Study and Halachic Rulings – Lesson 4

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[Rabbi Michael Abraham] The calculation itself is a description of the principles of Jewish law in mathematical language. These are indeed halakhic principles; I’m just describing the halakhic principles in mathematical language. So what? I could also have described them in Portuguese. So in the end, the claim that comes out of this whole discussion is that there are things that are needed for the sake of issuing a halakhic ruling. Sometimes they’re even considered perhaps part of halakhic study or engagement with Jewish law, but you can’t call them Torah study; you can’t relate to them as Torah study. In this context, in that same context, I already spoke in the past about what I called the historical accident of the loss of monarchy. And that caused an even greater blurring of these domains, between Torah and Jewish law, and so I want to go into that a little bit in order to sharpen the point further. There is a section in the Shulchan Arukh, both in Choshen Mishpat and in Yoreh De’ah, that deals with laws relating to the way a community is run. How decisions are made in a community, how taxes are divided, how people share in public expenses, public protection, and the like. I mentioned this a bit in the last column I wrote. And those laws were born there; really, the discussion and engagement with those laws began in the Middle Ages, even at the beginning of the early Middle Ages. Around the tenth and eleventh centuries it began, and it more or less crystallized by the time of the Shulchan Arukh in the fifteenth-sixteenth centuries. And what caused this was that, beginning from the fifteenth century—sorry, beginning roughly from the tenth century—up until the tenth century, the Jewish people lived mostly in Babylonia. But even though this was exile, in Babylonia there was some kind of state framework, you could even say a national-state framework, within which the Jewish people functioned. Meaning, there was a judicial authority and even a secular authority, the Exilarch, who in quite a number of periods received some degree of autonomy from the ruling kingdom there, and he had authority to manage Jewish life. Yes, he was the head of everything, what you’d call the head of the community. And there were sages there and there were hierarchies, the great academies and local religious courts, and there were appeals—they sent questions, they raised questions upward to the Torah scholars in the great academies: Sura, Nehardea, Pumbedita, and so on. And in the tenth century this whole arrangement began to disperse. This story about the four captives, yes, who somehow began to spread the Jewish world across the globe—four Torah scholars whom robbers captured, took as slaves, sold in North Africa, in Germany, in France, in—I don’t remember anymore—four places. And in every place the Jewish community redeemed them, and then they remained in the place where they had been redeemed, and established some sort of communal leadership—sorry, Torah leadership—for the existing communities. And that’s how Jewish communities throughout the world outside Babylonia really began to form. Now, it doesn’t matter to me at the moment what the historical background of that story is, and to what extent Rabbi Chushiel, the father of Rabbeinu Chananel for example, was one of those captives, one of those four captives—that’s the story, I don’t know exactly. In any case, for our purposes I’m saying that this story essentially reflects a process that certainly did happen historically, regardless of what happened with those captives. And that is the process of dispersal from Babylonia to the rest of the world, mainly Europe and also North Africa and other places, to the rest of the world. And then what happened was that various Jews arrived in various places, but they were no longer under some large national umbrella as they had been in Babylonia. In Babylonia there were various communities organized into regions, the regions were organized under the Exilarch and the great academies. Okay? There was some form of internal Jewish governmental-judicial autonomy, and everything was built in a kind of hierarchy, like in the Land of Israel in certain respects, like what’s supposed to exist when we are independent. Not entirely, but there were elements of that. In the tenth-eleventh centuries this began to fade away, because people reached all kinds of places and each community stood on its own. Some had a rabbi, some didn’t have a rabbi, some knew how to read, some knew how to write, and some apparently knew neither. And so it spread throughout the world, and then questions began to arise. How do you run a community? What authority do the decisions of community representatives have? The seven good men of the city, right? How are the seven good men of the city chosen? How do they make decisions? Do we go by the majority when there is an argument or a difference of opinion, or do decisions have to be unanimous and the majority has no significance? All sorts of questions of that type came up. There’s a book by Haym Soloveitchik called Responsa as a Historical Source; yes, he’s a history professor, the son of Rabbi Soloveitchik, and that book basically tries to teach how one extracts insights or historical understanding from responsa. And the subject around which that book revolves—it’s a textbook. By textbook I mean for study at the university. And that book revolves around these questions of communal enactments. Meaning, how this whole matter of communal enactments took shape. Now, the book begins with some argument he conducts there. There was some article in a historical journal called Zion, I think, by Ben-Zion Dinur—maybe, I don’t remember anymore who—no, no, by Baer, sorry, not Ben-Zion Dinur, by Yitzhak Baer, the historian. He spoke there about the influence of Roman law on Jewish law. How various patterns of decision-making from Roman law entered into the structure of the community and the way the community functioned, for example that one follows the majority and so on. And Haym Soloveitchik, together with some other very Jewish Jews, strongly objects to those statements. Yes, yes—completely religious. He objects to those statements and argues, what do you mean? We invented “follow the majority”; we go by the majority, and so on. What do you mean, we don’t need to learn that from Roman law or from anyone else. And he tries to show how this worked within Jewish law, supposedly internal mechanisms of Jewish law created this thing and not outside influence. Now, I’m not an expert in Roman law and I’m also not a historian, but in this debate it seems to me that Baer is actually right and not Soloveitchik. Or at least partly right. And the reason for this is that decisions about how to run a community were not really learned from “follow the majority” or from halakhic sources. One of the indications of this is that the view of Rabbeinu Tam, for example, is that decisions in a community must be made unanimously. A majority decision has no force; it does not bind the minority. Decisions must be made unanimously. And most of the medieval authorities (Rishonim) disagree with him. Rashba and Rosh and Tashbetz—there are responsa about this—Or Zarua; there are quite a few responsa among the medieval authorities (Rishonim). There were various disagreements. I’m saying, this crystallized and was institutionalized finally around the time of the Shulchan Arukh, until it actually entered the Shulchan Arukh. But the other medieval authorities (Rishonim) who disagree with Rabbeinu Tam—I first encountered this in Menachem Elon’s book, Hebrew Law, where he discusses these topics at length. And there he brings various statements by medieval authorities (Rishonim) as to why one really should follow the majority in communal decisions. And almost all of them bring the verse “follow the majority.” But almost all of them, after bringing the verse “follow the majority” in order to say that the majority decision has authority, that the majority decision is valid, basically say: and besides, it’s impossible to function any other way. If you don’t go by the majority, you can’t make any decision; there will always be someone who objects, and you can’t run life if you don’t give force to the majority decision. Now the question is why all of them—and it’s all of them, really Rashba and Rosh, all of them, in all the responsa, you see this in a very systematic way, very consistently—why did they need to add that? “Follow the majority”… In a religious court, if someone says why you should go by the majority, you say “follow the majority,” and that’s it. Why do you always need to add, and besides, you can’t manage otherwise? It seems that they themselves understand that the verse “follow the majority” is not really a decisive argument against Rabbeinu Tam’s position. Rabbeinu Tam also knew that verse, and he knows how to manage with that verse despite the fact that he thinks you do not go by the majority in community decisions. And why? I spoke about this in other contexts; I said that the verse “follow the majority” says that in a religious court, when there is a difference of opinion, one follows the majority. So the Sefer Ha-Chinukh explains that this is because the majority hits the truth—or has a higher chance of hitting the truth—and therefore we follow the majority. In community decisions, the purpose of the deliberation is not to reach the most correct decision, the truth. That’s not what the discussion is about. The discussion is about what the public wants, even if it’s not correct, but that is what the public wants, and the assumption is that the community… Fine, since that’s so, once there is a difference of opinion, then Rabbeinu Tam says: if there is a difference of opinion, then there is no such thing as the will of the public, there isn’t one single will of the public, because there are differing opinions. And what is written, “follow the majority,” is not relevant here. Why? Because “follow the majority” does not come to say what the public wants; it comes to say what is correct. And the claim is that the majority comes closer to the truth than the minority. But when the issue is a democratic majority, the question is not how to hit the truth, but how to do what—or what the public wants, how we want to know what to do. Therefore, that’s how I explained why Plato’s question about rule by philosophers does not require answers. It has all kinds of answers, but I say the whole discussion is unnecessary; the question itself is wrong, so you don’t need the answers either. It’s a misunderstanding of Plato’s question: why not give power to philosophers, why have democracy? And the answer is because you assume that the goal of democracy is to reach the most correct decision. Hand the wheel to the wise, and that will bring you to a more correct or better decision than if you give voting rights to everyone. But if the goal of voting is not to reach the most correct decision but to know what the public wants, even if that’s not the most correct thing—what does the public want? Because we assume that what should be done is what the public wants. In that situation there is no reason in the world to let the wise make the decision, because as far as my rights to influence what my community or my state does, there is no difference between me and the greatest sage imaginable. What difference does it make whether I am wiser or less wise? Every person has an equal right to influence the decisions made by the community. And therefore the question why not give rule to the wise as philosophers is a question that doesn’t even get off the ground in the democratic context. In the context of a religious court it does arise, because in the context of a religious court the Sefer Ha-Chinukh really writes, after explaining that following the majority is because the majority is more likely to reach the truth, he then really says: but if you have a religious court of three, and one is a great sage and the other two are much lower than him in Torah level, then in fact you do not go by the majority. You count heads and not feet—that’s a phrase I’m fond of in this context—and therefore you do not go by the majority, because the purpose of the majority is to arrive at truth. If the majority does not lead me to truth, then why should I follow the majority? That is exactly Plato’s assumption: let the wise run the matter, don’t go by the majority or don’t vote. But a democratic majority is not like that, because in a democratic majority the goal is to know what the public wants, not to know what the truth will be. Therefore a democratic majority has nothing to do with the verse “follow the majority.” The verse “follow the majority” gives you a way to conduct yourself so as to be as close as possible to the truth. But with a democratic majority that’s not what I’m looking for. So Rabbeinu Tam says: so why are you bringing me the verses of “follow the majority”? What’s that got to do with anything? It’s not relevant. The decisions made in a community are non-halakhic decisions, this is not a religious court; these are decisions about community policy, what institutions to establish, how to distribute the economic burden among the members of the community, and so on. So in such a place there is no room for “follow the majority”; in any case, you don’t have the novelty of “follow the majority” that the majority can determine, and therefore he says that if there isn’t unanimity you can’t do anything. Of course, if the entire public agrees to go by the majority, I assume that even Rabbeinu Tam would agree. Meaning, if I myself agree to go by the majority even in cases where I myself disagree with the content of the decision, I assume Rabbeinu Tam would accept that too, that’s fine, because that is still unanimity. But I’m saying, in a place where there are people who are unwilling to accept it—yes, this is very current, or was current until two months ago, because that was exactly the argument. But for our purposes, what do the medieval authorities (Rishonim) who disagree with Rabbeinu Tam say? They say: you’re right in principle, “follow the majority” by itself cannot tell me that in community decisions we follow the majority. But it’s impossible to manage otherwise. What are you going to do—not make decisions? There are communities that need to function; we are no longer within a state framework, communities need to function, there is no one to dictate to them what is right and what is not right, they need to make decisions themselves, they are already functioning autonomously, not under some kind of national umbrella, let’s call it that, or any sovereign framework. So in such a situation you have to equip them with mechanisms that will allow them to make decisions and function. Now if you don’t allow the majority to decide, it is impossible to function that way. Therefore they say: look, it’s “follow the majority,” and besides, there was no other way to manage. Meaning, “follow the majority,” as Menachem wrote here earlier, is a kind of asmakhta, a textual support, but not really. It’s not really learned from “follow the majority.” What they are really saying is: it’s impossible to function otherwise. Rabbi, is there…

