Study and Halachic Ruling – Lesson 14
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- First-order halakhic ruling, reasons, and precedents
- The Yom Kippur example and halakhic implications of conceptual formulation
- A warning against ruling from the Shulchan Arukh and the Maharal on autonomy
- Plato, rule by philosophers, and the two standard reasons for rejecting it
- The example of Rava, monetary law, and trust in judges
- Conspiring witnesses, scriptural decree, and the limits of arbitrariness
- Democracy as rights, not as epistemology
- “Follow the majority” in Jewish law and the Chinukh on wisdom
- Communal decisions in the Middle Ages: Rabbenu Tam, majority, and unanimity
- Majority among judges when there is no single rationale: Rema and Shakh
- The doctrinal paradox and the Hague Convention example in the Supreme Court
- A probabilistic argument, judicial quality, and a practical rule
- A conversation about emotion in prayer and hitbodedut
- A conversation about the Zohar and Rabbi Shimon bar Yochai
Summary
General Overview
The text argues that proper halakhic ruling should be done by descending into the underlying essences, reasons, and justifications, rather than by sticking to bottom-line rulings, precedents, and books of rulings alone. It offers two justifications for this: the concern for error in application when one does not understand the reasons, and the intrinsic value of autonomous ruling based on one’s own reasoning even if there is some risk of error. The text compares democratic decision-making with halakhic decision-making and argues that democracy is not a mechanism for reaching truth but a mechanism of rights and representation of the public will, whereas in a religious court, “follow the majority” is aimed at coming closer to the truth, and therefore wisdom carries weight. The text examines the tension between deciding by bottom line and deciding by reasons through the doctrinal paradox and an example from the Supreme Court, and explains that even if ideally reasons matter, sometimes there is a practical and even probabilistic rationale for following the bottom line, especially when there is no way to measure the “quality” of a judge. It ends with short exchanges about emotion in prayer and about attributing the Zohar to Rabbi Shimon bar Yochai, emphasizing that there is no such thing as “you’re supposed to believe”; rather, it is a personal position.
First-order halakhic ruling, reasons, and precedents
The text assumes that behind halakhic rulings there stand essences, ideas, and reasons that Jewish law seeks to achieve, and therefore proper halakhic ruling requires recourse to that layer and not only to the logical-formal structure or to bottom-line rulings. The text presents two aspects: avoiding attachment to precedents and to a collection of “who said this and who said that” without clarifying the topic itself, and even in the world of conceptual Talmudic analysis, avoiding attachment only to formal formulation in favor of asking about the meaning of the reasons and essences behind it.
The Yom Kippur example and halakhic implications of conceptual formulation
The text brings as an example an inquiry into fasting on Yom Kippur: whether it is an obligation at every moment or an obligation covering the whole day as a single unit. It argues that a phenomenological analysis that asks why each formulation is plausible can lead to different halakhic conclusions from those of a purely formal analysis. The text concludes that halakhic ruling must enter the roots of the topic and not suffice with opinions and outcomes.
A warning against ruling from the Shulchan Arukh and the Maharal on autonomy
The text attributes to halakhic decisors of the 16th–17th centuries, to the early commentators on the Shulchan Arukh, and also to the Maharal and the Bach, the determination that one must not issue halakhic rulings from the Shulchan Arukh itself, because sticking to the bottom line without understanding the reasons may lead to error. The text adds another reason beyond fear of error, namely the value of autonomy, and attributes to the Maharal the position that in the eyes of the Holy One, blessed be He, one who rules from his own reasoning, even if mistaken, is preferable to one who rules based on what others have said, even if correct—to the point of formulating that it is preferable to desecrate the Sabbath on the basis of one’s own judgment even if that is a mistake.
Plato, rule by philosophers, and the two standard reasons for rejecting it
The text presents Plato’s thesis that policy decisions should be entrusted to the wise in order to reach better decisions, and asks why this is not accepted today. It brings two standard explanations for the rejection: the technical difficulty of identifying who is “wise” in a way relevant to different kinds of decisions, and the concern that the wise will abuse power for personal or group interests. In both explanations, the assumption is that if one could identify genuinely wise and righteous people, Plato’s thesis ought to be accepted.
The example of Rava, monetary law, and trust in judges
The text describes a conference of legal professionals in which a halakhic rule came up according to which in monetary law a judge may rule “according to what seems right to him” even if the ordinary evidentiary rules and procedural rules are not met. It cites a Talmudic source about Rava, whose wife whispered to him that a certain woman was a liar, and he reversed the oath onto the opposing litigant. The text describes the intuitive opposition of modern legal professionals and explains that the opposition stems from lack of trust in judges, whereas given trust that the judge seeks a true judgment, it is better to compel him to rule truly even at the cost of departing from formal procedure; the cost of sticking to the rules is a distorted legal result.
Conspiring witnesses, scriptural decree, and the limits of arbitrariness
The text argues that it is impossible to interpret “conspiring witnesses” as a scriptural decree in the sense of killing innocent people when the judge knows they are telling the truth, and presents the view that no scriptural decree can turn “day into night” or “truth into falsehood” when it is clearly understood not to be so. The text explains that one can speak of a scriptural decree only on the level of determining the force of evidence when there is some logical preference that is not decisive, but not in the sense of an arbitrary determination to kill an innocent person. It brings the example of the disqualification of relatives as a scriptural decree and raises situations in which such a disqualification cannot in practice lead to executing a person when the judges know he did not murder.
Democracy as rights, not as epistemology
The text argues that the problem with Plato’s proposal is not merely technical but stems from misunderstanding the purpose of democracy, because democracy is not an algorithm for reaching truth or the best decision, but a mechanism based on rights and equal influence of citizens over their fate. The text explains that following the majority in democracy is meant to represent “what the public wants,” not to hit upon the truth. It mentions Arrow’s theorem about the impossibility of satisfying different criteria for representing the public will simultaneously, and argues that disputes about “what democracy is” are sometimes semantic talk that hides value preferences.
“Follow the majority” in Jewish law and the Chinukh on wisdom
The text attributes to the Chinukh the position that following the majority in a religious court applies when the two contending sides are approximately equal in wisdom of Torah, and that one cannot say that a few wise men should be overruled by a large group of ignoramuses, “even if they were as many as those who left Egypt.” The text argues that in Jewish law the purpose of the majority is to approach the truth, and therefore wisdom and expertise matter there, unlike democratic majority rule, which is based on rights rather than truth.
Communal decisions in the Middle Ages: Rabbenu Tam, majority, and unanimity
The text describes the development of dispersed Jewish communities in the Middle Ages that needed to decide matters of taxation, institutions, and administration, and the question of how to make decisions without a central hierarchy. The text attributes to Rabbenu Tam a method requiring unanimous decisions and notes that most decisors disagreed and preferred majority rule. It emphasizes that many responsa cite “follow the majority” but add that there is no other way to function, because otherwise one gives a veto to the minority. The text argues that the reason for this addition is the understanding that “follow the majority” is aimed at seeking truth in a religious court, whereas communal decisions seek to represent the public will, and therefore the verse alone is not a sufficient source without a practical rationale.
Majority among judges when there is no single rationale: Rema and Shakh
The text cites the Rema in section 25, who rules that one follows the majority everywhere even if the majority do not agree for the same reason but agree on the legal conclusion. The text cites the Shakh, who qualifies this by saying that in a Torah-level prohibition, when the majority is lenient on the basis of two different reasons drawn from books and the authorities are not physically before us, one should be concerned that perhaps with respect to each reason the main view follows the opposing stringent position. But when the majority are physically present and deliberated together, one follows them even without a single shared reason, because we do not find that the Sanhedrin or judges must state one identical reason.
The doctrinal paradox and the Hague Convention example in the Supreme Court
The text presents the “doctrinal paradox,” in which a majority on the bottom line leads to one result, while a majority on each sub-question leads to the opposite result, illustrating this with a dispute over contract interpretation and a factual question. The text brings an example observed in the Supreme Court in a child-abduction case under the Hague Convention, where a majority of judges held that the children should not be returned based on “consent” or “acquiescence,” but when each condition was examined separately there was a majority against the existence of each one, thus creating a contradiction between the reasoning and the bottom line.
A probabilistic argument, judicial quality, and a practical rule
The text describes an argument that even when one seeks truth, it does not necessarily follow that going by the majority in the reasons is preferable, because combining probabilities across sub-decisions can lower the total probability below a majority. The text presents a model in which the “quality” of a judge is p, explains that quality begins above one-half, and argues that if p is between one-half and 0.7, then following the bottom line gives a higher chance of a correct result, while if p is between 0.7 and one, it is preferable to follow the reasons. The text states that there is no way to measure judicial quality because there is no independent feedback on the correctness of a ruling, and therefore one needs a broad practical rule. It concludes that following the bottom line in a religious court does not contradict the importance of first-order ruling, whereas among decisors who did not deliberate together there is no clear justification for following the majority, because they did not hear one another’s reasons.
A conversation about emotion in prayer and hitbodedut
The text presents a personal position according to which prayer is done as an obligation but does not contribute to the speaker beyond discharging that obligation, and that there is no halakhic “quality” of prayer in an emotional sense, apart from the required intention of the words. The text states that any spiritual gain beyond that depends on the person and on what helps him, just as other activities such as hitbodedut or looking at trees can be beneficial for someone for whom that works, without there being any objectively binding value in the thing itself.
A conversation about the Zohar and Rabbi Shimon bar Yochai
The text presents the assessment that there is some connection between the Zohar and Rabbi Shimon bar Yochai, while expressing reservation about the claim that Rabbi Shimon himself wrote the Zohar, alongside the assertion that the Zohar contains early tannaitic sources. The text notes the difficulty that early medieval authorities (Rishonim) did not quote the book before Moshe de Leon, and replies that there is no obligation “to believe”; rather, each person decides whether he is persuaded or not, with the remark: “There’s no such thing as ‘supposed to believe.’ ‘Amur’ is the name of a fish.”
