The Laws of Melachot – Lesson 17

[Rabbi Michael Abraham] I’m actually supposed to start the topic of one acting without intent—we finished the topic of unintentional violation, and I want to start one acting without intent—but I thought that today I’d take a kind of time-out. Holocaust Remembrance Day is coming up, and I want to touch on a certain point, still within our general path, but to look at one specific point connected to this day. I touched on it from a certain angle when we spoke about labor not needed for its own sake. There we saw, or I mentioned, a responsum of Rabbi Oshry in the responsa From the Depths, about a very specific definition of labor not needed for its own sake. We saw the problematic side of it, but I commented a bit on the context in which that responsum functions or takes place—the context of the Holocaust—and there’s a certain point there that I want to expand a little on today and talk about. In a certain sense it does connect to our series, but it’s not the focus. That is, the focus is more to look at the significance of these things as it comes to expression there, in the Holocaust—or more generally in situations—halakhic ruling in extreme situations. I want to talk a little about these things. Maybe I’ll start with a certain topic that I wrote about once, many years ago. I wrote an article about it, and afterward I tried to broaden the discussion. So I’ll begin by dealing a little with monetary law in the ghetto, but as you’ll see this is only an example from which I want to move to what one does with Jewish law in a ghetto at all, and afterward what one does with Jewish law in extreme situations, not דווקא in contexts of the Holocaust and the ghetto, because I think there’s a very important point here also for how one looks at Jewish law in general, so in the end it definitely does touch our series as well. So the background to this was a series of articles I saw in the supplement of Yated Ne’eman, written there by a Jew named Rabbi Gibraltar, Yitzhak Elchanan Gibraltar, who had been a child in the Kovno Ghetto. His father was one of the rabbis there—he didn’t serve officially as a rabbi, but he was one of the Torah scholars in the ghetto. The one considered the halakhic or spiritual leader of the ghetto was the Dvar Avraham, Rabbi Avraham Shapira, and he was essentially the rabbi of Kovno and later the head of the rabbis in the ghetto. And various discussions came up there—by the way, Rabbi Oshry too, in what he later wrote as the responsa From the Depths, he also was a rabbi there in the Kovno Ghetto. So the Kovno Ghetto was perhaps a center—maybe even the center—for halakhic discussions that arose in Holocaust contexts. So one of those topics basically dealt with monetary law, and the first story he brings there in that article series, Rabbi Gibraltar—the first story he brings there was about a nearby town called Yanova that had been conquered by the Nazis. In fact they wiped out all the Jews except for 350. Incidentally, the ones who destroyed them were not the Nazis but the Lithuanian partisans. They destroyed the Jews and 350 Jews from the Yanova community remained. Now, in order to release them, the partisans demanded a ransom. If you have partisans like these, who needs Nazis. They demanded ransom, and the rabbi of Yanova, Rabbi Nachum Ginzburg, went to the Jews of Kovno to ask them whether they had money to give in order to redeem the 350 survivors of Yanova’s Jews. Now the leadership of the Kovno Judenrat refused. It refused for good reasons. The Judenrat doesn’t have such a good name in our circles, but that’s not always fair. I mean, the Judenrat basically managed communities there in impossible conditions, and they made decisions that in hindsight it’s very easy to treat as some kind of immoral decisions or opportunistic decisions—but that’s not necessarily so. It depends; there were those like this and those like that, and it’s very hard to judge such things in retrospect—and that’s actually my point, but we’ll get to that later. In any case, the Judenrat refused. This was a matter of saving life for many reasons. First, the money itself would be lacking for them—they were already in a life-threatening situation, meaning every penny you had could cost you your life. Meaning if you didn’t have it for provisions. That is definitely a consideration one should not belittle. Another thing: those 350 Jews who would be redeemed from the partisans would then join the Kovno Ghetto. Once you redeem them they join the ghetto; they have nowhere else to go. If they join here, they become a burden on the community. They take the food, they take the resources, they become a burden on the community, and therefore the Judenrat argued that one had to refuse. Now how do you define “their market value”? You know, this concept of “their market value” is a very, very tricky one. It comes up today too in discussions about hostages, right? And here you can see exactly why it’s an empty concept—“their market value.” Why? Because each person, according to his worldview, decides what “their market value” means. So what according to your worldview should be done, according to my worldview is beyond their market value, and so now I have a reason why I disagree. But why is it beyond their market value? Because I don’t agree that what you’re proposing is a reasonable price for such a deal. But that itself is the very subject of the dispute. So conduct the argument itself; don’t use terms like “their market value” or “more than their market value,” because in the end those are derivative terms. Meaning if you think it’s reasonable to pay, then that’s called their market value, and if not then not. So let’s argue about whether it’s reasonable to pay this. Okay, where was this concept relevant? It was relevant in a place where there really was a market for slaves. There was a market for slaves, and you could go to an appraiser and he would tell you: a slave like this, how much is he worth on the market? Then you could define whether it was their market value, more than their market value, less than their market value. In our world there is no “market value.” There is no overcharging. You couldn’t define overcharging in a deal like this, right? If it’s more than one-sixth over the hostage’s price. There’s no such thing today. Once, this was a profession. People made a living from this—kidnapping people, taking them. Incidentally there were even pirates working for states, right? Britain had pirates—Sir Francis Drake, as is well known—pirates on behalf of the queen. Meaning they got a license and funding and of course also brought part of the plunder to the crown, and it was a profession like any other profession. It sounds absurd to us today, but that’s how it was once. Okay? In that kind of world you can talk about more than their market value. In our world here, it’s pure demagoguery. Anyone who mentions this concept is a demagogue—from all sides. Whether you support the deal or oppose the deal, you’re being demagogic, because there is no criterion for “their market value.” Say that in your opinion it’s worthwhile to make such a deal—that’s legitimate. Say that in your opinion it isn’t—that’s also legitimate. Let’s argue. But pulling out this card of “their market value” is basically pulling out an empty card. It’s basically saying: in my eyes it isn’t reasonable to pay this. So say that. Don’t tell me that you’re with the Mishnah and I’m against the Mishnah. Yes, that’s basically what people try to do—they try to present whoever thinks differently as someone going against Jewish law. Nonsense. All right. So in this context too, same thing: there is no “their market value” in the context of those Jews who were saved there. There’s no market by which you can appraise how much such a Jew is worth in the hands of the partisans. What? How much life is worth. Exactly. Yes, you know that for example there’s a dispute between Rashi and the Rosh at the beginning of the chapter HaChovel regarding someone who injures his fellow, where he is evaluated as a slave. Right? He pays, he has to pay, and the victim is evaluated as a slave. Now what does that mean, a slave? There’s a slave market, but the person isn’t actually a candidate to become a slave. Meaning what—someone injured me, so now we assess what would have happened if I had been sold as a slave? I had no plan whatsoever to sell myself as a slave. There really is a dispute between Rashi and the Rosh whether this means a Hebrew slave or a Canaanite slave. If it’s a Hebrew slave, then on the face of it it really looks like compensation for the fact that now I can’t sell myself as a Hebrew slave for such-and-such a price, because as a Canaanite slave I can’t sell myself at all. So what relevance is there in evaluating me in terms of the price of a Canaanite slave? On the other hand, if you want to assess how much such damage is worth, then actually it makes sense to assess it in terms of a Canaanite slave, because the question isn’t how much I would actually receive if I sold myself as a Canaanite slave. I can’t sell myself as a Canaanite slave. Okay? But it is a way of assessing how much a hand is worth. How much is a person’s hand worth? How would you assess that? So look at a slave who more or less looks like me, with a hand and without a hand, and the difference between them is the damage that was caused to me—not because I went to sell myself as a Canaanite slave, but because that’s the way to assess how much a hand is worth. Okay? So in that sense here too. That’s exactly the value of life. It’s not the question of how much such a person is really worth—he’s not going to be sold as a slave and has no such plan. So it’s not that if you injured him, you prevented him from the possibility of being sold as a slave, and you’re not compensating him for that. Rather, slavery is a kind of market assessment. How much is a hand worth, how much is life worth—that’s the metric. Okay. In any case, for our purposes then: Ben Petora. The Dvar Avraham, who as I said was the head of the rabbis there in Kovno, argued that the money should be given. And not only that the money should be given, he brings as support the Talmud in Bava Metzia about the flask, yes? Two people walking in the desert. The Talmud in Bava Metzia 62: “Two who were walking on the road, and one of them had a flask of water. If both drink, both will die; if one drinks, he reaches civilization.” Yes? So that flask can save one person. If both drink, both will die. Ben Petora expounded—we’ll see in a moment, good question—Ben Petora expounded: “Better that both should drink and die, than that one should see the death of his fellow.” On the face of it, what the Dvar Avraham said sounds like Ben Petora, right? That is, give the money. True, we are putting ourselves at risk—one second—true, we are putting ourselves at risk, but all right: let both drink and let not one see the death of his fellow. What? Not maybe—the Jewish law follows Rabbi Akiva. So on the face of it the Dvar Avraham is saying like Ben Petora, because he is basically saying: give the money, let both drink, and let not one see the death of his fellow. Right? “Until Rabbi Akiva came and taught: ‘That your brother may live with you’—your life takes precedence over the life of your fellow.” Meaning the Jewish law is according to Rabbi Akiva. So the question then is: why does the Dvar Avraham bring this Talmudic passage when that very passage seems to go against him? The Jewish law follows Rabbi Akiva in the Talmud itself; it doesn’t just appear later in the legal codes. The Talmud says, “Until Rabbi Akiva came and taught”—that’s the language by which the Talmud decides in accordance with Rabbi Akiva. So the Dvar Avraham says that nevertheless he brings this Talmudic passage. Why does he bring it? Just generally, this is a classic halakhic move: many times you bring a view that was not accepted as Jewish law, and from it you bring proof. Why? Because with a view that was not accepted as Jewish law, you should always ask why it was not accepted as Jewish law.