[Speaker B] What? There’s Rabbi Del Nadel who says regarding majority why we follow the majority, because a person always goes by the majority in everything. When he sees a plate—he sees a plate of rice with beans—he says: that’s a plate of rice. Because that’s how a person is built. He calls it kind of the person’s subjective majority. There it would actually fit.

[Rabbi Michael Abraham] I know the idea; I don’t agree with it, because it fits better with “most of it is like all of it,” not with following the majority. “Most of it is like all of it,” or nullification in the majority. But following the majority, in my view, no. What? Not only in opinions?

[Speaker B] No, only in mixtures and not in following the majority of opinions.

[Rabbi Michael Abraham] Exactly. In any case, fine, that’s a dispute I have with some later authorities (Acharonim) too, about how they explain “follow the majority” in a religious court. It doesn’t matter right now. In any case, the claim is that there was some discussion here that actually did not deal with Jewish law. After all, the question of how to make political decisions in a community or a state is not connected to Jewish law. It’s a question of how to function on a social level. It’s not a Torah question. It’s a question of how a society conducts itself. That’s all. And the answer to that question too, as we just saw, is not given out of halakhic sources. It’s this sort of reasoning that you can’t function otherwise. Any non-Jew would tell you that reasoning too. You don’t have to be a great Torah scholar for that. It doesn’t come from verses and not from the Oral Torah and not from anywhere else. It simply comes from sages who say: listen, that’s what logic says, and therefore act this way. That’s all. So in such a situation I think that this kind of ruling that appears inside the Shulchan Arukh—notice this—what do you mean inside the Shulchan Arukh? Along with responsa literature, all the great halakhic decisors dealt with it. In my opinion this is not Torah. Not only is it not Torah, it’s not even Jewish law. Here it’s more than that. Earlier I said there are things that are Jewish law but not Torah. Here I’m saying not only is this not Torah, it isn’t even Jewish law. Because all in all, if we arrive at some other conclusion or choose another way to function—for example, if we were to decide that we want specifically a seventy percent majority, and not just any majority—there’s no problem at all. If the community decided that, it has every right. It can determine for itself how it functions in whatever way it wishes. Now, they asked the Rosh, Rabbeinu Tam, Rashba—when they asked them these questions, there had been no determination and no agreement in the community. So they said what they thought made sense to do. Fine, no problem. If my own logic works differently, then I’ll do it differently. They didn’t say anything here that has to do with Torah. They said what their logic tells them, and that’s perfectly fine. Wise Jews, all good. But their logic does not obligate me. If I think differently, I’ll do differently. So in my opinion this whole domain is not only not Torah, it isn’t even Jewish law. Meaning, it’s not even binding. It’s just something that—our own eyes can see this. Look at how communities are run today. Does anyone even imagine opening the Shulchan Arukh to see how communities should be run? There are some sections in the Shulchan Arukh. Has anyone ever—I don’t think I’ve ever seen in my life—reference to how a community is run through a section of the Shulchan Arukh or a paragraph in the Shulchan Arukh, even though such sections and paragraphs exist. Whether decisions are made this way or another way, how taxes are divided. Did anyone ever think to learn from Bava Batra chapter 1 or the parallel passages in the Talmud / Talmudic text and in the Shulchan Arukh how to divide the tax burden in the State of Israel? I’m not talking about people who are not committed to Jewish law. I’m talking about people who do want things to be run according to Jewish law. Why don’t they try to pass a law dividing the tax burden according to Bava Batra chapter 1?

[Speaker B] But Rabbi, the Jewish law is, as it were, to go according to what the public wants. That is Jewish law, right? To act according to the custom of the land—that’s Jewish law. Okay. So then, if we ask the public what it wants, and the public wants A, is it permitted to do B? Meaning, is it considered a halakhic matter to do what the public wants?

[Rabbi Michael Abraham] No. You can’t do B if Jewish law says to go according to what the public says.

[Speaker B] So it is considered halakhic. Right. So dealing with this is halakhic; it’s just that what it contains is according to the public.

