Talmudic Analysis – Lesson 4

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[Rabbi Michael Abraham] I’ll give you an example. There’s a theorem in game theory called Zermelo’s theorem. And this theorem basically says that games similar to chess—it doesn’t matter, games that satisfy certain conditions, and most games you know satisfy those conditions—either White wins, or Black wins, or it’s a draw. Amazing theorem. Either White wins or Black wins or it’s a draw. What else could there be? What kind of theorem is that? It’s obvious. No, it’s really not obvious. It also takes a long time to prove. Do you know why it’s not obvious? Because we’re not talking about one particular game. If we say, in this game either Black will win or White will win or it’ll be a draw—that’s obvious, there’s no other possibility. Those are the three possibilities, what else could there be? But we’re claiming that this is a characteristic of the game of chess as such. There is a strategy by which White can always force a win, in every case. If you use that strategy, White can force a win. Or there is a strategy by which Black can force a win. Or each side can force a draw. Now you understand—that’s no longer trivial. Because we’re assuming there is a general strategy for all games, one that is always correct, by which the result can be forced. And one could have said no—each game, maybe Black wins, maybe White wins, it isn’t predetermined. You can’t know in advance what will happen in a chess game. Zermelo’s theorem claims: you can know in advance what will happen. We don’t know which of the three possibilities is correct, because it’s terribly complicated. We don’t know. But there is a proof that only one of these three possibilities is correct. Either White always wins, or Black always wins, or a draw can always be forced. “Wins” means: can force a win. If he plays badly he’ll lose, but if he uses the perfect strategy—there is such a strategy—then if you use it, no matter what the other side does, you’ll win. It could have been that there is no such general strategy at all. It depends how you play, what you play; you can’t determine the results in advance. So this theorem is not a trivial theorem if you look at it that way.

Also in our context, when I say either side A is right or side B is right—that’s one kind of statement. Suppose I say: it could be that negligence in guarding is what creates the obligation. That’s one possibility. A second possibility: it could be that the fact that one’s property caused damage is what creates the obligation. A third possibility: either this creates the obligation or that creates the obligation. That’s a third possibility. Right? I’m claiming that it’s enough if one of them exists for me to be liable, it doesn’t matter which one—either one of them. You understand that this is not either of the first two possibilities. It’s a third possibility. Or, a fourth possibility: both are needed in order for me to be liable. Both A and B have to exist in order for me to be liable. Those are all the combinations. Yes? Either A alone, or B alone, or both together, or either one of them—either this or that. But “either this or that” is one possibility. Meaning, either one can obligate me; I don’t care which. Okay? Is that clear?

So in fact whenever I see an analysis with two sides, I always need to consider all four of these possibilities. Either A is correct, or B is correct, or both are needed, or either one alone is sufficient. Okay? Meaning, the theories are: A, B, A and B, or A or B. Those are really the four possible theories.

Now usually in yeshiva-style analysis they present only the first two: A or B. Those are the two theories, and they discuss practical differences and everything. Nobody takes into account the theory of both A and B, or of either A or B. Okay?

So in this context, as I said regarding the Jewish holiday, the initial tendency is really to think that the deciding criterion here is simplicity. We usually adopt the simplest possible theory, right? Theory A is simple, theory B is simple, but the theories of A and B, or A or B, are less simple; they’re more complex. So we prefer them less, we prefer Ockham’s razor. We prefer the simplest theory. But that isn’t entirely accurate. Because A and B is not a less simple theory. There is one factor creating the obligation. What is it? A and B. One factor—complex, but still one factor. Exactly the same way that when I talk about negligence in guarding, I can also break that down and make it complex. What is negligence in guarding? That I didn’t lock the door, and the door itself wasn’t strong enough, and I also went to sleep and didn’t sit there by the door to guard it even though it was unlocked, and the accumulation of all these things together is the factor that creates the obligation. So that’s also complicated, right? How do you decide what’s complicated and what isn’t, what’s simple? Therefore I say: if there is one factor, that counts as simple. A and B is also one factor. It’s just a factor that requires both conditions, not each one separately. But it’s still one factor. There is one logical expression from which the result follows.

By contrast, A or B really does look more complex. A or B. That seems—it doesn’t sound intuitive—that two different things, each one separately, should produce the same result. Intuitively we usually assume that this result needs one thing to produce it. If A produces it, then why should B, when A is not present, also produce it? And vice versa. We’ll see this later more precisely and in more detail when we talk about the common denominator and other things.

So I return to “either entirely for you or entirely for God.” When Rabbi Eliezer says either entirely for you or entirely for God, that sounds unintuitive. Meaning, what do you want from a Jewish holiday? Do you want it to be entirely for you or do you want it to be entirely for God? He says, no, I don’t care. Either entirely for you or entirely for God. What does that mean? Don’t you have some position about what a Jewish holiday should be? He does have a position. The position is that it should not be half and half. When I say either entirely for God or entirely for you, what that means is there is one thing I am not willing to accept: that it be divided—half for God, half for you. And suddenly you see that this too is a simple theory. A simple theory about why it must not be, not why it must be. The negation of A and B is either not A or not B. Okay? So when you say “or,” you can always turn it into “and” through double negation. That is, A or B is the negation of not A and not B. With negations you can always turn “or” into “and.” And therefore the “or” can also be presented in a simple form, exactly like the “and.”

Okay, so our conclusion for now is that we need to take into account possibilities that usually aren’t taken into account in conceptual yeshiva-style analysis. Or A—that is, A is one possibility, B is a second possibility.

