Analytical Talmudic Thinking – Lesson 6

[Rabbi Michael Abraham] Okay, last time we talked about learning through the common denominator, and I tried to use the logic of the common denominator to show why we choose—meaning, why the simplest theory is the theory in which there is only one factor for each law. And therefore, in yeshiva-style conceptual inquiries, we do not assume, for example in liability for damages caused by one’s property, we do not assume that either negligence in guarding creates the liability, or the mere fact of ownership of the ox that caused the damage. “Either-or” is not a good explanation. It’s a less simple explanation. By contrast, explanations like: only negligence in guarding creates liability, or only ownership creates liability, or both-and—those three are all possible explanations. And I said that both-and is not less simple, or at least not significantly less simple, than either one of them. Because both-and is still one factor, just one factor that is complex. That’s not the same thing as saying either this factor determines it or that factor determines it. And I also added that even when we talk about one factor, in the end you can break it down into components and it will still be a combination of several components. Let’s say I say that negligence in guarding creates liability—only that, one factor. But what is negligence in guarding? Negligence in guarding is a collection of many things, possibilities: that the ox was in a stable, that it was in a cowshed, that the cowshed was not properly closed, or that a normal wind came, or an unusual wind came and opened it, and so on. Meaning, it’s a combination of many things that altogether we call superior guarding, or adequate guarding, or call it sufficient guarding. The fact that we refer to them by some umbrella term doesn’t mean there isn’t a composition there of very many details. And therefore, when I speak about one cause as distinct from several causes, that one cause can itself be a cluster of several components.

Something similar can be said about—yes, you know there’s a debate in the philosophical world, in metaphysics, over whether collectives are existing entities or not. Say, talk about the Jewish people or the Belgian people, doesn’t matter which one. The question is whether you treat a people as some kind of fiction, and what really exists is individuals, or whether the people too is some sort of entity that exists in the world in some sense. Not just our philosophical or metaphysical-philosophical definition. Rather there is something in the world—what in the language of the Sages would be called, say, the prince of Esau, or the seventy princes over the seventy nations of the world. Or the Divine Presence, yes, the collective of Israel, all kinds of expressions like that, which are really meant to express some kind of existing entity representing the collective and not the individuals.

Now, those who say that the collective is not a real existing entity but only a fiction, and that the individuals who make up the collective are the things that really exist—I could ask them exactly the same question about an individual person. An individual person is a collection of lots of limbs, cells—not to mention electrons, depending on what level of resolution you’re going down to. Okay? A collection of lots of things. Why don’t you treat that too as a collective that doesn’t really exist? What really exists is only those elementary particles; everything else is just combinations of them. Meaning, a collection of lots of particles—we choose to call that a person. But that’s a definition, it’s not an entity. We usually don’t relate to it that way. Meaning, even those who don’t accept the collective as a real existent do treat an individual person as a real entity and not as a fiction. Even though at first glance there’s not much justification for that. Meaning, it’s a collection of many basic entities or elementary entities, and according to their way of thinking I would expect them to say that only the elementary entities exist; all the combinations are our definitions. You can define things this way, you can define them differently.

Something like that comes up in the—do you know the example called the Ship of Theseus? The Ship of Theseus, yes, Theseus the Greek had a ship that after every storm got damaged, went into dry dock, and they replaced this plank and that plank. Little by little, in the end not one of the original planks of the ship remained. Is that still Theseus’s ship? Or is it actually not—that’s already a completely different ship; not one plank there was still in the original ship. What? Right, like the cells in the body that get replaced. Fictitious. I’m saying this again—it’s a kind of… I’m only saying this parenthetically in order to claim that when I talk about guarding, and lack of guarding, as what creates liability to pay damages, lack of guarding is a general name for a collection of many different things. If you break it down into components, it’s a collection of many things. But we have some umbrella term for it, and the question is whether that umbrella term is only a linguistic definition—it’s just convenient for me to call it by some general name—or not: once there is an umbrella term, that expresses the fact that I really do see in that totality one thing, something defined as one entity and not as a fiction that is merely a definition, but rather something that exists in reality itself.

That’s why I say that the claim that both negligence in guarding and ownership of the property create liability—that was our conclusion in both the Pnei Yehoshua and the Chazon Ish—that is not a less simple claim than the claim that one of the two creates liability. Not each one of the two. If it’s each one of the two, then that’s either this or that. That’s complicated, less plausible. Meaning, if I have a simpler theory, I wouldn’t choose that. But both-and is fine.

You can see this point elsewhere too. The Talmud in Gittin talks about a dispute regarding the concubine at Gibeah. Yes, Rabbi Yonatan and Rabbi Evyatar disagreed. What did he find there that made him blow a fuse? What happened there that drove him crazy? So one said: he found a fly. And one said: he found a hair. He found a hair on her in that place, or he found a fly in the soup or something like that. The question is what made him angry. So Rabbi Evyatar meets Elijah the Prophet, and he asks Elijah the Prophet, so, what is the Holy One, blessed be He, doing now in heaven? He says to him: dealing with the section of the concubine at Gibeah. Unbelievable. What luck. So he asks him: tell me, and what is He saying? Good, He’ll settle the dispute for us. So he says: the Holy One, blessed be He, says: My son Evyatar says this, and My son Yonatan says that, and these and those are the words of the living God. That’s what the Holy One, blessed be He, says.

So he says to him: Heaven forbid—can there be doubt before Heaven? What, the Holy One, blessed be He, is uncertain? He doesn’t know what really happened there? So he says to him: He found a fly and was not upset; he found a hair and was upset. Meaning, unlike the passage in Eruvin, here there is also an explanation of what “these and those are the words of the living God” means. In the passage in Eruvin, regarding Beit Shammai and Beit Hillel, it says “these and those are the words of the living God,” but there’s no explanation. Here there is an explanation: what does it mean that both are the words of the living God? He found a fly and was not upset; he found a hair and was upset.

The simple understanding, I think, is that the irritation was created by the combination of both. Not that he found a fly but it didn’t matter, then he found a hair and that’s what upset him. What do I gain from the fact that he found a fly but wasn’t upset? Just say that the truth is with the one who says he found a hair. Why is it “these and those are the words of the living God”? No, the point is that what caused the anger was the two together, both the fly and the hair.

[Speaker C] Each one was half the damage.

[Rabbi Michael Abraham] Right. And when I say “these and those are the words of the living God,” what I’m really saying is that each one grasps one aspect of the truth. On the one hand, the example people always bring in this context is the example of the elephant. Someone looking at an elephant—two people meet and want to describe the elephant to each other. One says, listen, an elephant is a creature with two legs that are far apart, pretty far apart from each other, and one eye. And the second says, on the contrary, an elephant has two legs that are very close together, and two eyes. Who’s right? They’re both right. The question is from which side you’re looking at the elephant. If you look at it from the side, then you see that it has one eye—the other you don’t see because it’s on the other side. And you see two legs far apart. If you look at it from the front, it has two close legs and two eyes. Right? And both are right. It’s just that each one grasps the truth, which is complex, from his angle. Okay? And if you want to know the truth in full, it’s the combination of the two. Meaning, two projections together give you the real elephant: a side projection and a front projection. Also a case. Meaning—

[Speaker D] Sometimes there’s a direct contradiction…

[Rabbi Michael Abraham] No. In my opinion, there isn’t. There’s the Talmud that says that someone being examined for the Sanhedrin had to give one hundred and fifty reasons to declare a creeping thing pure. Right? Rabbenu Tam asks: what do I need this empty pilpul for? What, he has to be the rabbi of Purim? What does it mean to declare a creeping thing pure? The Torah says that a creeping thing is impure. So the Maharal says no, this isn’t empty pilpul. Even when the Torah says that the creeping thing is impure, there are one hundred and fifty reasons why the creeping thing should be pure. And there are also one hundred and fifty reasons why it should be impure. There are reasons in this direction and reasons in that direction, and all the reasons are correct, all three hundred. Why is the creeping thing impure? Because the reasons to declare it impure outweigh the reasons to declare it pure—they are stronger for some reason. Okay? That’s why the Torah says the creeping thing is impure. And when the Torah says the creeping thing is impure, that does not mean there are no reasons to declare it pure. There are also reasons to declare it pure and also reasons to declare it impure. And someone entering the Sanhedrin has to know all three hundred reasons, because in another case that comes before him, these reasons may be there and that reason may not be there, and the ruling will be different. You need complex thinking in order to sit on a court. If you just have simplistic black-and-white thinking, you’ll be a terrible judge.

