Kindness and Judgment – Elul 5783 – Lesson 1

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[Rabbi Michael Abraham] Because he turned it into Jewish law, and the rules into binding rules, and that’s not right. It’s more of a guideline, but it’s not right. The question is whether those rules are actually correct; I think not. You take—because he had to organize a kind of Shulchan Arukh here for this whole thing—by the way, he did amazing work in terms of the intellectual achievement involved. But he used aggadic sources of various kinds and all sorts of proofs here and there; you can argue with a lot of it. But he had to produce some kind of cut-and-dried Shulchan Arukh with sources; he didn’t want to invent things. So he did a certain kind of work that, in my view, is too much. Meaning, maybe there was room to define things a bit more, but he turned it into such a detailed Shulchan Arukh that it’s clear this wasn’t the original intention.

[Speaker E] The problem with him is that before you start talking, you need a permit. Right, that’s the idea.

[Rabbi Michael Abraham] Instead of needing proof in order to forbid, you need proof in order to permit.

[Speaker E] That’s a little hard to apply. Also what he said there about the issue of malicious speech between a man and a woman, between husband and wife.

[Rabbi Michael Abraham] Could be; there are disputes. I’m not saying—there are disputes in other parts of Jewish law too. The fact that there’s a dispute proves nothing.

[Speaker E] But the way he talks, that’s not the style.

[Rabbi Michael Abraham] I don’t know. It doesn’t hurt to think before I speak. Yes, to think—yes.

[Speaker E] It doesn’t hurt to think before I speak.

[Rabbi Michael Abraham] But I think, again, regardless—I’m not getting into the question right now whether what he did is helpful or harmful. I’m asking whether it’s correct. Not whether it helps or harms; maybe it helps. That doesn’t matter to me right now. Mesillat Yesharim didn’t write a Shulchan Arukh. I have no problem with that. He didn’t—it’s not Jewish law. No.

[Speaker B] He—

[Rabbi Michael Abraham] He offered an interpretation of a collection of character traits; character traits, that’s fine.

[Speaker B] But he turned it into Jewish law. No, it’s not Jewish law.

[Rabbi Michael Abraham] The “required” there is not a halakhic requirement. It’s a moral requirement, the language of ethics. Not a law book. That’s exactly the difference. Ethical works—fine, you can argue, you can agree, you can disagree, but you’re not trying to turn something that isn’t Jewish law into Jewish law. You can analyze an ethical issue, that’s fine. You can do that, and that’s okay. But you can’t turn it into a Shulchan Arukh with details, because then you miss the point. There’s—later on we’ll see even more how much this misses the point, but I’m just starting here; you’ve put the players on the board. So this world of Jewish law, I’m saying, can’t really contain—or can’t really fit—all these rules into patterns. Now notice here: this whole world of malicious speech and gossip is clearly Jewish law. The enumerators of the commandments count it as prohibitions. But Chafetz Chaim didn’t invent the prohibitions.

[Speaker E] Not the quantity—in the details.

[Rabbi Michael Abraham] I’m saying, in the details he made a whole Shulchan Arukh out of it. But it’s a halakhic world. I’m hinting here at the Maggid Mishneh, right? It’s a halakhic world that you can’t define, in my opinion, by means of rules, and it still belongs to Jewish law. There are areas of Jewish law that you can’t force into rules.

[Speaker E] For my Rabbi Lichtenstein there are two expressions that are different from each other, but they play alongside each other. On the one hand, you can’t give up the idea that Jewish law touches everything. There’s nothing that Jewish law doesn’t get hold of or have something to say about. On the other hand, Rabbi Lichtenstein also claims that not everything is Jewish law. He says that too.

[Rabbi Michael Abraham] I didn’t know that. The first one I don’t know; the second one I know—he even said it to me.

[Speaker E] Not everything is Jewish law. I didn’t know.

[Rabbi Michael Abraham] Not every—

[Speaker E] Thing you encounter, Jewish law spoke about it—something in that style. That I know.

[Rabbi Michael Abraham] The first one I don’t know.

[Speaker E] No, they even asked him—it’s not his—the first one you’re saying, he also says it: there’s nothing in life that Jewish law isn’t supposed to address. Not true. Lots of things.

[Rabbi Michael Abraham] He himself gave me an example when I came to talk with him with my wife before we got married. We just happened to be in Bnei Brak, and we felt a little antagonism toward what was around us, so we came to talk to him a bit. We came to talk to him a bit, and among other things I asked him about exactly this issue. He said, look, if you want to eat a roll or bread in the morning, Jewish law says nothing. Do whatever you want, eat what you like. There are things about which Jewish law has nothing to say. Okay, that’s at the headline level. Anyway, for our purposes, the point I want to make against the Maggid Mishneh is: there are. There are also areas within Jewish law itself that basically cannot be put into categories of rules, clear-cut categories, and they are still within Jewish law. It’s not true that everything that doesn’t fit rules remains outside Jewish law. No, that’s simply not true. So I don’t accept that definition. But I do agree with—

[Speaker E] His last sentence, where he says: define for me what Jewish law is and I’ll tell you what goes in. If you define Jewish law that way, then everything goes in.

[Rabbi Michael Abraham] Obviously. That’s a tautology, okay. The point is—the point is that it is true, but things that are outside Jewish law generally are indeed things that are harder to define. That’s true. It doesn’t mean that everything inside Jewish law is defined by rules. It is true that there’s some correlation between things that belong to the side of kindness and not to the side of law, and the fact that they’ll be found outside Jewish law. Although there are also, as I said before, areas within Jewish law that lean more to the side of kindness than the side of law, okay? So what I’m doing here is not an identity between kindness and law on the one hand, and Jewish law and outside Jewish law on the other—but there is a connection, there is some correlation. Maybe I’ll illustrate this through an example I like, from Moshe Koppel, the founder of Kohelet, one of today’s unpopular people. What?

[Speaker B] He’s the founder. Kohelet, Kohelet.

[Rabbi Michael Abraham] So he once said that he—

[Speaker B] A mathematician, once—

[Rabbi Michael Abraham] Computer science, mathematics—yes, mathematician and computer science. Anyway, he once compared this process of the crystallization of Jewish law to the crystallization of a language. Okay? When a certain group begins to speak, a language begins to form, and it forms naturally. Right? Meaning, you invent words, define—not really define—but people start speaking, sentences emerge, and that’s how a language gradually forms. There was a very interesting example in Nicaragua after the Sandinista uprising, the Sandinista communist revolution in Nicaragua. They were very cruel, but they were also communists, and that’s an interesting point. Communists have two faces. They’re very cruel, but they really do work for the weak and for society; most of them really are like that. Meaning, they have both faces. So there they started—until then there had been no institutions for educating the deaf-mute. There weren’t any in Nicaragua, and they decided to establish them. But there was no one who understood the field. So they invited outside experts to help them, okay? Meanwhile the deaf-mute people they had gathered lived in some compound, I don’t know where, and the people who were supposed to teach them hadn’t arrived yet, and they lived there, and a sign language began to develop among them, between themselves. They started communicating with each other in a language with all the rules. Noam Chomsky had a field day there. Meaning, all the rules of language development appeared there. And people arrived quickly even before the invited experts, in order to see a language being created in real time. We never have that privilege. We don’t know how languages were formed; we encounter them only after they already exist. Here you could see that within a month or something, a language was formed. You could literally watch how the whole thing developed. I read an article about it; it was really fascinating. Anyway, language develops naturally.