Full Transcript
[Rabbi Michael Abraham] Okay, last time we talked about first-order halakhic ruling and second-order halakhic ruling, and basically the claim was that once we reach the conclusion that behind halakhic rulings there stand underlying essences—right?—some ideas, reasons, that Jewish law comes to achieve or realize, then when we issue a halakhic ruling it is appropriate to do so by drawing on that layer as well, and not only on the syntactic plane, the formal structural logical plane. And I said there are basically two aspects to this. One aspect is that we’re not supposed to cling to precedents and rule simply according to the bottom lines of various precedents. This one said this and that one said that, so let’s follow the majority or something like that. So that’s one plane: how much to cling, if at all, to precedents, and how much to enter into the topic itself and clarify it. And the second plane really is that even when we’re speaking on the conceptual level, even on the conceptual level one should not cling too much to the external logical structure, but should also enter into the essences behind the things. I gave the example of that conceptual inquiry about fasting on Yom Kippur: is it an obligation at every moment, or is it an obligation over the whole day as a unit? And I tried to show that the formal conceptual formulation—and here we’re already talking about conceptual analysis in any case, not about clinging to precedents—but even when we’re talking about conceptual analysis, you can do it on the phenomenological plane, meaning on the level of the logic: is it an obligation at every moment or an obligation over the whole twenty-four-hour period as a single unit? And one can also try to ask oneself why it should be an obligation at every moment, or an obligation over the whole twenty-four hours as a single unit, and I tried to show that the halakhic conclusions can come out differently. And therefore the claim is that when issuing halakhic rulings it is very important to enter into the essence of the matter and not only the opinions and the bottom lines and so on.
There are—I think I mentioned this, I’m not sure—that the halakhic decisors in the 16th and 17th centuries, yes, the first commentators on the Shulchan Arukh, and also the Maharsha, the Bach, write that one must not rule from the Shulchan Arukh. And the claim basically is that when you rule from the Shulchan Arukh, you are essentially clinging to a bottom line, and you are not looking at the reasons on which the Shulchan Arukh’s ruling is built, and therefore you can make mistakes. And I brought the Maharal—I think I mentioned the Maharal regarding autonomous halakhic ruling—the value he sees in autonomous ruling, not to be an “amagushi,” that is, a sorcerer. And here there are two planes, one of which I’ll elaborate on later. What I’ve said until now is the concern for error. That is, if you don’t enter into the reasons, but cling only to the bottom lines and the halakhic instructions, then you can end up making mistakes, as we saw, say, with regard to Yom Kippur. But there’s another reason, and that’s the reason of autonomy. Meaning, even if you’re right—and basically we also saw this in the Maharal—even if you’re right, the value of the ruling exists only when you do it מתוך your understanding of the reasons and justifications, and not by clinging to precedents or books of rulings. And as the Maharal writes there, in the eyes of the Holy One, blessed be He, someone who rules out of his own reasoning, even if he is mistaken, is preferable to someone who rules on the basis of what others have said, even if he is right. Meaning, the Holy One, blessed be He, prefers that you desecrate the Sabbath, provided you do so out of your own judgment, even if it turns out to be a mistake. So that’s already a value. Notice that this is not the reasoning here—it’s not the reasoning of concern for error. Not that you need to resort to the reasons and not only cling to bottom lines because you might make a mistake in interpretation, in application, and so on. Here the claim is that even if you don’t make a mistake, there is value in the very resort to the reasons, in the very clarification itself. And on both planes there is value to a ruling that descends to the roots of the topic, what’s called first-order ruling.
So I’ll come back to that a bit later, but I want to take a short pause and really talk about this relation between bottom lines and reasons. There’s an interesting topic here, and I want to touch on it just a little. Yes, so first maybe a short introduction. I also talked about this in other series, but just a short introduction. In principle—I’ll begin perhaps with a question. Plato’s thesis was that we ought to entrust decision-making—say, on questions of government, policy, and so on, in state decisions—we should entrust the decision to the wise, rule by philosophers. Because after all we want a correct decision, a good decision, and wise people will make better and more correct decisions. So that’s the thesis of rule by philosophers. And the question is: today people do not tend to think that way. And the question is: why not, actually, if we really do want good decisions?
On this issue, usually when I raise this question—and I’ve done this more than once—two explanations come up for why not to follow rule by philosophers. One explanation is that we can’t really know who is wise for this purpose. Meaning, what are we going to do, give a psychometric exam? It’s not at all certain that someone who scores better on a psychometric exam will make better political, policy, or economic decisions. It’s not always the same thing. Political, economic, security-related—those aren’t even the same as one another. Meaning that in each case it may be that a different kind of intelligence is needed or helpful. Therefore there is a technical difficulty in defining who counts as wise for these decisions. So that’s a technical difficulty that basically assumes that if we had a tool to define what the wisdom relevant to the decision under discussion is, then Plato’s thesis really ought to be accepted. It’s just that we have a technical problem because we don’t know how to identify that wisdom. That’s one explanation.
A second explanation is concern over misuse of the power given to them. Meaning, it could be that these wise people to whom we entrust the decision will act for their own interests rather than for the interests of the public as a whole. Therefore, although they are wise and in principle could perhaps make better decisions than decisions entrusted to the public at large, they are still human beings and they have interests, and the interests of that group do not always align with the interests of the public at large. Therefore we are afraid that they will not use their wisdom for the public good. Like what people always say in arguments about Bibi. They always say, look, but he’s such a genius. So therefore it’s preferable to have a corrupt genius run the state better than—again, without getting into the positions themselves, I’m just looking at the argument—to let people who may be more honest but less intelligent than him run it less well. That argument is problematic, because the question is whether that smart person uses his wisdom for the benefit of the whole public or for personal, party, or factional interests. So the fact that he is smart doesn’t necessarily mean that he will use his wisdom for the common good. And the same here.
So the claim is that perhaps—and note that in this reason too, the assumption is that if, hypothetically, we had a group of righteous people and we knew, and we know, that they are righteous and would act for the public good, then Plato is right. We would have to entrust decisions to the philosophers, to the wise. But we have no measure of righteousness, and we cannot trust human beings, and power corrupts, and whatever else you want—therefore basically it can’t be done. Again, a technical problem.
This reminds me of once I was at an event of Erez Kaminitz, who was the deputy attorney general, and he used to hold conferences for legal professionals—lawyers, judges, and so on—marathon weekends from Thursday evening until Saturday night, with workshops and such. The issue came up there that basically the rules of law are not binding in monetary law. In monetary law the judge can rule according to what seems right to him. Even if the rules of evidence or procedural rules and so on are not exactly fulfilled—it doesn’t matter; what seems right to him is what he should do as a matter of basic law. Afterward, following the enactment of the two academies, that was abolished—Rif, Maimonides, who say that today that’s no longer the right way to act—but in principle, that’s what should have been. And the source for this is a Talmudic passage. The Talmud says there that Rava was sitting in judgment, and a woman came before him, and someone sued her for money. He wanted to impose an oath on her; this woman had to swear—say there was one witness against her, I don’t remember exactly—and she had to swear. Then his wife came to him, entered the court—the court was always in a house of some kind—so Rava’s wife comes into the court and says to him, this woman is a liar, don’t believe a word, don’t let her swear, whispering in his ear like that. So Rava reversed the oath onto the other litigant. Meaning, instead of her swearing, he made the other one swear and collect. By strict law she should swear and be exempt, but he reversed the oath onto her opponent, and the other one swore and collected.
And we see that even though according to procedure this is irrelevant—what do you mean, there aren’t two witnesses that she’s a liar, it’s not as if the matter was clarified in court and she had an opportunity to defend herself, and who knows, maybe Rava’s wife just hates her—this is not how you conduct a trial. These aren’t proper rules. And still, that’s what was done there, and from here Maimonides learns that in monetary law what determines the ruling is what seems right to the judge, not formal legal rules or rules of evidence.
[Speaker B] Isn’t that “the discretionary judgment of judges,” Rabbi?
[Rabbi Michael Abraham] No, no, it’s not connected to discretionary judgment of judges. That’s a rule in cases of doubt; it’s something else. Though by the way, discretionary judgment of judges is itself a dispute between Rashi and Rabbenu Tam over what it means.
[Speaker B] Seemingly that proves it’s not like that in principle, doesn’t it?
[Rabbi Michael Abraham] No, no, because discretionary judgment of judges means—this whole law means when the judge has a clear position about what should be done. But if he has no clear position—we do learn a rule that “by the testimony of two witnesses a matter shall stand” in monetary matters; “matter” from monetary matters is also learned for matters of forbidden sexual relations. Meaning, clearly there are rules of evidence and procedure also in monetary law. So what does it mean that they are not binding? It means that when you have a clear position, you do what you think. If not, go according to the usual rules. Okay? Therefore the usual rules in monetary law do have significance; it’s just that if you have a clear position, you’re not bound by them. And with discretionary judgment of judges, what happens is that you don’t have a clear position, but your mind inclines one way, and then the question is whether you go here or there.
Anyway, for our purposes, the legal professionals there really protested. There were lawyers and judges sitting there, and they really objected: how can it be that the judge’s wife comes into the courtroom, whispers in his ear, don’t believe her, she’s a liar, and the man changes the ruling—he changes the judgment because of what his wife whispered in his ear. There was a real uproar there: such a thing is inconceivable; that’s not how you run a legal system. So I said to them, listen, think for a moment about the situation. Rava is sitting in judgment and his wife comes and whispers in his ear that this woman is a liar. Now he can go the way you recommend, with the rules of proper judicial procedure, and everything will look fine, and let this woman swear. But he knows—he knows his wife—he knows she isn’t lying in this case. What he is actually doing here is allowing a thief to swear and keep her money. And he knows he is issuing an incorrect ruling. And you are proposing that he do that because justice has to be seen, there has to be some appearance of proper rules. But do you understand that this demand is actually telling Rava to issue a distorted judgment?