I want to give you another example. Maimonides, in his Book of Commandments, counts the commandments. There are 613 commandments. He prefaced his Book of Commandments with fourteen roots—principles. Those roots are the rules by which he counts the commandments. In the ninth principle, the ninth root, he says that one does not count commandments that repeat themselves in the Torah. For example, the Torah commands us twelve times to keep the Sabbath. We don’t count twelve commandments; we count one. Because it repeats twelve times, maybe to strengthen it, to say it’s important, but it’s twelve repetitions of the same thing. We’re not going to put twelve commandments into the count of the commandments—twelve commandments to keep the Sabbath. It’s one commandment. The Torah repeats it several times. That’s the first part of the ninth root.

The second part of the ninth root speaks about what is called a general prohibition. What does that mean? One verse, one prohibition—for example, “Do not eat over the blood.” From that verse we learn five or six different prohibitions that have nothing to do with one another. For example, it is a warning relevant to the stubborn and rebellious son; that is the prohibition he violates: “Do not eat over the blood.” In addition, a religious court is forbidden to eat on the day it hands down capital judgments. They are forbidden to eat; they have to fast. “Do not eat over the blood.” A third possibility: not to eat before the morning prayer, before you have prayed for your blood. And so on, various possibilities. Maimonides says: in a general prohibition we count one commandment, not five or six. One: “Do not eat over the blood.”

So Rabbi Yerucham Perla asks—he has a commentary on Saadia Gaon’s Book of Commandments—he asks about Maimonides that the beginning of the ninth root contradicts the second half of the ninth root. Why? Because Maimonides says in the first part that what determines the count is not the commands themselves. The commands can repeat themselves. What determines it is the content. If there is one content, that is one commandment. I don’t care that the command repeats itself twelve times. Okay? What does he say in the second half? That what determines it is specifically the commands and not the contents. He says: in “Do not eat over the blood” there is one command, and there are five different contents learned from it. What do we count? One commandment. So you see that what determines the count is the commands, not the contents. How does this fit with what he writes at the beginning of the root, that what determines it is the content and not the commands? The beginning of the root is twelve commands with one content—count one commandment. The second half of the root is five contents with one command—again count one commandment. So in the end, do we go by the contents or by the commands? What do you say?

Or-or? No, “or-or” doesn’t work. Because then both sides fail. Because if the command to keep the Sabbath appears twelve times, then there are twelve commands. True, there’s only one content, but if I say or-or, then the existence of twelve commands should be enough to count twelve. If I say either commands are enough or contents are enough, then in the case of a general prohibition you should count everything, and in the case of repetitions you should also count everything.

And also—not “or.” And. In order to count a commandment, it has to have both a separate command and independent content. If one of those is missing, you can’t count it.

Now look, then the two parts do not contradict each other. In the first part Maimonides is speaking about when the Torah commands keeping the Sabbath twelve times. So I do indeed have twelve commands, but there is only one content. In order for there to be twelve commandments, there would need to be twelve commands, each with its own content. There’s nothing like that here. There are twelve commands but with one content. So we count once. What happens in the second part? There is a general prohibition, which is one command with several contents. So true, there are several contents; I would want to count five commandments, but each one would also need its own separate command, and that is lacking—you have only one command. You see that if you want to count a commandment, both things have to be present: both a command and content. Then there is no contradiction in Maimonides at all.

Why does he think there is a contradiction? Because he is like the yeshiva analysts—he always assumes the dichotomy. Either the commands determine things and not the contents, or the contents determine things and not the commands. He doesn’t take into account the possibility that it could be both. That in order to count a commandment, you need both the content and the command—exactly like with the Pnei Yehoshua and the Chazon Ish. Okay?

By the way, in order not to count a commandment, what is required? If I were formulating the criterion for when we do not count a commandment, not when we do count one—

[Speaker B] When do you not note it?

[Rabbi Michael Abraham] When do I not include a commandment in the count of commandments? That is of course an “or,” right? Either a command is missing or content is missing, right? So here again you see this inversion between “and” and “or.” Again, in logic, the negation of A and B is either not A or not B. Okay? That’s logical equivalence. Okay? When you say that the criterion for counting a commandment is “and,” then you have said that the criterion for not counting a commandment is “or.” So there’s nothing here of simple versus not simple; the “or” and the “and” are both two sides of the same coin.

So this is another example of that mistake in which we assume a dichotomous framework, that it’s either this possibility or that possibility, when the real solution is: no, it may be that both possibilities are true, and both are required for the result to occur.

Now let’s continue a bit. Before I move on, one more point. After we define our meta-legal theory—yes, when one becomes liable for tort damages—now we say: there has to be ownership and there has to be negligence in guarding, with all the definitions we discussed. And then suddenly we discover exceptions. For example, if I deposited an animal with a guardian, some ox, and he did not guard it properly, and the ox went out and caused damage—I deposited it with him so he would guard my ox so the ox wouldn’t be harmed or stolen. Guard my ox for me; I’m traveling abroad, in a week I’ll come back, return it to me, in the meantime you’re my guardian. For payment, without payment, doesn’t matter, we have a guardianship agreement between us. Okay? Now nothing happened to the ox; the ox was fine, but it went out and damaged somebody else. The guardian is liable. Fine. Why? The guardian is not the owner. We said that in order to be liable, you have to be the owner. Okay?