[Speaker C] It was Jewish law at some stage, wasn’t it? No, who says?

[Rabbi Michael Abraham] Until—

[Speaker C] “Until Rabbi Akiva came,” until he came.

[Rabbi Michael Abraham] No, that’s in the study hall.

[Speaker C] It doesn’t have to be; it could just be a discussion in the study hall.

[Rabbi Michael Abraham] It doesn’t have to be that this actually happened in real life. In the study hall Ben Petora said this, and suddenly Rabbi Akiva came and taught that. It doesn’t have to be historical. In any case, the claim is that many times you can prove a certain Jewish law from a position that was not accepted as Jewish law. And why? It happens a lot among the halakhic decisors. Why? Because you can ask yourself what the point of the dispute is, or why the other side disagrees with that opinion. Now if the reasoning because of which the other side disagrees does not exist in your case, then the first opinion, which seemingly was not accepted as Jewish law, is a good indication of what should be done in your case. Okay? Now basically the Dvar Avraham argued that in the place where they were, everyone’s lives were basically abandoned. Meaning there is no reason to assume that we’re going to survive at all. So to say “your life takes precedence over the life of your fellow”—that’s not a reasoning that exists here. Because even if you don’t give the money, in the end there’s a reasonable chance you’ll die. You are in danger just like they are. There’s no significance to considerations that prefer this one life over that one life in a place where all life itself stands under a huge question mark. Meaning there’s no—what? Right, you increase the risk, but regarding an increase in risk it’s no longer obvious that Rabbi Akiva would also say against Ben Petora. Because it’s only a certain increase of risk. So if your chance of dying goes from ninety-eight percent to ninety-five percent, who says that’s enough to place the other person in certain danger—because he will definitely die if you don’t give the money, the price of these 350 people. And therefore in such a case, says the Dvar Avraham, who says Rabbi Akiva disagrees? And the starting point is Ben Petora. That’s the claim. And note, therefore the claim is that this isn’t chronological. There is an intellectual halakhic starting point which is Ben Petora—one second—until Rabbi Akiva comes and gives his reasoning. So if that’s the starting point, then once Rabbi Akiva’s reasoning is not plausible, not applicable, we return to the starting point. And Ben Petora is basically the—yes, what did you say? Ben Petora. Ben Petora said: let them both drink and let not one see the death of his fellow. That is, there is no preference of one over the other. Or in other words, I’ll translate this now: Ben Petora basically says it has no significance that the money is yours. In a situation where both of us are going to die, don’t get petty with me over the fact that the money is yours. I’ll rob you, fine? “Do not steal” gets pushed aside. No, that’s what he’s saying—also “the burden of proof is on the claimant” isn’t relevant here. I mean, come on, we are in a catastrophic situation. In a catastrophic situation we don’t play the usual legal games—that’s basically what Ben Petora is saying. So what does Rabbi Akiva basically want to say? Basically he wants to say—let’s translate it—the Chazon Ish, for example, really asks: why is theft forbidden? I mean, he challenges Rabbi Akiva: why is theft forbidden, what’s the problem? Your life takes precedence, fine, so I’ll steal, and “do not steal” is set aside before saving life, so I’ll take your flask of water. So the Chazon Ish says: when you steal—stealing is allowed—but this isn’t called stealing, it’s called murder. Because when you take the other person’s water, it’s not that you took his property; that water is his life right now, and when you take it from him it’s like murdering him in order to save yourself. You may not murder someone else to save yourself, right? A person may not save himself through the life of his fellow; one must be killed rather than transgress. No, that’s Rabbi Akiva. Ben Petora argues otherwise. Ben Petora, again—no, clearly this isn’t about theft. I’m only bringing this case not in the sense of the prohibition of theft regarding the Jews of Yanova. They can’t take the water from them? As I said, the discussion there is not about theft. The discussion there is, in principle, I’m not even allowed to give the water—even of my own free will—to someone else. It’s not only that he may not steal from me; I may not give it, because that water is mine and I may not give up my life to save someone else. Not only is he forbidden to kill me in order to save himself; I too am forbidden to give up my life in order to save someone else. There’s a Jerusalem Talmud cited by the Haggahot Maimoniot in chapter 1 of the laws of murder, but it was not accepted as Jewish law; almost all the halakhic decisors reject it from Jewish law. I’m not allowed to kill myself. For example, Roi Klein—Roi Klein did something forbidden from a halakhic perspective. Worthy of enormous admiration for the devotion, for the sacrifice, all of that—but halakhically it was forbidden; he was not allowed to do it. Okay, fine. It may be that in war there are situations where yes—situations—I think in war it’s even less permitted. We’re talking about a deputy battalion commander; that’s much more significant for winning the battle than a lone soldier or a few individual soldiers, but never mind. You can discuss it. On the straightforward halakhic level, he did something forbidden.

[Speaker B] What, he had no chance to live?

[Rabbi Michael Abraham] Of course he had no chance. What—if you know there’s a grenade, you dive on it, you won’t be hurt? No problem at all? Completely simple. If you know a grenade has been thrown, you survive—it’s only a question of knowing. You drop down, there’s the blast pattern, there’s the blast pattern, and nothing will happen to you.

[Speaker E] The fact that you hear it sort of coming in over your hand doesn’t mean you’re supposed to throw yourself on it.

[Rabbi Michael Abraham] You’re talking about the Jerusalem Talmud in Terumot. Maybe I’ll get to that yet, we’ll see, okay? In any case, the claim is basically the following: since all Rabbi Akiva said was because your life takes precedence over the life of your fellow, that applies only where you have a life. But if you don’t really have a life, because your life too stands under a huge question mark, then in such a case it may be that even Rabbi Akiva would leave things at the starting point of Ben Petora. And what is that starting point? The starting point of Ben Petora is that in the end, let not one see the death of his fellow. Both of you are basically in a state where you don’t have lives. If you don’t really have a life, then it cannot be that you have priority over someone else. Do what is required right now, and afterward whatever will be will be. Meaning there’s nothing to do; it isn’t in your hands. Temporary life—if suddenly, suddenly they grant him life—

[Speaker F] preferable, maybe at the price that I also—

[Rabbi Michael Abraham] But I don’t give up my enduring life in order to save someone else’s temporary life. I’m forbidden to. Even someone else’s enduring life I’m forbidden to save at the price of my own life. The problem is that my own life too is only temporary life, because most likely we won’t get out of this alive. The Jews of Kovno also will not get out alive. Therefore, says the Dvar Avraham, this is a classic case—incidentally, we find this many times. Think—I just remembered another one; I once wrote about this too. You know this: there’s the Tur, section 114 I think, Orach Chayim section 114. He discusses there “give dew and rain for blessing,” a dispute between Maharam of Rothenburg and Rabbeinu Peretz. What happens if in one day you say ninety times “give dew and rain for blessing,” instead of thirty days, three times each day? If after such ninety repetitions you are in doubt, do you no longer have to repeat, because you can assume that you said the correct thing? Right? So they bring proof from Rabbi Meir and Rabbi Yehuda regarding an ox: if after spaced-out goring it is liable, then if the gorings are close together, all the more so. And the question is whether that is a proof or not. Rabbi Meir’s position—that if the gorings were spread out it is liable, then if they were close together all the more so—was not accepted as Jewish law; the Jewish law follows Rabbi Yehuda. So why are you discussing whether there is proof from Rabbi Meir to our case? And the one who rejects it doesn’t say: yes, but the Jewish law doesn’t follow Rabbi Meir. No, he doesn’t say that either. Rather he says: there’s no proof from Rabbi Meir because it’s not similar. Why? On the contrary—say there is proof from Rabbi Meir, and for exactly that reason you say not so, because you rule like Rabbi Yehuda. After all, the Jewish law follows Rabbi Yehuda; all the decisors ruled that way. So there too there’s an entire discussion about a view that is not the Jewish law, and even someone who doesn’t rule that way has to explain himself. He doesn’t say, no, that’s a non-halakhic opinion; I follow Rabbi Yehuda—what’s the problem? Nobody says that. Rather, everybody explains why there’s no proof from Rabbi Meir because it’s not comparable, because there an ox becoming forewarned is one thing and “give dew and rain” is something else—habit versus evidence, that’s always what they bring up. What? They redeemed them, yes.

[Speaker G] They redeemed the captive—Maharam of Rothenburg.