[Rabbi Michael Abraham] No—what’s halakhic is not the engagement with what the public wants, but the determination that what the public wants is binding. That is Jewish law. Now, to go and check what the public wants—what does that have to do with Jewish law? Let them do what they want. Again, that’s the same distinction I made earlier. The claim is that… Like with “do not dev…” well, we’ll see in a moment actually. The point is that, like state law: when I study law, what I’m really studying is what the public determined. But that doesn’t mean I’ve now studied Torah. On the other hand, clearly, in order to issue a halakhic ruling, I need to know this, because this is the infrastructure on the basis of which practical Jewish law is determined. But that is not Torah study. I claim it’s not even Jewish law in the sense that if the law changes next year, would there be any value in studying today’s law? I mean Torah value. No, none at all. It would no longer be relevant even for issuing halakhic rulings, because the law would be different. Therefore there is no holiness in it; in that sense it’s not even Jewish law. It’s true, as of today you need it in order to issue a halakhic ruling, but essentially it is only a clarification of the circumstances. It’s not really something with significance even on the halakhic level—not only is it not Torah—and there is no holiness in it whatsoever. Meaning, next year they’ll change the law, no problem, then there will be a new law and now it will determine what we do halakhically. It has no real connection to Torah. It is not… In a certain sense, yes, it is not even Jewish law, as I said earlier. Even though yes, it is required in order to issue a halakhic ruling. I want to make the same claim, basically, about the discussions of communal enactments. Discussions of communal enactments are very similar to the study of state law. It’s just that there it wasn’t the law of a state, but a law established by various Torah sages, Rashba and Rosh. But that’s not important, because functionally what they were really doing there was establishing the law. They were not establishing Jewish law, and Jewish law recognizes the law. Fine. But they established the law. Where is the practical difference? What happens if I think differently from the Rosh and the Rashba? There is no problem at all—then I will do… It’s like changing the law, or I think what they say is not right for today, not relevant for today, or I simply disagree with them even regarding what was done then, it doesn’t matter. There is no problem with that, right? It’s not something I’m supposed to preserve; there is no holiness in it, nothing special about it. That is their reasoning, and either I agree or I don’t agree, or I change it or I don’t change it. As long as it exists, we’ll act according to it; if I want to change it, we won’t act according to it.

[Speaker D] But when they established the law, they established it according to halakhic principles, no? And then…

[Rabbi Michael Abraham] No, you can see that they didn’t. Meaning, “follow the majority” is a kind of textual support; basically they said you can’t function otherwise. “You can’t function otherwise” is not a halakhic principle, it’s a universal principle. Every person understands that,

[Speaker E] and not

[Rabbi Michael Abraham] for nothing are all the states in the world run… not all states, but many states in the world are run according to the will of the majority. People concluded that you need to be governed by the majority. That is the most sensible way to represent what the public wants. That’s all. And if I have another way to represent what the public wants—not majority—I’ll do that. For example, let’s say in a place where there is a dispute between the majority and the minority, and for the minority this matter is extremely, extremely important, and for the majority it isn’t. Would we still go by the majority there? It’s not obvious. There is room to say that one should weigh not only how many people support an opinion, but also how important it is to those supporters. If there are a hundred people in a group, all right? Ninety people want to do X, and ten people don’t want to do X, but for those ten people doing X is a matter of martyrdom, a violation of the roots of their souls. Okay? There is certainly room to say that in such a situation we would not follow the majority. Because it is extremely important to the ten, who are a minority, whereas for the majority it is not all that dramatic. It can be done, it can be left undone, not a big deal. We think it’s worth doing, but it’s not a big deal. Someone could come and say that in such a situation it is not right to function according to the majority; you need to take the minority into account because it matters to them enormously. Or in other words, the majority you follow is a weighted majority. It’s the number of opinions that support the position multiplied by how important it is to those supporters. And the product, the result of that multiplication, is what will determine whether we do X or do not do X. A proposal, for example. Okay? So would anyone say that it isn’t legitimate to do that because the Rosh and the Rashba said one has to follow the majority? No. Why not? Because what they said, that one should follow the majority, is just guidance of common sense, of straight thinking. And common sense no less says that in such a situation you should not follow the majority. There is no… this is not a Torah dispute. I don’t need to relate to the authority of the Rosh and the Rashba, even if they had authority, even if they were the Sanhedrin. It changes nothing. It simply is not part of Torah, it is not part of Jewish law, it is not something I need to enter into as a beit midrash discussion. It’s not relevant. Therefore, as far as I’m concerned, those sections that entered into the responsa and the Shulchan Arukh ought not to be there. It should be an appendix to the Shulchan Arukh. It is not Shulchan Arukh at all.

[Speaker B] Rabbi, but if the majority decides, and let’s say the majority decides not to take the minority into account, then is the minority still bound by the majority?

[Rabbi Michael Abraham] The majority decides not to take the minority into account? You know, that’s circular. On the question whether to take the minority into account or not, once again there’s a dispute between majority and minority. Why on that question should you go by the majority?

[Speaker B] Because the majority decides. So I don’t understand.

[Rabbi Michael Abraham] Our whole discussion is about that—does the majority decide? That’s what the discussion is about.

[Speaker B] Yes, but the majority decides—what does that mean? It means that if I need to make a decision, like what is the custom of the land? How do I know what the custom of the land is? Look at what…

[Rabbi Michael Abraham] Again, if you’re talking about in monetary law everything follows the custom of the land, then you are right, because “everything follows the custom of the land” in monetary law is not a political decision. In monetary law, “everything follows the custom of the land” is a halakhic decision, it’s a halakhic principle. So there, clearly, I look at what the custom is and that is what binds, unless I made a stipulation. I can stipulate against the custom, and if I did not stipulate, then everything proceeds according to the custom and even if I don’t agree, that’s beside the point. Obviously. I am talking about political decisions. Political decisions are not a halakhic issue at all; it’s not a halakhic question.

[Speaker B] And is there no halakhic issue of not separating from the public? Does that not exist?

[Rabbi Michael Abraham] No, as long as…

[Speaker B] “Do not separate…”

[Rabbi Michael Abraham] Define the public. What is the public? Whatever the majority says is the public? Why?

[Speaker B] If there is a public that is a majority—the majority of the country is public A—and there is a minority that is public B.

[Rabbi Michael Abraham] Why did Rabbeinu Tam say it has to be unanimous? Doesn’t he know that one may not separate from the public? He thinks a majority is not “the public.” The question is how decisions are made. What does “do not separate from the public” mean? I object to this decision, I don’t agree with it—what does “do not separate from the public” mean? This is not something neutral. Yes, the majority of the public wants to take money from me just because it feels like it. “Do not separate from the public”—I’m supposed to pay them because they decided, the majority decided? It doesn’t work like that. Meaning, the question of what the public wants is something context-dependent, and depends on how you determine what the public wants. And if we have a dispute over how to determine what the public wants, then in that dispute the majority does not decide. You know, it’s like the dispute between Beit Shammai and Beit Hillel. The whole story—the Platonic story—begins with the dispute between Beit Shammai and Beit Hillel, who argued for two and a half years and did not reach a decision. Tosafot explains why not: because Beit Shammai say you have to go by the majority—the majority of wisdom—and Beit Hillel say you have to go by the majority of people. Beit Hillel say you count feet; Beit Shammai say you count heads. Okay? Now there’s a dispute here. What’s the problem? So on this dispute itself, hold a vote and go by the majority. But on that very question itself, the question will again arise: which majority do you follow? The majority of wisdom or the majority of people? You can’t say that on the question whether to follow the majority we will decide according to what the majority says. That is exactly what we are arguing about—whether we follow what the majority says. So you can’t say that on this very question, since the majority said otherwise, we will go by the majority.

[Speaker F] So when does “separating from the public” apply? What? So when does the rule apply that one may not separate from the public?

[Rabbi Michael Abraham] When there is some custom that the public follows, and there isn’t some dispute here—it has been accepted and that is how the public acts—then: do not separate from the public. But where I have a dispute with what the majority says, and I belong to the minority—for example, in Rav’s place they did not eat poultry with milk. Why? Don’t separate from the public.

[Speaker F] Also in places of custom, but sometimes you find a place and it just isn’t— you think it’s wrong.

[Rabbi Michael Abraham] If you think it’s wrong, don’t do it.

[Speaker F] Yes, but again, so when is there a rule of separating from the public? If there is a public where everyone…

[Rabbi Michael Abraham] Do not separate from the public where you don’t have an opposing position. Even in Jewish law one does not simply go after the majority. In Choshen Mishpat, section 25, the Shulchan Arukh has a discussion whether one follows the majority of halakhic decisors. I’m speaking now about a halakhic question, not a political question. A halakhic question: let’s see the decisors and follow the majority of decisors—that is the simple reading of the Rema there. But the Shakh comments there: what do you mean? That’s not right. One does not follow the majority. One follows the majority only perhaps in a case where they sat around a round table like a religious court, deliberated, each heard the other’s arguments, and in the end they voted. In other words, that’s only in a religious court.