And you have to understand—and you can ask any jurist, judge, lawyer, whoever—there is no case that is a clear case. There is no such case. No case in which one person is definitely right and the other is completely wicked and there is nothing to what he says. Always both sides have some sort of arguments. In the end you have to decide which is stronger or what prevails, but there’s no clear case. And a judge has to know that.

And when I say there’s a dispute between Beit Shammai and Beit Hillel, yes, it’s like the chocolate example. Yes, the chocolate example is my favorite. There’s an argument between two people whether to eat chocolate. One says eat chocolate because it’s tasty; the other says don’t eat chocolate because it’s fattening. Who’s right? Both of them. It’s both tasty and fattening. Right? It’s always like that. What’s tasty is fattening; what isn’t tasty isn’t fattening. Those are two disjoint sets: tasty and healthy. So at the level of reasons, both are right. And there is a disagreement—it’s not that there’s no disagreement here. The disagreement is over which reason is stronger. Does taste, pleasure let’s say, override health, or does health override pleasure? That’s a real disagreement, and in that disagreement only one is right and not the other. Right? Right.

I think if you think about arguments in general—political, moral, whatever you want, any field at all—when there’s an argument between people who aren’t complete idiots, usually both sides are right. It’s very hard to think of an argument where one side is right and the other side is wrong, clear case. There isn’t one. What is there? The question is which reason prevails, but nobody is talking nonsense. When you give a reason, there’s probably something to it. It may be that in my view the other reason is stronger, so I disagree with you. But it’s a childish outlook to think that in an argument one person is right and the other is obviously wrong and there’s nothing to what he says—that’s nonsense. Unless he really is an idiot, but I’m not talking about that; those are extreme cases. In normal cases, there’s an argument between large groups of people regarding views and so on, and people aren’t talking nonsense, not everyone is an idiot. Okay? Still, that doesn’t mean there isn’t one right answer. In my view there usually is one right answer in arguments—I’m not a pluralist. But I do think there is substance in the reasons on both sides, and in the end you have to weigh the reasons and reach a conclusion as to what your final position is.

So therefore in halakhic disputes too, like Beit Shammai and Beit Hillel, in my opinion this is exactly like the hair and the fly in the story of the concubine at Gibeah. There are one hundred and fifty reasons for the hair, one hundred and fifty reasons for the fly, everything is true. There was both a hair and a fly there. The overall law is the combination of the three hundred reasons, once in the end you weigh them and have to decide what is stronger and what is weaker. Okay?

[Speaker E] But then there’s almost no novelty in saying “these and those are the words of the living God.” Because you’d say, okay, that’s true of every argument. Right.

[Rabbi Michael Abraham] Meaning, for a lot of people that could be a tremendous novelty. A lot of people don’t think that way. By the way, they’re probably completely wrong. We said there are no people who are completely wrong; those who don’t see arguments that way, in my opinion they’re completely wrong. But okay. So yes, that’s what the Talmud is saying in my opinion. I don’t know whether it is a novelty or not a novelty—you can discuss that. The fact that people don’t understand the Talmud that way—meaning, they don’t understand arguments that way either, many times. A great many people look at an argument as one side is talking nonsense and the other side is obviously right and that’s it, everything is clear, there is no other side. There is. In almost every argument there is another side. There are no clear cases. The world is complicated.

So therefore the claim that a combination of two parameters creates a theory that is entirely acceptable, just like one parameter—as long as it is a combination, not or but and. Meaning, not either A or B, but both A and B. Then from my perspective it’s the same thing: call both A and B, call that C. Now the relevant variable is C. Okay? Any variable can be broken down into the components that create it, whose combination creates it.

So we showed this through the logic of the common denominator, because in the common denominator we saw that the two source cases each have a unique characteristic because of which each one cannot teach about the target case. Yes, there is A and B. A cannot teach about C because it has characteristic X. B cannot teach about C because it has characteristic Y. And the two together do succeed. How does that happen? Because they have a common characteristic Z, which also exists in the target case. Their common denominator teaches. Why does the common denominator teach? You have two theories: either what causes the law is either X or Y—or else what causes the law is Z. Right? Those are two possibilities. If what causes the law is either X or Y, then in C the law will not apply, because C has neither X nor Y. But if what causes the law is Z, Z is present in C as well. So then the law will also apply to C. Why, in a common-denominator derivation, do we always assume that the combination of the two source cases teaches us about the derivative case, the target case? Because we prefer the simpler theory, which says that Z is the cause and not X or Y. Because X or Y is a less simple theory.

Occam’s razor tells us that we prefer it less, and therefore I say this is a nice demonstration of what is basically customary in the yeshivot to do also with Talmudic conceptual inquiries. In those inquiries too, we usually—or almost always—will not find that what causes the law under discussion is either feature A or feature B. No. Either A alone causes it and that’s it; another theory is that B causes it; a third theory is that A and B—and that can also be, even though that too usually isn’t said, but I showed in previous sessions that that is also an option, A and B, and one should not ignore it. And we saw that the Chazon Ish and the Pnei Yehoshua, in the end, both actually advocate specifically the theory of A and B, contrary to what people attribute to them. But either A or B—we don’t find that. And I think there’s a good reason we don’t find it, because either A or B is the less simple option. Okay? And therefore we won’t get there unless we’re forced to. Obviously, if we have ruled out all the other options and they’ve been refuted, then yes, we’ll go with A or B. If there is no common denominator, something shared, that we find to be what causes the law, then we’ll have to conclude that what causes the law we’re talking about is either X or Y—what can you do? It’s the simplest of what remains.

If there is something shared and it’s not plausible? It could be that we reject it because it isn’t plausible. Not plausible? Yes. I also showed this in the scientific context. I said that the common denominator is basically a scientific generalization. I said: I take this marker, I let go of it, and it falls to the earth. Now I take this book, let go of it, and it too falls to the earth. From here I learn that every object with mass falls to the earth. Now that is basically a common denominator. Why? I take this and say it falls to the earth, and therefore—I don’t know—this bag will also fall to the earth. Why exactly? This one is cylindrical and round. So I say, this one proves it, and this one is rectangular like that. He says, yes, but this one is black and that one is blue. I say, no, this one proves it too—look, this one is orange. So there’s no problem, right? So what does that mean? That basically their common denominator is what causes the falling, not the red color, not the square shape, not the cylindrical shape, and not the blue color. So what does cause it? The common denominator. What is the common denominator? That both have mass. And therefore every object with mass falls to the earth. Right? A scientific generalization is basically a common denominator. We look for the common denominator. That’s why even in scientific generalization—what in philosophy of science is called the need for diversity of data. I want to make a generalization about ravens. So I say: if I saw ten ravens and they were all black, then I conclude that apparently all ravens are black. Scientific induction, okay?

If I saw the ravens and they were all here around Bar-Ilan, who knows—maybe the ravens in the Bar-Ilan area are black, but the ravens in Tel Aviv, in Metula, or in Australia won’t be black. But if I see one raven from Bar-Ilan, and one from Tel Aviv, and one from Haifa, and one from Australia, and one from Africa, then it’s already stronger because the data are diverse. Why is diversity in the data important? Because diversity in the data essentially neutralizes, eliminates, many shared characteristics that are no longer shared, and I’m left only with the one characteristic that they are all ravens. I got rid of the feature of common location, common continent, other features—all that is irrelevant because I saw it in other places too. What remains? That they are all ravens. So apparently ravens are black.

The same thing here. These two alone are not enough to infer that all objects with mass fall to the earth, but when I see ten more objects and in many different places, and in all the places it behaves the same way, that means the place is not what influences it, the color is not what influences it, the shape is not what influences it. I have ruled out all the specific characteristics. What am I left with? With the shared property, the common denominator, that all these things have mass. And whatever has mass falls to the earth. That is basically the method of the common denominator. Okay? Therefore, common-denominator reasoning and generalization are the same thing. It is basically choosing the simplest theory—that is Occam’s razor.