[Speaker B] Then the people come—

[Rabbi Michael Abraham] Exactly. Afterward people come and try to analyze the rules according to which we speak. And they come up with all sorts of rules—letters that take a dagesh, subjects and predicates and direct objects and indirect objects and all sorts of things like that. They build a linguistic theory, a syntactic theory, all aspects of language in order to describe the language we speak. There are also universal grammars; we’re not talking right now about a specific language, okay? In all these rules there is the annoying phenomenon of exceptions. Anyone who studied for matriculation exams remembers that—you have to remember all the exceptions, and of course that’s more annoying than remembering the rule. Okay? Basically there’s something very irritating here. Why didn’t they make a language that works by the rules? Why always—why is there always an exception to every such rule? And the answer is: because they didn’t make the language from the rules. The rules came afterward. So what you’re doing is basically looking for some kind of optimal approximation to the existing language. Now the approximation you’re looking for is one with rules, because that’s how we’re used to working. If you want to teach a language on a blackboard, you have to teach it through rules; you can’t teach it otherwise. But those rules never hit the language exactly.

[Speaker B] I once read that they created a synthetic language, Esperanto, and it works exactly by rules.

[Rabbi Michael Abraham] Right. That’s a feature of artificial languages. Exactly. Leibniz had a dream of creating a perfect philosophical language in which paradoxes, for example, would never appear. Perfect on the logical level. And the one who actually tried to do this was Bertrand Russell in Principia Mathematica. Bertrand Russell and Whitehead basically tried to create some ideal language, until Gödel came and smashed it over their heads. Anyway, the claim is that the rules of grammar are rules that approximate speech; they do not determine speech. So, for example, if someone studies the language in an ulpan, then goes outside into the street and sees native speakers talking with all the “mistakes,” and he corrects them—usually they’re right and he’s wrong. Usually they’re right. He missed the exceptions. Now, when I’m a native speaker, I don’t know that what I’m saying right now is an exception, unless I studied grammar. If I studied, maybe I know—but I know it from the teacher. I don’t know it from life. In life, I speak, and I know—I speak the exceptions with the same naturalness with which I speak the rules. Because that’s how the language works; it has some natural rhythm, that’s how the thing works. Now, someone who grows up in a home that speaks that language speaks it naturally; he doesn’t need the rules. And someone who arrives at an older age learns that language in an ulpan, and then there are some rules, and with those rules he goes out to the street and breaks his teeth, because it doesn’t really fit the language he encounters on the street. And today, already in the postmodern era, people are beginning to say, wait a second, the rules don’t impose anything at all; you can break the rules, and all sorts of things of that kind. But I’m saying that even before these newer criticisms, there is something about grammatical rules that is only an approximation; it is not the real thing. And therefore deviating from the rules is not necessarily a mistake. Very often it isn’t a mistake. It’s simply an exception. There may be exceptions that haven’t yet been documented. And now we document them, and now that will be it. What sanctity do the rules have? Those rules didn’t come down from heaven. Those rules are just an approximation of how people spoke before the scholars came along and created the rules. Okay? So therefore, I think this example is an excellent one: if you look at Jewish law this way, for example, it means Jewish law also underwent a similar process. In the period of the Hebrew Bible (Tanakh), nobody made the fine analytic distinctions of the Ketzot, right? That’s obvious. It’s not that they made those distinctions but they didn’t appear in the Bible because there was no room. They just didn’t work that way. I know they didn’t work that way because even the medieval authorities (Rishonim) didn’t work that way—at a smaller gap, it’s closer, but still not the same. You don’t see there the systems of Rabbi Akiva Eiger and the Ketzot and these analytical analyses and the rules. That’s really law. And the medieval authorities (Rishonim) are more kindness. It works by, yes, this seems reasonable to me, it’s not—it’s rabbinic, it’s Torah-level. What’s rabbinic and what’s Torah-level—how did you decide? Because it’s not so forbidden, so it’s rabbinic. It’s very forbidden, so it’s Torah-level. Then the later authorities (Acharonim) come and say there are rules. Everything of this sort is this sort, it’s rabbinic, and what isn’t like that is Torah-level. They try to produce rules out of what for the medieval authorities (Rishonim) was a natural language. And the medieval authorities (Rishonim) made rules out of what for the Amoraim was a natural language. And the Amoraim made rules out of what for the Tannaim was a natural language. So in essence the Torah or Jewish law goes through the same process of conceptualization and canonization and formalization that a language goes through. Jewish law is a kind of language. And therefore I think that just as one learns a language, you have to go through the ulpan and then throw away the rules. In the ulpan, work with rules, because that’s how one learns, that’s how we are built. We can’t learn things except through rules. But those rules are a ladder for climbing the tree; afterward, throw away the ladder. Start using your head, your common sense. Don’t cling to the rules in a blind mathematical way. The rules are meant for places where you have no simple sense of what the right thing to do is; then follow the rule. But if you do have that sense, then you do. Someone who has no sense at all because he’s a new immigrant—he wasn’t born here, he doesn’t speak the language like a native—he uses rules until gradually linguistic intuition develops within him, the natural rhythm of the language, and then slowly he can leave the rules and begin to speak naturally. Okay? Kishon, for example, was wonderful at this. Because part of his feuilletons are built on this tension. Part of what makes us laugh in his feuilletons is that he wrote them in correct Hebrew. We laugh at the correct Hebrew he wrote because it is so incorrect. It’s according to the rules, but it’s wrong. Now he studied in ulpan bet, and he was a genius. Kishon was unquestionably a genius. And afterward he understood that too—he acquired the linguistic feel of a native. Truly, he was a genius. And therefore when he wrote it, he already wrote it as a feuilleton. He didn’t write it seriously; the fact that he writes it as a joke is what’s funny. Because he understands that the speech he learned in the ulpan is ridiculous. Yes, all sorts of words that appear in the dictionary, which he learned by heart—all sorts of words that appear in the dictionary that none of us know, obsolete sock words and shoe words and I don’t know what—they appear in his feuilletons. He simply knew all those words. So this tension between the rules and the thing itself basically means that kindness and law are not necessarily, or not always, two different categories, but two ways of relating to the same thing. Let’s put it this way: take the halakhic corpus. You can relate to the halakhic corpus through the lens of law, and then you work with rules and issue halakhic rulings according to principles, and yes, theoretically yes, give it to a machine—let a machine issue halakhic rulings. Feed into it all the rules and it will rule with the greatest precision, okay? Just as a computer does mathematical calculations. In mathematics, the computer works wonderfully, okay? But in Jewish law apparently not. Why? Because the computer is—I’m not talking right now about artificial intelligence and neural networks, that’s already something more complicated. I’m talking about classical software, okay? So the computer works in the mode of law. And when you work in the mode of law, you miss something. You speak like someone speaking a language he learned in ulpan. There’s something living here, and these rules are only an approximation to that thing. Now if you don’t know and don’t feel and so on, then fine, work with the rules; there’s no choice. You’re a new immigrant to the world, to the state, of Jewish law. Right, you’re a new immigrant, so you need to use rules in order to speak the language. But the goal is to acquire the rules, internalize them, develop within yourself some sort of intuitive sense for what is right and what is not right, and then leave the rules. That’s basically it.

[Speaker B] Shlomo Zalman—aren’t they both good?

[Rabbi Michael Abraham] Exactly. No, it’s not that they’re both good; rather, they aren’t two different domains but two ways of relating, and they are two ways of relating that can refer to the very same thing. Among halakhic decisors, for example, there are decisors of kindness and decisors of law. Not lenient versus stringent—not on that plane. Rather, decisors who work with very technical rules, and decisors who tell you: this is what straightforward reasoning says; my heart tells me; yes; or this is what reason dictates, or something like that. There are many decisors who rely on precedents and rules, and somehow everything seems deductive for them—everything they do is simply applying the rules to the specific case before them. And there are decisors who look at the case and try to understand what—

[Speaker E] Shlomo Zalman was more like that, right?

[Rabbi Michael Abraham] Shlomo Zalman was more kindness and less—

[Speaker E] Law. He looks and weighs things in a—

[Rabbi Michael Abraham] Completely. Brisker analysis is law.