The same thing with one who places another person’s animal onto another person’s grain stack. I take your animal—it’s somewhat similar to setting an animal on someone—and place your animal onto a third party’s haystack. Then I am liable, says the Talmud. Why? I’m not the owner; you are the owner. Right? I’m the guilty party, as in the case of inciting, but I’m not the owner. Yet both conditions are supposed to be necessary: I have to be the owner and I have to have been negligent in guarding. I was negligent in guarding here, but I am not the owner. So why am I liable?

Here one could perhaps explain that ordinarily you have to be the owner because otherwise you bear no responsibility to guard. But when you take someone’s animal and place it on someone else’s haystack, you have basically made yourself the one who is required to guard the animal, while the other person was guarding it and you just took the animal from him. So here you do not need to be the owner. The only reason ownership is required is that if you are not the owner, why are you obligated to guard? It’s not yours. But here, when in an active act you take someone else’s animal, you’re not the owner—but it is clear that the responsibility to guard is imposed on you. Usually ownership is needed because without it there is no duty of guarding. Here you have a duty of guarding even without ownership, so ownership is unnecessary.

You see that the different formulations we discussed earlier can show themselves in various exceptional examples. You have to see how to explain them, how to frame them. A robber—what about a robber? I stole an animal and the animal caused damage. The animal is not mine; I stole it. Am I liable to pay or not? The answer is yes, I am liable to pay. Why? I’m not the owner. And again: because if I stole it, then the responsibility of guarding is imposed on me as if I were the owner, like a guardian. The whole concept of ownership is not truly required; it is required only in order that there be a duty to guard. If you are obligated to guard even without being the owner, then you do not need to be the owner. And a robber, or one who places another’s animal onto another’s grain stack, has to guard even without being the owner by virtue of the situation, so he need not be the owner, and so on.

Maybe one more remark before I continue. Suppose we set out several possible ways to understand the passage, say the basis of tort liability—how do we decide which of the possibilities is correct? Negligence in guarding? Ownership? How do I decide who is right, what is correct? In the yeshiva world they won’t even understand what you’re asking when you ask such a thing. What do you mean, who decides who is right and who is not? Nobody deals with that. Maimonides says this, Rashba says that, and I explain what they disagree about. He thinks it’s negligence in guarding; he thinks it’s tort responsibility; or Chazon Ish, Pnei Yehoshua, whatever—and that’s it, I’m done, I’ve explained each one. People do not see it as part of learning the passage that they also have to decide who is right, which of the possibilities is actually correct. On the contrary. Usually in the world of conceptual learning they try to uphold all the possibilities, keep them all relevant, answer all the difficulties on all of them, and leave them all standing. There is no real tendency there to decide, to examine which possibility is true. Okay?

And in fact, many times the analytical ability that exists in the yeshivot, certainly in recent generations—which really is impressive—interferes with the ability to decide who is right. Once you can explain everything on the basis of certain assumptions, and explain the opposite position on the basis of other assumptions, and then say that there is a dispute between those who hold these assumptions and those who hold those assumptions—now how are you going to decide? These are assumptions. He assumes these assumptions, he assumes those assumptions. Regarding the conclusions, I can see whether they follow from the assumptions or not, but in order to decide who is right I have to decide what I think about the assumptions. Now how do I decide that?

If I take Rabbi Chaim of Brisk, who is the founder of the new style of conceptual learning in the yeshivot—he is known for that—he was the rabbi of the city of Brisk. And it is known that he would not answer halakhic questions; he would not decide. When someone came to him—now he was the city rabbi, so he was supposed to answer questions of Jewish law—he would send them to Rabbi Simcha Zelig, the judge in that city. They asked him; he said, I don’t answer. Or once, the yeshiva myth tells that he sent a question to Rabbi Yitzchak Elchanan of Kovno, who was the greatest halakhic decisor of that generation, and he said to him: answer me only yes or no, without reasons. Because for every reason you give me, I’ll give you three reasons against it. With reasons I’m strong. What does that mean? It means that because he had such strong analytical ability, and was so sharp analytically, he lost the ability to decide. You can’t determine who is right if you can explain Maimonides so well and explain Rashba so well—how can you decide who is right? I can explain both of them beautifully. And many times that’s how it is. Many times analytical ability is in tension with the ability to decide.

Therefore, for example, in the Torah world they distinguish between analysts, heads of yeshivot, and so on, and halakhic decisors. These are orthogonal abilities. Halakhic decisors have the ability to decide. The analyst has the ability to explain every position on its own terms, a kind of postmodern conception, where every position speaks within its own discourse, within its own assumptions. And within its own assumptions it is totally understandable, and the other one is also totally understandable from opposite assumptions. But if that is so, then how can I decide who is right? That is why postmodernism does not accept the value of truth—there’s no such thing as right and wrong. Everyone has his own foundational assumptions. That is the trait of the analyst. The trait of the halakhic decisor is that he is less of an analyst; he doesn’t know how to ground all the different views in solid analytical foundations. Precisely because of that, he succeeds in deciding. He says: this sounds more reasonable to me, so this is my halakhic ruling.

If he were to explain it to me—if he came to me and said, I rule this way—I would show him with signs and wonders that the other side is no less correct, because I have analytical ability; I would show him with wonderful explanations why the other side has excellent explanations just like this one. So how do you decide that he is right? That’s why he told Rabbi Yitzchak Elchanan: don’t give me reasons, just tell me your bottom line.

