Learning and Halachic Rulings – Lesson 17

This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.

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[Rabbi Michael Abraham] There’s a story—yes, as is known, I sat on several panels that annulled marriages. And in those cases, these were cases that had been going around the rabbinical courts for years; they’d been messing them around there, dragging things out for years for no reason, as usual. So with one of the women who was there, I saw rulings that the judges had written in earlier stages of the case, and it just drove me out of my mind. They wrote there: “Were it not that we are hesitant, it seems to us that she is indeed permitted, but we want the agreement of the leading sages of the generation, because without the leading sages of the generation we are not prepared for people to rely on us.” Okay? Now, I have no problem with the fact that you want the agreement of the leading sages of the generation, that you want to consult with the leading sages of the generation. I don’t know who the leading sages of the generation are—decide who your leading sages are and go consult them. But you cannot write in the ruling of a judge in a standing religious court that you need the agreement of the leading sages of the generation and then go home and sleep. You’re a judge. You get a salary in order to issue rulings. You want their agreement? Go to them and ask them for their approval. A woman comes to you, and you tell her: “Look, in my opinion you’re permitted, but I’m not permitting you; we need the agreement of the leading sages of the generation. Thank you very much, goodbye, I’m going home.” What do you want her to do now—go to the leading sages of the generation, ask for approvals, come back to you with written endorsements, and also debate the passage with them? What exactly do you want her to do? These are simply idiotic people. If you—look, I don’t agree at all that you need the agreement of the leading sages of the generation, in my opinion, but fine, that’s a difference in approach. But if you do want it, fine, very well—go and get the agreement of the leading sages of the generation, or don’t get it, and then issue a stringent ruling. No problem. But you have to reach a bottom line. You have to rule. There are people who don’t understand their own standing, don’t understand their role. A judge in a standing religious court gets a salary in order to make decisions. You can’t say, “I think this, but I need the agreement of the leading sages of the generation.” In responsa, by the way, statements like that appear a lot—but in responsa that’s legitimate. As someone answering a responsum, he is basically a Torah scholar that someone sent a question to. I’m not… he doesn’t work for that person and he’s not obligated to give him an answer. He’s a Torah scholar, so he’s doing him a favor and giving him an answer. So if there are situations where he’s not fully confident and he wants the agreement of other sages who agree with him, then he writes: “Look, I think this is permitted, but if you want to rely on it, get the agreement of two more sages.” I’m not obligated to go to them. I don’t get a salary in order to rule. I’m a Torah scholar; you asked my opinion—this is my opinion. But a judge who serves in a role and gets a salary to serve as a judge in a standing religious court cannot write such a thing. He simply doesn’t understand his place. And this is exactly the point I’m talking about. Your role as a halakhic decisor or as a judge is to decide Jewish law. I said again, personally I don’t… The message in the end is that a decisor or a judge is supposed to make decisions from within the reasoning, to of course see the different opinions, to see the opinions of all the great halakhic decisors and the medieval authorities and later authorities, to work it through, to see the difficulties. But in the end, he has to arrive at his own conclusion and decide the Jewish law. And that is the meaning of autonomy in halakhic ruling. And when I say autonomy, I really mean more than that. Not only that that judge himself should go to the leading sages of the generation and not send that poor woman to them—but I think he shouldn’t go to them at all. Going to consult is fine; consulting is always good. Maybe you missed something. But in the end, you have to make the decision, not them. They are not the ones serving as judges—you are serving as a judge. If you want to consult with them, consult with them. But I don’t think going and receiving instructions from them is really the right way to issue a halakhic ruling. Again, my earlier claim was: I have no problem with his going to get instructions from them as long as he goes and doesn’t send the woman. Now I’m making a more far-reaching claim. I also think that he himself shouldn’t go. Meaning, he can go if he wants to consult, if he’s unsure—that’s fine. Consulting is always good. But not in order to receive instructions. And even if they’re greater—not because they aren’t greater, like Rabbi Meir. That’s not the issue. In the end, you have to make the decision, not them. You can consult with them if they are great, hear what they say, present your position to them—but in the end, you have to make your own decision.

And now I really want to get into this topic a bit more systematically. In the halakhic world, when we talk about situations of doubt, several kinds of doubt are defined. The first kind is uncertainty about the facts. I don’t know what the reality is. Twilight—I don’t know whether it is day or night. Right? That’s factual uncertainty. The second type is uncertainty in the law. I don’t know what the law is that applies to this reality. For example, the Mishnah in the chapter “Klal Gadol,” tractate Sabbath, says that there are two kinds of unintentional transgressors, which is the same as two kinds of doubt. One kind of unintentional transgressor is someone who doesn’t know that sorting on the Sabbath is forbidden—that’s an unintentional transgression due to ignorance of the law. The second kind is someone who doesn’t know that today is the Sabbath, which is an unintentional transgression due to ignorance of the facts. In both of those cases, it’s the same category of unintentional transgressor, right? They’re both unintentional—unintentional in law, unintentional in fact. The same applies regarding doubts. There is doubt in the law—I don’t know what the law is in this case. There is doubt about the facts—I don’t know what the reality here is. Okay? This piece of meat—I don’t know whether it is forbidden fat or permitted fat. That is factual doubt. But if I don’t know whether forbidden fat is allowed or forbidden, that is legal doubt. Okay? So that’s simple.