[Speaker F] So again, when in the end does the issue apply that I can’t separate from the public, that the public is doing something and I can’t do the opposite?

[Rabbi Michael Abraham] I said: if you have an opposing position to what the public is doing, do what you think, that’s it. If you don’t have an opposing position… don’t separate from the public. Don’t separate from the public where it’s just laziness, where you just don’t feel like it, where… But if you have an opposing position, what, you’re supposed to do what everyone else does even though you don’t think that way? We’ve never heard of such a thing. And in general all customs are like the Jerusalem Talmud says: “If you do not know, O fairest among women, go out in the footsteps of the flock and pasture your kids beside the shepherds’ dwellings.” Yes, in a place where you don’t know, follow the majority. And if you do know, why follow the majority? Do what you think. And I’m speaking about Jewish law or custom, not political decisions.

[Speaker B] And in general every local custom that the Talmud / Talmudic text talks about—say local custom in Bava Batra and so on—there, if there is one person like that, no, he feels, he objects to it, can he avoid following that custom?

[Rabbi Michael Abraham] Again, if it’s a halakhic dispute, and in that halakhic dispute there are two sides, that has nothing to do with customs. It is a halakhic dispute and the question is who is right. “Everything follows the custom of the land” is not in a place where most people think like a certain halakhic view. “Everything follows the custom of the land” is the question whether people customarily build with uncut stone, hewn stone, or small bricks—the wall between two neighbors in Bava Batra chapter 1.

[Speaker B] And all kinds of customary prohibitions—the Talmud / Talmudic text also brings customary prohibitions that one must follow according to the custom of the place.

[Rabbi Michael Abraham] Customs involving prohibitions—anything where Jewish law has nothing to say, then follow the custom of the place. Okay.

[Speaker B] And there if someone doesn’t want to?

[Rabbi Michael Abraham] The custom of the place. But if there is a halakhic dispute—I think it is wrong to build with uncut stone, that it is halakhically forbidden to build with uncut stone—but the custom of the place is to build with uncut stone, I won’t do it. In a place where I don’t want to, or it costs me money, I don’t know exactly because it’s more expensive. If the custom of the place is to build with uncut stone and you did not stipulate anything else, then you will build with uncut stone. Okay? Because—

[Speaker B] I remember a Talmud / Talmudic text where it says there is a custom, there are those who permit and those who prohibit, and in one place they had the custom to prohibit and in another place the custom was to permit. So there the Talmud / Talmudic text says you may not permit in a place where they had the custom to prohibit.

[Rabbi Michael Abraham] You should not permit it to them, but you should do what you think. If they ask you a question, don’t permit it to them. “If one sage prohibited, another may not permit”—that is talking about someone who came to ask a question. But I—if most people think otherwise, am I supposed to do what they think? Why?

[Speaker B] Why would someone

[Rabbi Michael Abraham] have to act according to their view even after Jewish law was decided like Beit Hillel, who were the majority?

[Speaker B] But if I think it is forbidden, why shouldn’t I instruct them that it is permitted? If I think it is permitted, why not instruct them that too?

[Rabbi Michael Abraham] You can’t instruct because there is already the one who instructed them in the law there, and at the moment that is the law practiced there. You can argue with the one who instructed them in the law; you can argue with him and try to show him his mistake. Of course you don’t have to accept what he said. But you don’t issue halakhic rulings to questioners against what their rabbi said.

[Speaker B] So that is going against the accepted local halakhic custom. What? Going against the accepted local halakhic custom, meaning to instruct not according to the custom.

[Rabbi Michael Abraham] If I have a different halakhic position, I whistle at the custom. But if I don’t have a different halakhic position, then I don’t separate from the public; I follow the custom. Even if I do have a different halakhic position, when someone comes and asks me a question, then maybe I won’t issue him a ruling if in his place they rule differently. That’s a different discussion. Not because of local custom, but because “if one sage prohibited, another may not permit,” and don’t enter a place that isn’t yours as a halakhic decisor. Fine. But I myself will do what I think. By the way, even with the Sanhedrin regarding “do not deviate,” there is one who errs with regard to the commandment to heed the words of the sages. If I disagree with the Sanhedrin, then for myself I act differently, though I do not issue halakhic rulings against them. That’s even in an actual halakhic dispute. Fine, but that’s the Sanhedrin, which certainly has authority; that’s not just a custom or the majority or something like that. Fine, but let’s return to our matter. What exactly do I want to claim? I want to claim that there is a whole section of laws here that basically found its way into the Shulchan Arukh even though it is neither Torah nor Jewish law. And also it need not be obeyed; as far as I’m concerned, you could tear those pages out of the Shulchan Arukh and throw them in the trash. They’re simply bound together with the rest of the laws; they do not belong there. And the question is how this happened—so that brings me to the historical claim. I said that in Derashot HaRan he writes the claim that there are two parallel legal systems: there is the king’s law and there is the law of the religious court, the law of the Torah. The king’s law operates by different rules, not according to Jewish law, and the religious court rules according to Jewish law. And in fact, when you read this in generations after Ran, it sounds very, very strange to the ordinary halakhic or yeshiva eye. What do you mean, the king is not subject to Jewish law and he has a legal system and he does whatever he wants? What is this, a lawless world? Ran’s claim—he writes it there—is that the reason this seems strange to us, or why what he says is even a novelty at all, is simply because for thousands of years we have had no king. “We have no king but You,” as it says. How wonderful that we have no king but You. For thousands of years we have had no king, and what happened in the period when there was a king was that the king basically managed ordinary life, and the Sanhedrin or the religious courts managed halakhic life. Political questions, questions of how society is run and so on, were managed by the king. With a legal system, with everything. He had courts, and they determined laws and set rules and statutes, there was legislation and everything, and none of this had anything to do with Jewish law. And in the religious court they conducted themselves according to Jewish law. There are sometimes situations where there is a contradiction between the two. Then one has to discuss when yes, when no, and there is—yes—what is called today a race for jurisdiction, whether one goes to the king’s court or to the ordinary religious court. But for our purposes, the basic division is that the king manages ordinary life and the religious court manages Jewish law. From a certain stage on we lost the monarchy. We lost the monarchy, and then what happened? Yes, the example I always bring in this context is the crash of the Polish plane with the entire Polish ruling leadership not so many years ago. The whole Polish government crashed. What did they do in such a situation? There is no government. So one of the other branches—if I remember right, even most of parliament was there too, I no longer remember the details—one of the branches, I think even the Supreme Court, took authority for itself. It managed everything until they reestablished the three branches of government: the legislative, the executive, and the judicial. It reminds me that there’s a very well-known American film—I forgot its name—about the senator who remained after there was an attack and they eliminated the entire Congress and the Senate including the president, and one senator remained who hadn’t been there at the session, and that was it. He was the only one left from all of Capitol Hill.

[Speaker C] Designated Survivor? Huh? Designated Survivor or something like that. The last survivor.

[Rabbi Michael Abraham] The actor from 24, basically.

[Speaker F] Actually, it’s a nice film.

[Rabbi Michael Abraham] So the concept is exactly that. So what, after all, you can’t leave the place without government, so what do you do? Whoever remains from whatever branch it may be takes all the authorities onto himself and starts managing things so that in the end they can restore the three branches. Okay, that’s roughly what happened in Poland, and that’s also what happened with us. Except that with us it happened in such a way that the branches did not reconstitute themselves; rather all the powers remained in the religious court. Meaning, the religious court took for itself the king’s authority as well, and from then until this very day all secular and religious powers are found in the religious court, with the halakhic decisors, let’s say in today’s terms. After all, there is no Sanhedrin, but there are halakhic decisors. And that is indeed why the presidents of the Sanhedrin were from the house of David. Why? Why does the president of the Sanhedrin need to be from the house of David? “The scepter shall not depart from Judah, nor the ruler’s staff from between his feet.” Yes, both the scepter and the ruler’s staff. So the Talmud / Talmudic text expounds: these are the Exilarchs in Babylonia. Yes, in Babylonia too the Exilarch was from the house of David. Why? Because the Exilarch had to be from the house of David because he

[Speaker F] truly stood in place of the king.