Now, the people of Brisk were famously very strict. They were strict like all the opinions; on every halakhic question they behaved in a way that fulfilled the obligation according to all the opinions. People usually attribute that to great fear of Heaven. They had fear of Heaven, and they didn’t want to take the risk that maybe they weren’t fulfilling their obligation, so they acted in a way that fulfilled all opinions. But the truth is that the reason they were stringent was not that. Rather, they simply couldn’t decide. They could not determine who was right and who was not right. So what can you do in practice? How are you supposed to act? You have to act in a way that works according to all the opinions, because you do not permit yourself to decide which opinion is correct and which is not. Once you lack the ability to decide, you have no choice but to be stringent in a way that fulfills all the opinions. That is not necessarily because of fear of Heaven. Although there was certainly a lot of fear of Heaven there, that wasn’t what caused the stringency. What caused the stringency was the inability to decide.

That reminds me of a nice story about the rabbi of Brisk, the son of Rabbi Chaim, who was rabbi in Jerusalem and died in the 1950s. Once people saw him drinking water outside the sukkah, and in the Shulchan Arukh it says that a God-fearing person should be stringent and not drink even water outside the sukkah. Legally speaking it’s permitted; you only have to eat a fixed meal in the sukkah, and if you’re just drinking water that’s fine, you can drink outside. But it says in the Shulchan Arukh that a God-fearing person should be stringent and not drink even water outside the sukkah. Whatever he eats or drinks, he should do in the sukkah. So they asked him: what, you, the great strict one, the rabbi of Brisk, the great strict one like you drinks water outside the sukkah? It says every God-fearing person should be stringent and not even drink water outside the sukkah. He said: I’m stringent? I’m not stringent. Why did you decide that I’m stringent? When there is a dispute among medieval authorities (Rishonim) and a dispute among halakhic decisors, then I act in such a way that I fulfill my obligation according to all of them. That is not called being stringent; I simply want to be sure I am fulfilling my obligation. But something that from the outset poses no halakhic problem, and only it is proper to be stringent about it—that I do not do. I have not reached the level of the stringent.

A very יפה distinction, a fine distinction. And the claim is that in fact this is not called being stringent at all, to satisfy all the opinions. Rather, I really think that all the opinions are equally correct. If all the opinions are correct, then what can I do? I have to make sure that according to all of them I have fulfilled my obligation. That is not called being stringent; that is fulfilling the obligation. If you have your own view, then do as you think. But if from your perspective all the views are equally correct, then you have no choice but to act in a way that fulfills all of them. But if there is an action that is certainly permitted as a matter of law, permitted according to all views, and only there is some notion of being stringent—there, I am not stringent, says the rabbi of Brisk. What he was doing wasn’t called stringency at all. Okay? That is exactly the point. Meaning, it was not because of great fear of Heaven, or not necessarily because of great fear of Heaven, but simply because he couldn’t decide, he failed to decide, and therefore he acted in a way that fulfilled all opinions.

That reminds me of another story—there are many stories about Brisk. For example, the Beit HaLevi, the grandfather of the rabbi of Brisk, father of Rabbi Chaim, yes? He too was known as an extraordinarily strict and finicky person. So once some local wealthy man came to him, one of those rich townsmen—as wealthy people tended to be, they were more liberal in their attitude to Jewish law. He said to him: tell me, why are you rabbis always stringent? Make things easier; bring the Torah closer to the public, and so on. He said to him: I’m stringent? I’m among the greatest lenient authorities. Here, I’ll list before you several famous leniencies of mine. For example, there are those—you know that when the yeshivot reached China or Japan during World War II, there was doubt about the international date line. There is some line from which onward the date changes, because the world is round; it can’t be the same date everywhere. There is a difference of a day. Now you have to decide from which line the date changes, and there are disputes in Jewish law about where that line is. The halakhic Greenwich, yes. So the yeshivot that reached Japan in World War II didn’t know whether to fast, say, on Monday or on Tuesday. When is the tenth of Tishrei? So the Beit HaLevi says: there are many halakhic decisors who are stringent and forbid them to fast for two days because it is dangerous. I am lenient—they may also fast for two days. Of course they also must fast for two days, if they can. So that is one of the Beit HaLevi’s famous leniencies. Or for example: there are those who are stringent that if midday has arrived, you can no longer recite the Shema. I am lenient—even after midday you can recite the Shema if you didn’t recite it earlier. He has all sorts of “leniencies” like that, which of course are not leniencies at all. Okay? So that’s by the way regarding the stringencies of the house of Brisk.

But for our purposes, the claim is that the analytical ability that leads to all these conceptual analyses, all the learning style we know today in the yeshivot, actually stands in a certain opposition to the ability to decide. The halakhic decisor is the opposite of the analyst. A decisor who is also an analyst is a very rare phenomenon, very rare. Usually the decisors are not analysts, and the analysts are not decisors. Because the ability to decide and the ability to establish each position on its own logical foundations are orthogonal abilities; they conflict with one another.

Now let us try to see a few more remarks about the analysis I mentioned before. In yeshivot, usually when they learn tractate Bava Kamma, the first lecture, the opening lecture, usually deals with the prohibition against causing damage. How do we know—or is there even such a prohibition at all? If my property went and damaged you, did I violate a prohibition? What is written in the Torah is that I must pay. It doesn’t say that it’s forbidden. Even intuitively—what prohibition? My property caused damage. I have an obligation to pay. What prohibition did I commit? What prohibition is relevant when my dog goes and bites? What do you want from me? What prohibition did I commit? At most you can say that I am responsible, that I have to pay for what it did. And indeed, in the Torah what appears is the obligation of payment. “When a fire breaks out and catches thorns, the one who kindled the fire shall surely pay.” Okay? Or, “One who strikes an animal shall pay for it.” In the matters of torts, in the tort passages, the Torah speaks of the obligation to pay; it does not speak of a prohibition.