Okay. So basically the way—I’m now returning to our move—through this inquiry into the owner’s liability in money for his property that caused damage, I tried to present the structure of a Talmudic conceptual inquiry. I tried to show the failures that sometimes appear, when we basically decide that it’s either A—one possibility is that it’s A, one possibility that it’s B—but really here we saw no, it’s both A and B. Then we asked, okay, but maybe the question is which one is primary? Maybe A is primary and B is a side condition, or B is primary and A is a side condition. And then we reached the conclusion that this is the standard inquiry among the later authorities. And then we reached the conclusion that both the Grenat and the Chazon Ish—who people always say disagree in this inquiry—actually hold that both things are primary. There is no side element and secondary element here. And that is an option that many times in yeshivot people don’t put on the table. This option, that really both sides are true together. Not either-or. Either-or is indeed problematic. And the fact that they don’t put that on the table is perfectly fine. You don’t need to put it on the table unless there is no other theory, unless there is no other way out. But in principle you’re not supposed to put that on the table. But the both-and—yes.

Okay. That basically brings me to the concept I mentioned at the beginning: conceptual analysis in Talmudic study. There is analysis and synthesis. In Talmudic conceptual study there are always processes that combine analysis and synthesis. What does that mean? Analysis is basically breaking the concept or the principle into its components. For example, liability for damages breaks down into its components: I need to be the owner, and I need to guard. Right? Those are basically the two components. And after I’ve done analysis, I start looking for syntheses. I say, wait, okay, so these are the two components, I have the two tools on the board—now how do I arrange them? What are the relations between them? That is already synthesis. Maybe negligence is the determining factor and ownership is a condition. Maybe ownership is the determining factor and negligence is a condition. Maybe both need to be together. Those are different ways of doing a synthesis between the components. So I did analysis, I reached the components, and afterwards I need to do synthesis in order to build the theory. That is basically a Talmudic conceptual process. In every such process that’s what happens. Okay? You do analysis and after that you do synthesis.

By the way, it’s the same in science. When you examine a scientific situation, you try to break it down into its components—that’s the analysis—and then you ask: okay, how do these components work together? How do they build the theory that explains the facts to me? So then I start to see what this does.

Now, these syntheses often appear in the form of what in the language of Rabbi Chaim of Brisk is called “two laws / two rules.” Yes? What are “two rules”? There are several structures, by the way, that are called “two rules,” many syntheses that go by that name. It appears in several forms. For example, there are two foundations needed for a law. For example, negligence in guarding and ownership. Okay? So both of them in some way make up the law. Different syntheses: maybe one is primary and the other a condition, or the reverse, or both are primary—all the things we talked about earlier. But then I can also infer from this the conclusion that if only one of them appears without the other, then maybe there will be partial practical ramifications. It could be that only certain aspects of the law will appear and not all of them. And then suddenly I can understand that certain aspects of the law depend on these parameters and other aspects of the law depend on those parameters, and sometimes there will be a situation with these parameters but without those, so there will be only the practical ramifications that belong to these parameters and not the others. That is, for example, a result of Talmudic conceptual analysis, and it happens quite a lot—what we’re doing here.

There are sometimes situations where there are two different principles that are called by the same name, and the analysis shows you that in fact we are dealing with two different things. For example, we have migo, yes, that is a proof principle in the laws of evidence in Jewish law. What is migo? Suppose someone sues me, claiming that he lent me money and I didn’t repay him. And I say to him: I paid you, I repaid the loan. Now, I could have said altogether: I never borrowed from you—what do you want from me? He has no document, no proof, nothing. He sues me claiming he lent me money; I could have said to him: get out of here, you never lent me anything, I don’t even know you. That would have been a stronger claim than saying, I paid. Why is it stronger? Because with the claim “I paid,” I am basically admitting that there was a loan, and now I claim I paid it back. Someone can come and ask me: wait a second, do you have proof that you paid? You yourself admit there was a loan, so first of all it’s a given that you owe, and you want to claim that you repaid—do you have proof of that? By contrast, if I said forget it, I don’t know you at all, I never borrowed, what do you want from me—then obviously he would be the one who would have to struggle and bring proof and show that he really did lend to me, and so on, right? The claim of “it never happened” is a better claim than the claim “I paid.”

Now if someone comes and claims “I paid,” there is a principle called migo, which says: since he could have claimed “it never happened,” we believe him also when he claims “I paid.” What is the idea behind this? In the language of the Talmud it is called: “why would I lie?” What does that mean? I’m basically saying to you like this: I claim “I paid.” What do you want to say—that I’m lying, that really I borrowed and didn’t pay? If I wanted to lie, I had a much better lie available to me. I could have waved you away entirely and said: it never happened, I never borrowed from you at all. If a person is going to lie, then all the options are open before him, so he chooses the most effective lie, the best one, right? Why did I choose not the best claim? Presumably because this really is the true claim. Because if this claim were a lie, then why—if I can choose any lie I want—why choose not the best claim? I should have chosen the best claim. Apparently I’m not lying. Right? That’s a logical argument saying that if I have migo then I should be believed, or it strengthens my credibility regarding the claim. Okay? You hear?

[Speaker F] And in Jewish law that’s how these rules of evidence work?

[Rabbi Michael Abraham] Rules of evidence exist in every legal system, but the concept of migo—look, in the legal world I think they don’t give names to this kind of evidence, but it seems to me that if a judge gets the impression in this way that the person is telling the truth, because the fact is that if he were lying he could have lied better, that could definitely be a parameter that he would write in the reasoning of the ruling: he convinced me because if he were lying he could have lied differently. I’m not sure—I’m not a jurist—but it seems to me that in the legal world they don’t give this a name, defining it as some sort of category. It’s part of the judge’s overall impression, something the judge can write that he was persuaded by.

[Speaker F] The principle also has to match reality, behaviorally, because that would make you lie, because there it’s—say—it’s obvious you’d say that now because you can get away with it.

[Rabbi Michael Abraham] But even if I had said “it never happened,” I could have gotten away with it.

[Speaker F] No, but here there are still issues of proofs, evidence—suddenly some proof might turn up.

[Rabbi Michael Abraham] No—if I say, “Nothing of the sort ever happened,” then there’s no evidence at all. What? I said nothing of the sort ever happened, there was no loan, nothing—go away. Yes, but

[Speaker F] Then you’re taking the risk that he’ll supposedly bring some proof.

[Rabbi Michael Abraham] So you

[Speaker F] are saying that this isn’t a migo.