[Rabbi Michael Abraham] Yes, Maharam of Rothenburg there really was a discussion of more than their market value, because in that period—

[Speaker G] He himself didn’t rule that way because he didn’t want to—

[Rabbi Michael Abraham] True enough, but he really did rule according to Jewish law, because in that period there was indeed a valuation for captives, so it still was a time when captives could be appraised. In any case, that’s what the Dvar Avraham said. In the end they really did redeem them; they reached the Kovno Ghetto. Some of them survived and also reached the Land of Israel; they reached various other places, and some did not—just like among the Jews of Kovno, also among the Jews of Yanova. Incidentally, the only one who didn’t survive the partisans was Rabbi Ginzburg, the one who had gone to bring the money from the Jews of Kovno. The partisans murdered him when he brought the money. Meaning he brought them the money, they murdered him, and released all the other 350. Fine upright people there. Good. In any case, this is the first example I want to use in order to start the topic, because from an outside glance the question immediately arises: how can the Dvar Avraham bring proof from Ben Petora when the Jewish law follows Rabbi Akiva? Or alternatively you could say: forget the proof—if I had to object, forget it, there’s no proof, he didn’t bring the proof from Ben Petora—but that’s how he ruled. I would challenge him from the dispute between Rabbi Akiva and Ben Petora: we rule according to Rabbi Akiva, and therefore the Jewish law is against you. And the principled answer to this issue, beyond the distinctions I made earlier, is that when you are in an extreme situation like a ghetto and the Holocaust and so on, the patterns of normal Jewish law—yes, ordinary Jewish law, even the flask in the desert isn’t exactly normal law, but still everything is relative—the patterns of ordinary Jewish law are not always simply applicable in extreme situations. And therefore the analogies we make, or the inferences we make, have to be placed under a very large question mark. It is not always correct to take the principles of ordinary Jewish law and apply them to extreme situations. Let me maybe bring a few examples that will illustrate the point. Think, for example, of commentators who asked about the Binding of Isaac, where Abraham is commanded by the Holy One, blessed be He, to bind his son and offer him as a burnt offering. So various Torah commentators—quite a few of them—asked: why did Abraham obey? Why did Abraham do it? There are two main kinds of difficulty that should have troubled our father Abraham when he received that command. The first difficulty is of course the moral one: why on earth would I murder my son? What could this possibly mean? It was accepted? Fine, but I hope that for our father Abraham that wasn’t the moral standard. The second thing, beyond morality, is that there is an internal contradiction here: the Holy One, blessed be He, said “through Isaac your offspring shall be called,” and now you’re binding him, which means that no offspring will be called through him. So there’s a contradiction here on the logical level. Forget morality and all that—on the logical level, how can this be? And therefore this should have led our father Abraham to the conclusion either that this was some kind of deceiving demon, in Descartes’ terms—that is, not really a divine revelation—or that the Holy One, blessed be He, Himself expected him to refuse and was only testing him or something like that. In any case, why didn’t he—why didn’t he refuse? Why did he go along with it? That’s the question. He should have thought that some mistake had occurred. This cannot be correct, and therefore not carry out that command. I might even say: perhaps he should have suspected that it wasn’t the Holy One, blessed be He, speaking. Some sort of, I don’t know, hallucination. This is not something that can genuinely be a divine command. Anyone who knows Fear and Trembling by Kierkegaard knows that he also deals with this. He goes in the direction of yes, the terror of the paradox—that Abraham is the knight of faith in his eyes. So the knight of faith pays attention neither to logic nor to morality; he sacrifices logic and morality on the altar of faith. This is a Christian conception in general: faith is supposed to be connected with paradox. There are Jews who also think this for some reason, but originally it’s a Christian conception. And therefore, on the contrary, the knight of faith is someone for whom paradox is the delight of his life. Meaning, to live in paradox is the highest expression of faith. In my view it’s a distorted conception, but that’s his conception.

[Speaker H] There are those who say he had some sign for verifying the faith, verifying the dream.

[Rabbi Michael Abraham] What do you mean?

[Speaker H] Because he had signs, after all. I mean, he couldn’t go out and carry out every dream he had.

[Rabbi Michael Abraham] What, how—

[Speaker H] How did he know to distinguish between a dream and prophecy?

[Rabbi Michael Abraham] Then let him be suspicious of the identifying signs too! Those same difficulties there—let him also suspect the signs he received. After all, he has excellent arguments for why it can’t be true. Right? A guarantor itself needs a guarantor—meaning, what help are the signs? Yes, there’s what they say, but that difficulty arises in relation to what they say too, so it doesn’t help.

[Speaker I] Meaning in the end there are explanations,

[Rabbi Michael Abraham] In any case, fine, there are explanations, but the explanations suffer from the same difficulty as the thing they’re explaining, so that doesn’t help much. I mean, I want to sharpen the point a bit. It’s like something I once heard from the Chabad repeater, Rabbi Kahn. The Chabad repeater once stayed at the yeshiva in Yeruham. I hosted him there, and he spoke with the guys in the study hall, gave some talk there. And among other things he brought a certain example, a very nice example, it really caught me, and I made quite a bit of use of it afterward. He said: think about two people, one blind and one sighted. Sighted in the sense of not blind, yes? They enter a certain room and they see that the room is packed with furniture. Full of furniture, completely, right? This room has no windows, no entrances, nothing—just one door. Everything is full of furniture. Fine, they go in, see, feel everything, close up. They go outside, lock the door, sit by the door on their chairs. After an hour, the sighted person opens the door, goes inside, says, “Berel, you won’t believe it”—that’s the blind man sitting outside—“you won’t believe it, there isn’t a single piece of furniture in the room, the room is empty.” He says to him, “What? Impossible! The room was full of furniture, we were sitting by the only entrance there is, nobody went in or out to remove furniture, nothing. So obviously it’s there, the room is full of furniture.” No, there wasn’t any hole and there wasn’t any crack—Elijah the Prophet revealed it to them. All right? There was no hole and nothing. So then they don’t—he has a clear logical proof: the room is full of furniture, period. He says to him, “But I see it, the room is empty.” He says, “You see? Fine, so maybe you have—I don’t know—tricks, hallucinations, I don’t know what. Vision misleads a person from time to time, a mirage. But no—the room is clearly full of furniture, I have a clear proof.” What is the man who sees supposed to do? He says to him, “I have no answer to what he said, but I see it, the room is empty.” No, fine, he didn’t die afterward, he also didn’t manage to feel the furniture, he didn’t become petrified either, yes, and he also didn’t go silent. Meaning, he didn’t manage to feel the furniture. So what does he say to him? He says, “I see.” Now the blind man, blind from birth, has never seen. He doesn’t understand the certainty that accompanies the state in which we see something. He’s never experienced it, he doesn’t understand it. Meaning, he has a very strong logical proof that your seeing is very nice, but it’s apparently not true. You’re mistaken. An excellent logical proof. But I see. With all due respect to your logical proofs, I see. There is no greater proof than seeing, as they say. Right? I mean, what help is it? Now the blind man doesn’t understand the certainty that accompanies vision, because he’s never experienced it. So from his standpoint he has a good objection, and clearly the other person—the one who sees—is just fantasizing. And on the other hand, when I see, with all due respect to his logical arguments, to which I have no answer… so what do you do with his logic? I don’t know, it requires analysis. Okay? But I still won’t give up something I see with my own eyes. Okay? The blind man, who hasn’t experienced that certainty that accompanies the state in which I see, finds it easy to give it up. He doesn’t understand this state of seeing. So from his perspective, logic really is the winning card, it’s the joker. Meaning, once I have a proof, then this room is full of furniture, which is what was to be proven. Right? There are situations in which I judge things in a completely rational way, but I’ve never experienced a state of seeing. If I had experienced it, I’d understand that with all due respect to my reasoning, the reasoning requires analysis—but there is no furniture in the room, I simply see it. Okay? Someone who hasn’t experienced that can’t understand it. So from his standpoint, sitting in judgment, he judges the seeing person as someone who is irrational. By the way, many times with paradoxes it’s like that. Paradoxes are also very deceptive. What is a paradox? A paradox is basically presenting some kind of argument whose conclusion is patently absurd, but in the argument I can’t find any bug. Meaning, the argument sounds excellent. Okay? But the conclusion can’t be right. That’s basically the nature of most paradoxes.

[Speaker K] So the conclusion is that specifically the person who sees is the one who’s right? Why not say it’s some mirage here and so on?

[Rabbi Michael Abraham] Maybe yes and maybe no—you decide. If you were the one seeing, I assume you’d decide in favor of sight. But I don’t know.

[Speaker K] A model of vision I once mentioned. What? A model of vision I once mentioned.