[Rabbi Michael Abraham] It is law, yes. It’s the closest thing to the pole of law.

[Speaker E] There there’s no problem; you take all the—

[Rabbi Michael Abraham] No, that’s one of the reasons people think—exactly, people think the Briskers are stringent like all the stringent approaches, not because they’re stringent. Simply, a man of law has no other option. Because once you develop your analytical ability the way it was developed there, you can understand the Rashba wonderfully and also Maimonides wonderfully and everyone fits with the whole Talmud, because you’re a world champion in analysis and in setting up complex structures. Once you’re a champion at that, there is no medieval authority (Rishon) for whom there will be a question without an answer. Yes, everything the medieval authorities (Rishonim) left as requiring analysis—today every little kid in the heder offers five answers. No, really—we’re better than they were at this kind of thinking. Why? Because they didn’t have the analytical tools. And where your intuition gets stuck, the analytical tools help. Analytical tools are not unnecessary; you just have to be careful not to cling to them. Now Rabbi Chaim analyzes the medieval authorities (Rishonim), and that’s why he also says we ask only what, not why. Because he clings to the medieval authorities (Rishonim); he says the medieval authorities (Rishonim) told me the truth. He only wants to understand; he doesn’t want to disagree with them. Why? Because he only analyzes them; he doesn’t have a position of his own. After all, if you don’t have a position of your own, what will you do in practice? You have several views—what will you do? If you have no position of your own, you’ll be stringent like everyone. Right? Think about what I spoke about this morning, yes? Think about someone who works only with logic. Right? We talked about this this morning. You work only with logic. Now you ask yourself: there are two positions here, who is right? Each one has his own assumptions, there’s an argument proving his conclusion; the other has different assumptions, there’s an argument proving his conclusion. Who is right? Both are right. This is one narrative and that is another narrative, right? Postmodernism. This is one narrative and that is another narrative, so who is right? Both are right. Now if you’re committed to everything, then in Jewish law you’ll be stringent like everyone. You’ll be stringent like everyone. In the postmodern world you’ll say everyone is right, whatever—but it’s the same phenomenon. Okay? It’s not because he was a great stringency freak in the area of Jewish law; it doesn’t start there. He was, but it doesn’t start there. It starts from the fact that he was a man of law-Jewish law, of law and not of kindness. A man of law-Jewish law, of law, doesn’t know how to rule.

[Speaker E] It’s really in a place where one had to decide this way or—

[Rabbi Michael Abraham] Or that way. Rabbi Yitzchak Elchanan, yes, right.

[Speaker E] So yes, exactly.

[Rabbi Michael Abraham] They go to their judge, right, and they take Simcha—

[Speaker E] Zissel—

[Speaker B] Right, that’s what the midrash on Rabbi Akiva said, right? Right.

[Rabbi Michael Abraham] I think the reason the earlier generations have greater authority—and this too is exaggerated a bit—but the earlier generations do have greater authority, because they are simply closer to the process of formation, to the event of formation, to the source. And therefore their intuition is more finely tuned. But in terms of analytical ability, there’s no doubt we’re much better than they were. Do you really imagine that Rabbi Akiva knew how to construct an analysis like Rabbi Akiva Eiger? No chance in the world.

[Speaker B] No chance, no, obviously not.

[Rabbi Michael Abraham] The structures, right. I think the midrash comes to say exactly that—Moses our Teacher and Rabbi Akiva, right? The midrash comes to say exactly that. It’s obvious that Rabbi Akiva Eiger had analytical abilities a thousand times greater than Rabbi Akiva. But who was right? Usually Rabbi Akiva was right, not Rabbi Akiva Eiger. Why? Because he is exactly like the native speaker against the speaker from the ulpan. He says intuitively: this is forbidden. He’s probably right. You know, in yeshivot they say that if the Rosh brings proof for some halakhic claim he’s making, you can argue—this proof, that proof, bring proofs against him. But if the Rosh says “it seems to me,” then don’t waste your time; obviously he’s right. Now there’s something very true about that, because when the Rosh says “it seems to me,” he’s saying: look, I have a clear intuition, this is it, this is right. I speak the language; this is right. I don’t know how to justify it at the moment, I have no proof, but that’s how it is, that’s how it works. If he brings proofs, then he doesn’t really know what he’s saying; he thinks there’s a proof from there. With proofs I also understand; I can bring other proofs.

[Speaker E] So the question is why you think Rabbi Akiva the Tanna had fewer analytical tools. I don’t understand.

[Rabbi Michael Abraham] First of all, because you can see it. The analytical analyses of the Talmud, with all due respect, are very basic. They don’t even begin to compare to the medieval authorities (Rishonim), let alone the later authorities (Acharonim). And even the medieval authorities (Rishonim) don’t begin to compare with the later authorities (Acharonim). The structures, the system that Rabbi Akiva Eiger built, are of insane complexity. There’s no chance that any of the medieval authorities (Rishonim) or the Amoraim did that.

[Speaker E] I don’t know—

[Rabbi Michael Abraham] Goals—maybe they could have done it if they had worked at it and if they had lived in our time, but they lived in a different time, and in that time it didn’t work that way. I’m not judging right now who is worth more or less. It’s simply a different character, a different mode of thought. This is the big argument between Seridei Esh and Rabbi Yehoshua Hutner about Rabbi Chaim and Maimonides. In HaMaayan there is an exchange of letters between them on this matter, where Seridei Esh said that Rabbi Chaim did not understand Maimonides. The Torah did not pass through him; Rabbi Chaim did not understand Maimonides.

[Speaker E] Obviously Maimonides didn’t mean what Rabbi Chaim said.

[Rabbi Michael Abraham] If he prefaces things like that in his words? I don’t know; there are letters between them. So Rabbi Yehoshua Hutner says to him that’s not true, he understood Maimonides perfectly. But I think he’s right, Rabbi Yehoshua Hutner. Rabbi Chaim understood Maimonides, but he understood Maimonides and formulated him in the language of his own time. If Maimonides had heard what Rabbi Chaim says, he would not have agreed—but Maimonides would have been wrong and not Rabbi Chaim. Like the joke, what does Frank know about Maimonides—the famous yeshiva joke—but it’s completely true. If Maimonides had walked into Rabbi Chaim’s study hall, like Moses our Teacher and Rabbi Akiva, exactly that midrash, he would not have understood, because it’s not his language.

[Speaker E] Not because he was stupid—he wouldn’t have—

[Rabbi Michael Abraham] Stupid? Not at all.

[Speaker E] And also the way they relate to him—they look at him as raw material, not as a halakhic ruling. Right. With all the plain-meaning readings—they look at Maimonides as a virtual function.

[Rabbi Michael Abraham] So I’m saying: on the one hand, when you ask yourself who is right, then Maimonides is right. If you ask yourself who has stronger analytical power, Rabbi Chaim. And I think, by the way, that this is not accidental. Just as when someone is blind, his sense of hearing sharpens because it is supposed to compensate for sight, to replace sight—the analytical ability sharpens when we lose intuition. If we don’t have good intuition for what is permitted and forbidden, then we need rules and analytical abilities. When you do have good intuition for what is permitted and forbidden, why do you need rules and analytical abilities? A case comes before you, and you say: this is forbidden, this is permitted. I don’t know, I assume that in the period of the prophets, Moses our Teacher, I don’t know exactly—someone was debating laws of the Sabbath: is it permitted to put a pot on the fire before the Sabbath? Then we come afterward and conceptualize it and define it with rules and turn kindness into law. But notice—we are dealing with the same umbrella. They are two ways of relating to the same material itself. They are not two different things. If earlier I spoke about what is inside Jewish law and what is outside Jewish law, I qualified it and said that even within Jewish law there are parts that are more kindness. Now I’m saying even more: even in the parts of Jewish law that are law, there are still two—not two, but a whole range or a whole continuum—of ways of relating: how analytical and rule-based you are, and how intuitive you are and how much you work with what seems reasonable and sensible to you. And different decisors appear at different points on that spectrum. No one is completely here or completely there, but it appears in different proportions.