Now the question is whether there is a prohibition, or only an obligation to pay. In the She’iltot of Rav Achai Gaon on the portion of Emor, he says as follows—I’ll read it, doesn’t matter: “It is forbidden for the house of Israel that a person’s property should damage another person’s property.” Yes? It is forbidden for Jews that their property should damage someone else’s property. “And one whose property damages another person’s property is obligated to pay,” he must pay, “as it is written: one who strikes an animal shall pay for it.” Notice his wording: “It is forbidden for the house of Israel”—it is forbidden for Jews that their property damage someone else. There is a prohibition. How do we know this? He says: “And one whose property damages another person’s property is obligated to pay, as it is written: one who strikes an animal shall pay for it.” It seems that the prohibition against causing damage is learned from the fact that there is an obligation to pay. If the Torah obligates you to pay, apparently when your property caused damage you violated a prohibition; therefore you bear the penalty or the responsibility to pay. That’s how he learns it.

And the Levush also writes this way: “From the fact that the Torah obligated a person whose act causes damage to pay, just as it obligated one who steals or robs another’s property, we learn from this that just as it is forbidden to steal and rob, so too it is forbidden to damage another person’s property.” From the fact that the Torah made you pay, we understand that there is also a prohibition here, as with a thief and a robber. Except that with a thief and a robber the Torah was stricter and made him violate also a formal prohibition punishable by lashes, whereas with one who causes damage it is only a Torah prohibition. Never mind—actually one doesn’t get lashes for theft and robbery either; I don’t know where he got that from, since it is a prohibition linked to payment. In any case, his claim is that we learn that there is a prohibition from the fact that the Torah obligates payment.

On the face of it that is very strange. What is the connection? The Torah obligates me to pay—that’s monetary law. I have to pay you when my animal caused damage. Okay? A prohibition belongs to the realm of prohibitions. Why does the fact that I have to pay mean that there is a prohibition here? What is the connection? If there were no prohibition, then I wouldn’t have to pay? I took a loan from you. Is it forbidden to take a loan from someone? No. But I still have to pay you back, right? I took a loan; I have to pay you back. There can be a situation in which I owe you money for some reason and that doesn’t mean I committed a prohibition and therefore I’m being made to pay you. So why, in tort law, does the fact that I am made to pay mean that there is a prohibition?

Now look at what Rabbi Poppersky claims. One second, let me show you. Rabbi Dovid Poppersky was the head of the Ponevezh Yeshiva. He has lectures on various tractates in the Talmud, including Bava Kamma. It’s also in the responsa project. He says: “Afterward they brought proof”—you see?—“afterward they brought proof that the obligation is because of the duty of guarding.” Remember our earlier analysis? Why do I really have to pay if my property caused damage? Is it because of negligence in guarding, or because of the very fact that my property caused damage? He says: there were those who brought proof that the obligation to pay is because of the duty of guarding, because of negligence in guarding. Why? Because it is considered as though he himself caused the damage, from the fact that there is a prohibition of causing damage in cases where one’s property causes damage, and likewise the punishment of ransom payment. Their proof is from the very fact that there is a prohibition against causing damage.

Now he says as follows: because if we were to say that the whole obligation regarding damage caused by one’s property is due to the liabilities attached to one’s property—if you tell me that the obligation to pay when my property causes damage is simply because my property caused damage and not because of negligence in guarding, that the Torah imposed liability on the owner because of his property—then it would make no sense to speak of a prohibition here. So what do you want? If the obligation of payment is because my property caused damage, then the responsibility for what my property does has nothing to do with negligence in guarding. Negligence in guarding only removes an exemption. If I was not negligent, then I am exempted, but the obligation is because my property caused damage. If that is the conception, then what prohibition is there to discuss? What prohibition did I commit? If you tell me that negligence in guarding is what obligates me to pay, then you can say that the prohibition was that I was negligent in guarding, that I didn’t guard properly, that there is a duty to guard and I violated a prohibition if I did not guard properly. But if you say that the obligation is because of the mere fact that my property caused damage, then what sense does it make to talk about a prohibition? And if there is a prohibition, that means the basis of tort liability is negligence in guarding and not the mere fact that my property caused damage.

In other words, I would formulate it this way: “Rather, perforce it is proven that there is a duty of guarding, and the reason he is liable for damage caused by his property—why do I have to pay when my property caused damage—is because since he was negligent regarding his property and did not guard it, it is considered as though he himself caused the damage, and therefore a prohibition and punishment are applicable to him.” The negligence in guarding, the failure, is the prohibition, and therefore punishment applies. Okay? What is he basically claiming? He is basically saying that negligence in guarding must be what obligates me to pay, because otherwise, if my ownership of the property itself obligates me to pay, then one could not speak of a prohibition—what would the prohibition be?

“However, this can be refuted”—a classic conceptual move. “However, this can be refuted.” The proof is not necessarily a proof. Because although it is proven that there is also a duty to guard, and one violates a prohibition by being negligent and not guarding, still it is not proven that the liability to pay is also because of that. What does that mean? He says it could be that there is indeed a duty, a prohibition against failing to guard. That is, you have to guard, and if you didn’t guard you violated a prohibition. But the basis of tort liability is not because of that; that is only a prohibition. The basis of tort liability is because your property caused damage, not because of negligence in guarding. Negligence in guarding is your halakhic duty, your prohibitory duty—you must guard your property so that it does not cause damage. But the fact that you must guard your property so that it does not cause damage is a prohibition. That does not mean that when your property caused damage and I sue you, it is because of the negligence.