[Rabbi Michael Abraham] If you’re right, then I don’t have a migo, because the alternative claim isn’t really a better claim, and I can’t say, “Believe me on this claim because I had a better alternative claim,” because if you’re right then the alternative claim isn’t really better, so I have no migo. The assumption that I have a migo always means that the alternative claim is probably better. Okay? That’s why it’s always like that. If you find this kind of refutation, then what you’ve really done is knock out the migo. Thank you. Now, there are different places where we see that migo does not work in that way. For example, there is a migo called a migo of brazenness. What is a migo of brazenness? For example, the migo I brought before. I tell you, “I repaid,” on the basis that I could have said, “Nothing of the sort ever happened”—there never was such a thing. Now assuming the person really did lend me the money, these are two options where I say: if I were lying, I would have said, “Nothing of the sort ever happened.” If I were lying means: if there really was a loan and… if I had chosen to lie, then I wouldn’t have said, “I repaid”; I would have said, “Nothing of the sort ever happened.” Now if there really was a loan, then saying “Nothing of the sort ever happened” is not so simple. The person did you a favor, lent you the money. He’s standing right in front of you, he knows the truth and you know the truth, and you’re lying to his face. In religious court, you say, “Nothing of the sort ever happened.” That’s a claim that is very uncomfortable to make. “A person does not brazenly deny his creditor,” as the Talmud says. Therefore, in such a case, if I say, “It was repaid,” and I say, “Believe me because I could have claimed ‘Nothing of the sort ever happened,’” that’s a problematic migo. Because I’m saying, “If I had wanted to lie, I would have claimed ‘Nothing of the sort ever happened.’” They tell you: what are you talking about? The reason you didn’t claim “Nothing of the sort ever happened” is not because you’re such a righteous truth-teller. You didn’t claim it because it’s unpleasant to tell such a blunt lie. So really you have no migo. Okay? Now it turns out that a migo of brazenness is nevertheless effective for certain things. Disputes among medieval authorities (Rishonim): it helps exempt from an oath, all kinds of things like that—but it doesn’t help exempt from an oath, while it does help someone retain money, and things of that sort. Meaning, there are certain things for which a migo of brazenness does help; for other things it does not. So the later authorities (Acharonim) ask: how can that be? After all, a migo of brazenness is not really a migo. You say the alternative claim was a better claim. Not true. It involved brazenness, and a person is uncomfortable being brazen in front of his creditor. That means the alternative was not in fact a more convenient claim for him. So why does this migo nevertheless give him some kind of force? So here the later authorities formulate that migo has another mechanism too—not the mechanism of “why would I lie,” that if I wanted to lie I would lie better; rather, migo is built on some formal principle called the force of a claim or the force of credibility. What does that mean? If I could have lied by claiming “Nothing of the sort ever happened,” if I could have made that claim and won the case, then the power to win the case is given to me also when I claim, “It was repaid.” We transfer the force from the stronger claim and say: even with the weaker claim, you have that same force. Not because of the logical principle that if I wanted to lie, I would lie better—that’s the “why would I lie.” But in a migo of brazenness, that isn’t there. And still, in a migo of brazenness he has force—why? Because there is another mechanism of migo: not “why would I lie,” but force of claim or force of credibility. Fine, that is the claim of the later authorities. What is the idea behind this? I could give a whole lecture on it, but this is not the place. Okay? But that’s what they claim. What does this actually mean? It means that behind this concept called migo there are really two different mechanisms hiding. When I say, “I have a migo”—I say, “It was repaid,” with a migo that I could have said “Nothing of the sort ever happened.” Behind this proof that I bring in my favor, this migo, there really stand two different mechanisms. One mechanism is the consideration of “why would I lie”: if I wanted to lie, I would choose a better claim. The second mechanism is force of claim: I have the power to win, and once I have the power to win, they give me that same power even for the weaker claim. Okay? Now what does that mean? That in a regular migo there are both parameters: both the “why would I lie” and the force of claim, right? But in a migo of brazenness there is only force of claim and not the logic of “why would I lie.” And it turns out that a migo of brazenness helps someone retain money, but does not help exempt him from an oath. What does that mean? That to retain money, force of claim is enough. But to exempt from an oath, you also need the reasoning of “why would I lie.” Or also, or only—it doesn’t matter. This is a classic mechanism of two laws. Because what it really means is that if you dig into this idea of migo, you’ll find that it has two components. Each such component has a different implication. One component gives me the power to retain money; the other gives me the power to get out of an oath. Usually both are present, so the migo does both jobs: it can both exempt me from an oath and help me retain money. But there will be certain kinds of migo where only one component is present without the other, and then only the practical consequences that depend on the component that is there will exist. Say, in a migo of brazenness, where I have only force of claim and not “why would I lie,” then what it can do is only those things that can be done with force of claim. The things that require the idea of “why would I lie” it won’t be able to do. For example, when I want to exempt myself from an oath by means of a migo—what does that mean, to exempt oneself from an oath with a migo? Suppose there is one witness against me that I borrowed, then I have to swear. If there are two witnesses, then I lose the case. If there is one witness, he obligates me to take an oath, so I need to swear. Why do I need to swear? Because I am required to provide counter-evidence against that one witness, okay? Now you understand that if I now bring a migo—if I said, “It was repaid,” with a migo that I could have said “Nothing of the sort ever happened,” okay? So I have a migo, and I want to bring this migo as alternative evidence in place of the oath you required from me. Take the migo—I brought evidence, there’s no need for an oath, exempt me from the oath. That all works if there really is evidence in the migo. Because then you brought evidence, so you can be exempted from the oath. But if there is no evidence in the migo, then what—how is this migo going to exempt you from an oath? Now, a migo of brazenness has no evidentiary dimension in it, because the evidentiary logic—that if I wanted to lie, I would lie better—does not exist there. So such a migo cannot exempt from an oath. That is the logical explanation of the matter. Now, what I just did was really a conceptual analysis—analysis and synthesis. Meaning, in the end I examined how within the idea of migo there are two different mechanisms. I said that in every regular migo both exist, and therefore every regular migo can perform both types of function: both help me retain money and exempt me from an oath. But there are migos—once I understood that there are two components here in migo, I can suddenly think of certain types of migo where only one component appears and not the other, or only the second without the first. Okay? Then I can also infer the conclusions—what the law will be in each of these two kinds of migo—because I know what each of the parameters is responsible for: exemption from an oath, retaining money, and so on. This is a classic example of conceptual analysis. Okay? Two laws, really—two laws in migo. Fine. Sometimes, by the way, there are two things—this is in Yad Malakhi, a book of rules—he writes that sometimes in the Talmud there are two different things that are called by the same name, but really are totally different, with no connection between them. Analysis can reveal that too, but here there won’t be synthesis, because here I’m basically saying: forget it, they are called by the same name, but they are actually two completely different things; they have nothing in common. For example, presumption. Even in the Talmudic Encyclopedia, I think there are something like five entries on presumption. Or before the specific presumptions, which are dozens of entries—but on the concept of presumption. Because there is a presumption of prohibition, and a monetary presumption, and an original presumption, and a current presumption, and a presumption of acquisition. How does one acquire a field? By money, by deed, and by taking possession. And there is presumptive proof. Now they are all called “presumption,” but they are completely different things; they have no connection to one another. Okay? Many times we are taken captive by the name. We say: if it is called by the same name, it is probably the same thing. And then we have all kinds of difficulties: how can that be? Here it helps and there it doesn’t help—so how can that be? We do some analysis and suddenly discover that these are completely different concepts. They happen to be called by the same name, so don’t ask from one to the other; they are simply two different concepts that happen to share the same name. Migo is not that case. Because migo is a case where in the very same concept there are two components—not that two different things are called by the same name. Rather, in the very same concept there are two components, and usually they appear together. Sometimes only one of them appears, and then that has implications, practical differences. Let’s go back to monetary damages. For example, we reached the conclusion that you need both responsibility for guarding and ownership in order to obligate me for damages caused by my property. Right? There can be situations where I have responsibility for guarding but I am not the owner. For example, a guardian. Someone deposited an ox with me. Now I have responsibility to guard it—not only that it not be damaged or stolen, but also that it not do damage. Right? The ox is with me; the owner can’t guard it. It’s in my house, not in the owner’s house. So who is responsible for making sure that this ox does not cause damage? He gave it to me so that I would guard the ox from being stolen, from being harmed. But the Torah imposes on me responsibility to guard it so that it not cause harm. The Torah—or maybe this is part of the contract with the depositor, I’m not getting into that now; there are questions there too—but let’s say for the sake of discussion that this is from the Torah. The Torah imposed on me the responsibility to make sure that this ox does not cause damage. I am not the owner of the ox. So the ownership dimension is absent here. I’m a guardian, not the owner; the owner is the depositor. But the dimension of responsibility for guarding is present. Now we need to see what that means—whether there can be implications to this. Because the two components required in order to obligate in monetary damages are not both present here; only one of them is present here. So maybe that will have various implications, and so on. Meaning, this is an example of analysis like in migo. Okay? Good. Now I’ll bring another example of analyses of this type. For example, there is a concept in the Talmud called a designated maidservant. What is a designated maidservant? This maidservant is half a maidservant belonging to one of two partners, and her other half was freed—half slave, half free woman. The law regarding such a maidservant is that she may marry a Hebrew slave. A designated maidservant, who is half non-Jewish and half Jewish, can marry a Hebrew slave. Not an ordinary Jew, but a Hebrew slave, yes. Right, there is an enactment