[Speaker E] Rabbi Shach is more law-oriented, I think, I don’t know.

[Rabbi Michael Abraham] Could be. I don’t know his writings well enough to make a general statement. Anyway, anyway, the claim is that the development of language is, I think, a very good model for Jewish law as well. And these two things together illustrate very well the fact that kindness and law are sometimes simply two different ways of looking at the same thing. If you are a person of kindness, you analyze it one way or think about it one way; if you are a person of law, you analyze and think about it differently. Okay? There is Nachmanides—also in the Nachmanides I mentioned on “And you shall do what is right and good,” and also on “You shall be holy.” Nachmanides speaks about “You shall be holy” as meaning not to be a scoundrel within the permission of the Torah. To do things beyond the letter of the law, so as not to be a scoundrel within the permission of the Torah. So various things like not indulging too much in food and sex and things that are permitted in themselves, but if you overdo them then it’s being a scoundrel within the permission of the Torah, or it’s a problem at the level of pious conduct, beyond the letter of the law—there are all kinds of expressions of that sort. What is the halakhic status of statements of this kind? So in the fourth root of Maimonides, Maimonides discusses there commandments that encompass the entire Torah and therefore are not counted in the enumeration of the commandments. Commandments that encompass the whole Torah—not, contrary to what many later authorities (Acharonim) and also people in our time say, foundational commandments. Yes, there are those who want to say that settling the Land of Israel was not counted because of the fourth root. Nonsense. Later authorities write this, by the way—simply nonsense, a misunderstanding of the fourth root.

[Speaker E] “And you shall keep My commandments”?

[Rabbi Michael Abraham] Yes, exactly. Meaning, the general commandments are commandments that generally repeat all the commandments: “And you shall keep all My commandments.” “And you shall keep and do.” “And you shall keep all My commandments,” for example, yes. Is that not counted as a positive commandment? No, no. Fear of God, love of God—those are counted. Two counted commandments.

[Speaker B] And they are counted commandments, love of God and fear of God. But doesn’t love of God encompass everything?

[Rabbi Michael Abraham] No, that doesn’t encompass everything. There is doing all the commandments out of love of God. There is doing them out of love of God, but the commandment to love God does not encompass everything. It is a very specific commandment. By the way, serving out of love appears in the Laws of Repentance, chapter 10.

[Speaker B] The commandment—

[Rabbi Michael Abraham] The commandment to love God appears in the Laws of the Foundations of the Torah. The commandment to love God is the halakhic section there: what the obligation to love God includes. To perform the commandments… to do the commandments out of love—out of love—is a value. It’s a mode of doing commandments; it is not the fulfillment of the commandment to love God.

[Speaker B] So what is counted under the fourth root? So I’m saying, in the fourth root—

[Rabbi Michael Abraham] Only commandments that encompass the whole Torah: “And you shall keep all My commandments.”

[Speaker B] The example Maimonides gives is a verse that says, “And you shall keep all My commandments.”

[Rabbi Michael Abraham] Not one commandment.

[Speaker B] Therefore it isn’t counted. What?

[Rabbi Michael Abraham] Why? After all, it’s a verse: “And you shall keep all My commandments.”

[Speaker B] Right, there’s a command here. Right.

[Rabbi Michael Abraham] Concerning all the commandments—you need one, two, three, four, five.

[Speaker B] So there’s a command here.

[Rabbi Michael Abraham] Right, there’s a command here. Why isn’t it counted? If I—by the way—in the medieval authorities (Rishonim) who discuss a positive commandment overriding a prohibition,

[Speaker B] Some—

[Rabbi Michael Abraham] Of them explain that a positive commandment overrides a prohibition because together with the positive commandment there is also a prohibition upon one who violates what the Holy One, blessed be He, commands—a general prohibition. And the prohibition and the positive commandment together override a prohibition. For example. Because there is a command here. You could say that someone who violates any commandment is now also violating “And you shall keep all My commandments” as well as having neglected the commandment of tzitzit. So he has neglected two positive commandments. But Maimonides says no: if it includes all the commandments, it is not counted. Never mind for the moment; that’s what he writes there. One of the examples he brings, or the main example he discusses, is “You shall be holy.” Maimonides understands “You shall be holy” to mean: do the commandments, sanctify yourselves through the commandments. It doesn’t mean something specific. Now Nachmanides disagrees with him here. And Nachmanides there, in his glosses to the fourth root, defends the Behag, and there he, I don’t know, tries to explain something about “You shall be holy” as abstention from sexual prohibitions or things like that. But if you look at Nachmanides’ additions to Sefer HaMitzvot, “commandments that the Rabbi forgot,” that Nachmanides removes from Maimonides or adds to Maimonides—after Maimonides’ list of commandments there appear Nachmanides’ additions and omissions—you will not find “You shall be holy” there. It does not appear as an additional positive commandment. Maimonides does not count it because of the fourth root. But Nachmanides disagrees with him. Nachmanides says it is not a general commandment meaning do all the commandments; it is a commandment to act beyond the letter of the law. So why doesn’t Nachmanides count it as a commandment? It is not a commandment that encompasses the whole Torah. Or also “And you shall do what is right and good”—he also doesn’t count that. There is one enumerator of the commandments, I think, who does count “You shall be holy.” I don’t remember who it is—maybe Sefer Hasidim? No, not Sefer Hasidim, I don’t remember. Someone among the enumerators counts it; never mind. Anyway, almost all the enumerators of the commandments do not count it. Why not? They don’t count it because you cannot count it; categorically you cannot count it. Why? Because if you counted it, then there would be a positive commandment to behave this way. So if you didn’t behave that way, you would be a scoundrel not within the permission of the Torah. Not a scoundrel within the permission of the Torah, because you neglected a positive commandment. This is what is called the paradox of the scoundrel. The paradox of the scoundrel basically says that you cannot include in the tally of commandments the prohibition against being a scoundrel within the permission of the Torah, because if there were such a counted prohibition, or a commandment not to be that way—a positive commandment, it doesn’t matter—then once you violated it, it would no longer be within the permission of the Torah. You would be violating a prohibition. But you want to leave something outside the formal obligatory layer of Jewish law, while still telling us that we are expected to do it anyway, even though what? No, it’s a bit rabbinic—it’s something else.

[Speaker E] No, because if you put rabbinic commandments into “you shall not deviate,” then everything becomes Torah-level.

[Rabbi Michael Abraham] In that sense it’s similar.

[Speaker E] Yes, but “you shall not deviate” is something—

[Speaker B] Yes, of course. So they say that a scoundrel within the permission of the Torah—what? So it’s in the realm of kindness?

[Rabbi Michael Abraham] Right, exactly. It cannot enter the realm of law, because if it entered the realm of law—

[Speaker E] Then it wouldn’t be kindness.

[Rabbi Michael Abraham] There are commandments—not commandments, rather there are obligations that in their essence belong to the side of kindness and not to the side of law.

[Speaker E] Right, and there’s also a dispute whether people can be compelled to go beyond the letter of the law.

[Rabbi Michael Abraham] Compulsion is something else; it’s unrelated. Talmud in Bava Batra—compulsion regarding the trait of Sodom there.