There’s, for example, just as an anecdote, the Maharik writes—and this is brought as Jewish law by the Rema in Even Ha-Ezer—that you know a woman who committed adultery, a married woman who committed adultery, becomes forbidden to her husband and to the man she slept with. Now if her husband is a priest, then she becomes forbidden even in a case of rape or unintentional transgression and everything. But if the husband is an ordinary Israelite, then only if it was intentional does she become forbidden. But if it was unintentional or under coercion, she does not become forbidden. So if the woman committed adultery unintentionally, then she is not forbidden to her husband if he is an Israelite. The Maharik says: but here there will be a difference between the two types of unintentional transgression. We said there is unintentional in law and unintentional in fact. Meaning, if she didn’t know—if she thought that the person she was having relations with was her husband, it was dark, I don’t know, she didn’t see, she thought it was her husband. That’s an error in the facts. Right? She didn’t know who it was; she thought it was her husband. So then she truly is not forbidden to him, because that’s a factual error. But if she erred in the law, then she is forbidden to her husband. If she says: “I know I had relations with someone who is not my husband, but I didn’t know that it was forbidden.” This is very connected to cases like Ezra Sheinberg, that rabbi from Safed, who did all those tricks with the women there. Because they thought it was permitted; the rabbi instructed them that it was permitted. Right? So this really—there’s a responsum by Rabbi Dichovsky, there’s some interesting case in this sense of the Maharik. In any event, the Maharik argues that in such a situation the woman does become forbidden. There are noises here, I don’t know whether people are talking to me or not, but I can’t hear, so I muted first of all. Fine, anyway. I saw—yes, never mind, it’s just an anecdote, it’s not important to me. So for our purposes, what I want to say is that there is another kind of doubt, and this is called a major doubt. It’s another kind of legal doubt. Legal doubt is divided into two types. There is legal doubt: I don’t know what the law says in this case. I’m torn whether it’s this way or that way. I have reasoning in this direction, reasoning in that direction; I have doubt in the law—what is the law in this case? There is a doubt called a major doubt, the doubt of our rabbis. What does that mean? Regarding this case, Maimonides and the Rashba disagreed. So that is a different kind of doubt. It’s not that I am uncertain what the law is; rather, I don’t know whether the Jewish law follows Maimonides or whether the Jewish law follows the Rashba. The sages already disagreed about this; it isn’t a doubt that arose in me. That is a major doubt, and there’s a whole discussion about this, also in Kovetz Sefeikot, in Takfo Kohen, and so on—whether seizure helps or doesn’t help, all kinds of things. There are many differences that are discussed between a major doubt and ordinary legal doubt. Okay?

I claim that there is no such thing as a major doubt. There is no such thing. It’s a concept that does not exist. Why? Because of the well-known story about Rabbi Yonatan Eybeschutz. All stories are about Rabbi Yonatan Eybeschutz, as I already said, so this story too is about Rabbi Yonatan Eybeschutz. A priest once came to him and said, “Look, we are the majority, the Christians, so you have to follow us. It says in the Torah: ‘Incline after the majority.’” So Rabbi Yonatan said to him: I follow the majority in a place where I am in doubt, but if I am not in doubt, I do not follow the majority. Now usually people tell that as a joke. I don’t know what the joke is—this is exactly the right answer. It’s simply a funny thing. But that’s the answer. For example, when I find a piece of meat in the street and there are ten stores in the city, nine of which sell non-kosher meat and one of which sells kosher meat, then the law is that I have to treat this piece as non-kosher meat—we follow the majority. What happens if the piece of meat I found has a high-standard kosher seal on it? And there are still ten stores, nine of them selling non-kosher meat and one selling kosher meat. In such a case, is it forbidden for me to eat this meat? Obviously it is permitted. Why? After all, there are nine stores of non-kosher meat here. And this piece of meat has a kosher seal, so I’m not in doubt whether it is kosher or not kosher. If I’m not in doubt, why should I follow the majority? The law of majority was said about situations where I am in doubt, where I do not know the truth. You don’t know the truth? Follow the majority. But if I know what the truth is, then what significance does the majority have? Therefore this is a completely serious answer; there’s nothing joke-like about it. And this is exactly the correct answer to the claim of that priest. If I have a position of my own, I do not follow the majority. I know what the truth is, to the best of my understanding. If I didn’t know, then maybe there would be room to say that I should follow the majority. But if I do know, then we do not follow the majority.

Now, what happens if I am a judge or a halakhic decisor and a case comes before me—yes? Rabbi Wosner and Rabbi Nissim. Okay? A case comes before me in which the Rashba and Maimonides disagreed. Fine? What am I supposed to do in such a situation? So what I told that friend: you have to enter into the passage, reach your own conclusion, and rule accordingly. Simply go according to your own conclusion in the passage. Ah, there’s a dispute between the Rashba and Maimonides? So I say, either way: there is a dispute between Maimonides and the Rashba; I’ll read Maimonides, I’ll read the Rashba, I’ll examine the difficulties, the solutions, the Talmudic texts, I’ll try to sort it out, and in the end I want to decide what seems more persuasive to me, what my own position is in the passage. If I reached a conclusion. If I did not reach a conclusion, I don’t have a position of my own in the passage, at least not clearly enough for me to dare disagree with the Rashba or with Maimonides—in such a case, then the laws of doubt will apply here. But the laws of doubt will apply because I am in doubt, not because Maimonides and the Rashba disagree. I am in doubt. But if I myself reached a conclusion, I have a conclusion, I have a position in this topic as to who is right—I hold like Maimonides, let’s say, okay? Then does the fact that Maimonides and the Rashba disagree require me to declare this situation a doubtful one? Why? I have a position; I think Maimonides is right. Why didn’t Maimonides declare it a doubt? After all, the Rashba disagreed with him. Well, the other way around—Maimonides didn’t know the Rashba, of course; the Rashba came after him. But why didn’t the Rashba see this as a doubt, since he knew that Maimonides disagreed with him? If he had a position of his own, then so what if Maimonides disagrees with him? Not because he is greater than Maimonides or smaller than Maimonides. If you have a position of your own and you have also weighed the other positions, then that is your position. This is not the laws of doubt, and you don’t need to go after the rules of doubt—Torah-level doubt goes stringently, rabbinic-level doubt leniently. I am not in doubt. If I’m not in doubt, I do not need to use the rules of doubt. And therefore, if I have a position of my own, then this is not a major doubt, because it is not a doubt at all. I have a position of my own; I am not in doubt. So that is what I am supposed to do. If I don’t have a position of my own, then I truly am in doubt—but I am in doubt not because Maimonides and the Rashba disagree, but because I myself am in doubt. And therefore such a doubt too is not a major doubt; it is ordinary legal doubt. Therefore there is no situation in which legal doubt should get a different status as a major doubt. That is what I want to claim. Every legal doubt is the same kind of doubt—it is legal doubt, my doubt. The fact that there is a dispute among the medieval authorities only means that I need to examine the two opinions very carefully, but in the end I am supposed to make the decision. And if I have a position, then I am not in doubt. If I don’t have a position, then I am in doubt—not because they disagree, but because I am in doubt.