So why is it so obvious that Rava shouldn’t listen to his wife? I said to them, look, this depends very much on the degree of trust you place in your judges. Meaning, if you understand that your judges are people elevated above the masses, and you trust them, they really do strive for truth, to render true judgment—as long as that’s your assumption. If that’s the case, I would definitely be in favor of the halakhic position: let them do what seems right to them. That is much more correct than going according to dry rules and then issuing a warped judgment just because it doesn’t look good that his wife whispered in his ear. Everything we’re used to today is because of our cynical mindset. Meaning, we’re used to everyone being biased and everyone manipulating and everyone doing this and that, and then what happens? We are basically prepared to instruct the judge, obligate him, to issue a distorted judgment just so that the formal legal rules will be preserved. But in effect we are enabling this woman to steal the money.
So if we really have no trust in our judges, then there’s no choice: yes, you really do have to set rules and try not to let them deviate from them. But think about a situation in which we do trust our judges. If we trust our judges, then the logic says to give them this freedom rather than force them to do formal things that lead to an incorrect judgment, a warped judgment. So it reminds me of that same issue. When we have wise people who, in addition to being wise, are also righteous, and I trust them to act for the good of the public as a whole, then Plato is right. Then we should let the wise make the decisions. But if we suspect them, if we say they will not necessarily act for the public good but for themselves, then indeed no. But note the price. The price is that our decisions will not be as good. We are not entrusting decision-making to the wise. Exactly as in the legal example, the price of sticking to rules is a distortion of justice, a distortion of the legal outcome. And therefore that is the price paid for proper administration.
[Speaker C] Rabbi, it seems like this contradicts halakhic principles a bit. For example, there’s also the case of conspiring witnesses, where we know we believe them not because they’re more credible but because it’s a scriptural decree, and also belief in a prophet.
[Rabbi Michael Abraham] No, no—you’ve set me up perfectly. I wrote a whole article arguing exactly this point. It cannot be that conspiring witnesses are just a scriptural decree, even though that’s what it says in the Talmud. It can’t be. Because if it were a scriptural decree, I would not accept it. It cannot be that there should be a scriptural decree telling me: give money to someone it doesn’t belong to, or kill a person who isn’t guilty.
[Speaker B] Rabbi Littman? What? I think the Ran brings a reason for conspiring witnesses, why the Torah believed them more. Everyone brings that.
[Rabbi Michael Abraham] It’s in the Tur, and it’s in Nachmanides.
[Speaker C] Also with two witnesses in general, and belief in a prophet.
[Rabbi Michael Abraham] Usually people connect this to the dispute between Maimonides and the Tur. The Lechem Mishneh, I think, talks about this. There’s a dispute between Maimonides and the Tur whether in the final analysis this is a scriptural decree or not. But yes—after all, this is Abaye and Rava, whether a conspiring witness is disqualified retroactively or only from now on. In practice, conspiring witness is one of the cases of the mnemonic where we rule like Abaye, that he is disqualified retroactively. And Rava’s view is that he is disqualified only from now on. Why? Because it is a novelty, and “you only have what the novelty gives you”—a scriptural decree. Now the question is: in what does Abaye disagree with him, since we rule like Abaye? Does Abaye claim that it is not a scriptural decree, or that despite being a scriptural decree, he is still disqualified retroactively? That is the dispute between the Tur and Maimonides. That’s what the Lechem Mishneh claims, and there are various implications. And I argued there in the article that this dispute cannot be interpreted literally. It cannot be that anyone on earth would say that conspiring witness is simply a scriptural decree. Conspiring witness as a scriptural decree would mean that basically the conspiring witnesses are as credible as the original witnesses, the discrediting witnesses and the discredited witnesses are equally credible, and nevertheless we kill the discredited witnesses. There is no such thing. There cannot be a scriptural decree to kill decent people, innocent people.
[Speaker C] But isn’t that also true regarding ordinary witnesses, that it’s a scriptural decree, and also belief in a prophet? Aren’t all these things like that? No? No.
[Rabbi Michael Abraham] A scriptural decree can be not to eat pork—that can be a scriptural decree. But a scriptural decree cannot be: kill an innocent person. And kill him for the sin of lying, when I know he didn’t lie. True, the one speaking the truth is actually the witness who was made into a conspiring witness, the witness designated as such—but there’s a scriptural decree to kill him? Kill him for what offense? Because “he testified falsely against his brother”? But he did not testify falsely against his brother. So what is the scriptural decree here—to say that he did? There is no scriptural decree that tells me that day is now night. Rather, you have to distinguish between two kinds of scriptural decrees. Here the scriptural decree speaks only on the plane of the question: what is the force of the evidence? After all, it is clear that the second witnesses are more credible than the first, and the medieval authorities (Rishonim) already wrote several reasons for that. But it could be that this superiority would not have sufficed without the Torah’s innovation, and I would still say this is two against two. The Torah says that despite the fact that this preference is not decisive—it’s not like two witnesses against none—it is enough to establish the law of conspiring witnesses. That can be a scriptural decree. But not to take something whose logic points in the opposite direction and nevertheless behave that way. There is no such scriptural decree.
There’s an example here. Suppose we know—it says this in the Talmud and it appears also in Maimonides and in the Shulchan Arukh—that the disqualification of relatives is a scriptural decree. They are in fact credible; it’s just a scriptural decree. Okay. Now I ask you: two related witnesses come and testify that Reuven owes money to Shimon. Now they are relatives, so there is a scriptural decree disqualifying them. But in terms of truth, they are credible. Meaning, I know that Reuven really does owe Shimon money. So what am I going to do now? Rule that he doesn’t owe it? So I say: if I think that in monetary law, since the judge has to do substantive justice, the judge has to do what seems right to him, then indeed if related witnesses come, he would extract money even on the basis of related witnesses.
[Speaker B] Rabbi, is the Rabbi talking here on the level of a sin committed for the sake of Heaven?
[Rabbi Michael Abraham] No, no. Not a sin for the sake of Heaven. This is what one should do.
[Speaker B] But from the halakhic standpoint, does the Rabbi think one should do that because of morality and the clash with Jewish law?
[Rabbi Michael Abraham] No, this is the Jewish law. In monetary law, this is what Maimonides says: in monetary law the judge should do what seems right to him; he is not subordinate to procedural rules. That’s what the law says. Procedure was stated only where the judge does not know.
[Speaker B] So the Rabbi is saying this in monetary law?
[Rabbi Michael Abraham] No, no, I’m talking about procedure in monetary law.
[Speaker B] Yes, but in capital law—
[Rabbi Michael Abraham] What happens in capital law is that life is easier. Why? Because if two relatives come, then I won’t execute the murderer. Fine, not terrible. At most I can confine him in a cell if I’m really insistent, so there are ways to deal with him anyway. But I won’t execute the murderer. But think of something else. Two witnesses come and testify that Reuven murdered someone. Now two relatives come and declare those witnesses to be conspiring witnesses. There—
[Speaker B] Is that a sin for the sake of Heaven?
[Rabbi Michael Abraham] Wait, before sin for the sake of Heaven, first of all what’s the situation? Two relatives come and declare them conspiring witnesses. Now according to the common view—leave aside for the moment the declaration of conspiracy; let’s say that’s based on reason—but the relatives, that’s a scriptural decree, right? So basically, on the principled level, it is clear that the second pair is credible, right? The discrediting witnesses are credible. Or in other words, the first witnesses were conspiring witnesses and the defendant is not a murderer, right? But there is a scriptural decree disqualifying relatives, and therefore the declaration of conspiracy is not legally effective, and the testimony of the first witnesses remains in force, and therefore Reuven is a murderer, and if so he should be executed—when I know he is not a murderer. What do you say? Would there be a religious court that would execute him? If there were such a court, you’d have to execute that court. It isn’t fit to serve as judges if a judge would rule that way. You do not execute an innocent person—there is no such thing. If you know factually that he is innocent, there is no such thing as a scriptural decree to kill him. That is not the same as, say, a scriptural decree to execute a Sabbath desecrator. Even there I don’t know why we execute him, but it is a scriptural decree to execute a Sabbath desecrator, and the Sabbath desecrator also knows that, and there are also witnesses and warning and they warn him and everything. If he decides to do it, then he is executed. But here the person did nothing. He didn’t murder and didn’t do anything. You seize him—scriptural decree—and execute him even though he did nothing, as a murderer? There is no such thing in the world. Never.
[Speaker B] But the scriptural decree that “by the testimony of two witnesses a matter shall stand,” if not relatives—that’s not… I didn’t understand. The scriptural decree that not relatives, right? So what? The scriptural decree—
[Rabbi Michael Abraham] That by the testimony of two witnesses a matter shall stand, and therefore what? Therefore I’ll execute the murderer—
[Speaker B] Even though you know he didn’t murder, but since there are two, that establishes the matter?
[Rabbi Michael Abraham] No, no, no. Anyone who does such a thing—I don’t know, I would send him to the gallows, certainly remove him from the court. There is no such thing. You do not execute a person that you know did not murder, you do not execute him because of a scriptural decree that he is a murderer. A scriptural decree cannot arbitrarily decree regarding an innocent person that he is a murderer and should be executed. It’s inconceivable.
[Speaker B] Not true, but one could argue… the argument of scriptural decree, a collective argument of “by two witnesses a matter shall stand,” regardless of what really happened.