[Speaker C] that they used to

[Rabbi Michael Abraham] have to free a half-slave—an earlier Mishnah, a later Mishnah, fine, I’m not going into that discussion right now. But strictly speaking, yes, we’re talking about a maidservant. With a maidservant it’s even more so, because perhaps people treated her promiscuously, and so on. For our purposes, strictly speaking, half-maidservant and half-free woman—that’s her status, and she is permitted to marry a Hebrew slave. And the rule is that anyone who has relations with her—the wife of the Hebrew slave—is exempt; he has not violated a prohibition, even though she is the wife of the Hebrew slave. That’s what the Talmud says: she is the wife of the Hebrew slave, but there is no prohibition on someone who has relations with her. There are those who claim there is a rabbinic prohibition, or a lighter prohibition than forbidden sexual relations, but there are opinions that there is no prohibition at all. Even the free-woman half in her is married to the Hebrew slave—she is entirely married to a Hebrew slave—but the marital bond between a designated maidservant and a Hebrew slave is such that someone who has relations with her has not violated the prohibition, certainly not more than an ordinary prohibition, and that is enough for my purposes. Why? Because now the Pnei Yehoshua asks: so what happens if someone else now betroths her? She is already married to the Hebrew slave, and then someone comes and gives her betrothal. Seemingly the betrothal should take effect. Why? In a regular married woman, why does the betrothal not take effect? Because betrothal does not take effect in relations punishable by karet, in forbidden sexual relations. A married woman is a forbidden relation, so forbidden sexual relations—or my sister—I cannot betroth my sister because she is a forbidden relation to me, or my mother, or my mother-in-law, or whoever, because it is a prohibition of forbidden sexual relations, and betrothal does not take effect in forbidden sexual relations. But betrothal does take effect in prohibitions of an ordinary negative commandment. When the prohibition is a lighter Torah-level prohibition, not forbidden sexual relations, not karet, then betrothal does take effect. There is a dispute in the Talmud, but according to Jewish law, the betrothal takes effect. For example, a priest and a divorced woman. A priest and a divorced woman is not a forbidden sexual relation; it is a simple prohibition. He is forbidden to marry a divorced woman, but if he nevertheless committed the transgression and betrothed her, it still takes effect. He must separate from her and they force him to divorce her, but the betrothal takes effect. Now the Pnei Yehoshua asks: if so, when someone comes and betroths this designated maidservant who is married to a Hebrew slave, his betrothal should take effect. Why? Because there is no prohibition of forbidden sexual relations regarding her. Someone who has relations with her is not prohibited at all, so if so she is not forbidden to me, and therefore I can betroth her. And then the Pnei Yehoshua asks: but that can’t be. Why? Because the Talmud says, “We do not find a woman of two dead men.” What does that mean? There cannot be a woman who has two different husbands. There can be a man who has two wives, but there cannot be a woman who has two husbands. Why is it called “the woman of two dead men”? Because if both die, then she would require levirate marriage from the brother of each one. So she is the wife of two dead men and requires levirate marriage from two sides, and that’s why this expression is used. But the point is that there cannot be a woman of two husbands, so to speak, mistress of two masters. So the Pnei Yehoshua says: here, yes there can be—why does the Talmud say it can’t happen? A designated maidservant is married to a Hebrew slave; someone else comes and betroths her, and the betrothal takes effect. Why? Because there is no prohibition on having relations with her; it is not forbidden sexual relations, and even if it were just a simple prohibition, betrothal still takes effect—and certainly if there is not even a simple prohibition, if there is no prohibition at all. So now it turns out she is the wife of the Hebrew slave and also the wife of the second man who betrothed her. So she is the wife of two husbands. So why does the Talmud say that cannot happen? The Pnei Yehoshua says as follows. I once spoke about this at a conference on the Pnei Yehoshua at Bar-Ilan, and they asked me to lecture, so I spoke about early buds of Brisker-style conceptualism in the Pnei Yehoshua. The Pnei Yehoshua was one of the earlier later authorities (Acharonim), from the seventeenth century or the beginning of the eighteenth, something like that—in other words, one of the more ancient Acharonim, long before the House of Brisk, of course, which is the end of the nineteenth century. So the Pnei Yehoshua says—look, here again is an analysis of two laws. And this is already in the Pnei Yehoshua, long before Rabbi Chaim, who “invented” the concept of two laws, yes? So he says this: when the Talmud says—and the Talmud indeed says—that betrothal does not take effect in relations punishable by karet. For example, if I betroth my sister, the betrothal does not take effect. That is because of the severity of the prohibition. The prohibition is too severe; betrothal does not take effect. A simple prohibition, yes; but forbidden sexual relations, no; karet, no. He says: but a married woman is exceptional. The fact that betrothal does not take effect with a married woman is, first, because of the severity of the prohibition, like all the other forbidden relations, and second, because she already has a husband. Independently of the question of prohibition. She is not available to receive betrothal; she is not on the market—she already has a husband. So therefore you cannot betroth her. Meaning, what prevents betrothal in the case of a married woman is not only—but it is also, just not only—the severity of the prohibition, but also the simple fact that she already has a husband. She is not available; she cannot receive betrothal because she is already a married woman. And his claim is that in the case of a married woman there are two different reasons why betrothal does not take effect: also the reason of prohibition, like all the other forbidden relations, and also the reason that she is someone else’s wife. Now what happens in the case of a designated maidservant? Says the Pnei Yehoshua: the prohibition is not there, because one may have relations with her; there is no prohibition. But she is still someone else’s wife; therefore the betrothal will not take effect, and she is not the wife of two men. Betrothal does not take effect in her because of the aspect that she is someone else’s wife, even though here that is not accompanied by the prohibition ordinarily found in a married woman. In an ordinary married woman, what makes betrothal not take effect is two reasons: both the severity of the prohibition and the fact that she is someone else’s wife. In a designated maidservant, this is a special kind of married woman: there appears only the parameter that she is already someone else’s wife, and not the parameter of severity of prohibition. The severity of prohibition is absent, but still the betrothal does not take effect. Since what makes betrothal not take effect in a married woman is because she is someone else’s wife, there need not be a prohibition. For example, with his sister, betrothal does not take effect only because of the prohibition, because there she is not a married woman, but she is my sister, so the betrothal does not take effect. With a designated maidservant, betrothal does not take effect only because there is “married womanhood,” regardless of prohibition. In an ordinary married woman—not a designated maidservant, just a regular married woman—there the betrothal does not take effect for both laws, for both reasons. Okay? That is basically his claim, and you see that this is really an analysis of two laws, exactly what we saw in migo. You are basically saying that behind the fact that betrothal does not take effect in the case of a married woman, there sit two different mechanisms, which in the ordinary married woman are both present, like in an ordinary migo. In an ordinary migo both things are present: both force of claim and the reasoning of “why would I lie.” But there are cases where only one appears without the other, or only the second without the first. Okay? For example, where in migo might there be a case where there is no force of claim but there is “why would I lie”? We saw a migo of brazenness; a migo of brazenness is the opposite. There is no “why would I lie,” but there is force of claim. What kind of migo could there be where there is no force of claim and only “why would I lie”? A few examples can be given. For example, when a witness makes a claim on which he has a migo. Not the litigant. Usually it’s the litigant himself who makes the claim: I say, “I repaid.” I am the defendant, I say, “I repaid.” I have a migo, because I could have said, “Nothing of the sort ever happened; there was no loan at all.” Now a witness comes and says that it was repaid. So if we say that this witness has a migo, that witness, if he had wanted to lie for his own purposes, could have said, “Nothing of the sort ever happened.” He has a migo. But clearly a witness has no force of claim, because he does not make legal claims. The one who makes claims is the litigant. A witness does not make claims; a witness says things, and that is the evidence brought to court—what the witness said. The witness does not make claims, so there is no such thing as force of claim in his case. Force of claim means: I could have won with the alternative claim, so let me win also with the weaker claim. The witness cannot win anything; the one who wins is me, the litigant. The witness testifies; it makes no sense to speak of force of claim. That’s one example. A second example: there is a Rashba in tractate Kiddushin, page 50, I think. The Rashba says: what happens if there is