There may perhaps be room to say that one can distinguish between a major doubt and ordinary legal doubt in a place where I do not have a position of my own. If I do not have a position of my own, then I am in legal doubt. Now it may be that in a place where Maimonides said one thing and the Rashba said another on this particular question, different rules will apply than in a situation where I am in doubt and there is also no disagreement among the medieval authorities on this issue. No one said anything about it; I’m in doubt; it’s a new case. Okay? Maybe there would be a difference. For example, those who argue that if the Rashba and Maimonides say something, then it is apparently correct—the pluralists, and I spoke about the fact that I am not a pluralist—then both are right, “both these and those are the words of the living God.” So maybe we would say to the judge: fine, then choose arbitrarily whichever one you want; don’t choose according to the laws of doubt, because both are right. So it’s not a doubt; it’s simply that this one is right and that one is right, and you can do what you want. As opposed to a case where you are doubtful, and then the laws of doubt will apply. I do not accept that, because I think it’s not true that both are right—I am a monist. Therefore there is no difference between a major doubt and ordinary legal doubt. But I can understand someone who is a pluralist making such a distinction. But in the end, the decision whether I am in doubt or not depends solely on whether I am in doubt. That is certainly true. If I am not in doubt, then it is not a situation of doubt. A question one might perhaps argue about—assuming that I am in doubt—is whether there is still room to define this as a major doubt, or whether whenever the doubt is my doubt, that is not called a major doubt at all, and all doubts are ordinary legal doubt. But—

[Speaker G] That’s most cases. What? Basically that’s most cases, because there aren’t many truly new cases, so you enter a given topic that many people have already discussed.

[Rabbi Michael Abraham] There are very many new cases. There are very many new cases because even in a case where Maimonides and the Rashba discussed a topic, you still have to decide whether what they say really fits the situation you’re dealing with, and very often that’s not a clear case. To compare one matter to another and decide that Maimonides is really saying something also about the situation before you—that itself is already your decision. Because Maimonides said his words about what he said them about. You are only comparing one matter to another. But that comparison itself is often your own reasoning, and therefore it is not pure Maimonides. You can decide that Maimonides is saying something here after you’ve made some kind of interpretation, and you say that this case resembles the case that Maimonides or the Rashba dealt with. So therefore I think there are quite a few such cases. But fine, that’s not the point right now.

So that is basically the claim. And then what I really want to show here is not only the permission, but the obligation to rule autonomously. Even if there is a dispute among the medieval authorities, in the end I must rule according to what I think, and not draw lots between Maimonides and the Rashba, or decide which of them is greater and rule on that basis, or according to the majority of decisors. No. In the end I have to examine the different opinions and arrive at my own decision based on my own conclusions. That is what I am supposed to do. Now, since that is not usually what people do, what decisors do, I feel there is reason to bring several quotations from some of the greatest halakhic decisors on this issue, who also say what I’m saying. Although, as you know, I’m saying it because I think so, not because they said so. But I’m bringing them as support for something that doesn’t need support, right? That is basically what I’m trying to do.

So look, for example, the first quotation is the Maharshal in his introduction to Bava Kamma. I’ll upload this article later to WhatsApp—it’s an article I wrote on autonomy in halakhic ruling. So the Maharshal says this in the introduction to Yam Shel Shlomo on Bava Kamma: “For from the days of Ravina and Rav Ashi there is no tradition to rule like one of the Geonim or of the later authorities; rather, whoever’s words are shown fit to be based on conclusive proof according to the Talmud and the Jerusalem Talmud and the Tosefta, where the Talmud gives no decision.” What is he saying? After Ravina and Rav Ashi, there is no one that I rule like because he said so. No. Rather, I follow whichever words are shown to be based on proof from the Talmuds. To rule from the Talmud, as the Maharal says. By the way, I already mentioned when we read the Maharal that the Maharal’s words are written as part of his polemic against the Shulchan Arukh and the Rema—the polemic over codification. Do you know who the Maharal’s study partner was in that polemic? It was the Maharshal, whose words we are reading now. So that is what he writes there in the introduction to Bava Kamma. And as I said earlier, the Talmuds have the status of formal authority. Therefore opposite the Talmuds we do not act autonomously. That is formal authority. But after Ravina and Rav Ashi there is no more formal authority. From there onward, you are supposed to rule as you think, from within the Talmuds. Of course, seeing the various methods of the medieval authorities, examining them, understanding them, seeing the difficulties and reconciling the passages according to them, and so on. But after that, in the end, you have to reach a conclusion. You look at them only as an aid in clarifying the passage. But in the end, your conclusion is the conclusion you drew from clarifying the passage. What came out for you.

In Hullin, Yam Shel Shlomo on Hullin, in the first chapter, the Maharshal writes there regarding the pinching of the neck for a bird sin-offering: “If we merit the rebuilding of the Temple, I hope that I have merited according to the law, that I have merited to aim to the law. And although Maimonides was great in Torah”—and this already starts badly, right? “Was great in Torah”—we already see he’s not going with Maimonides, right?—“was great in Torah, and also the Sefer Mitzvot Gadol brought proof for his words, and the Raavad also did not challenge him”—a marvelous consensus. “Nevertheless, I will not show favor in Torah, and I examined it to the extent that my hand reaches.” What does “to the extent that my hand reaches” mean? It means I’m not necessarily claiming that I am greater than all these earlier halakhic decisors. But I examined it as far as my own grasp reaches. This is my position. And once this is my position, that is what I have to do. Even though Maimonides, the Raavad, and the Sefer Mitzvot Gadol are all against me. And they are greater than me. This is an example of a very clear statement of autonomy.