[Rabbi Michael Abraham] I don’t understand—but I’m saying again, what do you mean regardless of what really happened? But you know. You are executing him as a murderer, and he didn’t murder. You know he didn’t murder.
[Speaker B] Yes, because two witnesses made him liable for execution.
[Rabbi Michael Abraham] What? They made him liable—so what?
[Speaker B] And that itself is the scriptural decree. It’s an argument, as if you can’t hear, that they are liars.
[Rabbi Michael Abraham] They’re liars; they were exposed as false witnesses. Is there—do you want the mechanism? I’m saying, first of all, this is obvious. You don’t need any source, any mechanism, or any rationale. It’s obvious that you don’t execute him. You want the mechanism? The mechanism is a fraudulent case. Judges can withdraw from a case when it’s clear to them—or not clear to them—that this ruling is correct. So they withdraw from the case; they do not carry it out. Now in a case like this, it’s clear to the judges that so-and-so did not murder, and certainly it is not clear to them that he did murder. So obviously they cannot sentence him to death; at the very least they would withdraw from the case. But I’m saying, even if there were no mechanism of a fraudulent case, I would do that even without it. It’s obvious: you do not kill an innocent person because of a scriptural decree. There is no scriptural decree that says day is night. Or that a person who speaks truth is a liar, or that a person who did nothing is a murderer. There are no scriptural decrees like that. There are scriptural decrees about something whose reason I do not understand, and they tell me nevertheless do it, or nevertheless it is forbidden. There are many of those. But not that day is night. Not that right is left, and not that a murderer is not a murderer, or that someone who speaks truth is a liar. There are no scriptural decrees like that. Something false does not become true because of a scriptural decree. Something that I do not know or do not understand—a scriptural decree can say that this is what must be done. But if I understand that not so—not that I don’t understand, but that I understand that it is not so—then there is no such scriptural decree. How did we get into all this? Okay. So I return to Plato, right? Basically, the Platonic proposal to follow the sages—I gave two reasons to reject it. Either we cannot identify the relevant wisdom, or we fear abuse of the power given to the sages. What these two reasons have in common is that, on the principled level, they accept the Platonic thesis. Meaning, if there were no technical problem, then indeed it would be proper to hand the decision over to the sages. I once said that, translated into today’s terms, just so it sounds easier to modern ears, you could say: we won’t hand over the decisions to five sages to decide for all of us, but say that in the ballot box each person’s vote is weighted by his intelligence. Your vote would count more the more intelligent you are, okay? I can suggest versions a bit softer than Plato’s that still give more weight to whoever is wiser. In any case, my claim is that these excuses may be correct, but they are unnecessary. They are unnecessary because the question does not exist to begin with. There is no question. Plato’s proposal is a complete misunderstanding. Because Plato’s proposal assumes that the goal of a political decision is to maximize the probability of reaching the most correct decision. That is what we are looking for in a democratic vote. And then he says: forget democratic voting—give it to the sages, they will have a better chance of reaching the most correct decision. But that is a mistake, of course. The goal of a democratic mechanism is not to get the best decision. Democracy is one of the worst mechanisms for getting the best decisions. Democracy is not an algorithm whose purpose is to attain the best decision. Democracy is not an epistemic mechanism, a cognitive mechanism—how to get to the truth. Democracy is based on the idea of rights. It is a mechanism grounded in values, not in epistemology. What does that mean? Every person has an equal right, according to the democratic conception, to influence his fate and the conduct of his state. And since everyone has an equal right, therefore everyone has equal weight at the ballot box. That’s all. And the fact that we follow the majority is not because the majority hits the truth. I don’t think you can say that the democratic majority generally reaches the truth—absolutely not. If anything, I would say the opposite: generally it does not reach the truth, unless something unusual happens. But the democratic majority represents what the public wants, right? If there are disagreements, basically we need to do what the public wants. We need somehow to find an index that represents what the public wants. The majority is the simplest index, by the way not an especially successful one, but it is the simplest mechanism. There is a theorem—what is it called—the Arrow theorem. Arrow’s theorem in mathematical economics. Arrow’s theorem says that basically—he lists there, I think, five criteria for an algorithm that represents what the public wants. Five criteria have to be met. And there is a theorem that says you cannot satisfy all five simultaneously, by definition. Meaning, you cannot produce a decision that represents what the public wants and also fulfills all the conditions. It’s very interesting. I once encountered this when I did some kind of seminar or conference together with Professor Shmuel Nitzan. We spoke—he spoke about the economic dimension and I spoke about the Torah dimension. He wrote a book for the Open University; I highly recommend it. It is a very interesting book—I don’t even remember the title—look it up, Shmuel Nitzan, Open University. And there he both proves this theorem and expands on it; there are all sorts of sub-theorems and more. A fascinating book. In any case, the majority mechanism chosen in democracy is overall just the simplest way to arrive at a position about which one can say: this is what the public wants. The public is split; there isn’t one thing the entire public wants. So when the public is split, they say, okay, then we’ll go with the majority, and for us that is some representation of what the public wants. But it is definitely not the most correct decision, certainly not necessarily the most correct decision. The purpose of the majority is not to get as close as possible to the truth, but to arrive at what the public wants. That’s all. And therefore Plato’s assumption that democratic decisions should be handed over to sages is irrelevant; it stems from a misunderstanding. That is, he assumes we are looking for the best decision, so he says give it to the sages—they will get you the best decision. But if what we are looking for is to find out what the public wants, that is a matter of rights, not a matter of what the truth is, then what relevance is there to giving it to sages? Every person has a right to influence what the public wants. And if you do not accept the public’s decision or are not willing to be part of this public, then withdraw. Then don’t be a citizen of this state; don’t take part in this collective game. As the Talmud in tractate Sanhedrin says, the refined people of Jerusalem would check who sat with them at a meal. Right? Judges, before sitting together in judgment, have to check who they are sitting with in judgment. Because there can be a situation in which you find yourself in the minority and have to sign a halakhic ruling you do not identify with. And if, in your eyes, the majority are fools or wicked or whatever, and you do not trust their decision or judgment, then do not sit with them in judgment at all. If there are others whom you do not regard as reliable judges, do not sit with them in judgment, because there may be a situation where they reach a majority decision and you, as the minority, will also have to sign the decision. The same applies here. Therefore, in the end, the majority in democracy is a majority whose purpose is not to attain the truth but to represent what the public wants. That is democracy.
[Speaker B] Do leftists also agree with that, Rabbi?
[Rabbi Michael Abraham] I didn’t hear. It’s not—
[Speaker B] What’s happening now, when the leftists say that majority rule is not democracy, that democracy is not just majority rule and so on—claims like that—isn’t that basically trying to say…
[Rabbi Michael Abraham] I didn’t understand. What’s the question?
[Speaker B] No, what they’re saying now, what happened in the Knesset, that democracy is not only majority rule—
[Rabbi Michael Abraham] —and so on,
[Speaker B] claims like that—isn’t that basically trying to say…
[Rabbi Michael Abraham] Okay, so there I explained this in a few columns in the past. There is something to that claim. In places where the majority makes a decision that, from my point of view, justifies dismantling the system, then I am no longer willing to be part of the system, and I have the right not to accept the majority’s decision—and of course to bear the consequences.
[Speaker B] Meaning, okay, fine—but then that’s not democracy, yet they say that it is democracy. What is that?
[Rabbi Michael Abraham] Call it whatever you want. Democracy is an empty word; everyone uses it to serve whatever he wants.
[Speaker B] No, I mean, I’m saying there are people who understand democracy as really reaching the correct values.
[Rabbi Michael Abraham] So I’m saying: that’s just empty verbiage. In the end, people use the word democracy, and underneath it is hidden: what I want. That is called democracy. So instead of saying, “Look, this is what seems right to me,” they say, “This is what democracy says.” But the other side thinks that what democracy says is something else. So why argue about the meaning of the term democracy? Let’s argue about what is right to do. There is no point hanging this on the semantics of the term democracy; it’s an empty debate. Rabbi. Yes. I assume…
[Speaker D] I assume the Rabbi ultimately wants to compare democracy to decision-making in Jewish law, because Jewish law too is ultimately decided by the majority. But I think the essential difference between democracy and Jewish law is that in Jewish law we really are searching for the truth, because we are essentially searching for the word of God. In democracy it is not necessarily a search for truth; it is a search for what suits the public best.
[Rabbi Michael Abraham] That is exactly what he—
[Speaker C] —said.
[Speaker B] It’s—
[Rabbi Michael Abraham] Exactly what I said.
[Speaker D] No, but I’m saying—even in democratic decisions, one person will say right-wing, another will say left-wing; it may be that neither of them is “the truth.” It may be that this one has advantages and that one has disadvantages; there is no one ultimate truth.
[Rabbi Michael Abraham] Again, I repeat: that is exactly what I said. So what is the question?
[Speaker D] No, okay, so the question is: how is it that in Jewish law too we follow the majority?
[Rabbi Michael Abraham] Jewish law—I haven’t yet gotten to Jewish law. Now I’m getting to Jewish law, and I’m going to say exactly that, the second half of what you said. Okay. In Jewish law too, the majority—yes, in Jewish law too we follow the majority. “Incline after the majority.” Right.
[Speaker D] But—
[Rabbi Michael Abraham] In Jewish law, the purpose of the majority is to reach the truth. Correct. And we see this, for example, in—
[Speaker D] No, so maybe in Jewish law it really is preferable to follow the sages?