a migo from a weaker claim to an even weaker claim—sorry, from a less weak claim to a more weak claim. In neither claim would you have won the case. Even with the stronger, alternative claim, you would not have won the case. But still, you say—am I lying? Then why, if I’m lying anyway, didn’t I choose a better lie in court? So what? But you say I’m lying, right? Now in any case I’m already an idiot—meaning, I’m lying even though it won’t help me win the case. If I’m lying and I’m an idiot, then I could at least have lied with that other claim; at least it would have been a better lie. But still, that means there is proof here that I’m not lying. The force of claim is not here, because force of claim means: if you could have won with that claim, then receive the power to win also with this claim. The force of claim is absent here, because with that claim I could not have won. But the proof that I’m not lying is here, because if I wanted to lie, I would have lied better. That is proof that I’m not lying. Here is another example of a migo that has “why would I lie” but no force of claim. Okay? And the same thing, you see—it is exactly the same structure. Migo and married woman have the same structure. We discover that in the standard case, the ordinary migo, there are two parameters: both “why would I lie” and force of claim. The same is true in an ordinary married woman: the reason betrothal does not take effect has two mechanisms. First, the prohibition is severe; and second, she is someone else’s wife, she is already a married woman. In each of the two cases, there can be a situation where one parameter appears without the other, and there can be a situation where the second appears without the first. In the case of married woman, how can there be a situation where betrothal does not take effect because of the severity of the prohibition, independently of her being a married woman? My sister, right? How can there be a situation where betrothal does not take effect because she is a married woman, even though the prohibition is absent? A designated maidservant, right? Both directions. Meaning, the first parameter can appear without the second, and the second can appear without the first. In migo, the same thing. In a regular migo there are both parameters: “why would I lie” and force of claim. There is a migo that has only force of claim and no “why would I lie”—that is the migo of brazenness. And there is a migo that has “why would I lie” and no force of claim—that is the Rashba’s migo from one not-credible claim to another not-credible claim, or a witness’s migo. Okay? This is a classic Brisker conceptual analysis, even though with married woman it is the Pnei Yehoshua, long before Brisk. Which teaches us—I think I spoke about this at the beginning—that no one invents the wheel. In that lecture at the conference on the Pnei Yehoshua, I began by talking about the methodology of how one studies the history of ideas. That is a very complicated question. Who owns an idea? Who invented the idea? Who first came up with that insight? After someone formulates an insight, we can always find it in earlier places, and therefore the claim always arises: wait, you’re not really the one who owns the copyright on this insight. So-and-so said it before you, and so-and-so before him. You can always find earlier buds of that idea in previous literature. For example here, in the Brisker method—you can already see earlier buds in the Pnei Yehoshua. So Rabbi Chaim did not invent conceptual analysis, right? It was already there in the Pnei Yehoshua. And that is always true. Aristotle too—I spoke about this—that Aristotle did not invent logic in his Organon. Even before Aristotle, people thought logically and understood that if every X is Y and A is X, then A is Y. Right? They understood that before him as well. Aristotle was the first to formulate that insight. He understood that there was some general insight here, formulated it, and put it on the table. Then the discussion began. And I said that because of that we have computers today—because of Aristotle. Because Aristotle suddenly created the field of logic as a field that is not just a set of tools I use in other fields, but an intellectual field in itself. We are now engaged in the field of logic, which is our field of inquiry. Not that we use logic to investigate psychology, sociology, physics, or mathematics, but no—logic itself is the field in which we engage. That is what Aristotle created. But he did not invent logic. Logic existed before him too. And likewise Brisker conceptualism—Rabbi Chaim did not invent conceptual analysis. These considerations and that mode of reasoning existed before; it is a kind of reasoning that exists in every one of us. Rabbi Chaim was the first to give these things names, to conceptualize them, define them, and thereby enrich our conceptual toolbox with additional tools that already have names. I can now use them much more comfortably, because I understand that such a tool exists. I can now say, okay, I’ll use this tool, or this one, or this one. Before Rabbi Chaim gave them names, those modes of reasoning existed, but you couldn’t go through the toolbox and choose which tool to use. Either such an idea occurred to you or it didn’t. That’s the point. When I wrote some of the books I wrote, afterward people came to me and said, “Oh, it’s all already in Rabbi Kook; it’s all already in Rabbi Nachman; it’s all already in Rabbi Tzadok.” Each person according to whichever master he is a devotee of—the Maharal, it doesn’t matter. And in some of the cases, it’s even true. It is true. Fine. But you know: once the idea is formulated, you can find it in other places too. But the people who used that idea earlier were themselves not really aware of it. They simply used it because they understood it was logical. They did not notice that they were using some idea here that can be formulated, defined, and used systematically elsewhere. Therefore, the idea belongs to the one who formulated it, not to the one who first used it. People used it earlier too, but the one who formulated it, conceptualized it, and defined it—that, it seems to me, is the person to whom it is proper to attribute the idea. So in that sense, indeed, the Pnei Yehoshua used this analysis of two laws before Rabbi Chaim, but he did not call it an analysis of two laws; he simply gave that answer because it made sense. Rabbi Chaim was the first to notice that there is a general pattern of thought here, and that it can be used in a great many topics. As we just saw with migo and with married woman, it is exactly the same logical structure. The same structure. By the way, want another such structure? For example, I’ll give you one more example built on exactly the same logic, in a completely different area. One of the primary categories of labor on the Sabbath is building. Okay? And concerning the labor of building, Maimonides says that the labor of building has a primary category and derivative categories. Derivatives are also Torah-level prohibitions; whatever resembles the primary category is called a derivative, and it too is forbidden by Torah law. There are two derivatives of the labor of building: one is making cheese—someone who curdles cheese. Yes? You take milk and turn it into cheese; that is a derivative of building. Some say it is rabbinic, but Maimonides’ position is that it is Torah-level, a derivative of building. And the second derivative is making a tent. If you spread some blanket and create a space beneath it, that too is a derivative of building. Now there are all kinds of contradictions in this matter—what happens with these derivatives, what happens with those derivatives—I’m not going now into all the difficulties and all the constraints. But what Rabbi Isser Zalman says is this: Rabbi Isser Zalman, the author of Even HaEzel on Maimonides, yes? He was, died in the 1950s, was head of the Council of Torah Sages of Agudath Israel here; he died in the 1950s. So he basically argued the following claim: the characteristic of the labor of building—what is the labor of building, the primary category? It is to build a house. Let’s try to define this action of building a house. Do you see the analysis? We are doing the analysis now. So what is the analysis? Basically, we gather different components or different parts into one overall structure and create a functional space. In my language—he doesn’t put it this way, but yes?—we collect parts, gather parts, connect them in order to create a functional space. Right? “Space” means an area in which one can use, live, a workshop, a library, it doesn’t matter—a space in which one can make one kind of use or another. And in order to build it, we connect boards, stones, plaster, cement, and so on; connect all those things, and that creates a functional space. That is what is called building a house. There, I have just analyzed this action called building a house. This action contains two components—exactly like migo, exactly like married woman, and now you’ll see it’s the same pattern. It contains two components: one component is gathering the parts, and the second component is that this gathering creates a functional space. Now look at something interesting: what happens if I create a functional space without gathering parts? Only one feature exists. That is a tent. What is a tent? I’m not connecting anything to anything; I’m simply spreading a blanket over something, yes? I created a functional space, but not by gathering parts. I didn’t connect boards or stones to each other; it wasn’t done that way. That is a derivative, because it contains only one of the two components. Okay? What happens when I gather parts but it does not create a functional space? The opposite. That is making cheese. Making cheese means connecting the parts of the cheese, making them into a block of cheese, but that block is not a functional space; it is a block of cheese, and afterward you eat it. It is not a space in which I act, function. It does not create a functional space, therefore it is not like building a house, right? That too is a derivative. Like making