The same in chapter 1 of Bava Kamma, section 5. Yam Shel Shlomo writes as follows: “And even though the Talmud does not decide, I have come to decide.” What does that mean? There are situations in most Talmudic passages—we said that the Talmud is formal authority—where the discussion does not end with a decision. A small minority of passages have a decision at the end of the passage. For example, when they say “and the law is like so-and-so,” or—by the way, sometimes even when they say “the law is like so-and-so,” the halakhic decisors still rule differently, but usually yes. Or when they say “a refutation” against someone—if there is a refutation against someone, that is a sign that the law does not follow him. “Difficulty,” for example—several medieval authorities write that even if the passage ends with a difficulty, that does not mean the opinion is rejected. Difficulties can have answers, and therefore where a difficulty remains, one can still rule like the opinion that remains with a difficulty. But not in the case of a refutation, and not in the case of “the law is like,” and not in the case of “let it stand unresolved” either. There are situations where the passage leaves the law open between two opinions, but it determines: “Let it stand unresolved.” “Let it stand unresolved” means the issue stands. In Aramaic, the meaning is that the issue stands. What does that mean? The Talmud says: in this case I have made a positive ruling—let it stand. There is no truth in this case, or no true decision in this case; both sides remain valid. In such cases the halakhic decisors say: no decisor has permission to decide. Even though the Talmud did not decide, but when it said “let it stand unresolved,” it said: here there is no decision. It decided that here there is no decision. And therefore no decisor can decide; rather, one must apply the laws of doubt here. So there are three cases in which the Talmud ends with an instruction that binds later decisors: when it says “the law is like” someone, when it says “a refutation” against someone, and when it says “let it stand unresolved.” Okay? In all other cases—and that is the overwhelming majority of passages, the overwhelming majority of passages are none of those three—there are two opinions and they remain open. The Yam Shel Shlomo says: the Talmud did not decide; I will decide.

Now think about that for a second. Anyone used to learning in yeshiva—think about someone looking at a dispute between Rabbi Shimon and Rabbi Yehuda, or I don’t know what, Abaye and Rava, Rav and Shmuel, whatever, amoraim, tannaim, and he decides like Rabbi Yehuda because he has proofs against Rabbi Shimon—reasoning or sources or I don’t know exactly what, he has proofs, so Rabbi Yehuda is right. Almost no halakhic decisor does such a thing, right? The earlier halakhic decisors did decide disputes among amoraim and tannaim, but their decisions usually rely on rules. If there is an anonymous Talmudic discussion like so-and-so, then apparently the law follows him. Abaye and Rava—there is a rule that the law follows Rava except in six cases. All kinds of rules. Rav and Shmuel—there is a rule that the law follows Shmuel in monetary law and Rav in ritual prohibitions. There are various rules by which the halakhic decisors do indeed decide disputes among amoraim, but they decide in light of indications from the Talmud itself, not from their own reasoning. The Maharshal here takes a path that is very, very, very extreme relative to what halakhic decisors usually do. He says: if the Talmud does not decide, I will decide. Again, I will decide not according to the rules the Talmud itself gives—that’s no great feat, all the medieval authorities do that—I will decide from reasoning or from source or from a difficulty. I will decide that Rabbi Shimon is right and not Rabbi Yehuda. Usually the medieval authorities do not decide like that. There are rare cases when they do. There are rare cases where they say the law follows Rav and not Shmuel because his words appear more convincing. That is very, very rare. Usually they rule according to the rules of decision, or because the flow of the passage is anonymous, or something like that; but the ruling always leans on the Talmud, and the decision too leans on the Talmud. But he says not so.

Now he continues: “In a case of ‘let it stand unresolved,’ where the problem in the Talmud was closed and not resolved, no sage in the world has permission to resolve it from a Mishnah or from a baraita or from reasoning, for that would be like disagreeing with the Talmud of Ravina and Rav Ashi”—and I would add also in the case of “the law is like” and “a refutation.” “But as for problems stated in the Talmud and not resolved”—the overwhelming majority—“if one sage, even in our time, brings proof to resolve it, he has permission, and we go after him. Since it was not said ‘let it stand unresolved’—the Talmud did not leave it as unresolved—then it stands in doubt only until its resolution is clarified for you.” In other words, when there is a dispute in the Gemara and it was not said about it “let it stand unresolved,” “a refutation,” or “the law is like,” the judge or halakhic decisor must decide—either from proof from a source or from reasoning—they will decide who is right in a tannaitic dispute, in an amoraic dispute; that is his view. Seemingly very uncommon among halakhic decisors, but that is what he claims.

Rabbi Yaakov Emden in the responsa She’elat Yaavetz says this: “And even to those a thousand times greater than I, I will not show favor in Torah. About an error I say: here there is an error; about concealment: concealment. And I heard from my master, my father the gaon”—that is the Chacham Tzvi, because he was the son of the Chacham Tzvi—“in the name of the author of Chelkat Mechokek of blessed memory, that a person is not permitted to issue rulings until he has the power to uproot and erase a section from the Shulchan Arukh.” Meaning, someone who has reached the level of issuing rulings is someone who can disagree with the Shulchan Arukh; otherwise he has not reached the level of ruling. “And the saying of Maimonides is known, that in matters of halakhic ruling even the power of prophets is no stronger than that of the sage; rather, we go after the majority of numbers or after the force of the proofs according to what appears to the eyes of the sage. And thus was always the practice of the sages of the generations: they do not attend to the scales of the decision of an early or late composition when faced with decisive answers.” If you have good proofs, all the precedents are unimportant; go after what you think.

One more example: one of the greatest halakhic decisors, perhaps the Shakh among the later authorities. The Shakh wrote the booklet Takfo Kohen on the laws of doubt and seizure and the like. Among other things he discusses seizure in a case of “let it stand unresolved,” and in a situation of disputed great authorities. What happens when the Gemara says “let it stand unresolved” about a dispute among amoraim? So it remains unresolved. Now there is a dispute between two people, they come to court—can one of them seize by force and take the object to himself and be considered in possession in the case? That is one discussion. And the medieval authorities disagreed about this. There are medieval authorities who say: you can’t decide in a case of “let it stand unresolved,” but seizure works—you can seize, and then you are considered in possession. There are medieval authorities who say no: if it says “let it stand unresolved,” you cannot seize. That is a dispute among medieval authorities. The Shakh asks: what happens in a dispute among the great authorities? Maimonides versus the Rashba. And from his words it seems that this does not mean only a dispute between Maimonides and the Rashba, but also a dispute among amoraim in the Gemara, just one that did not end with “let it stand unresolved.” That is called a dispute among the great authorities. By the way, that itself is proof. You see that like the Maharshal, from his point of view a dispute among amoraim that did not end with “let it stand unresolved” is called a dispute among the great authorities. It is like a dispute between Maimonides and the Rashba.