[Rabbi Michael Abraham] The Exilarch— the Talmud in Sanhedrin on page 5 and elsewhere— the Exilarch is basically the king. But why does the head of the Sanhedrin have to be from the house of David? One is from the mother’s side and one from the father’s side; there’s a Tosafot there that makes distinctions, I think, or maybe even the Talmud itself. Why the head of the Sanhedrin? Because the head of the Sanhedrin functioned as a king. There was no king, so the head of the governmental authority of the court also concentrated in his hands the powers of the king, because there was no king. “In those days there was no king in Israel; each man did what was right in his own eyes.” In order for that not to happen, he says, okay, from now on I’m the king. And from that point on, the head of the Sanhedrin functioned both as king and as the head of the authority— both the president of the Supreme Court and the prime minister and the president. He was everything. Okay? For example, the court would repair the roads— a Mishnah in Moed Katan. What is “the court”? The court is the Ministry of Transportation. Why do they need to repair the roads before the festival? Because there was no king, there was no government, there was no secular governing authority. So the court managed life; it also managed ordinary life. What happened is that for thousands of years we got used to this story. And from then until today, basically all the questions we have are directed to the halakhic sage. There was no Great Court, no Sanhedrin either, but there were outstanding halakhic sages: the Rosh, the Rashba, Nachmanides, Maimonides, yes, all the halakhic sages throughout the generations, and people directed questions to them because there was no other governing authority. So when they wanted to check whether they needed to ask how to run a community, obviously the one they should have asked here was not the head of the Sanhedrin but the king. Because the king manages ordinary life, just as the government manages municipalities, local government, okay? So the king is supposed to manage ordinary life, and if a question arises about how to manage ordinary life— how to pay taxes, how to defend ourselves, how to build an army, police, public institutions, all sorts of things like that— that’s the king’s job and the job of his agents. And if there’s some problem in a certain community, they would ask the king, and he would tell them what to do, or the king’s courts would. But I’m saying: the king’s governing system is what manages ordinary life. What you ask the Sanhedrin are questions in Jewish law or in the legal system of Jewish law, halakhic questions. Once there is no king, people also got used to directing ordinary-life questions to the halakhic authority. Once it was the Sanhedrin; afterward it became halakhic decisors throughout the generations. And then they started directing questions like that— questions that are political questions of ordinary practical life— to halakhic authority. Now once the question is directed to halakhic authority, and the answer is written in Rashi script and bound in gold letters, it becomes Jewish law. And what the Rashba writes in Rashi script, with “Responsa of the Rashba” printed outside in gold letters— that’s Jewish law, right? And that’s how it got into the Shulchan Arukh, and that’s how it received some status of Jewish law, and in the eyes of those who deal with this, not dealing with it is neglect of Torah study. Neglect of Torah study— you’re not engaged in Torah, and then you’re not even engaged in Jewish law, because in terms of Jewish law no one is interested in this right now either. Why should you deal with it at all? Sections in the Shulchan Arukh that you can simply throw in the trash. Preferably tear them out of the book and throw them in the trash. It only confuses the public and causes people— “do not place a stumbling block”— to neglect Torah study. So it has no meaning at all. It’s just that we’re used to it. By the way, this whole concept of “Torah opinion,” yes, which developed a lot in the Haredi world, a little in the Hardali world too but even more in the Haredi world, where basically every question is directed to the rabbi— whether to open a kiosk, whether to go study medicine, engineering, or stay in kollel, all sorts of things like that, they go ask the rabbi. Now what does that have to do with a rabbi? Fine, so there are all kinds of explanations, that he has divine inspiration and he doesn’t err and “Torah opinion” and things like that. Where did this start? I think it started from here too. Since all questions were directed to the court or the rabbi or the halakhic decisor, little by little people got used to the idea that there really are no areas outside his range of control. There are no areas that are not questions to be directed to him; everything is directed to him. Political questions, security questions, economic questions, how to behave during COVID— yes, basically everything gets directed to the rabbi. And so it developed into the absurd growths we see today. But the source of this mistake, the source of this process, begins with that historical accident I described here. And this whole story interests us in the context of this series because it shows us the mechanism by which things that are connected neither to Torah nor even to Jewish law in the essential sense enter into the books of the Oral Torah, the books of Jewish law, and occupy us in the study hall. We are basically studying this and convinced that we are studying Torah, and we recite the blessing over Torah study for it— and that’s a blessing in vain, reciting the blessing over Torah study for it. This is not Torah, and it is not Torah study, and it is nothing of the sort. You can study it the way you study, I don’t know, Plato’s political theory or various thinkers with different political doctrines, philosophers of various political doctrines— it’s exactly the same thing. You’re simply studying the political doctrine of the Rashba or of the Rosh, or how to run a state— bureaucratic doctrine, if you like— of the Rosh and the Rashba. Fine, you’re allowed to study them; it’s no worse than Hobbes. Okay? But it’s also no better than Hobbes.

[Speaker G] I asked in the chat: do the later authorities deal with these issues? Do the commentaries on the codes deal with these topics?

[Rabbi Michael Abraham] Yes, they deal with it a bit. A lot of the discussion deals with the question of why it isn’t relevant. They don’t say it the way I say it, but they explain why, in the case you’re talking about, it doesn’t apply— you don’t have to implement this principle.

[Speaker H] But their reasoning is, as if— their basic assumption is that this is a halakhic discussion?

[Rabbi Michael Abraham] Almost always the reasoning is plain common sense. It’s written in Rashba script inside halakhic responsa, but when you look at the content of the things, usually— just as it started, I described how it started— usually these are considerations of common sense. Does it make sense to do this, does it not make sense to do this, does the majority have the right to coerce in such a matter, does the majority not have the right to coerce in such a matter— these are all considerations of common sense. No halakhic sources are brought there, no verses, no midrashim, I don’t know exactly what. Sometimes there’s some illustration from the Hebrew Bible or something like that, but it’s an illustration; it doesn’t start there and it isn’t determined there.

[Speaker E] Were they themselves aware that this wasn’t Jewish law? Meaning, that this wasn’t their intention— the historical accident?

[Rabbi Michael Abraham] I think not. This mistake is one that penetrated very deeply, and it exists among the decisors, not only among laypeople, ordinary people, but yes— it’s considered… Ask anyone: what do you mean? Of course this is an inseparable part of Jewish law. It’s in the Shulchan Arukh, it’s written in Rashi script. You don’t have a greater criterion than that, right?

[Speaker B] But say with the hostage deal now— can you say that there really are halakhic dimensions there?

[Rabbi Michael Abraham] There are some halakhic dimensions that one can raise. I wrote a column about it on my website. But broadly speaking, that was exactly my motto there: these halakhic dimensions are not relevant to the current discussion. In the final analysis, you make decisions according to your common sense, and you’re not supposed to be troubled by any halakhic aspect. Even though you can raise a few halakhic aspects there. Redeeming captives for more than their value— what people always bring there— where does that come from? Again, it’s the common-sense conduct of the Sages. It doesn’t come to them from a verse. They say, listen, use your head. Now if my head today tells me that I do need to redeem them, for the sake of discussion, and to pay more than their value, then I do it. Because common sense is common sense, and the common sense of the Sages does not obligate me. Their halakhic determinations obligate me.

[Speaker F] The statement that “the Torah has concern for the property of Israel” — is that also something of common sense?

[Rabbi Michael Abraham] I assume so. It depends in what context you bring it, but—

[Speaker F] I think so.

[Rabbi Michael Abraham] What do you mean, “the Torah has concern for the property of Israel”? I have concern for the property of Israel. Where does the Torah…

[Speaker F] The Holy One, blessed be He, has concern for the property of Israel.

[Rabbi Michael Abraham] It’s the way decisors express themselves: “the Torah has concern for the property of Israel.” Fine.

[Speaker F] There’s always something where the rabbi always does the opposite of the Sages in the sense that the rabbi never says “the Torah, the Torah, the Torah.” They always spoke in the name of the Torah. The rabbi always says it’s something external; Torah becomes something thin compared to how the Sages presented it.

