in sociology but in arguments, as far as I am concerned the argument regarding “better to sit as two than to sit as a widow” is exactly the same as the presumption that a person does not pay before the due date. Here, even the most extreme literalist conservative, it seems to me, should agree that this has to change. And the fact is that it does not happen in ninety-nine percent of cases.

[Speaker E] Question: What happens if afterward she goes and marries someone else and gives birth to a son—would the religious court then also say that this child is a mamzer or not?

[Rabbi Michael Abraham] Those are the rare cases in which sometimes, sometimes, certain religious courts will annul the kiddushin—and even then, not for sure, lest a sinner profit, and things like that. It’s not certain they’ll do it. But maybe. Okay? Those are exactly the rare cases I was talking about.

[Speaker B] And that’s if, for example, she set her eyes on another man.

[Rabbi Michael Abraham] Yes, so it’s not certain. But there will be those who do it. Or in a case where children were born and she has already died. Then it doesn’t matter. Now the children come to marry, and they have this issue over them—they are mamzerim, essentially. So now the question is what to do. Then they annul the kiddushin so that they will not be mamzerim. That they will do easily, or more easily. Because now it’s no longer to permit her; it’s for someone who is not at fault, the mamzer child. So there I think many religious courts would annul the kiddushin in such a situation. But you understand that this is all games. Because if you annul the kiddushin in order to permit the mamzer, I don’t see why not annul the kiddushin in order to permit the woman. Either the kiddushin are void or they are not void. It’s just games. Okay, I’ll stop here for now; we’ll continue with comments—or yasher koach.

[Speaker B] We already made the comments. Yes.

[Speaker E] Rabbi, how do you determine what is a reasonable argument and what isn’t? By logic? By whether both sides agree, or will one side always say, no, your argument isn’t reasonable?

[Rabbi Michael Abraham] If both sides agree, then what is the argument about? I don’t know.

[Speaker E] Maybe that they both agree it’s reasonable.

[Rabbi Michael Abraham] Meaning, if there is a literalist conservative who tells me, look, your argument is reasonable, but I’m a literalist conservative, I’m not willing to accept it—that is certainly a reasonable argument. But as far as I’m concerned, my argument is reasonable if I think it is reasonable. Why do I care what you say? It’s true that you won’t agree, so you won’t do it; I will do it.

[Speaker E] So we’ll never succeed? According to that, each side will entrench itself in its own position?

[Rabbi Michael Abraham] Not entrench itself. I expect people to be honest, not to entrench themselves.

[Speaker E] Yes, but if I say your argument is not reasonable, then that’s how I’ll continue, and we won’t be able to reach a decision here.

[Rabbi Michael Abraham] You can, you can remain a literalist conservative however you like, whether you say it’s reasonable or whether you say it isn’t reasonable, and I will do what I think, whether you say this or that. So just tell the truth.

[Speaker E] If I think it’s reasonable—if I think your argument is reasonable—then by definition it is no longer correct, from my perspective, to go on remaining a literalist conservative.

[Rabbi Michael Abraham] No, that’s not true, no, on the contrary. Most literalist conservatives, in the case of validating women for testimony for example, most literalist conservatives will say that my argument is reasonable. They will say it is correct, but that is not enough to remove the existing presumption. Because maybe there are hidden reasons.

[Speaker E] But we said that a reasonable argument is stronger.

[Rabbi Michael Abraham] In education or in social involvement, I think most literalist conservatives will say that this is a reasonable claim. They just won’t agree that a reasonable claim is enough to change Jewish law, and on that I disagree with them. That is an additional dispute in meta-halakhah.

[Speaker E] So that means that even a hidden reason is stronger than a reasonable reason?

[Rabbi Michael Abraham] Stronger—this seems very strange to me, but that is what they claim.

[Speaker E] And one more thing: if we assume that a reasonable claim really is stronger than a hidden claim, or a reasonable reason is stronger than a hidden reason, then the moment the literalist conservative brings a reasonable refutation of the claim, the wheel turns back again and he has the upper hand?

[Rabbi Michael Abraham] Yes, I said that in the previous lesson. I do accept the concept of a presumption that one does not change actual conduct, the bottom line, the swimsuits, if my reasoning is not a reasonable one. Because then what comes out is that in fact there is no presumption here—I can’t say that from my point of view I am the one in possession; that is not true. My argument is not reasonable. Because after all, earlier I established this on the basis that there is no presumption here, because according to my approach I am in possession, and according to your approach you are in possession. But if my reasoning is not reasonable, then there is no reason at all to change anything; there is no logic in it. I need to present a reasonable argument in order for the discussion even to begin. Very good. And that is the absurdity here, because I think that in most cases—certainly in this question of women’s fitness for testimony—most literalist conservatives will agree that I am making a reasonable argument. And nevertheless they—I already have experience with this example—and nevertheless they will say, yes, but that is not enough to remove the concern that maybe it isn’t true: hidden reasons, I don’t know, scriptural decrees, things of that sort. Factually, those are the arguments I encounter in most cases.

[Speaker C] If we validate them, can we erase this from the Shulchan Arukh? Would that be okay from your perspective?

[Rabbi Michael Abraham] You can erase it from the Shulchan Arukh and replace it with the claim that uneducated groups are disqualified instead of writing women. We’ll write an updated Shulchan Arukh. The Jewish law is not nullified, just like the presumption that a person pays before the due date.

[Speaker C] We’d have to go back to the Talmud too, of course, and erase it there.

[Rabbi Michael Abraham] I’m saying no. Also with the presumption that a person pays before the due date, I would erase that from the Talmud, but I would not erase the topic. The topic would say that if there is a presumption, it reverses the burden of proof. Because that really is what the topic says. The facts do not interest the topic; it only uses them, they are not its halakhic statement. Jewish law does not say that women are uneducated. That is a factual stage, not a halakhic determination. Jewish law says that if they are uneducated, they are disqualified from testimony. That will remain in the Shulchan Arukh; it does not need to be erased. Okay, thank you very much. Okay, goodbye, Sabbath peace. Wait, one more thing: I’ll send it on WhatsApp of course—next week on Thursday I can’t give the class, I have something. So the question is whether to move it to Wednesday or Sunday. If there are preferences here, I don’t know. I’ll ask on WhatsApp and we’ll decide it there. Okay? In any case, you can always listen to the recordings too. Goodbye.