Now look what he says. The question is whether one may seize in a dispute among the great authorities. So he says, he wants to claim that even according to the medieval authorities who say that in a case of “let it stand unresolved” one cannot seize, in a dispute among the great authorities one can seize. And he has a very interesting reason. He says: “For in a case of ‘let it stand unresolved,’ since it can never be clarified, because no person can resolve it, since it already arose as unresolved from the time of the sealing of the Talmud, therefore immediately at the time of the sealing of the Talmud the doubt was born. And every seizure is called seizure after the doubt was born,” as I wrote above in section 7. Yes, that’s Tosafot in Bava Batra at the beginning, on the words “therefore,” speaking there about seizure after the doubt was born. Seizure—when two litigants are arguing about something and one of them is holding the object, then he is the one in possession. Now before we came to court, I take it from him by force. I seized it. Now I am the one in possession. The fact that he held it before—so what? The court didn’t rule that it was his. So I want to come to court when I have the advantage, to be the one in possession. So I take it from him by force. I seized it from him. Tosafot says: seizure works where it works, and it works only before the doubt was born. But after the doubt was born, the doubt already exists; you can’t seize anymore. From that point on, you have to begin adjudicating. Before the doubt was born, you can seize.

So he says as follows: when there is a sugya that ends with “let it stand unresolved,” when was the doubt born in that question? In the time of the Talmud. The Talmud determined that it is doubtful, right? It determined: this is unresolved. And from then onward no one can decide that issue anymore, and therefore the doubt was born in the time of the Talmud. Consequently, he says, certain medieval authorities say that one cannot seize in a case where the Gemara said “let it stand unresolved.” Seizure is ineffective. Why? Because this is seizure after the doubt was born. Seizure after the doubt was born is ineffective. What happens in a dispute among the great authorities? So look what he says: “But in a dispute among the great authorities, since the judge has the power to decide from the Talmud or the halakhic decisors, even by his own reasoning, like one of them—and even if this case once occurred and the judges could not decide, if it now comes before another judge he can decide, for it all depends on the judge before whom the case comes,” as the Maharshal wrote in chapter “How the Foot Causes Damage,” section 1, as we wrote above in section 82 in the name of the responsa of the Geonim. “And it is very simple. Therefore, wherever one seized, it is considered that he seized before the doubt was born. For had the judge decided like one of them, he would have had the power to instruct so. It follows that the doubt was not born until the time the judgment came before the judge and he was unable to decide. And this distinction seems to me clear and true.”

What is he saying? He says this: if the sugya has “let it stand unresolved” stated in the Gemara, if I seize now this is seizure after the doubt was born, because the doubt was born at the time of the Gemara, when the Gemara determined: unresolved. But if there is a dispute—even in the Gemara, not to mention among the medieval authorities—that did not end with “let it stand unresolved,” then every judge in every generation can decide that dispute through proofs, through reasoning, just as the Maharshal wrote—he mentions that Maharshal—and he joins him. What does that mean? That when this sugya comes before the judge or before the decisor, he can decide it. And it may be that he will conclude that he has no decision, that he is in doubt. The doubt is born then. Before that, there was no doubt? The doubt is born only when the judge begins to have doubts, because before that it is not called doubt; it is called a situation where there are two opinions among the medieval authorities or two opinions in the Gemara. That is not called doubt. Let’s see the judge or halakhic decisor get there and decide whether this is doubt or not. If he has no position, it is doubt. If he has a position, I don’t care that Maimonides and the Rashba disagreed, or that Abaye and Rava disagreed. I have a position of my own, so it is not doubt. So what does that mean? That if you seize, it is seizure before the doubt was born, and therefore it works. Because the doubt is born at the moment when the judge did not reach a conclusion—only then is the doubt born. The fact that Maimonides and the Rashba disagreed about it, or that amoraim in the Gemara disagreed about it, is irrelevant. They stated their opinions—why is that called doubt? The doubt exists only when I, the one who has to decide the issue, am in doubt. Exactly what I said at the beginning: when there is a doubt of the rabbis—well, it’s not a doubt of the rabbis, it’s my doubt. If I am in doubt, then it is doubt. If I am not in doubt, then even if Maimonides and the Rashba disagree, that is not called doubt. I will decide, and that’s that. This is explicit in the Shakh in Takfo Kohen.

And there is one more source. There is the Vilna Gaon; a student of his wrote a book called Aliyot Eliyahu, and he brings there a quotation from the Vilna Gaon in the book Chut HaMeshulash of Rabbi Chaim of Volozhin. After he discusses and rules against his teacher, Rabbi Raphael HaKohen of Frankfurt, Rabbi Raphael HaKohen the author of VeShav HaKohen—so he ruled against his teacher—and he says, and brings a tradition from the Vilna Gaon: “Indeed, in Torah, of which it is written ‘truth,’ are not our eyes turned only to truth? And I was already warned of this by the mouth of my teacher, the Holy One of Israel, our great master, the pious gaon Rabbi Eliyahu of Vilna, not to show favor in halakhic ruling,” etc. What is the “etc.”? In Chut HaMeshulash it says etc., but in Aliyot Eliyahu he brings the source, and it turns out that it was censored. In Aliyot Eliyahu it says there: “not to show favor in Torah—behold, the etc.—even to the decisions of our rabbis, the authors of the Shulchan Arukh.” That, of course, the censors omitted—the religious censors. What do you mean, rule against the Shulchan Arukh? But that is what he says. One must rule against the Shulchan Arukh, like uprooting a law from the Shulchan Arukh in the Yaavetz. Therefore the claim is that you should go only according to the truth, what you think is the truth—show favor to no one, not to the Shulchan Arukh, not to the tannaim, not to the amoraim, not to anyone. Only if they established “the Jewish law is like,” “let it stand unresolved,” “a refutation,” something like that. But if it remains open, decide. That is what you have to do, including against the Shulchan Arukh.