[Rabbi Michael Abraham] “Thin” — I assume that’s not accidentally my word? I put it right on the table: theology, part of the thin theology is also the thinness of Jewish law. That’s the third book in the trilogy. So when you look at it this way, it seems to me very clear. Meaning, again, if there were a Sanhedrin sitting and setting rules for how to run a community, that would become Jewish law, rabbinic law. Because the Sanhedrin can determine, for example, that one may not eat poultry with milk lest one come to eat meat with milk. Once the Sanhedrin determined that, it becomes Jewish law. On that point there is no problem: rabbinic Jewish law. Because the Sanhedrin has the authority to establish laws. But the Rosh and the Rashba and the decisors throughout the generations are not a Sanhedrin. They did not establish this as law; they expressed an opinion. And when you express an opinion that is entirely common sense, fine, that’s your common sense; I have different common sense. The Sanhedrin has the privilege that what for them is common sense— if they decide to anchor it as law— then it becomes binding law. And that is “do not deviate.” Just as they coerce against the trait of Sodom where Jewish law says the law of the neighboring property owner applies, or “a poor man turning over a cake,” or I don’t know what, or “this one benefits and that one does not lose,” all the topics connected to coercing against the trait of Sodom— once the Sages established this as binding law, it is binding, even though it is only the trait of Sodom, a moral matter. Its source is not connected to Jewish law. But the Sages have the ability to establish that thing as binding law, and now it has force— in the Sanhedrin or in the Talmud, it doesn’t matter— but when an authoritative institution does it, it has the power to take something extra-halakhic and establish it as law. But when a halakhic decisor does it, a decisor is not an authoritative institution. He is not a Sanhedrin; he has no authority vis-à-vis another decisor. So all he can do is express an opinion about how, in his view, one ought to behave. Fine, but that does not turn it into Torah or into Jewish law; it turns it into a recommendation. Okay, so of course the issue of authority enters here too, and that is a technical matter. Once a certain authority establishes it, it becomes binding law. By the way, as I’ll argue later, it becomes binding law, but it does not become Torah. It’s still not Torah. Even though it is binding law, and that’s how one should act. In that sense it’s like state law. You must do it because it has force, but that does not mean the thing is Torah in the essential sense. But that I’ll still have to explain more when I make that argument. Yes, in the Shulchan Arukh, the Rema often brings in ordinances and customs of Krakow. He brings that the custom of Krakow was such-and-such; in Krakow they did not have a menstruating woman touch a Torah scroll. So to this day on Simchat Torah there are all sorts of discussions whether women are allowed to dance with the scroll or kiss the scroll on Simchat Torah or not. It’s simply absurd. Why shouldn’t they be allowed? What’s the problem? Because the Rema wrote in the Shulchan Arukh that the customs of Krakow were that women did not touch a Torah scroll. I don’t know— I don’t live in Krakow, and I’m not especially interested in what they practiced in Krakow, and good health to them. Why should I care what they did there? If there’s a good reason, I’ll do it too— not because they did it in Krakow, but because I too will adopt that custom here. But the fact that this thing was printed in the Shulchan Arukh suddenly turns it into some kind of holy sign. Automatically it’s binding law. It isn’t. I’m not a resident of Krakow.

[Speaker I] Even in Krakow it’s not binding, ostensibly.

[Rabbi Michael Abraham] No, in Krakow there is a custom, so according to the laws of custom, fine, customs also have force— but for the people of Krakow. What does that have to do with me?

[Speaker B] Even really empty customs, do they also have force in their place?

[Rabbi Michael Abraham] Meaning, you mean customs—

[Speaker B] Like, I don’t know, like here, where there seems to be no explanation for the thing?

[Rabbi Michael Abraham] No, a custom is something that by definition has no explanation. If it had an explanation, it wouldn’t be a custom; it would be an interpretation of the law. No—

[Speaker B] There are customs where they explain to you why, what the reason is for doing it this way or that way, but…

[Rabbi Michael Abraham] What reason? What halakhic reason to do it that way?

[Speaker B] It’s not… yes, not halakhically binding, but halakhically… it’s logic.

[Rabbi Michael Abraham] You mean a custom that has no logic whatsoever? Fine, that’s a different sense. There is a category in Jewish law called a foolish custom. And a foolish custom is annulled. But if the custom is not foolish, you just don’t understand the logic behind it, it’s not foolish. It has standing. In order to annul a custom, you have to decide that it is foolish.

[Speaker B] That’s a positive decision.

[Rabbi Michael Abraham] It’s not enough that you—

[Speaker B] don’t understand the logic behind it. But all this is only if the custom was the custom here. But if the custom was in Krakow, why should I care? And if it’s an ancestral custom? What? And if their forefathers’ forefathers practiced not like Krakow?

[Rabbi Michael Abraham] That’s the question of how one defines the parameters of customs. There is ancestral custom; there is local custom. In the simple original sense, customs were local customs and not ancestral customs. It’s just that as the world became more dynamic, places became less significant. People move from place to place easily and quickly, and it’s very hard to preserve customs according to place. And then indeed they shifted more to emphasizing custom by origin, as ancestral custom and not local custom. Yes, in the Talmud in the chapter “A Place Where They Practiced” in Pesachim it says, “Your ancestors’ custom is in your hands,” regarding the people of Beishan who wanted to go down by ship on Friday. So he said, “Your ancestors’ custom is in your hands.” But “your ancestors” there means your ancestors who lived in that same place, in the city, in the place called Beishan or Bashan, I don’t know.

[Speaker B] Right, so the decisors who discuss this today, it’s because they really think there is force to ancestral custom. So isn’t that the—

[Rabbi Michael Abraham] Yes, but I’m saying there was… I also talked about this several times in the past. It underwent a metamorphosis from local custom to ancestral custom. Once, the ancestors were also in the same place. So when people spoke of ancestral custom, they meant the local custom— what our ancestors always did here from time immemorial. But today it’s no longer like that because people are dynamic; they move from place to place. So they remained with ancestral custom and left local custom, even though that wasn’t the original meaning. But I understand why that happened, and there is a lot of logic in it.

[Speaker F] According to the rabbi, are they the same thing? Huh? According to the rabbi, they’re the same thing?

[Rabbi Michael Abraham] Meaning local custom and ancestral custom are really the same thing?

[Speaker F] There is only local custom. It’s not that they’re the same thing; there is simply only local custom that is binding, not ancestral custom.

[Rabbi Michael Abraham] No, when they say “the custom of our ancestors,” they understand it as if—

[Speaker F] as something ancient, ancient, and not connected to place. The rabbi understands it—

[Rabbi Michael Abraham] the same—

[Speaker F] thing basically, one custom, local custom. It’s the custom of the place, “the custom of our ancestors”—

[Rabbi Michael Abraham] meaning our ancestors in this place always practiced this way. Yes. But they don’t understand it that way; they understand that the meaning is… yes, they take this as some custom that obligates me. But I don’t know— first of all, my ancestors didn’t come from Krakow, so even for me this is not ancestral custom.

[Speaker F] It could be that they don’t feel obligated at all by facts and reality, so maybe according to them the rabbi just doesn’t know, and he is living in Krakow right now.

[Rabbi Michael Abraham] I didn’t understand.

[Speaker F] No, I’m joking. According to their position, that they’re not obligated by facts and reality, then from their perspective Krakow is here.

[Rabbi Michael Abraham] Anyone who says he is not obligated by facts and reality— that’s where my discussion with him ends. They don’t say that, admittedly; they behave as if that were the case, but they don’t say it. Fine, you can tell me maybe I’m actually a gentile too, so what’s the problem?

[Speaker F] Facts don’t obligate me, so I—

[Rabbi Michael Abraham] can desecrate the Sabbath, what’s the problem?

[Speaker F] I meant de facto, according to what they do, since they don’t relate to facts and reality, from their point of view Krakow and Bnei Brak are the same thing, one continuum.

[Rabbi Michael Abraham] Fine, you can say nice quips.

[Speaker F] It’s a problem; it wasn’t supposed to be just something—

[Rabbi Michael Abraham] Peking is also by me, and I’m a gentile, fine, so now I can desecrate the Sabbath. Fine, no problem, you can do whatever you want. You want me to relate to that too? I have no way to relate to it. That’s what you want.

[Speaker I] The problem is that everyone thinks that the custom of the place, Krakow, obligates us, so it already becomes the local custom here.