[Rabbi Michael Abraham] Right, right, we know that, and even though we know it, I would still decide that way. That’s exactly the point. Many people say, wait, there are mirages. True, there are mirages, but usually when I see something, it’s clear to me that it’s there, even though I know there are mirages. There is a certain certainty that accompanies sight, and logical arguments won’t dislodge it. You can say I’m captive to it—maybe—but I’ll still remain with it. I’m saying this is a dispute you can’t decide, but still, that’s where I am. So that’s why I brought in the concept of paradox, because with paradoxes you can bring many examples. I also wrote about this on my website. It doesn’t matter whether he read it or didn’t read it, I’m bringing it as a parable. It’s a thought experiment. The claim is that with paradoxes that’s basically what happens. Paradoxes prove to us that there is no motion; indeed Zeno, with all his paradoxes, proves that there is no motion—but there is motion, I’ve seen it. Okay? So what do we do? So that’s a paradox. Now, I haven’t managed to put my finger on what exactly the problem is in Zeno’s arguments, say. I think I can put my finger on it, but let’s say I haven’t. So what does that mean—that there is no motion? Of course there is motion, I’m just not smart enough and I haven’t managed to put my finger on the problem in the argument. Okay? So that’s why many times I’ll remain with my conclusion even though there’s a very strong logical argument against it. Why? Because it’s clear to me that it’s true. Intuitively, cognitively, sensorially—it doesn’t matter. One way or another, it’s clear to me. What about the logical argument? It requires analysis. Maybe I’m not smart enough, I haven’t figured out what the problem is in the logical argument, but it’s clear to me that there is a problem there. Okay? Someone who hasn’t experienced that can’t understand it. That’s why I say that many times when someone brings arguments, and arguments seem to us the peak of rationality—meaning, you have to go with arguments, not with hallucinations and intuitions and these feelings and those feelings. You have an argument—go with the argument? Not true. Sometimes there is a situation where, with all due respect to the arguments, put the arguments aside. Someone who lives the situation understands that this argument is not correct. He won’t be able to explain to me, and not even to himself, what exactly is wrong with the argument—but it’s not correct. Okay? Is this like Poppik against that mouse? Exactly! Exactly. That’s not an example—about that… that’s exactly what I’m saying. Meaning, we can’t judge situations in which people are in circumstances very far from our immediate experience, circumstances we can’t imagine what it means to live there. We understand intellectually that it’s a hard experience and that people suffer there—all true. If you don’t live the situation, you don’t really understand what it means. And if you don’t understand what it means, you can’t issue a halakhic ruling about such a situation. You may be a tremendous Torah scholar, you know all the rules, you know everything. You can’t issue a halakhic ruling in that situation if you haven’t experienced it directly. Or if it’s a situation of the type you have experienced—it doesn’t have to be exactly that, you don’t have to live every situation you rule on—but it does have to be a situation where you understand very well what happens to someone inside it. A situation from a family of cases you know, from a type you know. If it’s a very distant situation, take with a grain of salt all the rules of Jewish law, logic, and ordinary philosophy that you know. There are things that only someone who lives inside the situation understands. You can be a very great sage standing outside—take your conclusions with a grain of salt. In relation to a situation so extreme and so distant, you’re not necessarily right. And if there is someone inside the situation, he is preferable to you by definition, even if he is less of a Torah scholar than you, much less than you. Still, he lives the situation and understands better than you what is right there and what is not right, even if he isn’t a great Torah scholar. The ideal model, of course, is that the person living the situation should issue the ruling in consultation with the great Torah scholar, who can give him some feedback—watch out for this, pay attention here, points like these, principles like those—but in the end, the decision is supposed to be made by the one inside the situation. That is really the claim. Think, for example, about things that happen even today. Say young modern liberal religious communities, right? They want to think about how to run a synagogue. The status of women in the synagogue is usually where many of the questions arise in such contexts, all kinds of things. Okay? Now they come, they have a rabbi, young, liberal, modern, typical of that community. Okay? And this rabbi studied in some yeshiva with some older, much more conservative rosh yeshiva, belonging to a different conceptual world, a different cultural world. Okay? Now he wants to ask himself: okay, what should be done in a situation like this—should women be called up to the Torah or not? What do you do in such a situation? Okay? So he goes to consult his teacher, the rosh yeshiva. Right? What?

[Speaker L] A woman? Women, or literally one woman being called up to the Torah?

[Rabbi Michael Abraham] For example, such a question, yes. According to the law of the Talmud, women are called up to the Torah; it’s only because of the dignity of the congregation or something like that, which in my opinion is not relevant today at all. In any case, never mind, various things, yes. There are all kinds of absurdities, like whether women should dance with a Torah scroll and so on, which I have no idea where that even comes from. The custom of Krakow that the Rema brings, that if they are menstruants then they shouldn’t touch a Torah scroll—I don’t know, I haven’t been in Krakow for a very long time and I don’t know why I should care what the custom of Krakow was. But people today discuss halakhic responsa and all kinds of nonsense of that sort; that’s a non-issue altogether. Let’s talk about questions that maybe actually are questions. Okay? There are questions that simply aren’t questions; most questions, by the way, are of the second type—they simply aren’t questions. But there are some that are, and about them one can discuss. Now to our matter, I don’t know, you want to know whether to go to a female singer’s performance. Permitted or forbidden? “A woman’s voice is nakedness,” all kinds of things of that sort. Okay? Now if you go to some rabbi, I don’t know, right, an old man, old and sitting in yeshiva as they say—right?—that’s not his world, he’ll say forbidden: “A woman’s voice is nakedness,” forbidden. But that rabbi has probably, if he’s an honest person, never in his life been to a female singer’s performance. He doesn’t understand why people go to a female singer’s performance, what they are looking for there, what it does for them. In all innocence, in his world, maybe it’s forbidden or maybe it’s permitted. He doesn’t understand the situation. He’s never been there. That’s what I said: if he’s honest, then he probably hasn’t been to a performance because he thinks it’s forbidden. Okay? So he hasn’t been, he’s never experienced it, he doesn’t understand what this thing really does for people, why they come, what it does for them, and so on. Right? So basically, he can give his halakhic opinion on the detached, theoretical, abstract level, and say what Jewish law says in such a case. But if you don’t live the situation, you can’t really determine whether it’s permitted or forbidden. It could absolutely be that someone who is inside such a performance understands: this simply doesn’t belong to that whole world of “a woman’s voice is nakedness.” You’re simply enjoying the music, say—a singer who is not provocative and nothing of the sort, she simply sings beautifully, with a beautiful repertoire, sings beautifully, whatever—and you want to see that performance. In such a situation there is room to discuss it; I’m not entering now into the question of how to decide. I’m only raising this as an example of a situation where—look, this isn’t the Holocaust. It’s not the Holocaust, it’s not some extreme state that you can’t even imagine in your wildest imagination. And still, this is a situation very far from his world. He doesn’t really understand what it means to live inside such a situation. If that’s the case, don’t issue a ruling. Don’t issue a ruling in such a case. Go to your younger student, who is the rabbi of that liberal community or something like that, and consult him. Tell him: listen, pay attention to this point, pay attention to this angle, there’s this source, that source, this reasoning, that reasoning, pay attention to these aspects and those aspects. In the end, the responsibility is yours, not mine. The ruling should be yours. I can guide you, help you, explain things to you—I’m a greater Torah scholar than you. Fine. But in the end, the one who makes the decision is him, not me. Because in order to make a halakhic decision, you need to be capable of experiencing the situation directly. The perfect theoretical halakhic knowledge that you have is not enough, even if it is completely perfect. There is an example, roughly, in Wikipedia about Mary’s room. Do you know that? Mary’s room. Mary was a brilliant physicist, right? In recent decades they always bring examples with women, because there are hardly any women physicists, so it doesn’t matter. Mary was a brilliant physicist who specialized in optics. She knew optics inside and out, but all her life she lived in a black-and-white room. She had never seen different colors—black and white, a black-and-white room; she was color-blind if you like, whatever, and that’s it. But she knows what every wavelength does and how it interferes and what it does and doesn’t do, everything you want. Okay? She’s a world expert in optics. Now one bright day—and it was bright after she went outside she understood that—she goes outside and sees a whole world full of colors, colorful and beautiful. By the way, they did experiments like this on

[Speaker F] blind people who underwent surgery and began to see.

[Rabbi Michael Abraham] Right, blind people who underwent surgery and began to see. For example, I saw just two days ago someone posted on my website: blind people felt shapes and they knew what a circle was and what a square was by touch. They understood the difference between a circle and a square. When they operated on them and their eyes were opened and they began to see, they didn’t know how to say whether this was the circle or that was the circle. They saw a circle and a square, but they couldn’t say whether this one was the circle or that one was the circle and this the square. Even though by touch they had felt them beforehand. They had to go through some process of synchronization between sight and touch in order to identify with their eyes what they had understood through touch. It’s really fascinating. By the way, someone told me he interviewed such a blind person; this was following columns I wrote on dynamics versus statics. Zeno’s paradoxes, the flying arrow and things like that, derivative, velocity, position and velocity and acceleration—each one is the derivative of the other. And I argued in the article that after all, how do we construct a movie? You construct a movie out of frames, right? Meaning, you take one static shot, then another static shot, and another static shot, and at a very high frequency, and as far as we’re concerned we see a dynamic event. But really what they project to us are frozen frames, static frames. Right?

[Speaker M] You also see that on the phone, in filming below, the frames.

[Rabbi Michael Abraham] Yes, right. When you know—when a cursor moves on the computer, on older computers it was more obvious. Nothing moves at all, really; they turn it off here, turn it on here, turn it off here, turn it on here, turn it off here, turn it on here—but to my eyes it looks as if the cursor moves from left to right or right to left. There are no movements. They project pictures for you where each time one goes dark and another lights up, slightly different, and our consciousness creates from that some kind of integration that produces a dynamic process out of all those frames. Okay? So that person said to me—he didn’t say, he wrote on my website—that he has a friend who really had been blind and underwent surgery and began to see, and he can’t manage to see motion. He sees the frames as frames and it doesn’t produce integration for him, meaning it doesn’t turn into something that is a dynamic occurrence for him. As a blind person he didn’t understand the concept of dynamics, he didn’t understand what it means for a body to move. That is, he understood that his hand goes up and down, but he didn’t have a visual picture, a little film of a hand going up and down, and therefore dynamic concepts didn’t exist in his world. He saw frames; he could see a hand at any height whatsoever, but he didn’t have a movie in his consciousness.