[Speaker H] mortar—would that also be among them? I didn’t understand what you said.

[Rabbi Michael Abraham] Yes, yes. For example, let’s say for the sake of discussion—there it may be that it is also kneading, so that would be a different sugya. But yes, in principle yes. If you connect things by means of liquid, then it is apparently kneading and not building. But for our purposes, in principle yes, that too should be included. Okay? So… so what is his claim now, really? Notice, there is a very interesting point here. Usually we are used to thinking that resemblance is transitive. Meaning, if A resembles B and B resembles C, then A resembles C. Right? In mathematics or in logic that is called a transitive relation. But suddenly we see that no, it isn’t. There is no resemblance whatsoever between making cheese and making a tent. In no parameter. In neither of the two parameters are they similar. Because a tent has the characteristic that it creates a functional space, and lacks the characteristic of gathering parts. Making cheese has the characteristic of gathering parts, and lacks the characteristic that it creates a functional space. So between tent and making cheese there is no similarity at all. They are completely different. But both are derivatives of the same primary category. Why? Because the primary category has two characteristics that define it—let’s say A and B: gathering parts and creating space. One derivative is a derivative that has only characteristic A. The second derivative is a derivative that has only characteristic B. So between the derivatives there is no similarity at all. But both are similar to the primary category, partially similar to the primary category. Therefore there can be a situation where A resembles B, B resembles C, but A does not resemble C. There is no similarity between A and C. Okay? That is interesting. And he shows there what the implications are—exactly as we saw in migo, as we saw in married woman, as we saw in all these things—it is exactly the same structure. It is a classic structure of two laws. A classic structure of two laws means there are two components that constitute the concept I am looking at, and I can see that this concept also has partial manifestations. There are manifestations in which only one component appears, or only the second component, and sometimes the implications too will be partial. Because if each of the characteristics belongs to part of the implications, then here some of the implications will appear and there some of them will appear. Sometimes it is not like that, by the way. Sometimes all the implications, all the characteristics, will appear, and one component is enough for those characteristics to appear, because partial resemblance to the primary category is also enough. That can happen, and then there won’t be a practical difference where here I see certain characteristics and there I see others, as we saw in migo—that this helps exempt me from an oath and that does not help exempt me from an oath. Because each of the characteristics is responsible for part of the implications. Sometimes not. Sometimes all the implications will appear even with one of the characteristics. Fine? Like in the laws of Sabbath, for example. Okay, if it is a derivative, one is liable for it exactly like for the primary category; there is no difference. So the implications will not differ, but the logical structure of the matter is exactly the same. Basically, the fundamental concept has two components, and it can have manifestations with component A alone or with component B alone. Fine? And that is basically the analysis, the conceptual analysis of two laws. Okay, now let’s see another example. An example from a secondary source. This is the book of Rabbi Zevin. He has a book called Ishim VeShitot. A fairly famous book, very popular, very substantial. He has a book called Ishim VeShitot, where he surveys the approaches of several of the major later authorities (Acharonim), and among other things he has a chapter there on Rabbi Chaim of Brisk. And the example he gives for Rabbi Chaim of Brisk’s way of thinking is also some kind of analysis. Yes, so

[Speaker B] Look, he brings an example in Jewish law,

[Rabbi Michael Abraham] Yes, so here’s an example of one area of Jewish law where we see both the existence of two legal components. I’ll share this on Zoom too. Yes, where we see both the existence of two legal components together, and also cases where one of them drops out while the other remains. And that’s basically similar to what we saw earlier. In principle, the two legal components appear together, but sometimes only one of them will appear without the other, or the other without the first. And here the two legal components are in the sense of, “God spoke one thing, but I heard two.” Not two separate laws, but both come together and emerge from one source. Regarding the prohibition of overcharging or underpaying, Rav Chaim says we learn two legal principles. What is overcharging or underpaying? I sell someone an item, and I sold it at an unrealistic price. If the price is too high or too low, then the transaction is voided. How high or low is too much? More than one-sixth. Meaning, if the gap from the market price is more than one-sixth in favor of the seller or in favor of the buyer, it doesn’t matter, the transaction is voided. Okay? That’s called the law of overcharging or underpaying.

Now he says: from the prohibition of overcharging or underpaying, Rav Chaim says we learn two legal principles. First, that the overcharge is someone else’s money. Second, that someone else’s money is forbidden to take. Meaning, let’s say I sold you an item whose market price is 100 shekels, and I asked you for 150. So that’s 50 percent above market price; that’s overcharging. More than sixteen percent above market price is overcharging, okay? So now I took 150 shekels from you. Okay? Now Rav Chaim says this is overcharging, and first, we learn from the prohibition of overcharging or underpaying that the overcharge is someone else’s money. The 50 shekels in my possession are yours, not mine. The amount of the overcharge that I received is really not my money; it belongs to someone else, the person who paid me. Second, we learn that it is forbidden to hold someone else’s money. Not only is it someone else’s money, but it is forbidden to take someone else’s money—the prohibition of theft. How do I know that? Because we learn from overcharging or underpaying to actual theft of another person’s money, that such theft is forbidden. The Talmud at the beginning of the chapter “Eizehu Neshekh” learns the prohibition of theft, among other things, from overcharging or underpaying. It brings several sources for this. One of them is interest, the second is overcharging or underpaying. So it learns the prohibition of theft from overcharging or underpaying. What does that mean? That in the prohibition of overcharging or underpaying we learn, first, that this money is not mine but the payer’s, the original owner’s. Second, we learn that it is forbidden to hold money that is not mine. Okay? If you like, one law relates to the object itself, and one law relates to the person who is forbidden to steal. Meaning, one law speaks about the money as such. The money itself is not mine but yours. That’s one novel point. The second law is a prohibition on me; it concerns the person. It’s about the human being, not the money itself. I am forbidden to take money that is not mine. Okay?

But here too there is room to separate the two, he says. You can separate these two legal principles. Again, remember, the structure is always that we have two components, and there can be partial appearances where one component appears without the other, or the other without the first. And then he says as follows. Slaves were excluded from the law of overcharging or underpaying. By scriptural decree, there is no law of overcharging or underpaying with slaves. Slaves, documents, and land are not subject to overcharging or underpaying. We learn this from the hermeneutic rule of general-particular-general. Okay? So with slaves there is no overcharging or underpaying. Therefore, let’s say I sell you a slave worth 100 shekels for 150 shekels—there is no law of overcharging or underpaying, the transaction stands, and the 150 shekels stay with me, and everything is fine.

Now he asks: from which principle were they excluded? Which of the two innovations in the law of overcharging or underpaying does not apply to slaves? Both of them? One of them? Which one? Okay? We have to analyze it. Was it excluded from the standpoint of ownership of the money, or from the standpoint of theft? Meaning, if I overcharged in the sale of a slave, then there is no law of overcharging or underpaying here. What does it mean that there is no law of overcharging or underpaying here? Does it mean that this money is yours, or does it mean that this money is not yours but there is no prohibition on taking it? In other words, only the prohibition was excluded, not the law regarding the object itself. Are you with me? Could it be the reverse? No, the reverse probably can’t be. Meaning, if this money is yours, then it can’t be that it is yours and yet there is no prohibition of theft. That’s not reasonable. But the other two possibilities do exist. Meaning, either with slaves this money is yours and there is also no prohibition of theft, or this money is indeed not yours, but there is no prohibition against taking it.

For example, with theft from a non-Jew, there are views that theft from a non-Jew is not forbidden by Torah law. It is forbidden, but not under the Torah prohibition of “you shall not steal.” Okay? And still, someone could come and say that if I took a lulav that was bought with stolen money, or I stole a lulav, whatever the case, then that lulav is not mine. There is no prohibition of theft, but the lulav still isn’t mine, because in reality it belongs to the non-Jew. There is no prohibition of theft in taking his property, but in order to take a lulav, the lulav has to be mine. There is a law of “for yourselves”—it has to be your own. The lulav has to be mine. This lulav is not mine. So there, for example, you have a distinction between the person and the object. Meaning, I’m saying that in theft from a non-Jew, the property indeed is not mine—sorry, there is no prohibition against stealing from a non-Jew, but that does not mean the property is mine. The property remains the non-Jew’s. There just isn’t a prohibition against taking it. Okay? So here too he asks the same question. When we say that there is no overcharging or underpaying with slaves, do we mean that the money of the overcharge is mine, and therefore there is also no prohibition of theft, or do we say no, the money is not yours, as in theft from a non-Jew, but there is no prohibition against holding it?

Yes, so from which principle were they excluded? From the principle concerning the money, or from the principle concerning theft? That is, did the Torah say that overcharging or underpaying in the case of slaves is not someone else’s money, and therefore in the sale of slaves there is no overcharging or underpaying—that’s one possibility—or is the law that theft in the case of slaves is permitted? Meaning, the money of the overcharge is not yours, but you have no prohibition against holding that money. Okay? The question is: what was newly established regarding slaves? When they said there is no overcharging or underpaying with slaves, what was the novelty? Which of the two parameters was canceled or does not apply to slaves?

And Rav Chaim resolves the question by a calculation—by “calculation” I mean a conceptual Talmudic accounting. He tries to settle the question of what happens with slaves. What is the Torah’s novelty in saying that there is no overcharging or underpaying with slaves? Which of the two understandings is correct? So he says as follows. Overcharging or underpaying with slaves, like any case of overcharging or underpaying, exists in two ways: either the seller, the owner of the slave, was wronged, or the buyer, the owner of the money, was wronged. And in both directions there is no law of overcharging or underpaying with slaves. What does that mean? We said that overcharging or underpaying can take two forms: either the price is too high or the price is too low. If the price is too high, the injured party is the buyer, who paid too much. If the price is too low, the injured party is the seller, who received too little money. The law of overcharging or underpaying applies both ways—whether the price is one-sixth too high compared to market price, or one-sixth too low. More than one-sixth too high or more than one-sixth too low. Okay?