[Speaker E] I can compel him, but it still won’t—

[Rabbi Michael Abraham] Be law. I compel morality. And therefore, for example, many decisors write that if the person is poor, for example, and he needs it—dina de-bar metzra, or what’s it called, “a poor man turning over a cake”—then if you yourself are poor, fine, what you grabbed you grabbed. According to the law it’s yours, and then they won’t compel you, even though what you did wasn’t right. Because once it’s not law, then… And by the way this is another proof against Rabbi Lichtenstein and the Maggid Mishneh. Because if it were exactly the same as law, only it didn’t fit into rules and therefore they didn’t put it into Jewish law, then why do they let the poor person off the hook for it? They don’t let the poor person off the hook for counted prohibitions. It’s clear that it is less binding; it’s not only that it doesn’t fit into rules. There are many more proofs; I think they’re not—I don’t think they’re right. Anyway, this paradox basically means that there are certain obligations or certain expectations of Jewish law that it insists on leaving outside the world of law. That belongs to the world of kindness. By the way, also prohibitions. For example, well no, closeness to sexual prohibitions is a counted prohibition, but never mind—“Keep far from a false matter.” Okay? “Keep far from a false matter”—basically we are commanded, even though it is not counted in the tally of commandments, to distance ourselves from falsehood. Falsehood itself, its halakhic status is unclear, but distancing oneself from falsehood is certainly not a halakhic prohibition. Certainly the Torah says, “Keep far from a false matter.” Meaning, there is some kind of statement here—the distancing, the expression “keep far” says that this belongs to the side of kindness and not to the side of law. It won’t enter Jewish law. What isn’t found in Jewish law… there are parts that are in Jewish law… no, it—

[Speaker B] No… really, it’s like morality, something appropriate—

[Rabbi Michael Abraham] Not just something—

[Speaker E] “Have you murdered and also inherited?” “Have you murdered and also inherited?”—that was adopted into state law, that you—

[Rabbi Michael Abraham] Do not inherit the one you murdered.

[Speaker E] It went here and there to the Knesset— and it really goes against the rules of—and in the Shulchan Arukh and in Maimonides it’s mentioned—

[Rabbi Michael Abraham] Yes, I know. Fine. What—

[Speaker B] What law was passed?

[Rabbi Michael Abraham] That’s the people of law—

[Speaker E] That children, God forbid, who murder their parents do not inherit. “Have you murdered and also inherited?” He tells you, my friend, the Shulchan Arukh doesn’t exempt that. Which realm is that in? In the closed realm? Extra?

[Rabbi Michael Abraham] No, it’s in the realm of law, it’s in the realm of law. It has nothing to do with a general commandment, yes. Anyway, the claim is that there is a certain area around Jewish law that the Torah deliberately did not bring into Jewish law, deliberately did not bring into it, because it wants to leave it outside. Maybe I’ll give you an example that sharpens this point a bit. In tractate Gittin 31 there is a baraita, and the baraita says—the baraita learns from a verse, I think the verse was said about the tithe of the priestly gift, but from it they derive that one must separate the great priestly gift generously. Yes, generously. Now you ask, what does generously mean? So Rashi there writes: one-fortieth is generous, one-fiftieth is average, one-sixtieth is stingy. But the thing is, these measures are rabbinic measures. So how can one derive from a verse that one should separate generously? After all, at the Torah level one grain of wheat exempts the whole pile. What, should he give a fat grain of wheat? Is that called giving generously? What is the meaning of this? So I wanted to argue in an article that the measures of one-fortieth, one-fiftieth, and one-sixtieth are Torah-level. They are Torah-level, and the Sages are the ones who fixed a measure for them. But the Torah says one grain of wheat exempts the whole pile, and yet I expect you to give more than the Torah minimum. Now the Sages fixed what “more” means, what in their view would satisfy the Torah’s will. So they say between one-fortieth and one-sixtieth. One of the indications—there are many indications for this, including halakhic ones, by the way; I think these are very strong proofs—one of the indications is the very fact that there are three measures here. Why did the Sages establish three here? This is rare; there’s almost no such phenomenon. So one-fortieth is generous, one-fiftieth is average—just say how much one has to give and that’s it. What do you want? What is “generous”? Because the Sages say: if we fixed one-fiftieth as mandatory for everyone, we would be throwing out the baby with the bathwater. The Torah wanted us to give generously on our own initiative, voluntarily. Now the Sages said, fine, but voluntarily you’ll give two grains. We want to put some sort of boundary there, to mark out what is more or less reasonable. But we’ll mark out a range within which you can play, because we still want to preserve the voluntary dimension in this story. We don’t want to throw out the baby with the bathwater. That’s why they leave a margin of possibilities here. Another example of this, I once wrote about it as well, is the Hanukkah candle. With the Hanukkah candle there is one candle per person and household, then those who beautify the commandment, and then those who exceptionally beautify the commandment. Again—why do you need three levels? After all there is—Rabbi Vogel writes in his book Netivot Yehoshua, he asks in Netivot Yehoshua—there are several books by that name, no?

[Speaker B] What’s it called?

[Rabbi Michael Abraham] Netivot Yehoshua. You haven’t heard of it? Parts of it were even written with me. So he writes—not as a student; as a student I slept. I didn’t even remember what was discussed there.