[Speaker J] Meaning, it’s not the eye—the brain really sees.

[Rabbi Michael Abraham] Obviously, that’s completely clear. And I’m saying that even in the brain, in the end, dynamics is the result of processing. What we see is always static. Dynamics is something we create in our consciousness. Okay, and that doesn’t matter—it solves various paradoxes and explains various things also in physics, in relativity and in quantum theory, and I wrote about implications of this. I think this whole matter is very interesting, because the uncertainty principle, for example, in my opinion stems from there, from the inability to look at dynamics directly. You need to generate the dynamics out of looking at—if you want to see velocity, you need to look at different positions at different times. So how can it be that a body has velocity at a point in time? That’s basically Zeno’s flying-arrow paradox. A body doesn’t have velocity at an instant, but rather on a tiny interval, as small as you want, around the point. If you like, a differential, yes, for those willing to accept expressions like that. So there is velocity on a small segment of time around a point. That’s what physicists usually say, but it’s not true. There is velocity at an instant. A single instant. In order to calculate the velocity, exactly, you have to do a limiting process. You have to take a derivative. You need to look not at the point but at a small interval of time around the point, take it to zero, and then form the quotient, the difference in positions divided by the difference in times. But that’s an operational definition. That’s a definition of how you calculate velocity. But the result is velocity at an instant; the derivative function is a velocity that has a different value at every point. Meaning, a body has velocity at a point. The way to calculate it is through differences in position, so you have to take a small interval of time around the point and then form the quotient. That is basically the process of taking a derivative. But that’s just our limitation. Why? Because we can’t grasp a dynamic process directly. We have to generate it from frames, from static pictures. So I’m saying: in order to understand that a body has velocity, I need to see that at this time it was here and a little later it will be there. Then I say, apparently it has velocity because it changed position over time. And then the quotient—the change in position divided by the duration of time it took—that is the velocity. But that’s only because of our limitations, because we see things statically. We see things as frames. If there were another creature, imaginary, different, looking at the situation, it could see that a body has velocity by looking at a single instant in time. I call this the perspective of an ideal movie camera, not a still camera. An ideal still camera is one whose exposure time is zero: a single instant. The shutter is open for one instant. That is an ideal camera. An ideal movie camera is a movie camera that at a single instant can measure velocity. Think about radar; radar is built on the Doppler effect. The Doppler effect supposedly—it’s not really true, but supposedly—measures velocity at an instant. Not through differences, but through the gap between the frequencies of the outgoing wave and the returning wave. That is proportional to the velocity of the car. So a hit at one instant on the car gives me its velocity. That is basically the perspective of an ideal movie camera. It is looking at a body at a single instant and understanding that it has velocity, but then I won’t see its position at all. That is the uncertainty principle in quantum theory. Meaning, either I look with an ideal movie camera or I look with an ideal still camera. I can’t do both. That’s the uncertainty principle. Never mind, those are other matters. In any case, for our purposes, how did I get into all this? The claim is that there are situations, certain modes of perception, that I’m not exposed to. I don’t know them, I’ve never experienced them. If I want to discuss a situation of that sort, I’m not allowed to judge it halakhically, or philosophically, theologically, or however you want. I need to experience the situation directly in order to determine what is right to do halakhically in such a situation. That is basically the claim. Now, one of the things—or the main topic—of this series of articles in Yated Ne’eman, I’m returning to monetary law in Kovno, the main subject was how to relate to other people’s money. Even beyond the Yehudi Noveh case, that’s one more episode that already showed us why one must not look at the regular halakhic patterns in order to decide Jewish law in extreme situations. Because ostensibly he ruled exactly the opposite of what a halakhic decisor would say in such a situation. Devar Avraham says to him: pay the money. An ordinary halakhic decisor would say: what are you talking about, it’s forbidden to pay. Not only are you not obligated, it’s forbidden. Forbidden to pay. That’s one example. But the more fundamental example was his father’s view—Rabbi Gibraltar, the father; the writer is the son. He argued that there were three views regarding ownership of money in the ghetto. One view was that it was all like something swept away by the sea—there is no ownership of money in the ghetto. A second view was that the money is ownerless, essentially. The second view. There was a view that there is no ownership of money either, and that remains true even after the war. Meaning, if someone had borrowed money from him and then came to him—that was the case—he was a rabbi in Italy after the war, the father, a survivor. He was a rabbi in Italy, and people came to him after the war to repay a debt, and he said: my ownership lapsed. Meaning, no, you don’t have to return the money to me, the money isn’t mine. There were other views like that; there were views that yes, there is money, it may just be that coercion or danger to life perhaps permits taking the money—but there is ownership of money in the ghetto. There were all sorts of views. He described his father’s view, that basically there was no ownership of money, but perhaps for relatives outside the ghetto there was, for relatives inside the ghetto there wasn’t—there were all sorts of distinctions. And the question that arose there was: what exactly is the basis for this determination that there is no ownership of money in the ghetto? After all, there is property; you can’t take his money from him. You can say maybe in a life-threatening situation I’m permitted to steal—remember the question of the jug of water, never mind—but you can’t say that ownership as such simply lapsed. In fact there was an article at the end, after those three articles—it was a series of articles—a critical article by someone involved in monetary law, who wrote there that apparently he didn’t have books in the ghetto and so on, but clearly this is not halakhically correct and this whole approach is a great mistake. And afterward I wrote an article—not in Yated Ne’eman, I wrote an article in Tzohar—and I said that I somewhat anticipated what I’m telling you now. I said that I think the right way to relate to a situation of that sort is to take what a Torah scholar who is inside the situation says and understand what lies behind it, to try to conceptualize or define his position in halakhic terms. From my perspective, his position is not an expression of an opinion that I can now start wrangling with, arguing with, debating with, bringing proofs this way or that. Rather, it is a kind of testimony. The testimony of someone who lived the situation directly and tells me, as testimony, what is right to do in that situation. I, who stand outside and have not experienced the situation directly, have no way to determine what is right. Therefore I accept what he says, period. I accept that what he says is correct, period. Even so, I argue that after I have accepted that testimony, I can try to conceptualize the matter and create from it some halakhic pattern, and then it can join Jewish law. And the claim is as follows: basically, when you issue a halakhic ruling in such a situation, there are universal halakhic principles—let’s call it the Shulchan Arukh, okay? And when you apply the Shulchan Arukh to this particular case, a certain result comes out. And the one who lived the situation says: forget the Shulchan Arukh, this situation is a pathological one. What the Shulchan Arukh says is not relevant; I’m telling you that here the correct thing is to act the opposite way, to act thus and not the way that emerges from the regular halakhic rules. Now in such situations Jewish law will often say: okay, I’m freezing the rules of, let’s call it, the Shulchan Arukh just for the sake of simplicity—the normal, regular halakha, what accumulated over the generations—I’m freezing that. And here I issue a temporary ruling, something suitable only for this situation; it will not enter the Shulchan Arukh afterward. It won’t enter the Shulchan Arukh. It’s a ruling that is correct for that situation, a pathological situation, gone and no more. The halakha remains what it is and sails onward. But that doesn’t mean it has no significance; in that particular situation I will rule not according to the normal halakha but as a temporary ruling. There are some nice examples in the book by Professor Soloveitchik, the son of Rabbi Soloveitchik, who was a history professor at the Hebrew University, already very elderly, surely emeritus, I don’t even know—but he wrote a book on ordinary wine of non-Jews, he wrote on that, but also on interest. I think it’s called something like Halakha, Economy, and Self-Image, something like that, on the laws of interest in the Middle Ages in Ashkenaz and in Spain. He’s a historian, but he researched Jewish law as a historian, and he was also a Torah scholar. He researched Jewish law as a historian and described the approaches of halakhic decisors in Ashkenaz and in Spain in the Middle Ages to questions that arose, questions of interest, and he showed that they ruled head-on against the law of the Talmud. Head-on against the law of the Talmud, okay? Now the Shulchan Arukh related to those decisors and their rulings, but none of those rulings that went against the law of the Talmud entered the Shulchan Arukh. Meaning, they did not sail onward beyond the Middle Ages. They remained in the Middle Ages, stopped there and ended there. There are other things from those same sources that the Shulchan Arukh takes and incorporates into the Shulchan Arukh, yes? Many times people take a responsa book or a Jewish law book and incorporate what emerged from it into the Shulchan Arukh; it gets collected and becomes part of halakha. Part of halakha. He says: that happened, but not with those rulings that were against the law of the Talmud. Those rulings that were against the law of the Talmud stayed there; the Shulchan Arukh brought none of them into its laws. And he wants to argue that basically this was a ruling correct for its time—not that it was mistaken, but that those who lived the situation in the Middle Ages understood that the laws of interest had to be applied there differently. Against the Talmud. But in that situation, that is what had to be done. On the other hand, that was what was right to do there. On the other hand, it won’t return and join the halakhic corpus that continues sailing on to the next generations.