[Rabbi Michael Abraham] One moment. Right? You’re getting ahead of me a bit—just a second. So the Sefer HaChinukh writes as follows: “And choosing the majority is, by logic, when the two disputing groups know the wisdom of the Torah equally.” Right? Meaning that all the judges are more or less at the same Torah level. “For one cannot say that a small group of sages should not outweigh a large group of ignoramuses, even if they were as many as those who left Egypt.” That is really Plato. “But when wisdom is equal, or approximately so, the Torah informs us that a multiplicity of opinions will always agree with the truth more than the minority.” What is he really saying? He is basically saying that in a rabbinical court, following the majority is meant to get closer to the truth—not like a democratic majority, which is a matter of rights. And here is the implication: here Plato is correct. If in court there are greater sages and lesser sages, then the greater sages determine the outcome and not the majority—or, as I’ve said many times, you count heads, not feet. “And whether they agree with the truth or not in the opinion of the listener, the law dictates that we not depart from the path of the majority.” What I’m saying is that choosing the majority is always when the two disputing groups are equal in the wisdom of truth. Okay? So that is basically his claim. So what do we see here? We see that the majority in a rabbinical court is not like a democratic majority. The majority in a rabbinical court is truly a criterion or algorithm for getting as close as possible to the true decision, because in a court there is no issue of rights. We are not talking about the judge’s right to determine what will be done there. Our goal is to know what Jewish law actually says. Therefore, when we follow the majority there, what the Torah tells us in “incline after the majority” is that by doing so we are drawing as close as possible to the correct decision. And by the way, I spoke about this in the past as well: in the Middle Ages—already at the beginning of the Middle Ages—some question arose in halakhic literature. Communities began to form around the world, because the Jews began to disperse. At first they were in Babylonia until the tenth century—say, in Babylonia, and more or less most of them were in some orderly hierarchical structure, even with legal autonomy much of the time. Then they began to spread out to Europe and North Africa and other places, and all kinds of communities arose, scattered around the world. These communities had to make decisions, but they were no longer organized under academies or districts or some Jewish autonomous legal and governmental hierarchy. Rather, there was some community living in a fishing village—there are, I don’t know, two Jews there who know how to read, one who knows how to write, and two others who know nothing—and they need to make decisions. So a debate began about how decisions are made in a community. They essentially created democracy in certain respects, and they sent questions to halakhic decisors, and this ran throughout the Middle Ages. All the great decisors addressed these things. How exactly are we supposed to make decisions in a community? About taxes, about establishing institutions, or all kinds of things like that. How are we supposed to make decisions? By majority? Should we follow… Rabbenu Tam’s position was that decisions must be made unanimously. One second, there’s noise here. Rabbenu Tam’s position was that decisions must be made unanimously. And this dispute was only resolved in the fifteenth or sixteenth century—it already appears in the Shulchan Arukh—but this was a dispute of hundreds of years that was not really settled. But most decisors did in fact disagree with Rabbenu Tam, and they argued that one should follow the majority. What is interesting—and I once saw this in a book by Elon—he brings several such responsa, and there is also in a book by Haym Soloveitchik, Responsa as a Historical Source, which is also a kind of study booklet on how one extracts historical information from responsa literature. There too, the topic he deals with is this question of how to make decisions in a community.
[Speaker B] The Rabbi said in previous lectures that the Rabbi says this whole discussion is not considered halakhic.
[Rabbi Michael Abraham] I talked about that in this series.
[Speaker B] In our series the Rabbi started with this, with this point.
[Rabbi Michael Abraham] Okay. In any case, the claim—so I’ll say it briefly—the claim was that in all these responsa that say one should follow the majority, they first of all say: after all, it is written, “incline after the majority,” and after that they add: besides, there is no other way to function. If you do not follow the majority, you are essentially giving the minority veto power, so that certainly makes no sense. So to demand that decisions be made unanimously is impractical; it is impossible to function that way. And the interesting question is: why don’t they suffice with the verse “incline after the majority”? Why do they need to add this explanation that besides, you can’t manage otherwise? If I ask you whether to recite Grace after Meals, what do you tell me? “It is written: ‘And you shall eat and be satisfied and bless’”—period. You don’t need to give me speeches about the importance of Grace after Meals and what kinds of repairs it effects in the upper worlds. A halakhic question—give a halakhic answer. There is a clear source; everything is fine. That is one question. A second question: according to Rabbenu Tam himself—did Rabbenu Tam not know the verse “incline after the majority”? To follow the majority? How could he say that one goes by unanimity? The claim is that everyone understands—both Rabbenu Tam and the medieval authorities (Rishonim) who disagree with him—everyone understands that the rule of majority in a community does not come from the verse “incline after the majority.” The verse “incline after the majority” cannot teach us what to do in this situation, because this is a new situation. Why? Because “incline after the majority” tells me that when you are looking for the truth, the majority is your criterion—go after the majority. But if I am in a community, then when I hold a vote in the community or make a communal decision, I am not looking for the truth; I am looking for what the public wants. And there I could have suggested all sorts of possibilities—maybe unanimity, maybe only unanimity is what the public wants, and if not, then there are disagreements and no decision can be made. So you cannot derive from “incline after the majority” that there too one should follow the majority. So you take the verse “incline after the majority,” but you understand that it is not really a sufficient source, and you say: besides, you can’t manage otherwise. Therefore I will apply “incline after the majority” to this case as well. And Rabbenu Tam indeed says no—you do not follow the majority. If you have no source, you have no source; you cannot follow the majority, only unanimity. But both sides agree that the verse “incline after the majority” is not enough to show that one should follow the majority in democracy, in communal decisions. And that is because of the different character of the decision: in Jewish law you are seeking the truth, and in a community you are seeking what the public wants. Those are two different things.
[Speaker B] Rabbi Gedalia says regarding nullification by majority that it is learned from “incline after the majority,” because the Torah says to view it as the collective of that thing. So according to Rabbi Gedalia, maybe here too you could say it works.
[Rabbi Michael Abraham] That isn’t Rabbi Gedalia; it’s much earlier than him. Already in the medieval authorities it is written that the law—
[Speaker B] Yes, but he explains it—he explains it. He brings the medieval authorities who say it comes from the law of nullification by majority, and then he explains why. He says because—
[Rabbi Michael Abraham] According to his explanation, it is not really a law of following the majority, but rather a law of “the majority is like the whole.” Therefore it is a somewhat different law. In my opinion, there he mixes these concepts a bit, but fine, let’s not get into that now.
[Speaker B] I’m just saying that according to his opinion, then it could fit what the Rosh says—that the Torah says “incline after the majority.”
[Rabbi Michael Abraham] And what about “the majority is like the whole”? It could be that a majority in a community is also considered like the whole community. It could be.
[Speaker D] In any case, Rabbi, another difference that could exist between democracy and the search for truth in Jewish law is that even if we say we need to follow the majority in Jewish law, whose majority is that? It’s the majority of sages, the majority of decisors. It’s not the majority of the people now deciding how to rule on Jewish law, right? So even if we are looking for the majority—
[Rabbi Michael Abraham] In Jewish law—again, I’m speaking right now about a rabbinical court, not about Jewish law in general. In a rabbinical court there is no question: the majority is the majority among the judges.
[Speaker D] And how are the judges chosen? No—
[Rabbi Michael Abraham] But again, the judges make decisions because they are judges. So within the framework of the judges, you follow the majority. It is like in a city, where sometimes decisions are not made by the whole public but by the seven leading citizens of the city, and then the question is whether the majority among the seven leading citizens determines the outcome or whether you need all of them. These were not always decisions of the demos, Athenian-style, where the whole people gather in the town square and everyone votes, a referendum. These questions arose both regarding things that were voted on by the whole public and regarding questions decided by the seven leading citizens, representatives.
[Speaker D] So it is very possible that in fact the majority of decisors rule X, while the majority of the people think Y is correct?
[Rabbi Michael Abraham] Nobody cares. As the Sefer HaChinukh says, ignoramuses as numerous as those who left Egypt will not outweigh a small group of sages. That is exactly the point. The moment you are looking for the truth, then from the standpoint of searching for truth, it is obvious that sages carry a different weight than an ordinary person. If you are looking for rights, then no—that is exactly the difference.
[Speaker D] It’s not even just different weight—only they have the right to decide.
[Rabbi Michael Abraham] Yes, but you know, the difference between a sage and a non-sage is a continuum, not zero and one. So there are different levels of Torah scholars, and each according to his level of wisdom. It’s not black and white. So here too it’s… Why?
[Speaker D] But if the Rabbi says that the moment a person becomes a judge, he has the ability to decide, then that is yes-or-no. Yesterday I wasn’t a judge, today I received ordination and now I’m a judge.
[Rabbi Michael Abraham] Again, you’re mixing two things. If you’re talking about a majority among judges, then your question doesn’t even begin, because the judges are originally a very specific group. So there is no question of who within that group determines—everyone in the group, and you follow the majority. If you’re talking about decisions of the general public, then it’s irrelevant. There are no decisions of the general public in Jewish law.
[Speaker D] So what are decisions of the general public? Like what?
[Rabbi Michael Abraham] Not in Jewish law—only in democracy. There are no decisions of the general public in Jewish law.
[Speaker D] But when the Rabbi explained historically that there were cases where the Jewish people dispersed…
[Rabbi Michael Abraham] Those are decisions not in Jewish law—
[Speaker D] decisions—
[Rabbi Michael Abraham] of communities: whether to build a mikveh, whether to make a wall, whether to build a school, and all sorts of things like that.
[Speaker D] Because I thought that today, say, we see there really is an ingathering of exiles here in the Land of Israel, and we really see substantial differences between the communities—between Yemenites, Ashkenazim, Sephardim—so I thought maybe that comes from this, because they were a kind of communal autonomy, and so they also had to decide autonomously in Jewish law and custom.
[Rabbi Michael Abraham] I didn’t understand. Obviously there were different places, they made different decisions, and that is how different customs arose.
[Speaker D] But also in Jewish law.
[Rabbi Michael Abraham] Of course also in Jewish law. Obviously different sages in different places made different decisions, so there are disagreements in Jewish law too. Obviously.