So basically these sources are overall support for my claim, which on the face of it sounds radical: that a person has to decide for himself. Not only is he permitted to decide for himself, he has to decide for himself; it is an obligation. Autonomous decision is an obligation. It is not a right—not that you’re allowed to decide. You are obligated to decide.

[Speaker G] But does autonomous halakhic ruling have to be first-order ruling, or can it be autonomous second-order ruling?

[Rabbi Michael Abraham] In the previous lecture I said: not exactly. Because you can make an autonomous ruling according to rules. For example, there is a dispute between Maimonides and the Rashba. Now I rule autonomously—how do I rule? I say: in my opinion Maimonides was greater, therefore the Jewish law follows Maimonides. That is autonomous ruling, because there is no rule that says that in a dispute between Maimonides and the Rashba the Jewish law follows Maimonides. I decided to rule like Maimonides, and I chose to rule like Maimonides not from a first-order consideration but from a second-order consideration, because I did not rule like Maimonides because his reasons seem correct to me, but ruled like him based on the person rather than the issue—ad hominem. Meaning, basically, because he was greater, therefore I rule that way. So that is second-order ruling but autonomous. Now the decisors I brought here are of course speaking about first-order ruling, not only autonomous ruling. Fine? So they go much further.

In our generation it isn’t like this. By the way, maybe I’ll add one more thing: some of the early later authorities, in the 17th and 18th centuries, wrote that one should not rule Jewish law from within the Shulchan Arukh. But I think that in some of them one can hear a more substantive reason—certainly with the Maharal and the Maharshal, who said this explicitly—that it is not correct to rule from the Shulchan Arukh, not because maybe you’ll make a mistake, but because that is a kind of sorcerer’s ruling, magic. You need to rule first-order, not rely on a book, however great it may be, even if it is right. If I disagree with the Shulchan Arukh and the Rema, then probably they are right, like Rabbi Meir. True—but there is a value of autonomy. You need to rule according to what seems right to you, even against the Shulchan Arukh. And in the generations—say, the 18th, 19th, 20th, 21st centuries—they really no longer take this approach. The decisors do not operate this way. Again, not completely; there are always exceptions here and there among decisors who nevertheless rule autonomously. But by and large, certainly no one would put this on the table as his method of halakhic ruling. No one would say such a thing. Meaning, the history of Jewish law demonstrates a kind of change. I think that this change began with the later authorities, and perhaps its main herald was the author of Terumat HaDeshen, who was at the end of the period of the medieval authorities. And slowly—including all the fears of Reform and everything else added in here and accumulating here—the heaviness, this conservatism created in the later generations… but it’s a process that I think has been going on since the beginning of the modern era, in which the approach of the decisors becomes less autonomous, less first-order, and more second-order. Of course there are always degrees. No decisor is completely first-order or completely second-order; there are gradations. But the gradations move more and more toward the second-order direction. So look at Terumat HaDeshen. Rabbi?

[Speaker E] Yes. The Rabbi said that what the Rabbi is explaining right now about the value of autonomy really fits only someone who is a decisor, right? And not someone else.

[Rabbi Michael Abraham] Not someone who is a decisor in office—he doesn’t need to serve officially as a decisor—but someone who is capable, that is—

[Speaker E] Meaning someone who is at that halakhic level.

[Rabbi Michael Abraham] When he reaches—

[Speaker E] that level. What? When does a person know that he has reached that level, that okay, now I…

[Rabbi Michael Abraham] I intend to get to that later. Okay. I don’t have a sharp answer, but I have indications that I can try to suggest. But slowly—we’ll get there. I see I’m not going to finish this today. So Terumat HaDeshen writes as follows: “Since the great authorities above disagree, and since we do not know according to whom the Jewish law is”—we don’t know whom the Jewish law follows because there is a dispute among the great authorities—“the law is that they divide.” So they divide. Why divide? There is a dispute among the great authorities, so you enter the discussion and make a decision. What do you mean, “the law is that they divide”? “And I wanted to say that all these cases of division are because they are truly doubt. But in a doubtful dispute among the great authorities, if this one has not seized and that one has not seized, we should say: whoever is stronger prevails.” He begins discussing whether it should be divided, or whoever is stronger prevails, or the burden of proof lies on the claimant—but that is not important for our purposes. What is important for our purposes is that all the discussions are technical discussions: which rule from the rules of doubt should be applied to a dispute among the great authorities. But for him it is obvious that one has to apply the rules of doubt here. He doesn’t even raise the possibility that when there is a dispute among the great authorities, I will enter the passage and make decisions according to what I understand. Rather, for him this is doubt, and the question is what to do with this doubt: does whoever is stronger prevail, do they divide, does the burden of proof lie on the claimant—that is his discussion. “If so, one must distinguish between legal doubt that is because of a dispute among the great authorities and legal doubt that is because it stands unresolved. And gradually the great authorities wrote that they divide, and in our case, in a dispute among the great authorities, this reason does not apply, for who will testify to us that the Jewish law is like one opinion or like the other?” Right? For him it is obvious that a dispute among the great authorities cannot be decided. Who can dare to say that Maimonides is right and not the Rashba—or the opposite? Who will stick his head between the mountains? And therefore for him it is obvious that this is a situation in which a decisor cannot step in and make decisions when there is a dispute between Maimonides and the Rashba. “And thus we need to make a division, and I have expanded on these matters because they are great principles in monetary law.” Great principles—and incorrect ones, with all due respect. But this is exactly the Ashkenazic beginning, the beginning of the Ashkenazim. Ashkenazim in general were more precedent-based than the Sephardim. Today it is perceived somewhat the other way around, at least after Rabbi Ovadia, because not all Sephardim are like that. But once it was the opposite.

[Speaker H] Meaning—the… Rabbi, when we learn a sugya analytically in yeshiva and then there is some dispute among the medieval authorities, we don’t come and immediately say: fine, let’s find the side that fits. I think this is maybe even the foundation of the Brisker method—that they do try to see why there is a dispute, why he said this, why he said that.