[Rabbi Michael Abraham] I’m saying, it could be that after it moved here, then it’s not because it’s the custom of Krakow, but because all the fools followed the custom of Krakow, so in practice it has now become a custom in this place too. Now you can claim that this is the custom in this place. And I would claim about that, that since this whole story started from the custom of Krakow, it is a custom founded in error, and therefore I think it has no force. Because the people who did it mistakenly thought that it obligated them as a custom, and therefore they acted that way. And that is an erroneous custom.

[Speaker I] Is an erroneous custom only when everyone agrees it’s an error? Meaning, if only you think it’s an error, then that no longer cancels its force.

[Rabbi Michael Abraham] By what will you decide that question— by majority?

[Speaker I] Exactly, that’s the question: how do we decide that question?

[Rabbi Michael Abraham] I decide that question according to what I think. Again, I’m saying there is significance to “do not separate from the community”; do what most of them do.

[Speaker I] But if I—

[Rabbi Michael Abraham] say that I have a different position, then no, I won’t do it.

[Speaker I] So there are actually few times when custom obligates me. I can’t hear. So there are actually few times when custom obligates me.

[Rabbi Michael Abraham] They’re not so few, but they’re limited, yes, correct. On the contrary, I think the imperialism of customs in recent years is insane, completely. Customs have become a monster.

[Speaker I] It’s not a binary question, either it’s foolish in my eyes or it’s correct? Meaning, where is the stage at which a custom obligates me?

[Rabbi Michael Abraham] If it’s correct, I don’t—

[Speaker I] need a custom; if it’s foolish—

[Rabbi Michael Abraham] why is every custom foolish? If it’s correct, I don’t need the custom for that; I think it’s correct and I’ll do it that way. It is not halakhically right or wrong to wear a kittel on the High Holidays. There is no halakhic basis whatsoever, but I don’t think it’s foolish. Fine, it gives people an atmosphere, I don’t know exactly what, so they wear a kittel, perfectly fine, what’s wrong with that? Leave aside all the Hasidic quips about the kittel— that really is foolish. But I’m talking about the question of why; one can give some reasonable explanations. Okay, so wear a kittel, what’s the problem? It’s not a foolish custom. As for kapparot, for example, the Shulchan Arukh writes what it writes on that matter. It doesn’t stop people from doing it to this day, but the Shulchan Arukh said what it thinks of the matter. So I’m in good company. Okay, we’ll stop here. Anyone have comments or questions?

[Speaker F] How does the rabbi— pragmatically, it may be that the rabbi never relates to pragmatics— but pragmatically, if everyone really does what he thinks, how does that play out in reality? I’ll think this way and my brother will think that way and my uncle will think that way— where does the family unit remain here, from that perspective?

[Rabbi Michael Abraham] I don’t know, decide among yourselves. If you think it’s important for you to have a uniform custom, then decide for yourselves on a uniform custom. What do you want me to tell you?

[Speaker F] Yes, but it’s not practical, in terms of reality, for everyone to do what he thinks.

[Rabbi Michael Abraham] Why not? The reality is that everyone does what he thinks— that’s the reality. It’s also not practical that we don’t have a Sanhedrin, so therefore we have a Sanhedrin?

[Speaker F] We don’t; what can you do? Okay, fine. But this is something that damages daily reality. How do you get along with a person when you tell him—

[Rabbi Michael Abraham] What do you mean? So what? The fact that I have a problem means there is no problem? The fact that a problem arises, so therefore what? Therefore it must be that we do things even though we aren’t obligated to do them? We aren’t obligated. Would it have been appropriate to be obligated? Maybe. But we aren’t obligated.

[Speaker F] Would it have been better to establish— even according to the rabbi, I didn’t say—

[Rabbi Michael Abraham] It would have been better if there were a Sanhedrin and it established things. But as long as it hasn’t established them, the fact that it would be better to establish them means nothing.

[Speaker F] Better, okay— why the extreme direction that everyone should do what he thinks? Yes, but why the extreme direction that it’s either Sanhedrin or nothing? Fine, there’s no Sanhedrin— that’s a fact. So what do you do after there is no Sanhedrin, in this respect, if you want there to be something pragmatic that we can live with?

[Rabbi Michael Abraham] What do you do in that respect? You do whatever you want. No problem. But don’t tell me that I’m obligated. I’m not obligated.

[Speaker F] Not obligated, not obligated. I’m asking the rabbi, pragmatically, how the rabbi thinks something can be done.

[Rabbi Michael Abraham] Pragmatically, I think it’s more important to behave the way you think than for the behavior to be uniform. Much more important.

[Speaker F] Even though it’s not pragmatic; it’s the opposite of pragmatic.

[Rabbi Michael Abraham] What do you mean? Pragmatics is always a function of goals. Pragmatics is the best way to achieve your goals. The question is: what are your goals? If your goal is peace in the world, maybe you’re right. If your goal is to do the truth, then I’m right. It’s like the question of what is rational. Rational is someone who advances optimally toward his goals. But the goals themselves can’t be determined to be rational or not. Everyone sets his own goals. By the way, even without me, after all, today there is a plurality of customs, and people do different things in different ways. I didn’t invent disagreement within the nation.

[Speaker F] No, the rabbi didn’t invent it, but with the rabbi it’s a matter of principle. Meaning, it’s not something small. It’s something essential in the whole system of thought.

[Rabbi Michael Abraham] But you’re asking a pragmatic question. On the pragmatic level, it exists even without me, so pragmatically people manage with it.

[Speaker F] Pragmatically it exists only in matters that are not essential. With the rabbi, the rabbi’s whole Torah is essential and different from everyone else’s. The rabbi’s whole outlook is a different outlook.

[Rabbi Michael Abraham] There are many essential things that are different. What do you mean?

[Speaker F] Like what? Among ordinary people, ordinary communities? Really essential?

[Rabbi Michael Abraham] Of course there are differences. Between Ashkenazim and Sephardim, there’s a difference between Haredim and Religious Zionists. There are things that project onto many, many aspects of life.

[Speaker F] What do you mean? Ninety percent they agree on everything.

[Rabbi Michael Abraham] Why do you say ninety percent? But those ten percent create very, very intense dispute and often don’t allow people to live together, and so on. So why do I care what percentage it is? It’s like saying that the Supreme Court is very activist. Then people always tell us, what do you mean, ninety-eight percent of their rulings don’t even make the paper and are totally standard. True, but the problem lies in the other two percent.

[Speaker F] Okay. So it’s fitting to have dispute over things that are principled, no matter what the consequences are.

[Rabbi Michael Abraham] No matter what the consequences are? What do you mean? I’m saying, what does it mean “fitting to have dispute”? The dispute exists. It’s not a question of what is fitting or not fitting.

[Speaker F] Yes, right—

[Rabbi Michael Abraham] The question is whether to bring the dispute to the surface. What can you do? The question is whether, so that there won’t be a dispute, I should think differently. But I don’t think that way; I think differently.

[Speaker F] No, not in order to think differently. I’ll always think what I think. The question is whether to put it—

[Rabbi Michael Abraham] on the table and say it.

[Speaker F] Yes, yes, that’s the question, yes.

[Rabbi Michael Abraham] That’s already a different discussion. That’s a practical consideration; I don’t have a principled position—

[Speaker F] for everyone, as it were.

[Rabbi Michael Abraham] My principled position is to say it. But if there were a situation where you told me it’s better not to say it, maybe, fine. Here, for example, there was some WhatsApp group, something about separating challah, something at Bar-Ilan, they organized there, so of course I wrote exactly my opinion about these pagan celebrations. They were offended there, and I left the group so they could go on behaving there. Apropos of saying something that won’t be heard. I still think it was good that I said it, but fine.

[Speaker F] But the rabbi said it even though he thinks— even though in the end the rabbi left the group because of it. So the rabbi thinks one should always say the—

[Rabbi Michael Abraham] What’s the problem with my leaving the group? Perfectly fine. Everything is fine.

[Speaker F] The rabbi is like Rabbi Eliezer, who in the end remained alone in Lod.

[Rabbi Michael Abraham] Okay, that doesn’t bother me.

[Speaker F] A little hard, fine.

[Rabbi Michael Abraham] Hard or not hard— it’s not hard for me. To each his own taste.