[Speaker N] But what does that mean if a third person in the same period can say that he experienced things

[Rabbi Michael Abraham] differently and decide differently? Fine, then there is a dispute. There are disputes all the time within these situations too. As I said, also in Kovno there were disputes. Perfectly fine. But I’m not going to decide who is right, and I’m not going to determine whether someone was right or not right. That is their dispute; let them decide what to do. Just as in normal Jewish law there are disputes and we don’t always decide. In any case, that is what he wants to argue. But I want to go one step further. I want to argue that after they issued a ruling for their time, I can—I from outside, who did not experience it—come and see this as a kind of testimony and say: okay, if they understand that within that pathological situation it was right to rule this way, let’s conceptualize it. Let’s understand what was special about that situation such that the normal rules don’t apply to it, and let’s try to produce from it an additional rule that will also accumulate or be collected and join the halakha that travels onward. And now, once relevant situations arise later on, it will already be possible to use the tools developed there in order to issue halakhic rulings in the later situations, which can also sometimes be exceptional; and we also won’t apply this to them, and the process will continue onward. What I want to argue is that beyond the distinction between a halakha for its time and what from the temporary goes on to join the permanent, the corpus, the canon, yes, the permanent halakhic canon—there are also permanent aspects within the temporary. And once I come and make the conceptualizations—which many times the person living inside the situation did not do; intuitively it was simply clear to him that this was what had to be done—after I make those conceptualizations, those conceptualizations will return and join the normal halakhic corpus. And it will continue onward. And that is what I wanted to argue. I wanted to argue that on the one hand I do not accept the criticism of that Torah scholar against Rabbi Gibraltar, against what he ruled there in the ghetto. On the other hand, I do think there is value in trying to understand what Rabbi Gibraltar did in the ordinary halakhic language, because with that I can continue onward. Not to disagree with him. I will accept what he says. My assumption is that if he lived the situation, he understood better than I do what was right to do there. But after he understood, let’s use that testimony to generate additional halakhic facets that we could not have discovered without him.

[Speaker O] Because in that respect he was a man of Jewish law?

[Rabbi Michael Abraham] Yes, he was a man of Jewish law. No, no, he was a man of Jewish law.

[Speaker O] He discussed it as a man of

[Rabbi Michael Abraham] Jewish law—not like someone who isn’t in Jewish law. He’s a man of Jewish law. Yes. I mean, I’m talking about people of Jewish law. I’m not talking about just ordinary people who find themselves in a situation. By the way, there are very extreme cases—for example, what’s called a transgression for its own sake. The topic of a transgression for its own sake, in tractate Nazir—there the Talmud assumes that an ordinary person, yes, Yael the wife of Hever the Kenite, or Lot’s daughters, whatever, they weren’t such great Torah scholars—that when you are in a certain situation that is very, very extreme, you can act against the accepted Jewish law even if you are not some great halakhic decisor. Because you are in the situation and you need to make decisions, and it is clear to you that here it is not correct to apply the Jewish law. If so, then do what you think. That is basically the meaning of the topic of a transgression for its own sake. These are really cases where, if you don’t have a Torah scholar around and so on—but then I’m not sure I would take those things, conceptualize them, and incorporate them into Jewish law. But if there is a Torah scholar who is in the situation—even if he may not be the leading sage of the generation, it doesn’t matter, but he is a Torah scholar, he is qualified to issue rulings, he knows what it means to be a man of Jewish law—and he, from within the situation, says that one must act differently, then there is a point not only in not criticizing him and understanding that what he did was probably also correct, but exactly—in understanding, from what he did, trying to conceptualize and define it, and taking those principles and incorporating them into Jewish law, for the benefit of halakhic decisors in later generations. Again? Tractate Nazir, around 23b somewhere, I think—I don’t remember anymore. Search the responsa project for “a transgression for its own sake.” That’s it, you’ll find it. “He intended to eat pork and meat of a lamb came up in his hand”—I think that’s on the same page there, if I remember correctly. In any case: “A transgression for its own sake is greater than a commandment not for its own sake.” Search for it in the responsa project. Fine, so let’s get back to our topic. In short, there were various attempts—it was possible to try to explain this halakhic approach that says there is no ownership of property in the ghetto in various ways; I’m raising a few possibilities here. I’ll send the articles—there are two articles on this—to the Moodle, so you’ll be able to look there. I’m already moving on; I don’t want to dwell on this too much here. I want to make the following claim: in practice, what underlies Rabbi Gibraltar’s position—and again, the articles were not halakhic articles, they were historical articles, so there isn’t a very precise description there of what the halakhic basis of the matter was. I’m also not sure how much of a halakhic basis he had that he formulated for himself; perhaps he simply understood that in such a situation this is the reality. But I don’t know; it’s not clear to me. Also, the responsa From the Depths, by the way—when it was written, it was written after the Holocaust. Meaning, the rulings were given during the Holocaust itself, but when he wrote the responsa he wrote them after the Holocaust. And it could be that he inserted sources there and things that he expanded a bit—I don’t know. In any case, the claim I want to make is that what lies behind these things is that in a situation of the kind that prevailed there in the ghetto, the concept of ownership as such does not exist. Not that ownership lapses. The concept of ownership does not exist. That’s a different statement. Meaning, there are situations where we speak about the person, yes? There is a particular person—his ownership of the property does not exist. It’s in my possession but not mine? What? And it’s in my possession, the… You can say it’s in my possession but not mine; you can say that there isn’t even possession here—it doesn’t matter. But the lapse is a lapse in the personal sense. Meaning, my property stops being my property. I want to claim that the concept of ownership does not exist. Not that a certain person’s ownership of certain property lapses, but rather that the concept of ownership does not exist in this situation. That’s something else, and it also has various implications. For example, someone is being taken out to die. The Talmud discusses this. Someone is being taken out to die—what happens to his property? He is already as good as dead. If he is as good as dead, then ostensibly he is already considered dead; he has no ownership of property. The question is whether he can give the property away, whether one can seize the property, whether it passes to the heirs. Okay, so the Talmud and the medieval authorities (Rishonim) already discuss this. What? It will depend on how we understand what happened while the ghetto still existed. One of the implications will be what happens after the situation is over. So if I understand, for example, that your ownership right now is not exercisable, fine—after the ghetto… after the Holocaust ends and so on, it returns. At that local stage, it was no longer yours. Let’s say one could call it “in his possession but not his,” as with a robber or something like that—there are various definitions one could suggest here. But if you say that ownership completely lapsed, then it has become ownerless property. How would it suddenly return and become mine? I would have to acquire it again. Yes, it somewhat resembles the… there are those who want to claim that he is as good as dead. If he is as good as dead, then someone as good as dead has no ownership. But that is a little problematic, because if he is as good as dead, then there are other implications one could derive from that. For example, Rabbi Gibraltar claimed that it is forbidden to take his jug of water, for example, because that is murder, as the Chazon Ish says. Now, if he is as good as dead, then he is already dead now. So what does it mean that it is forbidden to take his jug of water? He’s already dead; he was as good as dead—you killed someone as good as dead when you took his jug of water. So there are some rather delicate definitions here that need… What? Yes, exactly. So I think the more precise definition—and again, there are various nuances here that you can see in the article—but the more precise definition basically goes like this: there is Rabbi Shimon Shkop in Shaarei Yosher, Gate 5, speaking about the Maharibasn’s question. The Maharibasn asks why the rule “the burden of proof is on the one who seeks to extract property from another” says that if someone sues me and no one brought proof, then the money remains with me. The burden of proof is on the one who seeks to extract. In the language of the decisors, this is called: in monetary doubt, we are lenient. Monetary doubt is treated leniently in favor of the defendant. Meaning, the defendant does not have to pay even though there is no proof either for him or against him; you can leave the money with him. And the question the Maharibasn asks is: why really is monetary doubt treated leniently? After all, there is here a doubt regarding the prohibition of theft, and a Torah-level doubt is treated stringently. So why is monetary doubt treated leniently? Usually the question as such is not difficult. What? Since both are in doubt, put it aside; let no one use it. No, I am not stealing from them; I didn’t steal anything. They have to refrain from using it; I didn’t steal from them. Let no one use it in their place. But the question as such is not difficult. Why is it not difficult? Because the doubt is a doubt of the court, not of the parties. The parties know the truth. One of them is lying, one isn’t, it doesn’t matter. But they know the truth. So what do you want from me? I think it is mine. You want to force me to act according to the laws of doubt because you are in doubt? If you are in doubt, then you act according to the laws of doubt; I am not in doubt. So that’s not difficult. Where is it difficult? In a case of certainty versus uncertainty. There is a dispute in the Talmud about what the law is in a case of certainty versus uncertainty; in principle, certainty is stronger, that is clear. Except that when the uncertainty is with the one in possession—when the one claiming uncertainty is in possession, and the plaintiff claims certainty, yes? Now, yes, “I do not know whether I repaid you” or “I do not know whether you lent to me”—so you are claiming money from me and I say, I don’t know, maybe you are right, maybe not. Certainty versus uncertainty. So there is a dispute between Rav Huna and Rav Chisda; in practice we rule that certainty versus uncertainty does not mean certainty is stronger. That is, if the one claiming uncertainty is in possession, then the one claiming certainty cannot extract from him on the basis of a claim alone. He needs proof in order to extract. A claim does not extract from one in possession, even though the one in possession claims uncertainty. Here the question does arise. Because if you say uncertainty, then after all you are in doubt. It could be that you are a thief. You yourself don’t know whether you are a thief or not. But he tells you, I am certain. Yes, fine, let him be certain. Okay? Certainty versus uncertainty does not mean certainty is stronger. And on this the Maharibasn asks: why? Why? After all, there is here a doubt regarding the prohibition of theft. So he brings various answers and rejects them. In the end Rabbi Shimon Shkop makes the following claim. He says that the laws of ownership or the laws of acquisition are not the result of Jewish law. They are an assumption that precedes Jewish law. Jewish law says that there is a prohibition: “Do not steal.” But if you have not defined which property belongs to whom, it is impossible to define the concept of theft. What is theft? Theft is taking someone else’s property unlawfully, yes, taking his property. Which means that in order to define the prohibition of theft, it must already be established in the background that we know the laws of acquisition. Who owns what, how ownership is established, how the laws of acquisition are determined—because without that, the prohibition of theft has no meaning. Therefore, Rabbi Shimon Shkop says that if the Torah prohibits theft, it is obviously assuming in the background that there are laws of acquisition. But where does this appear in Jewish law? Here and there, there are a few references, but most of the laws of acquisition are things that have no source in the Torah—not from a textual derivation and not from any source. They are determinations of the Sages. And these are Torah-level determinations, not rabbinic determinations. And the Sages determined: there is acquisition by lifting, acquisition by pulling, acquisition by money, document, and possession, and all kinds of things of that sort; “the presence of all three parties,” and anything else you want—various forms of acquisition. Most of them have no source in the Torah, not in a derivation and not in the Torah and not in any other source. So what are they? Rabbi Shimon Shkop says these are determinations of what he calls the laws of civil order. What does that mean? There is a legal system—a legal system that society, let’s say, or something of that kind, establishes the laws of acquisition, and that is binding. And in the case of Jews, the ones who establish it are the Sages—but it doesn’t matter—they establish it not with their hat on as sages of Jewish law, but with their hat on as representatives of the public, as legislators of the public. They are essentially the representatives who establish the legal system of the laws of acquisition for the Jewish public. In other publics, then some other institution will establish it, it doesn’t matter—but society has to establish for itself the laws of acquisition. The Torah comes after there has already been a determination of the laws of acquisition. After there is a determination of the laws of acquisition, the Torah says: if you infringe someone else’s property rights, you have violated the prohibition of “Do not steal.” Okay? Meaning, the prohibition of “Do not steal” does not establish the laws of acquisition; it presupposes the existence of the laws of acquisition, and on that basis it builds the prohibition of “Do not steal.” Therefore, Rabbi Shimon Shkop says, the Maharibasn’s question is not difficult. You ask why in a case of certainty versus uncertainty it is permitted for me to hold the property, when after all I have a doubt about the prohibition of theft. So he says: the prohibition of theft exists where I am infringing someone else’s property right. But the question of whose property right this is is not a question determined by Jewish law, but by the laws of civil order. And if the laws of civil order say that there is legal logic in determining that the burden of proof is on the one who seeks to extract property from another, then on the legal level I am permitted to hold this money. If legally I am permitted to hold this money, then there will also be no halakhic prohibition of theft here. That is what Rabbi Shimon Shkop says. You do not need to worry about a doubt concerning the prohibition of theft because—yes—these are different planes, one of which leads to the other. They are not independent; they are different but not independent. Once I have legally determined that I may hold this money, then I also do not need to worry about the prohibition of theft. Theft is always holding money that legally is not mine. Okay? If legally it is mine, then everything is fine. That is the claim. Again?