In more modern language I would put it like this: the question is whether when I sue you, this is criminal law or civil law. Do you know the difference? Criminal law is when I prosecute you because you are a criminal. The one prosecuting you is the state. Let’s say you murdered someone. If you murdered someone, the claim against you is not the murdered person’s claim or the family’s claim; the state prosecutes you. That is criminal law. You are being prosecuted because you are wicked, because you committed an offense. Civil law is contracts, I lent to you, I deposited something with you, you damaged me, all sorts of things like that. There the state doesn’t sue you; I sue you. I want you to pay me, not because you are a criminal—I want you to pay me.

Now in criminal law—and I’m now translating what he said—you can say that if you didn’t guard, then you are a wrongdoer, and the state will hold you accountable. But when I come and sue you for money because you damaged me, that is civil law. It is not necessarily connected to whether there is a criminal basis for prosecuting you and putting you in jail, independent of the obligation to pay. You know, for example, thieves—the state puts them in jail, and afterward I can sue them in a civil suit: return the money you took from me. That’s a civil claim. The same with murder, by the way. You murdered someone, they’ll put you in prison as a murderer, and the family of the murdered person may come and sue you civilly: you caused us damage, we no longer have a provider, and so on, for various reasons, we had expenses—that’s a civil suit. Two different things.

And basically what he is saying here is that with negligence in guarding, it could be that there is indeed a prohibition, and the prohibition is negligence in guarding; there is no prohibition in the fact that property caused damage, the prohibition is the negligence in guarding. But that is criminal law. Our inquiry is an inquiry in civil law. When I sue you to pay me because your property damaged me, why am I suing you? Because you were negligent in guarding, or because you bear responsibility for your property? That is a civil-law inquiry, unrelated to criminal law. So don’t bring proofs from the fact that there is a prohibition to the claim that the basis of tort liability is negligence in guarding. That’s basically what he is saying here. Prohibitions are one thing, and the civil basis is another.

Let me formulate it a bit differently. You know, there is a difference between blame and responsibility. In the Mount Carmel disaster, that fire—there were claims there against Ohana, who was the minister—

[Speaker E] Not Carmel, Meron.

[Rabbi Michael Abraham] Meron, was it? Where Ohana was the minister. Right. So they came with claims against him, and he said: look, I bear no blame, but the responsibility is mine. I am not guilty, but the responsibility is mine.

[Speaker E] He resigned, didn’t he?

[Rabbi Michael Abraham] Yes. So everybody laughed a lot about that, but there’s nothing to laugh about. That’s a serious claim. Again, maybe he is responsible, maybe he isn’t responsible, I’m not getting into the actual issue right now. But the distinction itself between responsibility and blame is a clear distinction; they’re not the same thing. I have a good friend, Menachem Finkelstein—he was the military advocate general, and he headed the committee on the escape of the prisoners from Gilboa Prison. And there they dealt precisely with this legal question; I spoke with him quite a bit about it. Can there be responsibility without blame? What is usually called ministerial responsibility is responsibility without blame. Otherwise, if it were actual blame, you wouldn’t need ministerial responsibility. You’re guilty, and therefore you’re responsible. Ministerial responsibility means responsibility even though you are not guilty, because you are the head of the system.

For example, people now talk about Bibi’s responsibility, or the government’s responsibility, for the seventh of October. Not everyone is also talking about blame. But you don’t need blame in order to talk about responsibility. You have responsibility because you were in charge of the security issue, of the state as a whole, the government is responsible. So maybe you are not guilty, maybe the army is guilty, but there may still be ministerial responsibility here. It’s a big question. Up to now, by the way, he told me that until now ministerial responsibility has never actually been imposed on anyone. Who has had responsibility imposed? By commissions of inquiry or by a court—none. If you’re not guilty, there is no responsibility.

[Speaker B] Wasn’t it imposed on Sharon?