[Speaker D] What is the connection between that and ethnic communities?
[Rabbi Michael Abraham] So how did a sage—
[Speaker D] in Yemen determine the law as X, while a sage in Ashkenaz—
[Rabbi Michael Abraham] He thought that way, just as one sage in Ashkenaz disagreed with another sage in Ashkenaz. The disputes were not between Yemen and Ashkenaz; there can be a dispute between any two sages. And naturally, the sages in Yemen and the sages in Ashkenaz were not the same person, so probably there were more disputes than within Ashkenaz, maybe—though even about that I’m not sure. But fine, it’s a simple phenomenon; it has nothing to do with what I’m saying here.
[Speaker D] But again, I’m trying to understand one hundred percent. So when the sages in Ashkenaz ruled on Jewish law—when they had to issue a halakhic ruling—what did they rule by?
[Rabbi Michael Abraham] By what seemed right to them.
[Speaker D] By what seemed right to them, by what they had received, by the Talmud, by the Mishnah, each according to his own approach.
[Rabbi Michael Abraham] Why—how is that connected to what we are discussing here?
[Speaker D] Because again, I’m trying to understand how these decisions were actually made, and how we get to a situation where today…
[Rabbi Michael Abraham] Which decisions? No decisions were made. Every sage, when asked a question of Jewish law, said what the law was in his opinion. There was no Ashkenazi Sanhedrin making decisions for the Ashkenazim. Every sage you ask tells you his opinion.
[Speaker D] And because each one says his own opinion, we arrive at a situation where there are substantial differences, and sometimes even opposite positions.
[Rabbi Michael Abraham] Correct. Even among Ashkenazim and Ashkenazim there are sometimes differences, all sorts. In any case, for our purposes, what I want to say is that in Jewish law the goal of the discussion is to reach the truth, unlike a democratic majority. Now in terms of what that means in practice—first of all, of course, it means that sages carry weight. But beyond that, I want to argue that if this is so, then I would expect that in Jewish law, the reasons should play no less a role than the bottom lines. And that is what connects me to what I said at the beginning—that it is important to deal with the reasons and not only with the bottom lines. I want to examine this through a halakhic question. What happens when there are decisors on a certain question—or even judges, if you like—and the judges or decisors each reach some bottom-line ruling based on his own rationale, and we are supposed to follow the majority? At least in a rabbinical court, we follow the majority. Among decisors, it is a somewhat subtler question, but still—in simple terms, the Shulchan Arukh says that among decisors too one follows the majority. But if that majority is produced or formed on the basis of different rationales, different reasons, should we still follow the majority?
[Speaker B] The Hazon Ish says that if each one heard—
[Rabbi Michael Abraham] —the reasons. Let’s say someone—they’re judging someone for desecrating the Sabbath, and there are twenty-three judges because this is a capital case; they execute him if he desecrated the Sabbath. There are fifteen judges against eight who say that he desecrated the Sabbath, but the fifteen judges each think he violated a different prohibited labor. Okay? And the eight judges say that he violated nothing. So do we execute him? We follow the majority of judges and execute him. But you understand that if you examine the rationales, it is absurd. Because if I ask whether on that Sabbath he trapped something, I have twenty-two judges against one saying that he did not trap. If I ask whether he selected on the Sabbath, I have twenty-two judges against one saying that he did not select. So this logic would actually say—yes, I’m not entering the technical details right now—the logic would say that in such a situation you should acquit him, if it comes from different rationales. If it comes from the same rationale—that there is a majority of judges, fifteen judges, saying he trapped on the Sabbath—then they are the majority and he should be executed. But if the judges rule from different rationales, then you should check the majority and decide on the level of the rationales, not on the level of the bottom line. And sometimes the level of the rationales can come out differently from the level of the bottom line. Now look: in the Shulchan Arukh, the Rema in section 25 writes: “And likewise, if there was one against many, we follow the many everywhere. And even if the many do not agree from one rationale, but rather each has his own rationale, since they agree regarding the law, they are called the many, and we follow them.” Meaning, even if the majority judges rule from different rationales, different reasons, we still follow the majority. What matters is the bottom line, not the reasons. The Shakh there qualifies this somewhat—the long Shakh: “And even if the many do not agree from one rationale, in my Siftei Kohen on Yoreh De’ah I argued that for a Torah-level prohibition we do not follow the many when they agree to be lenient on the basis of two reasons. However, it appears that this is specifically when we come to permit a law about which we are uncertain based on the books. Therefore, since the many are not before us, we are concerned that perhaps in this matter the main law is like that decisor who is stringent, and in the other matter the main law is like the second decisor who is stringent. But when the many are before us, it is obvious that we follow them, even though they do not agree from one rationale, for we do not find anywhere that the Sanhedrin or judges require the many to state one rationale.” Meaning, he says that among the decisors through the generations—say on a halakhic issue that occupied decisors through the generations—and I survey the literature of the decisors and conclude that the majority rules X and the minority rules Y, but the majority ruling X does so for different reasons, then the Shakh says there: you do not follow the majority. You do not follow the majority. Why? Because they did not debate with each other, and so it is not certain that those who were stringent heard the reasons of those who raised other reasons; they did not address them. In general, even without different rationales, you do not necessarily follow the majority when they did not sit together. Because if they did not sit together, then it could be that if they had heard my arguments, they would have been persuaded. They did not hear my arguments. So since they did not deliberate together—the Hazon Ish writes this too—therefore you do not follow the majority. But he says at least that when it is based on different reasons, then if they did not sit together, no; but if they do sit together, then even when it happens through different reasons, one rules according to the majority. Even if it is for different reasons, because each one heard the other’s reasons, and we do not find anywhere that the reasons have to be one and the same, that the majority must state one reason. He then brings a Talmudic passage in tractate Sanhedrin that says that if they disagree about the legal sources—not the reasons, but the legal sources—and two judges bring a source for the law, two different sources for the same law, then in fact you count them only as one judge and not as two. Why? So Rashi explains that if both bring different sources for the same law, then necessarily each one thinks the other’s source is mistaken, because there cannot be two sources that say the same law. We always make a tzrikhuta, right? If that law is already known, then it cannot come from this source, so this source must be teaching something else. Right? The Talmud does that many times. So obviously, if you bring the same law from two different sources, from two different verses or two different interpretations, that means that the one who brings interpretation A disagrees with interpretation B and vice versa, and therefore you cannot count them as two opinions, because one of them is certainly mistaken. But all that is when you bring different sources. If you bring different reasons, then yes. Why? Because with different reasons, it may be that they do not necessarily disagree with each other; rather, there is a different balancing of considerations. There is room here to discuss a bit why, with reasons, we do not say that certainly, certainly one of them is mistaken.
[Speaker B] In any case—how does the Rabbi explain it? I didn’t understand. If the majority is meant to seek the truth, then why would different reasons work?
[Rabbi Michael Abraham] One moment, one moment—I haven’t explained it yet. On the contrary, for now I’m asking.
[Speaker E] But can’t you say that if there are, say, two sources, then there is a greater chance that if you follow the majority you will statistically land on the correct things—on the—I didn’t understand. Meaning, say you have three opinions now: two say the law is this way, but their sources are different, and one other disagrees. So if you don’t know what the correct law is, but you follow the majority, then you have, as it were, more of a sixty-six percent chance that in the end you’ll hit the correct law, the correct source.
[Rabbi Michael Abraham] Why sixty-six percent? Against each one of the reasons there are two opinions saying it is mistaken.
[Speaker E] But in the end two of them say the same thing in practice, so if you follow that law—no, you’re assuming here, you’re assuming—
[Rabbi Michael Abraham] You are making a statistically incorrect assumption here. I’ll get to that in a moment. Okay. In any case, that’s the claim. There is—Rabbi, but Rabbi, but—
[Speaker F] Rabbi, but actually, on the face of it, it’s the opposite. Specifically if you have—if the dispute is about the source of the law, but in the end you know that the person should do such-and-such—what is the source? This verse or another verse? Then they disagree. But everyone thinks in the end that the Holy One, blessed be He, thinks that one should do X. So that is what matters to us. Whereas if the dispute is about the reasons, then it could mean that the will of the Holy One, blessed be He, is actually different, so then really I should have counted differently.
[Rabbi Michael Abraham] No, it’s much more significant. The moment you have two different sources, you think that the Holy One, blessed be He, thinks this because you learned the verse that way. But your disputant tells you that you are mistaken about that verse, and therefore according to his view the Holy One, blessed be He, does not think that. After all, you learn it from the verse. It’s not that you say, “The Holy One, blessed be He, wants this, and then I also find a verse.” Rather, from the verse I infer that the Holy One, blessed be He, thinks this. But the other says to you: not true, it does not emerge from that verse.
[Speaker F] But it’s a little naive to think that you approach the verse as though you’re really a blank slate and asking, what does the Holy One, blessed be He, want? The verse tells me. Where have we heard such a thing? We really see that this is how it gets realized.
[Rabbi Michael Abraham] Certainly, certainly.
[Speaker F] “And your brother shall live with you”—Rabbi Akiva didn’t know what to do with those two people in the desert until he discovered the verse. He thought it was better—he thought like Ben Petura, no problem, let both of them live, let both of them drink and die. Suddenly the penny dropped: “and your brother shall live with you.” How can that be?
[Rabbi Michael Abraham] You’re bringing me a passage that is loaded with moral reasoning, so you’ve made life easy for yourself. In most halakhic questions, the judge’s opinion of what should be done—or the decisor’s opinion of what should be done—is really the result of how he understands the sources, the verses. Is it permitted or forbidden? I discuss whether this chicken is non-kosher or not non-kosher—do I first decide it’s non-kosher and then check which reason I’ll dress it up with? No. I really look at the laws and see whether it is non-kosher or not non-kosher.