[Speaker E] The Pnei Yehoshua asks—

[Rabbi Michael Abraham] There, the Pnei Yehoshua asks: why was the miracle of the flask of oil needed at all? After all, impurity is permitted for the community. So why did we need oil that would last for eight days? Light with impure oil. So he wants to say—and this is one question. A second question is: how can it be that the embellishment of the commandment with the Hanukkah lights is more than a third? In the Talmud in Bava Kamma 9, the Talmud says that embellishing a commandment is only up to a third—whether from the principal amount or added on top, that’s not important right now—it’s up to a third. But with Hanukkah lights you do eight times as much. Okay, so that doesn’t fit the issue of a third. How does that work with the parameters of embellishing a commandment? And he argues that both of these difficulties are resolved on the basis of one principle. His claim is that the miracle was needed in order to allow us to light in the most beautiful way—to light with pure oil and not impure oil. You can light with impure oil, because impurity is permitted for the community, but it’s more enhanced to light with pure oil. So the miracle enabled us to light in an enhanced way. Therefore what? Therefore, for future generations they instituted embellishment of the commandment for us, but that embellishment is not embellishment under the ordinary laws of embellishing a commandment, meaning “This is my God and I will beautify Him.” There, it’s only up to a third, as the Talmud says. Rather, this is an embellishment that is obligatory—an embellishment in remembrance of the enhancement that the miracle enabled us to do there. Therefore it doesn’t operate under the usual parameters; it’s part of the law itself. It’s not the ordinary embellishment of “This is my God and I will beautify Him.” So that’s why it can also be more than a third. So you’ll ask: then why didn’t they just establish, okay, then everyone should light eight? Why “a candle for each household,” and only afterward this whole structure? Right, that’s the question I’m asking now about Rabbi Vogel’s solution. Because if they had said that everyone must light eight candles, or one, two, three up to eight, then it wouldn’t be embellishment—it would just be obligation. They wanted to have it both ways. They wanted… they basically wanted to leave us a hint that the obligation is to do this without making it an obligation, because we have to do it from below, through human initiative; because we have to do it voluntarily. The only way to do that is to say, okay, the baseline is one candle per household, but there are those who enhance, and those who enhance in the highest way, and a clear hint in this direction is the existence of three levels. Why did they make three levels? To tell you: more is expected of you. So now they leave you with a minimal obligation, but we expect more. It’s a kind of double message, exactly like with terumah, exactly like “You shall be holy.” There too it’s the same thing: the Torah says to me, I expect more from you, but I can’t obligate you halakhically in this. Because if I were to obligate you halakhically, it would no longer remain voluntary. I want you to do it voluntarily. So therefore the Torah writes it as an expectation, or a recommendation, or I don’t know what to call it—but not as a command. It’s not a commandment. So basically what we’ve seen until now is this: two kinds of relationship between lovingkindness and law. One relationship is that these are two domains. There is the domain of law, Jewish law, and there is the domain of lovingkindness, which is what lies outside Jewish law—what is not halakhically obligatory, what is voluntary. Maybe even within that there are shades—obligatory, but still impossible to formalize in Jewish law. But in fact everyone, everyone on Hanukkah lights in the highest enhanced fashion. Why? Why isn’t there some kind of distribution—some enhance more, some less? Because it’s obvious that in fact this is what is expected; it just couldn’t be defined as an obligation, because then it wouldn’t be embellishment, okay? By the way, that same tension also exists in ordinary embellishment under “This is my God and I will beautify Him.” Some think that “This is my God and I will beautify Him” is voluntary. Fine—basically it’s enough if you do the minimum; if you do a third more, great, then you’ve done something nice. In my view, “This is my God and I will beautify Him” is a full-fledged commandment. Someone who doesn’t do it has neglected the commandment of embellishment. He hasn’t neglected the basic commandment—it doesn’t invalidate the commandment—but he has not fulfilled the commandment of embellishment, “This is my God and I will beautify Him.” The question is what the status of the commandment of embellishment is. Is this commandment part of Jewish law—an actual positive commandment? Those who enumerate the commandments do not count it. But there are disputes: is it Torah-level, rabbinic? The simple reading is that it is Torah-level, not rabbinic. Tosafot on “the stolen lulav” wants to say in one answer that it’s rabbinic. But plainly speaking it’s Torah-level. So why isn’t it counted? You could say: for the same reason we said before—the Torah wanted to say, I expect more from you, but I can’t command it, because then it won’t be voluntary; it will become part of the commandment itself. But one could also say no: it isn’t counted because, like a half-measure—why is a half-measure not counted? A half-measure is forbidden by Torah law according to Rabbi Yohanan, and the law follows Rabbi Yohanan. Why isn’t that counted? So you can also see in one of Maimonides’ roots—I don’t remember exactly which root this was, I once looked into it—that broad principles applying across commandments are not counted, even though they have halakhic significance. Now, a half-measure is one example; “This is my God and I will beautify Him” could also be an example. One must beautify all commandments, perform them in an enhanced way. So it’s a general principle in how commandments are fulfilled, and therefore it isn’t counted as one of the 613 commandments. But exactly—still, it may be fully binding. It just isn’t counted because in terms of the division of commandments, it isn’t an independent commandment. But it can still be absolutely obligatory. And then if you fulfill the commandment without embellishment, you have fulfilled the commandment, but not the embellishment. It just doesn’t prevent the commandment from being fulfilled. Like, for example, the common mistake regarding tekhelet and white strings in tzitzit. The Mishnah in Menahot says that the tekhelet does not prevent the white, and the white does not prevent the tekhelet. So people think tekhelet is voluntary.

[Speaker B] No, it isn’t.

[Rabbi Michael Abraham] It is a full positive commandment, completely obligatory. Anyone who doesn’t put on tekhelet has neglected a positive commandment. Maybe you think there is no tekhelet, fine, then it’s impossible. But I’m saying: someone who thinks there is tekhelet and still doesn’t use it has neglected the positive commandment of tekhelet. It just doesn’t prevent fulfillment of the white strings. The white strings are fulfilled even if you didn’t fulfill tekhelet. But tekhelet you have neglected. In that sense it could very well be that “This is my God and I will beautify Him” is a full-fledged commandment; it just doesn’t prevent fulfillment of the basic commandment, but the commandment of embellishment has not been fulfilled.

[Speaker E] Yes, like tefillin, for example.

[Rabbi Michael Abraham] With tefillin it’s also indispensable.

[Speaker E] No, I mean really separate—one could say one does not fully prevent the other, and there is still full fulfillment of what you do—arm and head, I mean. Right? In tzitzit it’s different. In tzitzit it doesn’t exist. Yes.

[Rabbi Michael Abraham] Well, that’s a question in Maimonides’ count of the commandments. Tefillin are two.

[Speaker E] Tefillin he counts as two, right?

[Rabbi Michael Abraham] In tzitzit—tefillin are two, right?

[Speaker E] Maimonides—okay, so what I’m saying is grounded in Maimonides.

[Rabbi Michael Abraham] What you’re saying.

[Speaker E] Okay.

[Rabbi Michael Abraham] I was talking about Maimonides, I just don’t remember exactly what… okay. Fine. In any case, that’s one type of relationship between lovingkindness and law: the relationship of the domains we’re dealing with. The halakhic domain is law; what lies outside Jewish law is lovingkindness. Okay? There’s another relationship between lovingkindness and law: they are two ways of looking at the same domain itself. You can look with an eye of lovingkindness, and you can look with an eye of law. A good eye and a bad eye, by the way, although it connects to good and evil, is actually more connected to lovingkindness and law. A bad eye, a compressed handbreadth and a relaxed handbreadth. Right? In measurements there is a compressed handbreadth and a relaxed handbreadth. There are five handbreadths in a cubit or six handbreadths in a cubit, right? Why “relaxed” and “compressed”? “Compressed” is confined to its space, and “relaxed”—when you relax or laugh, you spread out more. Okay? So this is actually more connected—not to good and evil so much as to according to the rules and beyond the rules. That’s really the connection. So this is looking with an eye of lovingkindness and with an eye of law at the very same issue. There is another side of the coin, and that is the concept of a transgression for the sake of Heaven. The Talmud in tractate Nazir 23 says: Rav Nahman bar Yitzhak said, “A transgression for the sake of Heaven is greater than a commandment performed not for its own sake.” But didn’t Rav Yehudah say in the name of Rav, “A person should always engage in Torah and commandments even not for their own sake, because from not for its own sake one comes to do it for its own sake”? Rather, say: like a commandment not for its own sake, as it is written: “Blessed above women shall Yael the wife of Hever the Kenite be; above women in the tent shall she be blessed.” Which women in the tent? Sarah, Rebecca, Rachel, and Leah. In short: a transgression for the sake of Heaven is greater than a commandment not for its own sake, or like a commandment not for its own sake—there are discussions about that. What does “a transgression for the sake of Heaven” mean? So it brings the example of Yael. Yael was a case of a transgression for the sake of Heaven, right? What’s the meaning of this? What is a transgression for the sake of Heaven? Now among the commentators you’ll see a very strong discomfort with this sugya, because a transgression for the sake of Heaven can basically destroy all of Jewish law. It can basically say: okay, here it seems to me we need a transgression for the sake of Heaven, so I violate Jewish law because I’m doing it for the sake of Heaven. Shabbetai Tzvi committed transgressions for the sake of Heaven wholesale, because he thought that here things had to be done differently. He converted to Islam, ate pork, I don’t know, all kinds of things like that because that’s what… right. Or that rabbi from Safed—what’s his name—the one who also did various transgressions for the sake of Heaven. He convinced the women there that it was for the sake of Heaven; he would bring the messiah if they had relations with him. So he committed all kinds of transgressions for the sake of Heaven. So it’s no wonder that this arouses concern, and therefore there is a tendency among the commentators to explain that a transgression for the sake of Heaven is basically some kind of override rule, like a positive commandment overrides a prohibition. As though here there is some need that overrides the transgression; it’s a halakhic override rule. But that is of course not correct. It is not a halakhic override rule. Yael, the wife of Hever the Kenite, had those relations with Sisera in order to kill him; there was no halakhic permission for that. Because if there had been halakhic permission, it wouldn’t have been a transgression for the sake of Heaven—it would have been a commandment. Someone who desecrates the Sabbath in order to save a life—is he committing a transgression for the sake of Heaven? No, he’s performing a commandment.

[Speaker B] He’s not committing any transgression at all.