[Speaker P] Jewish law can, there’s no—

[Rabbi Michael Abraham] problem, because Jewish law can terminate ownership. But where I hold ownership lawfully, you cannot tell me to worry about the prohibition of theft. There is no prohibition of theft, because I am holding it lawfully. Where Jewish law did the opposite—saying that even though the line of civil law says this is mine, I decide to terminate the ownership—then it terminated the ownership. So why am I bringing this up? Maybe, maybe one more sentence. Usually—this was once an argument I had here with Rabbi Berkowitz. Usually it is accepted to think—Rabbi Shlomo Fischer writes this—he cites Rabbi Shimon Shkop and says: this is a baffling midrash, you can’t say such a thing. Why? Because what do you mean—what obligation do I have to obey something if there is no command of the Torah? Where did such prohibitions come from if they have no source in the Torah? So where does the prohibition come from? Why should there be such a prohibition? Can’t hear? Because the Torah said that royal law has authority. The law of the kingdom is law. The law of the kingdom is law—it is a halakhic law. Like “Scripture handed it over to the Sages.” If the Torah says: Sages, you will determine which labors are forbidden on the intermediate days of a festival, then the Torah said that the Sages will determine it. But the Sages cannot come on their own and determine things; there needs to be a source. And this depends on the dispute between Maimonides and Nachmanides regarding “do not turn aside,” but their claim is that there has to be a halakhic source. Without a halakhic source there cannot be a prohibition.

[Speaker K] The laws of civil order did not define a prohibition.

[Rabbi Michael Abraham] Exactly. So Rabbi Berkowitz says: there is no difficulty at all. What’s the problem? After all, the laws of civil order do not define a prohibition; they only determine who owns what. Those are just definitions. The prohibitions are indeed only prohibitions of the Torah. The Torah said that it is forbidden to steal, and thus the prohibition was created. Before “Do not steal,” there is no prohibition; there are only proprietary definitions—which property belongs to whom. The prohibition is exclusively halakhic. That’s not correct. It’s not correct logically, and it’s also not correct in Rabbi Shimon Shkop; it is clear that Rabbi Shimon Shkop does not say that. Why not? Two proofs. First proof: Rabbi Shimon Shkop wants to argue—there is a dispute among the medieval authorities (Rishonim) about what happens with stealing from a gentile. Is stealing from a gentile forbidden by Torah law or not? Is it included in “Do not steal”? Okay? Now he says that even according to those medieval authorities who say it is not included in “Do not steal,” there is still a Torah-level prohibition against stealing from a gentile. Stealing from a gentile is forbidden by Torah law even if it is not because of “Do not steal.” Because of what? Because of the laws of civil order, since ownership exists for a gentile too, right? So therefore, once you take from the gentile, you have violated a legal prohibition of theft even if you have not violated the halakhic prohibition of “Do not steal.” For example—a practical difference, although not necessarily a practical difference, but this is the practical difference he brings—this is relevant to “yours.” If I take a citron from a gentile, according to the one who says that stealing from a gentile is not forbidden by Torah law, do I fulfill the requirement of “it shall be yours” on the first day? He argues that because of this principle, no. Now, in order to say that, you don’t need to say that there is a prohibition; it is enough to say that it is not yours. It could be that there is no prohibition in taking it, but yours it is not, and so the requirement of “yours” is not fulfilled here. But he apparently wants to argue that this is also the meaning of the prohibition. So it is clear that Rabbi Shimon Shkop understands that there is also a legal prohibition, not only a legal definition. There is a prohibition against taking money that is not yours even without “Do not steal.” What is that prohibition? It is a legal prohibition. Which means that the legal order can also generate prohibitions, not only definitions. Okay. Second proof: Rabbi Shimon Shkop himself asks in the name of the Tosefta in the second chapter of that same gate. In the name of the Tosefta: why in the world should one obey something that the Torah did not command? He himself asks that question. Now, if this were only a definition, then what room would there be for that question? There is no question; it’s only a definition, so really there is no need to obey or anything. These are the laws of acquisition. Obedience is required only because of “Do not steal.” “Do not steal” tells you: do not take something that is someone else’s property. But the very definition that this is his property or not his property—what does that have to do with obedience? What question is there here? If Rabbi Shimon Shkop asks this, it means that he understands that behind the definition that this is yours there is also a prohibition against taking it from you, and regarding that he asks: why, without “Do not steal”? What does he answer, by the way? He answers like a good Jew—he answers a question with a question. He says: what? Before you ask me why obey what the Torah did not command, ask me why obey what the Torah did command. And if the Torah commanded, so what? Why obey? Because reason says that one must obey if the Torah commands? Then reason also says one must obey this. Reason is stronger than the Torah; he thinks that the Torah has to be grounded in reason. The other way around—reason is the basis for the authority of the Torah. So if there is something that reason gives us and it is not written in the Torah, it is still binding. The mouth that prohibited can also prohibit additional things, right? That is his answer. But for our purposes, we see that Rabbi Shimon Shkop claims there are also obligations that emerge from legal order; it is not just pure definitions. Okay? Now what does this mean for our issue? I want to argue that what this really means is that a legal system exists—in a functioning society there is a legal system—and the Torah gives it de facto endorsement: you have to obey the legal rules customary in the society of which you are a member. It is binding; the Torah requires you to obey the law operative in the society in which you live and act. But the other side of the coin is that where there is a corrupt society, a broken society, a society in which no enforceable legal system is defined, then there will also be no “Do not steal.” “Do not steal” exists only where there is a legal definition of the laws of acquisition—what belongs to whom. But where the legal layer does not exist, as in the ghetto, then any Ukrainian child can shoot you and take everything that belongs to you. There is no problem at all; it is not forbidden by law—it is a commandment. In a place where the whole thing is ownerless chaos, where there is no enforcement of any legal system, there is nothing. So this is a society that does not operate under the canopy of a legal system. In that kind of society there are no laws of civil order, there is no ownership. If there is no ownership, then there is also no prohibition of theft. The prohibition of murder still exists, but not the prohibition of theft. And therefore I think this is the reason Rabbi Gibraltar says that ownership in the ghetto lapses. The concept of ownership does not exist there. This is not the law of property swept away by the sea; it is not part of Jewish law. It is something that precedes Jewish law. It is something that says that Jewish law itself is based on addressing a group that conducts itself according to proper legal rules. But where there is no proper legal system, then it is not relevant, and so the laws of “Do not steal” do not exist there either. Exactly like the Maharibasn. Where the laws of acquisition say this is mine, I do not worry about “Do not steal.” Where there are no laws of acquisition and nothing belongs to anyone, there is also no “Do not steal.” There is no “Do not steal,” because “Do not steal” comes to anchor the laws of acquisition that already existed before it. But if they do not exist in a corrupt society, there is no “Do not steal.” By the way, I want to claim even more than that: I want to claim that there would also be no betrothal in such a society. A society that is corrupt on the level of personal status, not on the proprietary level. A society in which a relationship has no meaning at all, everyone does whatever he wants with whomever he wants—even if someone betrothed a woman according to the law of Moses and Israel with two witnesses and everything was in order, she is not his wife. Because there is a legal infrastructure—the legal part of Jewish law is Even HaEzer and Choshen Mishpat. Yoreh Deah and Orach Chaim are the halakhic part, let’s call it that. Even HaEzer and Choshen Mishpat are the legal part. What does it mean that this is the legal part? It means this is the part that comes to regulate the legal conduct of a society, as in any functioning society. In Jewish society, that is Choshen Mishpat and Even HaEzer.