[Speaker C] May I ask about what was mentioned earlier regarding the hostages? A question not related to what we learned, but all the media coverage now— the meeting with the hostages, the shouting and the claims and the calls, and they broadcast it on all the channels. Does the rabbi think that was the right thing?

[Rabbi Michael Abraham] Again, first of all, it’s not related to Jewish law. No, from the—

[Speaker C] consequential standpoint.

[Rabbi Michael Abraham] I think—

[Speaker C] that there is freedom of the press, and that’s a good thing.

[Rabbi Michael Abraham] It is not right to censor anything, except in extreme cases. The question is whether the journalists are behaving here in a balanced way— absolutely not. The journalists are a propaganda tool in the hands of the hostage families, without any doubt, in the hands of most of the hostage families. Because among the hostage families there are those who think differently, and they are silenced.

[Speaker C] Right, but is it right to broadcast it in that way through the media? It seems to me like a shot to the head.

[Rabbi Michael Abraham] I think everything should be broadcast, but everything should be broadcast from all sides. There is freedom of the press, and it is good and important that there be freedom of the press. And if there is a public struggle being waged by the hostage families, it should be covered— that is correct. But it should not be propaganda; it should be coverage. There are other positions too; cover them as well. That is correct, and that is what Hamas—

[Speaker C] sees, and the fact that they—

[Rabbi Michael Abraham] are responsible for all their suffering, and it is very, very hard for them to withstand this criticism, and therefore they meet and they relate to the matter very moderately, and despite that they get beaten over the head— unfairly. I very much hope they have enough backbone to conduct themselves in a way that this won’t influence them too strongly. I don’t know whether that’s happening. It’s hard for me to believe it is happening, but I don’t know. Rabbi, I have a—

[Speaker F] question. It says— and someone brought it here in the chat— the issue of “the House of Shammai did not refrain from marrying women from the House of Hillel,” the familiar passage. A bit— according to the rabbi’s approach, once I hold something, then I basically disagree with the other. Meaning, I hold this way; I can’t say I’m pluralistic— as the rabbi explains in the book too— that I can’t say I’m pluralistic and agree with everyone. Rather, I hold something; that’s what I hold, and the other person is not right. So how did they actually marry one another? There was— I don’t remember exactly the problem there— there was a halakhic problem there, as it were, that they considered there to be some problem. I don’t remember; maybe the rabbi remembers?

[Rabbi Michael Abraham] You need to arrive at some status quo between husband and wife and conduct yourselves according to how the household is run. So what? The fact that you come with different halakhic conceptions or halakhic customs— between husband and wife usually it isn’t felt, because the woman understands nothing.

[Speaker F] No, but there was a halakhic problem in the marriage itself there— that was the issue.

[Rabbi Michael Abraham] That they—

[Speaker F] considered something in the marriage itself to be a problem with marrying in that way, no? Some legal status? Something like that, I don’t remember anymore.

[Rabbi Michael Abraham] The marriage contract? Permitted and forbidden? Fine, it could be that really in that specific problem they should not have married if they had a clear position. But if the woman has no position of her own and she wants to marry into the House of Hillel, good for her, then she becomes part of the House of Hillel. That’s fine.

[Speaker F] She basically moved households.

[Rabbi Michael Abraham] Yes. It’s that way with inheritances too. “So shall no inheritance pass over”— that is the prohibition of inheritance passing over. When a woman marries a husband from another tribe, the inheritance goes with her to the other tribe. Meaning, a woman’s marriage transfers her to the household or tribe of the husband. That was once accepted; therefore it is also accepted to this day that the customs in the home are determined by the husband, even though there is no basis for that. It doesn’t have to be that way. They can also decide that they go according to the wife’s customs. But they can also decide that each one goes according to his or her own customs, and there won’t be a uniform custom in the home.

[Speaker F] Everything is possible. It’s not a problem of pragmatics but of logic.

[Rabbi Michael Abraham] When there are two scholars, it really is a recipe— a male scholar and a female scholar— it really is a recipe for problems. But if they are scholars, I hope they also know how to solve them.

[Speaker F] And nevertheless the rabbi supports women’s Torah study?

[Rabbi Michael Abraham] Completely. I said that I once wrote that there is a very popular Bnei Brak myth taken from the Hasid Yaavetz, one of the exiles from Spain. The Hasid Yaavetz said that precisely those Torah scholars who fell during the period of the expulsion— meaning they converted and became apostates and forced converts, as it’s called— while the ignoramuses without making calculations left the country and weren’t willing to give up anything, that’s how they stood their ground. And this myth, basically— despite a very, very great appreciation for Torah scholars and students of the Torah— alongside it there is also this kind of myth of admiration for the ignoramuses, the householders, the righteous women who don’t know how to read or write, and all sorts of things like that. There are many such Bnei Brak stories, and they always strike me as somewhere between funny and annoying. Meaning, so what am I supposed to do? Be an ignoramus so that I’ll have self-sacrifice for Torah? If I’m a Torah scholar then maybe— a Torah scholar knows that one can also do this with a change and with the left hand, and so he can get along with it, while the ignoramus doesn’t know; he’s an idiot, so therefore he goes into exile from Spain and gives up all his property because he doesn’t understand that there is also a halakhic way out. Sometimes, by the way, that winds up being much more useful for the survival of Judaism, because rigidity is something that helps survival. But to turn ignorance into an ideal because of that, in my eyes that is ridiculous. At most you can say that being a Torah scholar involves problems, and you need to know how to deal with problems, and everything is fine. But because of that, to be an ignoramus? No. I am a Torah scholar, and I’ll have to try to deal with the problems that come with that.

[Speaker F] They disagreed with the rabbi philosophically. They held that there is no such thing as a synthetic religion; there’s only the extreme. Either you’re an ignoramus or you’re a Torah scholar— there’s no middle. I didn’t understand. They held there’s no such thing as being a person in the middle who has both this and that and can be a Torah scholar.

[Rabbi Michael Abraham] That’s not connected to the discussion.

[Speaker F] The rabbi said why they were extreme, why they went either to admire the ignoramus or to admire the Torah scholar— it was one of the two.

[Rabbi Michael Abraham] The ignoramuses were extreme. The ignoramuses of the Spanish expulsion were extreme. Why? But the Hasid—

[Speaker F] Yes, but the Hasid admired that, which means he also held that way. He held that you need the extreme corners: either you’re a Torah scholar or you’re an ignoramus.

[Rabbi Michael Abraham] The people of Bnei Brak admire it too.

[Speaker F] To this day, yes.

[Rabbi Michael Abraham] Yes. No, but not because— what I’m saying is not— it’s not because you can be half-extreme; it’s not related to the question of extremism. They admire ignorance because it leads to the correct conclusions in their view. And here the conclusions really were correct. Because a Torah scholar can also fall. After all, he knows that it can be done with the left hand, so he will allow himself to cut more corners, and he can also do things that maybe are not okay. It’s not a real solution, but he knows it’s easier and there are tricks here. Those are problems that a Torah scholar deals with, yes, that’s obvious. But on the other hand, so what should I do? Because of that, be an ignoramus? Like after the murder of Rabin, yes, by Yigal Amir: you see where religious faith leads people. When people asked me that, I said, okay, so what do you suggest? That I stop believing in the Holy One, blessed be He, so I won’t be a murderer? I believe in Him. The fact that a certain conduct, which in my eyes is true, can lead to problems— fine, then you need to deal with the problems, but that doesn’t invalidate the conduct.

[Speaker F] According to the rabbi, as it were, first of all it’s what you think; afterward it’s what it leads to. If there are problems we’ll deal with them— that is, the problem is not what ties truth to what it is.

[Rabbi Michael Abraham] Exactly. That’s pragmatism: subordinating what is true to proper conduct or to the right outcomes. There are extreme cases where, if the expected outcomes are very, very, very problematic, then the Sages, for example, make a fence. They forbid blowing the shofar on Rosh Hashanah that falls on the Sabbath. That can happen, but those are very extreme cases where, because the expected outcomes are very, very severe, we instruct people to behave incorrectly. We do not turn the incorrect into an ideal; we instruct that in this case one should behave incorrectly. Good. Have a peaceful Sabbath and good news. Thank you very much.

[Speaker B] Have a good week.