[Rabbi Michael Abraham] You dropped so many bombs on me that I don’t even know where to start. The Brisker approach is obvious. The Brisker approach says: we do not decide anything. In the Brisker approach—I even explained this—after all, in Brisk they were stringent about everything, like all the approaches of the medieval authorities. People usually think that this stringency was because of fear of Heaven. That’s a big mistake. Not that I’m claiming they didn’t have fear of Heaven, but the reason they were stringent was not because of fear of Heaven.

[Speaker H] Because they don’t know how to decide.

[Rabbi Michael Abraham] Exactly—they’re not willing to decide. They don’t consider themselves someone who can decide. After all, they ask only what, not why, as is well known. That’s the ethos.

[Speaker H] That’s the side you mentioned, that the analyst is like a theoretician and the halakhic decisor is like an engineer.

[Rabbi Michael Abraham] This is the story with Rabbi Chaim, the yeshiva myth that Rabbi Chaim sent a question to Rabbi Yitzchak Elchanan and told him: answer me only yes or no, without reasons. If you bring a reason, for every reason you bring I’ll bring three reasons against it. I want the ruling—because Rabbi Chaim was not capable of making the ruling. Since he was such a sharp analyst, he succeeded in understanding the Rashba all the way through and Maimonides all the way through, and as a result he could no longer decide, because both were equally right. Sometimes the ability to decide exists only because you don’t have such a strong analytical ability. But that’s not necessary—you can decide even with analytical ability. But it’s true that analytical ability interferes with deciding. Analytical ability essentially lets you fully understand every approach, and then it becomes very hard to decide, because you explained each one so well and reconciled it with all the sources—so now how do you know who is right? And what else did you say there? The fact that in yeshivot they do something proves nothing. The halakhic decisors do this too; I claim they’re not right, so what kind of difficulty is it that in yeshivot they don’t do it this way? I’m only saying this on principle. But it’s also not true—what they do in yeshivot doesn’t contradict this; I also think that’s what should be done. It’s just that in yeshivot they don’t ultimately reach a conclusion, but only study the various approaches and try to reconcile all the approaches.

[Speaker H] Do you want to abolish that method?

[Rabbi Michael Abraham] I’m in favor of doing that. You have to work through all the approaches all the way, understand them, reconcile them with all the sources, exactly as they do in yeshivot. Only what? In the next stage after that, do what they don’t do in yeshivot: reach a conclusion about who is right. In a yeshiva, it’s an illegitimate question—who is right? What do you mean, who is right? Everybody is right. No. You have to decide the question of who is right. But that’s only after you’ve clarified all the approaches, so it doesn’t contradict the fact that you need to clarify the approaches. You have to do it seriously, not make a joke out of it. Not just do whatever you want and not care about anyone. There are Torah scholars here who sat and debated and gave reasons and raised different possibilities—you have to study them, work through them, clarify them, but in the end finish with your own conclusion. I think the problem in yeshivot is not in the yeshivot; the problem is with those who were educated in yeshiva and stay in yeshiva their whole lives. Their whole lives they never move on to the next step. And what they do in yeshivot is in-depth analysis in the analysis sessions, but in order to know what to do they study Mishnah Berurah. In order to know what to do, afterward you need to decide in every topic you studied who is right, and that is called studying Jewish law. Studying Jewish law is simply the last five minutes of in-depth learning—just deciding who is right after you’ve clarified the different approaches. So I’m saying that the historical process in our period is already tending much more in the direction of the second order, less autonomous. I think a very, very central milestone is Terumat HaDeshen. Again, there isn’t one person here who did this, and it’s not an all-or-nothing process, but it seems to me this is a very, very central milestone. I just want to say one more thing, which we’ll get to later: I’m not sure that in Terumat HaDeshen it necessarily says something against what I’m saying. It could be that with Terumat HaDeshen there’s room to hesitate, but maybe Terumat HaDeshen is speaking about someone who isn’t qualified, who cannot decide. In that situation there are rules of doubt, and there’s the dispute between Maimonides and Rashba, so let them divide it, might makes right, the burden of proof is on the claimant, it doesn’t matter—you apply the rules of doubt. In principle, it could be that he too agrees that if there is someone who has reached the level of issuing rulings and succeeded in deciding and reaching a conclusion about who is right, Maimonides or Rashba, it could be that even Terumat HaDeshen would say, okay, let him do what he thinks. I think the words, ‘Who brought his head between the lions,’ and I emphasized this when I read his language, show that Terumat HaDeshen probably doesn’t mean that. Because we’ll see later that Kovetz Shiurim claims that even Terumat HaDeshen means what I’m saying. But I think that in Terumat HaDeshen that’s not correct. Look at the words I read earlier: ‘Who will testify for us that the Jewish law follows the words of so-and-so or so-and-so?’ Who can even dare, in a dispute between Maimonides and Rashba, to decide and say that Maimonides is right or Rashba is right? We are too small; we cannot. Meaning, there’s some statement here—not just that I’m speaking only to someone who cannot; I’m also claiming that nobody can. Fine, that’s indeed a common claim today—decline of the generations and so on and so on, all those things. Again, just to sharpen the point: I’m not necessarily claiming that there is no decline of the generations. That’s a different discussion. I think it’s more complicated, but there is also some kind of decline of the generations. But my claim is that one must nevertheless decide—not because we are greater and there is no decline of the generations, but because there is an obligation to decide autonomously. I’m willing to accept the thesis that there is a decline of the generations and that none of us is as great as Maimonides and Rashba, for the sake of the discussion at least. Okay? So what? In the end there is still an obligation to decide autonomously. And therefore, despite the decline of the generations, and although I am smaller, I am still required to decide. That’s the claim. The claim is not that there is no decline of the generations, but that decline of the generations is not a sufficient reason to prevent me from deciding. I—on the contrary—not only am I allowed to decide, I need to decide. Okay? And in fact Terumat HaDeshen writes here something that he brings—the Rema, sorry, brings Terumat HaDeshen in 139 in Choshen Mishpat: ‘In a matter over which the decisors disagree, and neither side has taken possession, if it is something that can be divided, they divide it, and if it is not something that can be divided, then might makes right.’ He brings this ruling from Terumat HaDeshen as Jewish law. And actually that’s not so surprising, because the Rema and the Shulchan Arukh really are second-order precedent-based decisors. They rule according to the decisors who came before them, just as the Shulchan Arukh writes that he rules according to the majority among the Rif, the Rosh, and Maimonides—which of course he doesn’t always stick to, but at least that’s his declaration. So the Rema is basically copying Terumat HaDeshen, and that isn’t surprising, because the Rema too belongs to the coalition of precedent-based decisors. The opposition is the Maharal, the Maharsha, the Maharal’s brother, and others. But look here at the Vilna Gaon. The Vilna Gaon on that spot, on this Shulchan Arukh in 139. The Vilna Gaon writes: ‘And see Tosafot at the beginning of the chapter “One Who Sells the House” in Bava Batra 92b; even though there the whole discussion concerns a matter where one party is in possession, nevertheless Tosafot did not speak about the core interpretation of the Talmud and said here “it seems proper to rule,” etc. See there.’ In order to understand what he means—this is the Vilna Gaon, right? It’s always very concise language—you need to look at the Tosafot. I’ll anticipate here—we’ll see it in the next class. I’ll anticipate here: Tosafot says that in every place where it was not stated ‘the Jewish law is not like this master and not like that master,’ then if one acted like this master he has acted, and if one acted like that master he has acted. The decisor must decide. Even in matters in the Talmud where no ruling was stated and there wasn’t a tie, like what we said earlier. Tosafot says explicitly what I said earlier. Every place where it was not stated ‘the Jewish law is not like this master and not like that master,’ meaning the Talmud did not decide, then ‘if one acted like this master he has acted, and if one acted like that master he has acted.’ The question is, what does it mean that ‘if one acted like this master he has acted’? Does it mean that you can draw lots because both sides are right—that’s the pluralists—or not? You can and must decide and rule according to your own position and not according to the laws of doubt—that’s the monists. And that’s what the Vilna Gaon brings here on this Shulchan Arukh, and it really is the nice contrast between Terumat HaDeshen and the authorities before him, Tosafot and so on. But we’ll get to that in the next class. Okay, questions or comments?