[Rabbi Michael Abraham] Even though they never imposed responsibility on anyone unless there was guilt, the claim was that they found guilt, and therefore they imposed responsibility on the Shin Bet. There was never a case where they imposed responsibility on him because he was responsible for the system regardless of… they didn’t say he could have done something better and prevented the matter; that would mean he was guilty. Without guilt, until today, they haven’t imposed responsibility. And I told him that in my opinion, responsibility can be imposed even without guilt; we had a discussion about that. In any case, what I’m saying is that there’s a difference between responsibility and guilt. I’ll bring you, I’ll bring you maybe a few examples about this. You know, there’s an issue in moral philosophy called moral luck. What does that mean? Say two people drank, got drunk, drank wine, and afterward drove cars, each in his own car. One of them killed someone on the way, and the other was lucky and nothing happened to him. Okay? Now the first one is prosecuted in court as a murderer, and the second gets off with nothing. Is the first more wicked than the second? More guilty than the second? No. The only difference between them is luck. His luck was that someone passed in front of his car; if someone had passed in front of the second one’s car, he would also have run him over. But fortunately for him, no one passed in front of his car. So you can’t say the first is more guilty than the second, right? But in practice, they punish the first, while the second—maybe if a police officer catches him driving drunk, then of course he’ll be punished, but he won’t be punished for murder; he didn’t murder, he drove drunk. But the first is a murderer. So what, just because of a difference in luck there are also differences in the degree of wickedness? Why should luck play a role in moral or legal judgment? The simple answer to that, in my opinion, is that there’s no problem here. Obviously they’re equally wicked. The difference is in responsibility, not in guilt. Both of you are equally wicked. You killed someone, damage happened, and because of your guilt, the responsibility is on you to pay. The second is equally wicked, but what do you want him to pay for? Nothing happened. He would have been responsible for whatever happened, but nothing happened. That’s the difference between responsibility and guilt. In this case there is also guilt, but I’m saying it doesn’t matter that there is guilt, because in terms of guilt they’re the same. The difference between them is not on the plane of guilt but on the plane of responsibility. Once something happened because of my wickedness or because of my guilt, then I have responsibility to fix it as much as possible, or bear punishment, or whatever it may be. The other one—nothing happened to him, he was lucky. That doesn’t make him less wicked, but you can’t impose responsibility on him because there’s nothing to be responsible for; nothing happened. There’s a difference between responsibility and guilt. So Ohana, for example, in his context, says: look, insofar as I couldn’t have done this better and prevented the disaster, in that sense I wasn’t guilty. Again, I’m not getting into whether he’s right; I’m just explaining the claim. I’m not getting into… I wasn’t guilty. The responsibility is on me because I’m the minister in charge. That’s a claim that definitely holds water; there’s nothing to laugh at there. There’s a difference between responsibility and guilt; they’re not the same thing. There can be responsibility without guilt; there can be responsibility together with guilt; but the responsibility is not because of the guilt. It could be that the responsibility is because of the guilt, but still it is responsibility beyond the guilt itself. The person who drove drunk has the same guilt, but there’s nothing on which to impose responsibility, so there’s no responsibility. In our case, for example, it could be that we would impose guilt on him because he didn’t guard properly, but that’s in criminal law. In civil law we’re not talking about the question of guilt; we’re talking about the question of responsibility. And if you didn’t guard properly, then you’re responsible, or if it’s your property, then you’re responsible for what it did. Now the question is why you’re responsible. That’s our inquiry. The inquiry is on the level of responsibility: why are you responsible? Are you responsible because you didn’t guard properly—that’s guilt, and that’s what creates your responsibility? Or are you responsible because whatever your property does, you are responsible for, because it’s your property? If you want, guard it—no problem—and then you’ll be exempt, but it’s not because you’re guilty that we impose responsibility on you. The responsibility is because the property is yours and you are responsible for everything it does. So the question whether negligence in guarding is what obligates, or whether the mere fact that my property caused damage is what obligates, is a question on the civil plane. The question is: by what reason do I sue you in a civil suit to make you pay me? What does the criminal question have to do with the matter?

[Speaker D] There’s a difference between criminal law and civil law. Right, exactly. No, and if in criminal law you’re convicted, you can be sued civilly.