[Rabbi Michael Abraham] By the way, whether it’s “permitted” or “pushed aside” doesn’t matter here—there’s no difference between “permitted” and “pushed aside.” So what is a transgression for the sake of Heaven? The phrase itself says there is a transgression here. You violated Jewish law. There is no permission, no permission—but you did it for the sake of Heaven, and there is justification for it. I’ll give another example that appears later in the same Talmud passage, even though apparently it’s already in another part of the sugya, but it comes immediately afterward, and it’s hard to ignore the context. It’s Lot’s daughters. Lot’s daughters, right, had relations with their father in order to produce offspring, and the Sages praise them greatly on that same page, Nazir 23—they praise them for this act. They praise them, and therefore I think it’s no coincidence that this appears immediately after the sugya of a transgression for the sake of Heaven; in the eyes of the Sages this too is probably an example of a transgression for the sake of Heaven. Now try to think for a moment what happened there. It’s also true of Yael, but basically they violated the prohibition of incest. Why did they do it? It’s explicit in the verses—here you don’t need interpretation. The verses say that they saw that no one was left: “There is no man in the land to preserve seed from us,” as they say. Either humanity is ending, or we violate incest—there is no other option. That’s how they saw it. It doesn’t matter that at the time there were in fact people in the world, but from their perspective, from what they saw, humanity was ending. Now they had two options: either violate incest and preserve humanity, or not. And they chose to violate incest, and the Sages praise them for it. That too is probably a transgression for the sake of Heaven in the same sense. Now, from the standpoint of halakhic definitions, I find no basis at all for permission for such a thing. Incest is one of the sins for which one must die rather than transgress; nothing in Jewish law permits the prohibition of incest. So how can one praise someone who violated incest because it seemed to him extremely important? It’s not even saving a life. It’s not about saving someone from death; it’s only about making sure there will be… what business is it of yours to worry about the Merciful One’s flock? If the Holy One, blessed be He, wants offspring to continue, He can create a new humanity. Why do you need to worry on God’s behalf? There is room to argue about that claim, and by the way it may be that the claim is not correct. The praise the Sages give Lot’s daughters does not necessarily mean that their judgment was correct. Rather, maybe they are saying only that according to their own understanding, if this is how they understood the situation, then what they did was perfectly fine. I’m not even sure one can conclude from here that it was actually correct. That’s another question—I don’t know. Okay? But why indeed? Because there are situations that are singular situations, in which the rules of Jewish law do not provide adequate treatment. Now I have no halakhic source by which I can say, here this does not apply, or here the law is different, or anything like that. But it is as clear to me as day that when I am inside this situation, it is impossible—here one cannot conduct oneself according to Jewish law. It can’t be. It simply makes no sense. It doesn’t work. Okay? So you need to transgress Jewish law. That is called a transgression for the sake of Heaven. And you are not the leading halakhic authority of the generation—you are Lot’s daughters. We’re not talking about a case where, if you have a halakhic decisor, ask him; fine, everything is fine. There is no one to ask. You’re in a situation where there is no one to ask. What do you do?

[Speaker E] Rule for yourself?

[Rabbi Michael Abraham] Yes, you rule for yourself, and you can violate the gravest prohibition there is—incest—and the Sages praised you for it. And this is not a halakhic override rule. Again I say: if it were a halakhic override rule, then it would be law, and this would be what the halakhic rules require. But if I say there is no such halakhic rule, then what am I really saying? I am basically saying that Jewish law, like the rules of grammar, is an approximation of what the law is saying. But there are extreme situations in which you have to speak slang—not according to the rules, not according to the laws. I speak differently. Here that is what fits best; the rules do not fit here. That’s what I’m trying to say. What? Exactly. Right, and I want to argue that this marks the second relationship between lovingkindness and law: looking at Jewish law through the lenses of lovingkindness. From that perspective I understand that the rules of Jewish law are not the law itself. They are only a first approximation of what is called Jewish law. But someone sufficiently confident in himself, who understands that here it simply cannot be right—he should act as he thinks, against Jewish law. That sounds anarchic, but I think that is the lesson that emerges from this sugya of a transgression for the sake of Heaven. But of course you also have to be willing to answer for it. You know, it’s similar to conscientious objection. Right? Or—not conscientious objection—maybe more like a manifestly illegal order. There’s some difference between those two things. Say, for example, Kafr Qasim—the story of Kafr Qasim. In the Kafr Qasim story, the claim was that this was a manifestly illegal order. What does that mean? After all, until that time even brilliant jurists could not have told you that if your commander orders you to shoot, you are forbidden to shoot. The fact is that the issue was not simple even in the highest courts, in the highest legal courts. Okay? It was not trivial at all. Okay? But the court decided—and in my opinion rightly—that in such a case the soldier should not have shot. Now why? After all, the rules say: there is a commander, the commander gave an order, you have to shoot. Remember the Nuremberg trials? “We received orders.” That was the justification of some of the defendants in the Nuremberg trials. We were given orders. On the face of it, they’re right. According to the rules, the lawful regime in their country gave them an order and they carried it out. Judge the one who gave the order—what do you want from me? There is a certain claim that says that there are situations in which you, as a private person, even if you are not a jurist and not a great commander and nothing of the sort—you need to make decisions even though it goes against the law. And the law itself demands that of you. This is a manifestly illegal order. That is the great innovation of the Nuremberg trials, and Dworkin and other legal thinkers after that talked about it. The great innovation that emerges from there is that this is the law; it is not outside the law. The law itself understands that there are certain foundational principles that are as if they were enacted law even if they were never enacted. Now this—what?

[Speaker B] As opposed to saintly individuals?

[Rabbi Michael Abraham] Wait, in just a second I’ll get to saintly individuals. First I want to complete the point about conscientious objection. What is conscientious objection? It’s not like that. Suppose someone refuses to serve in the territories, or refuses to evacuate some settlement. Okay? What he is doing here is illegal. And he will also answer for it, and rightly so—he should answer for it, because the order is a legal order. There is nothing illegal about that order. But he says: my conscience can’t accept this; I have values. Not everyone shares my values, no problem. But my values—from the standpoint of my values, this is a red line. I can’t cross it. Does the law require otherwise? Yes. But from the standpoint of my values, this is a red line. I cannot cross it. So in meta-legal thought—not legally speaking, there you’re an offender, yes—but in meta-legal thought they tell you: this is a transgression for the sake of Heaven. What does that mean? They tell you: look, this is something without disgrace. You’ll sit in prison—you’ll sit in prison not only as a sanction for the offense, but because if there is no price, everyone will do it. You have to pay a price so that a person will consider whether this really is a red line for him, and whether he is willing to pay for it. It’s a kind of filter so that not everyone will make cynical use of it. Okay? But in the end, bottom line, this is a violation of the law; the law does not permit it. But on the other hand we recognize that you have certain values that are your values. We do not necessarily share them. But we understand that you have values. A person is not only a citizen; a person is also a person. Besides being a citizen, he has his own values.

[Speaker E] And that’s something different from a manifestly illegal order.

[Rabbi Michael Abraham] Right, because a manifestly illegal order reflects all of our values. Those are all of our values. And therefore there the law itself forbids you. If you had shot, you would be punished—not if you refrained from shooting. In conscientious objection, if you had complied, nothing would happen; everything would be fine. If you refuse, then you are punished. If you had refused in Kafr Qasim, you would not have been punished—on the contrary, you would have received a commendation. Because the order to shoot was illegal. Here, the order to evacuate the settlement, or I don’t know, to serve in the territories, is legal. You—your conscience won’t allow it, because those are your values. Okay? So now, how do we compare this to going beyond the letter of the law, or to this transgression for the sake of Heaven of Yael? I think a transgression for the sake of Heaven is more similar to conscientious objection, it seems to me. But I’m not sure, because for example preserving the world, I think in the eyes of the Sages, is a universal value. They would expect everyone to do it, not only in the particular case of Lot’s daughters, where for them it happened to be some personal value.