[Speaker F] But I also look at the woman, and I look at the distress.
[Rabbi Michael Abraham] The Rabbi himself has said this many times. If you first look at the woman, then you’re a criminal. I didn’t say look at the woman first. After you determine what the law is, if you have two options, you can take into account the woman’s situation. But first of all you have to determine the law. Okay, in any case, for our purposes there’s a very interesting situation, a very interesting situation in which you can see the tension on this issue. It’s called the doctrinal paradox. The doctrinal paradox. Think about two people who come to a religious court, and Shimon claims that Reuven breached the contract and sues him for payment. And Reuven says no. Now in order to make a decision, yes, if I want to decide whether Reuven has to pay because he breached the contract or not, I have to decide two things. One question is an interpretive question about the contract, right? Does the contract really forbid doing X, which is what Reuven did? The second question is a factual one: did Reuven in fact do X? Okay? There’s an interpretive question here and a factual question. In order to obligate Reuven, I have to answer both questions in the affirmative: that the contract really does forbid doing X, and that factually Reuven really did do X, right? If one of the two is missing, then you can’t obligate Reuven. Now look here at the table I shared, at the distribution of opinions. There are three judges, A, B, and C. The first judge says: on the interpretive question, yes — meaning X really is forbidden; on the factual question, Reuven really did do X; final ruling: Reuven must pay. The second judge says: the contract does not require doing X — does not forbid doing X, sorry — and Reuven did do X. So of course then it doesn’t matter, the contract doesn’t forbid it, and therefore he doesn’t have to pay. And judge C says: the contract really does forbid doing X, but Reuven didn’t do it, so once again he doesn’t have to pay. Look at the distribution of opinions in the left column: the majority of the judges say Reuven does not have to pay, right? There are two judges here who say he doesn’t have to pay and one who says he does. So legally we rule that he does not have to pay. But now let’s look column by column. Regarding the interpretive question, there are two judges who say the contract forbids doing X and one who says it doesn’t. A and C say yes, and B says no. Regarding the factual question, again, there are two judges who say Reuven did X and one judge who says he didn’t. So in practice, if I were now deciding the interpretive question, I would have to decide by majority that the contract forbids doing X. Then I move to the factual question, and I decide by majority that Reuven did do X, and then the conclusion, of course, is that Reuven has to pay. Meaning, if I examined this by the reasons, then Reuven has to pay. If I examine it by the bottom line, then Reuven does not have to pay. So here we are — this perhaps presents nicely this tension, this problematic aspect in deciding by bottom lines and not by reasons. Now you might perhaps think that this paradox was invented — yes, I didn’t invent it, it’s a known paradox — but that it was invented only to show some logical problem and that it doesn’t really happen in reality. So here, I have an example that I saw with my own eyes where it happened in reality. In the High Court. There was a petition there about a mother who abducted her children — not the High Court, that’s the Supreme Court, yes, the Supreme Court — the mother abducted her children. Now sorry, not the mother, the father — wait, no, the mother abducted her children, yes, the mother abducted her children from the father and fled to the country. They were abroad and she fled here. Now child abduction is discussed under the Hague Convention. According to the rules of the convention, it works like this: let’s say I reached the conclusion that there really was an abduction, meaning that what the mother did in taking the children falls under the definition of abduction. Still, if the father consented at the time of the abduction — the so-called abduction — and only afterward he sues because he changed his mind, then you don’t have to return the child to him. And if the father acquiesced after the fact, after the abduction, then also you don’t have to return the child to him. Okay, those are the rules of the convention. Now the opinions of the Supreme Court justices — there were three justices — were as follows: everyone agreed that there had been an abduction, meaning that the rules of the Hague Convention applied here; there was an abduction. One of them held that there had been neither consent nor acquiescence. Right? Consent means consent at the time of the abduction, and acquiescence means afterward. The second held that there had been acquiescence but not consent, and the third held that there had been consent but not acquiescence. Okay? Now clearly, if there’s one who says there was consent and one who says there was acquiescence, both of them say the mother does not have to return the child. So there is a majority of judges saying the mother does not have to return the child. But if we examine the issues one by one — was there consent? Two against one say there was no consent. Was there acquiescence? Two against one say there was no acquiescence. So if there was no consent and no acquiescence, the mother has to return the child. This is exactly the doctrinal paradox. And of course they went with the majority; the bottom line determined the outcome. Even though in terms of the reasoning, that’s not how it should have come out. Now, once I spoke about this in another series. And when I raised this issue, then Shmuel — yes, sitting here I think, yes — Shmuel raised an idea, and I told him that in fact I hadn’t thought of it and I needed to check it, and the idea was something somebody here mentioned earlier, I don’t remember who, maybe Dov or Elior, I don’t remember, one of you. The claim was that statistically it still might be correct to go by the majority of bottom-line opinions. Why? Let’s return to the contract case, okay? So in the contract case I’m basically saying this: if I’m looking for the truth, then I ought to go by the reasons and not by the bottom lines, because I want to know what really happened there — this isn’t a technical game, okay? But notice, let’s say there are two against one that there was a breach of contract, and two against one that the contract requires this. That doesn’t mean that probably the contract requires it, nor with certainty that the contract was breached. It only means that that’s more likely. But a majority likelihood on one issue and a majority likelihood on another can still combine into something that isn’t a majority. It is not necessarily true that it is more likely that the contract forbids this and that he in fact also breached the contract. Because you can combine the minority on this with the minority on that, and it could turn out overall that there is no majority to convict him, because in order to convict him you have to decide both that the contract forbade it and that he did X, okay? Now the decision that the contract forbids doing X is a decision reached by a majority of two against one, so let’s say there’s, I don’t know, a seventy percent chance it’s correct for the sake of discussion, okay? But the decision that he did X is also seventy percent correct. Now in order to affirm both of those decisions, the result is the product, so only forty-nine percent. Forty-nine percent is not a majority. Therefore, even if we’re looking for the truth, it is not necessarily correct that we should go by the reasons; the statistical calculation is more complicated. I told you, Shmuel, that I’d do the calculation, and I did it. I don’t know whether you read the column — it was published in a column years ago, column 257 — and there I detailed the calculation. And this calculation comes out, broadly speaking, like this: let’s say I say that the quality of the judge is p. Quality of the judge means the chance that he hits the truth — halakhic, factual, doesn’t matter right now, I’m making a very simple model. The quality is p, and the judges are all of quality p, because I’m talking about following the majority, so that’s when the judges are more or less at the same level of Torah scholarship, okay? So it turns out that if p is between one-half — yes, below one-half it would be better to draw lots and not use the judge, right? Meaning p starts at one-half, because if the chance the judge gives me the correct decision is one-half, then that judge is equivalent to flipping a coin. So that’s a judge worth nothing. A judge’s quality starts being measured from one-half and up, which means p is necessarily above one-half. So if p is between one-half and 0.7 — yes, the square root of two over two — then it really does turn out that going by the bottom line gives me the correct result with the highest probability. But if it’s between 0.7 and 1, meaning high-level judges, then you should go by the reasons and not by the bottom lines. And this shows that the picture really is more complicated — not this way and not that way. Meaning, I asked: if it’s really important to rule from first-order decision-making and get into the reasons, then I would expect the majority we follow… Because sometimes the bottom lines really do give me the correct result, and sometimes they don’t. Now go measure the quality of a judge. I spoke about this in other series — there’s really no true way to measure the quality of a judge, because we have no independent feedback on whether his decision was correct. Once the religious court determines something, how do I know whether what they determined is right or not? All I have are the proofs that were also before the court. I don’t have some independent source that tells me here they were right and here they weren’t. Therefore I have no way to measure a judge’s quality. So because of that, I basically need to adopt some sweeping rule for how to make majority decisions. If I could measure the quality of a judge, I’d say: up to 0.7, go by the bottom lines; above 0.7, go by the reasons. And even that, of course, assumes that all the judges are of the same quality and that there are only two parameters here and not more, otherwise it becomes a collection of many, many calculations, each one different from the next. Okay? But in principle at least, one could have tried to do the calculation. But since you can’t do the calculation, then obviously we have to adopt some decision that will be relatively simple and reasonable. And I think the logic says to go by the bottom lines. Therefore, the fact that they go by the bottom line is not proof that one needs to be second-order halakhic decisors. Even if you believe in first-order decision-making, there is still logic to following the bottom line when there are disagreements. And all this, of course, is only in a religious court, where all the judges sit together and exchange positions and hear each other’s reasons and then formulate a position and make a decision. But halakhic decisors who did not sit together and discuss — as the Shakh said, as I mentioned from the Chazon Ish — there it is not correct at all that one should follow the majority. There are many decisors who say yes, but even on that I don’t follow the majority. Meaning, there, there it is not correct that one should follow the majority. And there, who says that if this decisor had heard the reasons of that decisor he wouldn’t have been persuaded? And therefore the fact that most decisors said something has no significance, and on this issue we do not follow the majority at all. And even when we do follow the majority, we follow bottom lines, even though we actually — even if we do believe in first-order decision-making and not second-order decision-making.
[Speaker F] Rabbi, Rabbi, can I suggest another reason to go by bottom lines? Since when you decide on reasons, then again, that doesn’t really bind you. After all, you say what occurs to you and how you phrase it and how you understand yourself, and all that is pretty vague, and in the end a large part of it is intuition that maybe you can’t even formulate to yourself. So that really binds you less. And when you have to say what to do, which is a ruling that carries a price that someone has to pay, that’s where you put your stamp on the table, and therefore that’s what you really commit to. The reasons never really bind, and many times maybe you’re not even formulating it clearly yourself.