So he says this: if the seller was wronged, then the buyer is holding stolen slave property. What does that mean? What is in the buyer’s possession? If the seller was wronged, that means he received too little money, right? The seller of the slave received too little money. So the buyer has in his possession stolen slave property. What is in the buyer’s possession if the seller received too little? He has in his possession something that is mine. What is that thing? One-third of a slave, part of the slave, apparently—that is the overcharge or underpayment. And if the buyer was wronged, meaning the price was too high, then the one who was wronged, the one who was cheated, is the buyer, because he paid too much. In that case the seller is holding the buyer’s money. And in both of these cases, that is allowed. There is no overcharging or underpaying with slaves in either direction, whether the price is high or low. Okay.

Now he says: therefore, when the seller was wronged, the buyer has in his possession stolen slave property, and when the buyer was wronged, the seller has in his possession stolen money. And this theft is ordinary theft of movable property, like any theft in the world, so why is there no law of overcharging or underpaying here? These devices jumped on me. Anyway, let’s talk for a moment about a price that is too high. With a price that is too high, what does that mean? Assuming the novelty is only that there is no prohibition, but the money is still not mine—that can’t be. Because if the price is too high, then all I’m doing is holding 50 shekels of yours. Why should it not be—why should it be permitted for me to hold them? That’s ordinary theft. It is forbidden for me to hold money that is not mine. But that’s not—

[Speaker H] connected to the slave.

[Rabbi Michael Abraham] No, it’s not connected to the slave. Now I’m holding 50 shekels that are not mine, assuming the novelty is only that there is no prohibition of theft, but the money is still not mine. Right? I’m holding money that is not mine, and there is no prohibition. Why is there no prohibition? This is ordinary theft. It is forbidden to steal money. In the first case, where the price is too low, then you are holding a slave, or part of a slave, that is mine. About that you could say that the Torah says there is no prohibition of theft, fine; or that there is no overcharging or underpaying with slaves, and that’s that. But when you are talking about money, you can’t say such a thing. If I am holding money, and in fact that money is not mine, then why shouldn’t I be violating the prohibition of theft? We are forced to conclude that the novelty is that the money is mine. It cannot be that the novelty is that the money is not mine, but nevertheless I am allowed to hold it. Because if this is money that is not mine, and it is just money, not a slave, there is no such thing. With a slave you can say: the slave is not yours, but you are allowed to hold it. Because with slaves you are allowed to hold them even though they are not yours. But if it is money, there are no special innovations regarding money in the law of overcharging or underpaying; with money, it is forbidden to hold it—that is theft, the prohibition of theft.

Therefore he argues that from this calculation one can prove that what was newly established regarding slaves is not merely that there is no prohibition against holding the money of the overcharge, but that the money is yours. Not that it isn’t yours but you are allowed to hold it. Rather, no—the money is yours, and therefore of course there is also no prohibition. Okay? That is the calculation he proved. And in this respect there is no difference between overcharging the seller and overcharging the buyer. Okay? Because it is yours: just as the slave, the third of the slave that you hold, is yours in the case of too little money, in the case of too much money, the third of the sum that I hold is mine. The gain from this logical reasoning is that Tosafot’s question falls away on its own. He says this in order to resolve some question of Tosafot.

But again, what is the analysis? What do we see here? That you are really defining two parameters in the Torah’s novelty, and you are trying to distinguish whether there can be a situation where one parameter appears without the second one. For instance, the money would not be mine, but there would be no prohibition of theft. And then you show from the calculation that this cannot be. Here, of course, in the end this possibility is ruled out. There is no way to separate these two parameters. There may be other situations where it would be possible. But regarding slaves, the novelty that there is no overcharging or underpaying with slaves does not separate the two innovations. It applies to both innovations. Neither of them applies to slaves. Okay? That is basically the claim.

But the analysis is a similar kind of analysis. In general, I’ll say—maybe in a somewhat broader way—many times when we are dealing with a dispute, say a dispute among the medieval authorities (Rishonim), or a dispute among Amoraim, whatever, here’s a very, very useful methodological tip for conceptual Talmudic analysis. If you examine the two views and discover that in order to make the claim of side A, you need to assume two premises, then begin your analysis of the topic with that side, with side A. Why? Because then, with side B, which disagrees, several possibilities immediately open up for you. Either he doesn’t accept premise A, or he doesn’t accept premise B, or maybe he accepts neither. That gives you three possibilities for understanding the dissenting view. Therefore it is always worthwhile to start with someone for whom you need all the premises in order to say what he says. Because then you know that the one who disagrees with him has several possibilities. He can simply give up any one of them.

For example, how do you prove something by reductio? You assume a set of premises and show that they lead to a contradiction. After reaching the conclusion that they lead to a contradiction, what are we supposed to do? Give up one of the premises, right? Because the whole set of premises leads us to contradiction. Which premises? Which one should we give up? There are several possibilities. If I need all of them to reach the contradiction, then I can give up premise A, premise B, or premise C, or more than one of them. So that opens many possibilities. Therefore the systematic way to do the analysis is always to start from the side that has only one way to be explained, and then anyone who disagrees with him can be explained in several ways. Either he argues with this point, or with that point, or with that point, because each one of the premises is necessary. Okay?

So this too is really a kind of conceptual Talmudic analysis of the sort I was talking about here, because I take a certain view and say: it contains three components, and all of them are necessary. What happens if component A is missing? What happens if component B is missing? What happens if component C is missing? In the case of a dispute, each of those three possibilities leads basically to the same conclusion: that view will be a dissenting view; it will not accept this conception that requires two premises. So this is just a tip for conceptual Talmudic analysis when you are analyzing a dispute among medieval authorities (Rishonim), or a dispute among Amoraim, or a dispute among Tannaim. Always try to think which side can be explained only in one way, because it needs all the parameters together in order to say what it says. Start with that side. That is the analysis, really. You analyze and say: there are five parameters here. Which is the view that needs all five? That one. Then the view that disagrees with it can be explained in at least five ways: either he gives up the first parameter, the second, the third, the fourth, or the fifth. Okay? So this too is an application of the same idea.

I have five laws, or two laws, and I examine the situations in which the first law is missing, the second law is missing, or both are missing. Usually we do not—as I said earlier—we do not choose the option that, say, in order to state view A you need both A and B, both premises A and B. Okay? Now there is Tanna B who disagrees with Tanna A. How do I explain him? Either he disagrees on premise A or he disagrees on premise B. Of course there is always also the possibility that he disagrees on both premise A and premise B, right, that’s also possible. But the general assumption is: we do not multiply disputes beyond necessity. Translated into Hebrew: we do not expand the dispute beyond the minimum required. Meaning, if it is enough for there to be a disagreement between them on one principle in order to explain the dispute, there is no reason at all to assume that they disagree on two principles. Why assume that? Okay.

The assumption usually is that smart people—yes, great minds think alike—meaning, smart people think similarly. So even if there is a dispute, we minimize it as much as possible. Therefore, for example, we’ll also see later on that sometimes halakhic decisors bring proof for a certain principle from a view that was not accepted as Jewish law in practice. And then people always ask: wait a second, what kind of proof is that? Maybe precisely for that reason it was not accepted as Jewish law, because that principle is incorrect. Those who bring the proof—and we’ll see examples of this—those who bring the proof are basically assuming that this point is not the point of dispute between the two views. We did not fail to rule according to that view because of this principle, but because of something else. And then the assumption is that aside from that other thing over which they disagreed, in all other respects they agree. Because we do not multiply disputes beyond necessity. We do not expand the dispute beyond the minimum required. Therefore sometimes it is possible to bring proofs for Jewish law from a view that was not accepted in practice. If my assumption is that that view was not accepted in practice not because of this principle—not on this principle does it disagree—but rather it disagrees about something else. Okay?

And all of this, you see, revolves around the same point. How do we analyze two laws that make up a concept, or make up some halakhic ruling, and then say: okay, what happens when only one appears without the other, when the second appears without the first, and is there a possibility that neither of them appears? Okay, that is always the form of thinking. Okay, we’ll stop here.