[Speaker B] “He did not create it for chaos; He formed it to be inhabited”—that’s outside the…

[Rabbi Michael Abraham] Yes, although that is a law from the Prophets.

[Speaker B] But it’s still considered a law.

[Rabbi Michael Abraham] Right, there is also an idea here.

[Speaker B] Yes, the case of Yael is closer to conscientious objection, a transgression for the sake of Heaven. Because we don’t expect everyone to sleep with…

[Rabbi Michael Abraham] I don’t know—maybe in order to save the Jewish people? The question is what actually depended on it. It’s not clear how much of a threat Sisera really still was, because he had already fled. So I don’t know. In any case, all these categories are basically telling us that around Jewish law—or around Jewish law or within Jewish law, in both senses, there is both. Around Jewish law there is a category that is lovingkindness in the sense that it is not law. And within Jewish law there is a kind of conceptual core of which the halakhic rules are only an approximation. And looking through the lenses of lovingkindness means grasping Jewish law itself in a way that goes beyond the rules. Okay? So these are the two faces of lovingkindness. Maybe I’ll just finish with a small example. Once I was on some panel at the National Library. They had a series there on the Talmud. So in one of them I participated in a panel and gave a talk beforehand, with Meir Buzaglo from the Hebrew University and Itamar Persico. And I suggested that we study the sugya of “this one benefits and that one does not lose,” in Bava Kamma. Because beyond what the sugya itself says, the framework of the sugya is very interesting. There the Talmud begins with the case of one who lives in another person’s courtyard without his knowledge—must he pay rent or not? Here, basically, the question—right—“the trait of Sodom”; Tosafot connects it, and so does the Pnei Yehoshua. But the Talmud asks a very specific question, a very particular case. Then the Talmud starts to analyze it. And the Talmud says: if so, what are the circumstances? Is it a courtyard usually rented out, or not usually rented out? Is this person one who ordinarily rents, does he have a place to live, does he not have a place to live? And it translates this into conceptual terms. It says: if it is a case where this one benefits and that one does not lose; this one benefits and that one does lose; this one does not benefit and that one does not lose. There are four categories there, two of which appear in the Talmud; a third appears in the medieval authorities. Right? “This one does not benefit and that one loses” is a dispute between Tosafot and the Rif. Three appear in the Talmud and one in the medieval authorities. So that formulation—“this one benefits and that one does not lose”—is already a different formulation from the concrete case of someone living in another’s courtyard without his knowledge. What’s the difference? That is a casuistic formulation of cases, of a specific instance. Right? Here there is a case: someone living in another’s courtyard without his knowledge—what should be done? The conceptualization that the Talmud creates from that is a rule: this one benefits and that one does not lose. Now the question whether such a person is liable or exempt—that already includes a huge number of cases, not just someone living in another’s courtyard without his knowledge. Also “bar metzra,” and the whole sugya in Bava Batra, and so on—it all enters there, basically under this category. What does that mean? That you take a case and discuss a case. One could have looked at this case intuitively and said: exempt, permitted, liable, whatever. My intuition says this is immoral, moral, whatever—okay? But the Talmud conceptualizes it, and then creates from it a rule—“this one benefits and that one does not lose”: liable, exempt, all the debates there; all the combinations—this one benefits and that one loses; this one does not benefit and that one does not lose—all these combinations. And now we have rules, and with those rules we have to work. Except that they don’t work anywhere. In all the places you have to twist yourself around in order to fit things into the rules; it doesn’t really work. Okay? But the Talmud tries to create rules, and then once you have a rule you start applying it to other places, and suddenly you run into contradictions and difficulties, and then you make up resolutions—like epicycles and deferents in Ptolemaic astronomy, right? There they thought everything worked by circles, right? Because the circle is the most perfect shape there is. So their cosmology was that everything moved in circular paths. Then they saw it doesn’t work with a circle. It isn’t circular. So what do you do? You add two circles on the side. There is a big circle and two little circles on the side. You see that this is already starting to become an ellipse. Because the truth is that it’s an ellipse, right? But even two little circles like that still aren’t an ellipse, so you add another little circle here and another little circle there, and you approximate an ellipse with an infinite number of circles. You need infinitely many circles to reach an actual ellipse. And you keep adding more and more circles because you are trapped in the concept of circles, until someone comes and says: no, these are ellipses, and everything is fine. He solves the whole issue with a wave of the hand. Jewish law often looks like that. We add more rules and more rules, and then it doesn’t work over there, so I add a sub-rule so that it will fit, because you are captive to the rules. If you looked with open eyes, you would see that obviously this is not similar to that, and here it’s permitted and here it’s forbidden, and everything is fine. But you can’t work that way. No one can really work that way. We need to work with rules, and all the while next to that with a warning label: these are rules, but don’t leave your common sense at home. In other words, look where it is right to frame it this way and where it is not right. That is to say, lovingkindness and law are integrated with one another, and it is wrong to ignore either one of them. Someone who works only with lovingkindness won’t get anywhere. In other words, someone who enters every situation and says, it seems to me this is permitted, it seems to me this is… from that no Jewish law emerges; from that comes anarchy. There is nothing there. It has no meaning. On the other hand, someone who clings completely to the rules also misses a great deal. You have to go with the rules and understand that the rules are a first approximation, giving you some sort of framework, and afterward you do—yes—perturbation theory. Then you make all sorts of corrections, these or those, corrections of lovingkindness.

[Speaker E] Here too, case by case you make the correction.

[Rabbi Michael Abraham] Right, right. Sometimes you say: this case is exceptional. Here it’s impossible. This rule is not relevant here—even if I can’t conceptualize it and define why not, it is obvious to me that it isn’t. And someone smarter will come and succeed in formulating it. But if I feel strongly that it doesn’t belong, then I won’t do it.

[Speaker E] And the issue that to the same person you give two rulings—that’s also connected to—well, that’s a problematic question.

[Rabbi Michael Abraham] Read it—there is an article by my friend Nadav Shnayer called “The Jewish Ark of Lies.” Read there what his view is; my view is very close to his on this matter.

[Speaker B] What, that you gave the same per-

[Rabbi Michael Abraham] person two answers on the same—no, to two different people you give two different rulings on exactly the same case. And people look at that as a great virtue of the halakhic decisor, that he knows how—and in my view it is a major disgrace to the halakhic decisor, and in Nadav’s view too. I think this is not—one should not do such things. You can say: if there are two options, present him with both options, and each person can choose. He may choose this option and that one may choose that option. Do you think this is the Jewish law? Then that is the Jewish law. There’s no—fine. But if the

[Speaker E] situation

[Rabbi Michael Abraham] is different, that’s something else. I’m talking about exactly the same situation, right?

[Speaker E] That really runs against the whole analytic approach, applying a category—

[Rabbi Michael Abraham] No, no, that’s a question—it goes beyond that. It’s the question of who is supposed to make the halakhic ruling. In my opinion, the questioner, not the halakhic decisor. The halakhic decisor should tell him what the options are. The questioner should decide which option he chooses. If both options exist, then you must present both options to all questioners. Now they will decide whether it’s difficult for them, easy for them, whether they have great fear of Heaven or lesser fear of Heaven—they will decide which of the options they choose. You present the options; you don’t decide for them.

[Speaker E] No one will accept that. People don’t like it when their rabbi gives them all the options and so on—it’s a known story. They’ll never accept it. That’s how it should be, in my opinion, according to Maimonides.

[Rabbi Michael Abraham] Okay, we’ll stop here.

[Speaker E] Well done. Thank you very much, well done, let’s stop. Wait, so now we need to fill out…