[Rabbi Michael Abraham] Take for example the doctrinal paradox I brought before. There, what I called reasons aren’t really reasons; they’re sub-questions. Meaning the interpretive question of the contract — does the contract forbid doing X — and the factual question — did Reuven do X. Now you understand that when the judge says Reuven has to pay or does not have to pay, that’s simply a consequence of what he thinks about the first two questions. It’s not a decision reached independently.
[Speaker F] I didn’t say it was independent.
[Rabbi Michael Abraham] But in the bottom line he says something clear. The bottom line is the result of what he says about the first questions.
[Speaker F] It’s something that he manages to formulate for himself, but again, in the end a large part of it is intuition that in fact even he himself could not formulate.
[Rabbi Michael Abraham] In certain places you may be right, where he doesn’t really formulate the reasons properly and intuition carries weight even if it isn’t formulated. But for example in this case of the doctrinal paradox, I don’t think that’s correct. Because in this case your decision is the result of two decisions you made earlier. You would also have had to write that in the ruling: I think the contract forbids doing X, and I think Reuven did X, with the various reasons, and therefore Reuven must pay.
[Speaker B] Right, but it’s a little hard to see it that way because in the end, let’s say there was a discussion in a religious court about the laws of selection, and there was a discussion in a religious court about the laws of, I don’t know, building or something like that, and there too each one was decided by majority. In the end we would go by those two reasons there.
[Rabbi Michael Abraham] I didn’t understand.
[Speaker B] If I, let’s say, just on the doctrinal paradox, so let’s say in the contractual interpretation, how to interpret the contract in general, there were judges sitting and saying the contract should be interpreted as X. So one would say that there too you should rule — that there too the parameter would be decided — and they would also rule there by majority. It’s obvious that when an actual case came before me, I would rule according to the two reasons that had been ruled on by majority in the religious court.
[Rabbi Michael Abraham] Fine, and I’m talking about the same case under discussion. These are not general rulings.
[Speaker B] Yes, but that’s it, it’s hard for me to understand.
[Rabbi Michael Abraham] If the questions are questions that were discussed separately, then obviously we don’t do this; then we go by the reasons.
[Speaker B] Right, but that’s it, it’s hard for me to understand.
[Rabbi Michael Abraham] It’s hard for me to understand a religious court that sits today and rules according to the Shulchan Arukh — and on what basis did the Shulchan Arukh itself rule? He studied the Talmudic passages and reached his own conclusion about what he thought the Jewish law was, so obviously it’s done in stages. I’m talking about when this whole story happens within the litigation itself.
[Speaker B] Yes, but I’m saying, what’s the difference really? I mean, practically, I don’t see it.
[Rabbi Michael Abraham] That’s exactly the claim. My claim is that on the principled level there is no difference. The difference is only technical. In principle, even in a religious court it would have been appropriate to go by the reasons, at least when the judges are good. But it’s complicated, and it’s not always correct, and so on, and therefore they still do it this way, according to the bottom line. But really you’re right that essentially there shouldn’t be a difference, right? That’s my claim.
[Speaker B] So what, it’s just convenience? Just for convenience?
[Rabbi Michael Abraham] Not convenience, but you know, there has to be some simple and workable form of decision-making in Jewish law. This is something that exists in every legal system. You don’t always go with the truth; sometimes you go with what is right, what is most efficient to implement. You also need legal certainty, you also need simple rules, you need things to be able to be carried out.
[Speaker B] But why really, why are we obligated to say that in a religious court we go by the bottom line?
[Rabbi Michael Abraham] We’re not obligated, but all the halakhic decisors say so. Exactly. One can disagree with them on that point too, indeed. You’re right. Okay, that’s it, up to here.
[Speaker B] Thank you very much, Rabbi. Sabbath peace.
[Rabbi Michael Abraham] Sabbath peace.
[Speaker D] Hello. Rabbi? Yes. Is there time for general questions not connected to the lesson? Uh-huh. In one of the Rabbi’s series, which is Commandments and Their Prevention, I think in one of the first lessons the Rabbi talks about the value of keeping the commandments in order to draw close to God, basically. Now I wanted to ask the Rabbi a general question. How important is that, and what value does the Rabbi assign to those things? I said that keeping commandments is in order to draw close to God? Yes.
[Rabbi Michael Abraham] I don’t remember saying anything like that there.
[Speaker D] Okay, but generally my question is not about keeping the commandments themselves, but about, say, what people do in prayers, or some who practice secluded meditation and things like that. What value and what importance does the Rabbi assign to those things?
[Rabbi Michael Abraham] I don’t know. If it contributes to a person’s service of God, then very good. I don’t know how to determine some general rule. For me it doesn’t contribute much.
[Speaker D] Prayer too? Also?
[Rabbi Michael Abraham] Prayer — no. I do it because it’s an obligation, but I don’t feel it contributes much to me.
[Speaker D] Contributes in what sense?
[Rabbi Michael Abraham] To my service of God, I don’t know, in any factor other than fulfilling my obligation.
[Speaker D] Meaning it’s something the Rabbi does without emotion, כביכול?
[Speaker E] Right. Do you think there needs to be emotion, or does it not matter at all?
[Rabbi Michael Abraham] If there is, there is; if there isn’t, there isn’t. That’s just a fact. Either you have emotion or you don’t.
[Speaker D] The question is whether it affects the quality when there is emotion or not.
[Rabbi Michael Abraham] No.
[Speaker D] You see people doing secluded meditation…
[Rabbi Michael Abraham] To fulfill the obligation — what quality? You fulfilled the obligation even without emotion.
[Speaker D] Right. There’s no quality of prayer? There’s no such thing as quality of prayer?
[Rabbi Michael Abraham] Intentions and things like that? I don’t think so. What do you mean by quality of prayer? Look, someone could come and say not on the halakhic level but on some general spiritual-religious level like this, that after prayer he loves the Holy One, blessed be He, more, he feels more attached to Him, and so on, so prayer contributed to his religious life. But that’s not part of the laws of prayer, it’s not something required in the laws of prayer, and it’s not part of Jewish law at all. In the same way, someone can come and say that secluded meditation contributes to him, someone else that looking at trees contributes to him. Fine, so if it contributes to him, let him do it. But you can’t ask me a general question whether looking at trees has value. It doesn’t. Meaning, that doesn’t mean there can’t be someone for whom that does give some added value.
[Speaker D] But wait, but Rabbi, first of all according to Jewish law there is. There is indeed a requirement that in prayer I understand and think about what I’m saying, right? I can’t now say the words of the prayer and think about my business affairs, for example.
[Rabbi Michael Abraham] No, no, of course. You have to think about the words, you need intention of the words, yes.
[Speaker D] Okay, so there already is an issue of specific intention.
[Rabbi Michael Abraham] That’s not connected to emotion. Intention of the words, yes.
[Speaker D] And nothing beyond that? If now I’m on Yom Kippur and I want to draw close to God and I have, I don’t know, some particular emotion.
[Rabbi Michael Abraham] There is beyond that, but it’s not from the laws of prayer.
[Speaker D] Obviously it’s not in Jewish law, but doesn’t that emotion have added value?
[Rabbi Michael Abraham] I said before: it has added value if that thing contributes something to you, yes. But in exactly the same way, looking at trees has value if it contributes to your attachment to God. Anything. Or watching a good movie — if you think that because of the good movie you’ll become attached to the Holy One, blessed be He, then that too has value. The question is what it does for you, but that’s your matter. It’s not something objective in the thing itself.
[Speaker D] Yes, okay.
[Speaker E] Rabbi, and do you think there is a connection between the Zohar and Rabbi Shimon bar Yochai? Some kind of connection? Is there a connection between the Zohar and Rabbi Shimon bar Yochai?
[Rabbi Michael Abraham] I haven’t researched it in depth, but I assume there is a connection. The question is whether Rabbi Shimon wrote the Zohar. Most likely not.
[Speaker E] Wrote it, apparently not, but is it his disciples’ disciples?
[Rabbi Michael Abraham] There are tannaitic sources there. Within the Zohar there are tannaitic sources. There are things of Rabbi Shimon’s — the Idrot, I don’t know — there are sections of Rabbi Shimon in the Zohar. The dispute is only over whether Rabbi Shimon wrote the Zohar.
[Speaker E] But you’re saying there’s no dispute that the sources there are, so to speak, authentic?
[Rabbi Michael Abraham] No, I don’t know whether they’re authentic or not, but it’s clear that tannaitic sources are embedded there as well. They are ancient. Whether they’re authentic or not is debatable, but they are ancient.
[Speaker E] It’s just hard for me to accept that fact — that apparently no one mentioned any passage from this book among the earliest medieval authorities (Rishonim), I mean before Moshe de Leon.
[Rabbi Michael Abraham] Fine, so what does that prove? But fine, so they didn’t know it — so what?
[Speaker E] No, what do you mean they didn’t know it — then I’m supposed to believe that there was some secret tradition that was passed down.
[Rabbi Michael Abraham] You’re not supposed to believe anything. If you
[Speaker E] believe, you believe; if you don’t believe, you don’t believe. There’s no such thing as “supposed to believe.” I’m not convinced.
[Rabbi Michael Abraham] No problem, then you’re not. What’s the problem? If you’re not convinced, then you don’t believe. There’s no such thing as “supposed to believe.” “Supposed” is the name of a fish, as they say.
[Speaker E] No, yes, right, but “supposed” in the sense that if you say yes, that it’s from his disciples’ disciples, I mean.
[Rabbi Michael Abraham] If you think yes, then yes, and if not, then not. What does “supposed” mean? Whatever you think.
[Speaker E] Fine, okay. Okay.
[Rabbi Michael Abraham] Anyone else with a question?
[Speaker E] I think that’s it. Thank you very much. Thank you very much, Rabbi. Okay, bye, bye.
[Rabbi Michael Abraham] There’s no
[Speaker E] one like you.