[Rabbi Michael Abraham] It could be, because then—but then it’s not because of the criminal law; rather, the criminal proceeding showed that you also have civil responsibility, so you pay. But these are still two different claims. Okay? That’s exactly the point. Sometimes it could be that the negligence in guarding, the failure to guard, is also grounds for criminal law, and you’ll be sued for being wicked. Besides that, it’s also grounds for civil law. But it could also be that it isn’t. It could be that the grounds for the civil suit are the mere fact that your property caused damage, not because of wickedness. And that does not contradict the fact that on the criminal level you are considered wicked because you didn’t guard and you are required to guard your property. Two… two independent planes. That’s basically the formulation of what Rabbi Povarsky says, right? He says it may be impossible to bring proof from the fact that there is a prohibition, to the claim that the basis of a tort claim is negligence in guarding. No. It could be that negligence in guarding is the criminal basis, and the tort basis, the civil one, is the mere fact that your property caused damage—you’re responsible for what happened there. Exactly like a minister, right? Who says: I’m not guilty, but the responsibility is on me, I bear responsibility. It’s not connected to guilt. It could be that I am guilty on the criminal plane, and still the civil claim is because of responsibility, not because of guilt. It could be that I’m not guilty at all, and still responsibility rests on me. For example, the Talmud in Bava Kamma 6a—the Talmud says: what about someone who takes garbage out into the public domain? They permitted taking garbage out into the public domain during the rainy season. For various reasons, it was necessary to produce fertilizer for the fields and so on, and the rain would turn it into good fertilizer for the fields, so they permitted putting garbage in the public domain even though people could slip on it. But the Talmud says that even though they permitted you to put the garbage there, if someone slips on it, you are responsible to pay him. Now there, this is clearly a case where you have responsibility even though you have no guilt—you were allowed to put the garbage there. So there’s no guilt, but there is responsibility. So here’s an example of tort liability whose basis is responsibility even though there is no guilt. Therefore this proof—from the fact that there is a prohibition causing damage—that this settles the inquiry, whether negligence in guarding is what obligates or whether it’s one’s property that caused damage, is not correct. Responsibility for the prohibition is on the criminal plane, and our discussion is on the civil plane about responsibility. What causes responsibility? Basically the claim is this: I demand that you guard your property not because, if you don’t guard it, there is a prohibition, but because if you didn’t guard it, you are responsible to pay me. But the right to ask you to guard your property is a legal right that I have. It’s not because one who doesn’t guard is a criminal offender, but because I have the right to expect you to guard your property so it won’t damage my property. But that is a proprietary right or a financial right that I have, a civil right. It’s not because you’re an offender on the criminal plane. Okay? That’s one aspect because of which this proof is not a good proof—the proof from the prohibition regarding property. There’s another aspect, and I think I mentioned it last time. Rabbi Povarsky’s assumption is that… Rabbi Povarsky’s assumption is that… if there is a prohibition, then clearly the prohibition is against negligence in guarding, against negligence in guarding, because the fact that my property caused damage is not my prohibition; my property did it, not me. Okay? But that’s not entirely necessary either; that too is not entirely necessary. Earlier I gave one way to reject his proof: it could be criminal, and don’t mix criminal with civil. A second answer: even if I do mix criminal with civil, he assumes that once there is a prohibition, obviously the prohibition is on negligence in guarding, not on the fact that my property caused damage. But that’s not entirely precise. We saw the Rogatchover in the previous class, we saw the Rogatchover, who argues—and he brings the example of the rest of one’s animal on the Sabbath. Remember that issue? The rest of one’s animal means that my animal performs a prohibited act on the Sabbath—”so that your ox and your donkey may rest”—so I am obligated to ensure that my animal rests on the Sabbath. What does that mean? If my animal performs a prohibited act on the Sabbath, I have violated a Torah-level prohibition. For example, if my animal takes something from a private domain to a public domain, it carries it out—that is one of the primary categories of labor on the Sabbath, transferring from a private domain to a public domain. My animal transferred something from a private domain to a public domain; I violated a Torah-level prohibition. Notice: not that I transferred something by means of the animal—it did it; it has nothing to do with me at all. It just put something on its back for itself; it doesn’t need it, it’s not for me, nothing. And it went from a private domain to a public domain, and I violated a Torah-level prohibition. If my animal, for example, eats in a field or grazes on grass, in principle I have violated the Torah-level prohibition of reaping. It is forbidden to reap on the Sabbath, and it’s not doing this for me, it has nothing to do with me, it’s just nibbling grass. The Talmud says no, because it benefits from it—it needs it for its sustenance, it’s eating, everything is fine—but if not for that, I would have violated a Torah-level prohibition, because it is the prohibition of reaping on the Sabbath. And what prohibition is there here? There is a prohibition called driving one’s animal, what’s called mechamer. Mechamer is when someone uses an animal to perform forbidden labor, say I plow using an ox. Okay? So the plowing labor is mine—not that I myself am plowing the field, but I am using an ox to plow the field; that is a Torah-level prohibition of mechamer. Fine? I’m talking about another Torah-level prohibition, which according to most medieval authorities (Rishonim) is something else, and that is the Torah-level prohibition of one’s animal resting. Here I am not doing the work with my animal; my animal goes and does some labor on the Sabbath, unrelated to me. It’s not that I’m using the animal to commit the prohibition; my animal commits a prohibited act, and I have violated the prohibition of the rest of one’s animal. I bear an obligation here—in this case criminal responsibility, notice, not civil responsibility; this is criminal responsibility. That means I have to make sure my animal does not perform labor on the Sabbath. What does that mean? That if my animal reaps on the Sabbath or carries from a private domain to a public domain on the Sabbath, I have violated a Torah-level prohibition. Not because I didn’t guard it—there is no obligation to guard it. You have to guard it if you want to make sure this won’t happen, but the Torah does not impose on me an obligation to guard it; the Torah imposes on me that it not do this. That’s all. Once it does this, it is considered that I did it. Now if that’s really how we understand the matter, then here too one could say the same thing. There is a prohibition regarding my animal when it causes damage in property damages—my animal caused damage. A prohibition rests on me. Rabbi Povarsky says: if there is a prohibition, clearly it is on negligence in guarding, not on the mere fact that it caused damage. Not true. Not necessarily true. It could be that the prohibition is on the very fact that it caused damage. Just as when it desecrates the Sabbath, that is considered my desecration of the Sabbath, when it causes damage, that is considered damage that I caused. If I guarded it properly, then I prevented it—but it’s not that I have an obligation to guard; there is no obligation to guard, no one is coming to me with the claim that I failed to guard. They come to me with the claim about the mere fact that my animal caused damage. And that is not negligence in guarding. The prohibition is that my animal caused damage. That is the prohibition. It is considered as though my periphery caused damage. We talked about how a person’s property is some kind of extension of him. That’s the claim against me. And therefore this assumption of Rabbi Povarsky too—that if my animal… if I violate a prohibition when my animal causes damage, then apparently the problem is negligence in guarding, because otherwise what does it have to do with me? My animal caused damage. What relates to me is that I didn’t guard. Ah, no! There can be a definition according to which if my animal causes damage, that itself is considered my prohibition, just as if my animal desecrates the Sabbath, that is considered my desecration of the Sabbath. Not because I didn’t guard it, but because it is considered part of me. And if part of me desecrated the Sabbath, then it is considered that I desecrated the Sabbath. If part of me caused damage, it is considered that I caused damage, and I violate a prohibition even though this is not negligence in guarding. So these examples show you again that you have to be very careful with practical consequences drawn from conceptual inquiries, and with how we decide which side is correct. Here, at first glance, this looks like a very strong argument, and when you look at it, you see that from two different directions it can be attacked. You can’t prove from the mere fact that there is a prohibition that negligence in guarding is the basis of the tort claim. That’s not correct. First, because the prohibition may belong to the criminal plane, while the basis of the tort claim is a discussion in civil law. Second, even if that distinction didn’t exist, and even if criminal and civil were the same thing, the fact that there is a prohibition does not mean that the prohibition is on negligence in guarding; it does not necessarily mean that the prohibition is on negligence in guarding. The prohibition can be on the mere fact that my animal caused damage, just like the prohibition when it desecrates the Sabbath. The assumption that I have to do something in order for it to be considered my prohibition is incorrect. Since the animal is some kind of extension of me, sometimes it can happen that it performs an act and the act it performs is considered a prohibition that I committed, my prohibition. Okay, we’ll stop here.