[Speaker H] Are we obligated in Jewish law to follow rabbis? Meaning, or can I say, like, I want to rule this way against everyone?

[Rabbi Michael Abraham] If that’s your reasoning and you’re qualified, then why not? What’s the problem?

[Speaker H] But it’s hard to say that I don’t need some rabbi to tell me this, because, I don’t know, it’s a bit like if I go now to a doctor in surgery and tell him, ‘Look, I think you’re doing it wrong—do it this way and that way.’

[Rabbi Michael Abraham] In medicine there is no value of autonomy. In medicine you need to do what will save you. In Jewish law there is a value of autonomy in halakhic ruling.

[Speaker H] There is a value of autonomy, right.

[Rabbi Michael Abraham] Therefore you need to rule out of your own judgment. Even if it isn’t correct—and that’s what I brought in the whole beginning of the class. Not because it’s correct. With a doctor, what matters is what is correct. In Jewish law, what matters is what I think is correct. Okay? Yes.

[Speaker G] How does your whole thesis fit with the Talmudic rules that you’re not allowed to act sometimes like this rabbi and sometimes like that rabbi? If in fact sometimes I think that one is right, and another time the other is right, and another time someone else is right?

[Rabbi Michael Abraham] There’s no problem at all, because then you’re not acting either like that one or like that one—you’re acting like yourself. You’re doing what you think. To act like so-and-so means to do it not because my own position is like his, but because he said it. So why are you doing it? Because this leniency suits you and that leniency suits you. Taking this leniency and that leniency—that’s wicked.

[Speaker C] At the beginning of the previous classes you mentioned that you can say, more or less, that someone has reached the level of issuing rulings when he goes over the same topics and rules more or less the same way. And I wanted to ask you: what you recommend as a method of learning—you said to look at all the approaches and everything—that really is an almost impossible task for a normal person.

[Rabbi Michael Abraham] You don’t need to see all the approaches; that really is impossible. You need to see the central approaches, try and make the effort to clarify as much as you can, and reach a conclusion. If you feel that you’ve seen enough to reach a conclusion, then draw your conclusion. It’s impossible to see everything. Nobody saw everything.

[Speaker C] Even Abaye didn’t see everything. Right. Basically all these sources, all these commentators—they weren’t overloaded the way we are today with everybody.

[Rabbi Michael Abraham] No, no, that’s obvious. You need to use common sense. You look at several central medieval authorities, several later authorities, you understand what the issue is. Someone skilled can rather quickly see more or less the directions in the topic, even if he hasn’t seen all the medieval and later authorities. And based on that you can make a decision.

[Speaker G] Not everyone is like you.

[Rabbi Michael Abraham] Fine. You don’t need to be like me. We’ll discuss it—there are figures more worthy of looking to than me. But okay, we’ll discuss later, because I’m going to talk a bit about the question of who is qualified. Who can do such a thing? Who can feel that he has reached that stage? You mentioned the criterion here; I’ll come back to it. Okay.

[Speaker H] Rabbi, there’s a story here about something we had in our in-depth class not long ago. There was some dispute among the commentators about whether it’s permitted to place a jug in the public domain or whether you’re forbidden to. Or whether it’s permitted but you have to pay if there are damages. And to me it was just obvious that it’s forbidden. I mean, I said, there’s no such thing—you can’t just put whatever you want in the public domain. And almost all the rabbis, all of Jewish law too, and the law itself, come out on the side that actually you are allowed to. And then, just incidentally, we came to some interesting distinction at the end of the class—actually after the class, on the way to lunch—and then suddenly we reached the conclusion that it depends on how we conceive of the public domain. So in my head I suddenly said, wow, I conceive of the public domain as belonging to no one, and therefore you can’t put something there. Whereas apparently Jewish law, or the other rabbis, conceive of the public domain as belonging to everyone, and therefore you actually can put something there.

[Rabbi Michael Abraham] There’s a lot to elaborate on in that matter. On one of the previous Fridays I gave a class almost entirely about that, at the beginning of the chapter ‘One Who Places.’

[Speaker H] The problem is that on Fridays we have class in the morning. Okay.

[Rabbi Michael Abraham] Okay. Goodbye, Sabbath peace.

[Speaker E] Thank you very much, Sabbath peace.

[Speaker H] Sabbath peace.