[Speaker C] So my claim is, she cannot—

[Rabbi Michael Abraham] marry again; it won’t help her. If she arrives in a functioning society—yes, yes—it is forbidden for her to marry again. I want to claim that she is not his wife. By the way, that is the reason why the Sages can annul betrothal. How can the Sages annul betrothal? What do you mean? “Anyone who betroths does so subject to the will of the Sages”—that’s a stipulation. There is an idea that it is not a condition, not a stipulation. If the one betrothing is wicked—on the assumption that the Sages would agree? If someone betroths a woman against her will, against Jewish law, then the Sages annulled it. And he is not betrothing on the assumption that the Sages will agree; after all, he is wicked. What? No, but that works fine if he betrothed with money; what about someone who betroths through intercourse? The Talmud itself asks this in Ketubot. It speaks also about betrothal through intercourse, not only betrothal through money. What is this? There is no ownership of the woman; one does not own the woman. They annul the concept of betrothal. In society, the concept of betrothal and the concept of ownership—these are legal concepts. Every legal system regulates personal status and regulates monetary law, right? That is the legal system everywhere. In Jewish law too it is like that. But for this there must be proper legal conduct, and the accepted legal norms in that society are the infrastructure on which Jewish law is built. If a certain society were to decide that among us there is no such thing as a relationship at all, then even if you perform betrothal according to the law of Moses and Israel, she will not be your wife. Because legal patterns are patterns that first of all need to be accepted by society, and then Jewish law comes and gives them halakhic endorsement. But if within society itself this does not exist, then it will not have halakhic endorsement either. And I want to claim that where society annuls the betrothal, where it says—the Sages as representatives of society say—we do not recognize you as a married couple; once society does not see you as a married couple, Jewish law will not see you that way either.

[Speaker P] Maimonides in the introduction describes the situation before the Torah as the one that… the situation was X and the Torah came and made it Y—that is a situation that allows, a situation that…

[Rabbi Michael Abraham] What that Maimonides says is exactly what I am saying here. What Maimonides says is that the Torah comes and gives endorsement to what already existed before. Otherwise, why should I care about all the history he describes there? Before the giving of the Torah, a man would meet a woman in the marketplace and so on, bring her into his home, and they would live together. Until the Torah came and gave the law that betrothal must precede this. What does that mean? It means that the concept of marriage exists in society even before the Torah. The Torah comes and regulates it in a certain way, the way it wants it to be conducted. But if there is a society in which the concept of marriage itself did not exist, then there would be no betrothal there either. The Torah directs existing legal institutions in the way it wants them to operate. But if on the social-legal level it does not exist, then the regulation that the Torah makes is not relevant. That is why Maimonides introduces it. This has many implications. For example, what would happen today if a married couple lived together as common-law spouses without betrothal? I claim there is halakhic recognition of that. They are married without betrothal. They are married with the marriage of the descendants of Noah—with the marriage that existed before the Torah was given—and that has many halakhic implications. And vice versa: if someone, say, canceled the betrothal in some way, that still does not mean they are not married. Or if someone canceled the marriage, that still does not mean they are not betrothed. These are two stages that can appear one without the other. “From the moment he set his eyes on divorcing her, he no longer has rights to the produce,” right? A dispute of tannaim there in Gittin 17. Gittin 17. What does it mean he no longer has rights to the produce? Why does he not have rights to the produce? He does not have rights to the produce because from the moment he set his eyes on divorcing her, they reverted to merely being betrothed. The marriage was canceled. They are no longer a couple on the human level. On the halakhic level he must dissolve the bond, so he has to give a bill of divorce. But the marriage no longer exists. For example, if he is a priest, he no longer becomes impure for her. That is what the Rashash and Rabbenu Tam in Bava Batra and others say. Meaning, actually, I think that Maimonides is a good example of what I am saying. In any case, for our purposes, what I want to say is that what stands… What?

[Speaker Q] Is the child still considered a mamzer?

[Rabbi Michael Abraham] The child is not a mamzer in any case, only if she is a married woman. An ordinary child born to an unmarried woman is not a mamzer.

[Speaker Q] No, I mean if she had previously been—

[Rabbi Michael Abraham] and had not been divorced?

[Speaker Q] No, so what? No, I mean she was with another man and then she is with him.

[Rabbi Michael Abraham] Once she left the other man, she is no longer his wife. What do you call divorce among the descendants of Noah? She simply leaves his house. They simply stop living together, and that is called divorce among the descendants of Noah. All the formal regulation is halakhic regulation that exists only among Jews. That is betrothal on the one hand—money, document, and intercourse—and divorce through a bill of divorce on the other hand. But that is all on the formal level. On the human level it happens the way it happens among the gentiles: she left his house. Yes, exactly. Fine, in any case, for our purposes, I need to shorten things now; I see we are already finishing, we need to finish. What I want to say is that the conceptualization I am trying to propose for Rabbi Gibraltar’s claim is this conceptualization, which is based on Rabbi Shimon Shkop. When he says that the concept of ownership does not exist in a situation like the ghetto, I can offer a halakhic conceptualization for that. It is not within the ordinary halakhic rules. Because this is a meta-halakhic analysis. It is an analysis that asks what happens on the layer that underlies Jewish law—before Jewish law. Yes? But still, it seems to me that this is what underlies his claim. And if that is so, then it seems to me that we have fairly good testimony from someone who lived through such a situation for my claim, which arises from Rabbi Shimon Shkop’s words—or perhaps one step beyond, after I accept Rabbi Shimon Shkop’s claim and his words. And if that is so, then I think it is definitely possible to take this thing, this conceptualization, and in fact incorporate it into Jewish law, and now understand that this truly is the halakhic view, with all its implications. And it has implications also in the conduct of ordinary Jewish law, not only in extreme situations. As I said earlier, “from the moment he set his eyes on divorcing her, he no longer has rights to the produce”—all kinds of things that have many implications. Okay? Fine, I’ll just remind you of what I did in the previous semester—for whoever was there—we spoke about labor not needed for its own purpose, and there too there was a responsum by Rabbi Oshry in From the Depths, and there too I showed the same thing. What he is really doing there is some halakhic discussion whose basis is in fact acting against the Jewish law. He is not accepting the Jewish law. But in the situation in which he lived, it was clear that this was probably the correct ruling. He writes that himself. After the whole halakhic discussion he says: forget the whole halakhic discussion, this is obviously a case of saving life, and everything is permitted. What are you asking me whether it is permitted to do this on the Sabbath or to do that? Whatever you can do so that you will have a little more food in order to survive—you are permitted to do. So what did you do there for three or four pages, with halakhic discussion and medieval authorities and later authorities and discussions and laws and distinctions and so on? He did it in order to show that this whole story is not relevant to this extreme situation. But I want to argue, in the next step, that we need to take this extreme situation and see how from it we can extract further principles and bring them back into ordinary Jewish law, so that the next decisor who finds himself in such a situation will already have ready-made tools to make decisions in the situation he is in—or at least more tools. It may be that there will be some new uniqueness there.

[Speaker B] Isn’t that a side tool?

[Rabbi Michael Abraham] On the contrary—to incorporate what he says into… yes. Fine, that’s it. I’ll upload the two articles to the page; whoever wants can read them there in greater detail. Have a happy Joshua Day, everyone, and have a good week.