Study and Halachic Ruling – Lesson 18

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[Rabbi Michael Abraham] The opposite: an expert judge, ostensibly, you can let him decide.

[Speaker B] No, no. Everything they said about judges and all that—the medieval authorities (Rishonim) say that applies only to an expert judge.

[Rabbi Michael Abraham] No, no, I’m not talking now about judicial discretion. Earlier I was talking about judicial discretion. Now I’m talking about something in general law, generally speaking, not specifically judicial discretion. I’m saying: in general, Maimonides says, forget all the rules of evidence and everything. Give the money to whoever you think it belongs to. Not only in a case where ownership is in doubt—no, in any case that comes before you. You don’t have to follow the laws of evidence.

[Speaker B] Even when there is evidence? Yes.

[Rabbi Michael Abraham] And whatever you think—that’s what you do. So then what are all the laws of evidence for—“a matter shall be established by two witnesses,” one witness and an oath, and so on—what are they for? Only for a situation where I don’t have a clear position on what the truth is. If I don’t have a clear position on what the truth is, then I follow the laws of evidence. So for example, what happens—right, this is the question that bothered me in light of this Maimonides. The Talmud says, and this also appears in Maimonides and in the Shulchan Arukh, that the disqualification of related witnesses is a scriptural decree. Meaning, there is no suspicion that relatives are lying. It’s a scriptural decree that you do not accept testimony from relatives. Now think of a situation where two relatives come and testify that Reuven owes money to Shimon. The relatives are disqualified; I cannot accept their testimony. On the other hand, these witnesses are credible—it’s just a scriptural disqualification. They are credible. So if they are credible, then in reality I know that Reuven really does owe Shimon the money. Right? That’s the truth. It’s just that I’m forbidden to rely on those witnesses. But if I know that that’s the truth, then I should rule that way in monetary law regardless of the witnesses, and if the witnesses are disqualified—because in monetary law you go after what is true.

[Speaker B] But you could say that certainly in legal matters the Torah didn’t require that I know the judges are right. I don’t know whether the witnesses are lying or not lying. And I say fine, the Torah said I have to go by two.

[Rabbi Michael Abraham] I didn’t understand.

[Speaker B] I don’t know whether the witnesses are telling the truth or not, right? The witnesses. Yes. And nevertheless the Torah said to go by two even though you don’t know.

[Rabbi Michael Abraham] Meaning you don’t know? If you have two witnesses testifying, why don’t you know? You do know.

[Speaker B] Yes, but you can always attribute it to all kinds of things.

[Rabbi Michael Abraham] You can attribute it to all kinds of things, but common sense says that if two people come—if you have no indication of deceit—then they are telling the truth; there is a presumption of credibility. It could always be a mistake. Even after the Torah said this, it could still be a mistake. Fine—but if it’s ninety-five percent, that’s good enough for me.

[Speaker B] Maybe the Torah came for precisely that—to say that even though I can attribute it to their not telling the truth, and they are testifying on behalf of one side in court, nevertheless I still follow them.

[Rabbi Michael Abraham] No, I’m saying: now two relatives come and testify that Reuven owes money to Shimon. So in terms of credibility, I basically have two witnesses that Reuven owes the money to Shimon, right? It’s just that I’m forbidden to rely on them because it’s a scriptural decree. Fine, so I don’t rely on them. But now I know that Reuven owes Shimon the money. So if I know that, Maimonides and the Rif say that a judge must go after where his mind inclines. He doesn’t need the witnesses. Witnesses are only for a case where you have no position. If you do have a position, everything is fine.

[Speaker B] Yes, but maybe his inclination is against the witnesses? What? If his inclination is against the witnesses.

[Rabbi Michael Abraham] That too—same thing.

[Speaker B] Why? If my inclination is against the witnesses, and the Torah said “a matter shall be established by two,” then surely even according to Maimonides I would follow the witnesses?

[Rabbi Michael Abraham] No, absolutely not.

[Speaker B] Even against witnesses?

[Rabbi Michael Abraham] Obviously—against everything. A judge has to do what he thinks. I think—by the way, I saw Rav Shmuel and some other later authorities (Acharonim) note, well, the scriptural decree here also says not to follow your own opinion. Since the Torah disqualified the testimony of relatives, they say it also means: don’t rely on them even in the sense that they convinced you. I think that’s not right. If you were genuinely convinced that Reuven is liable, then that really is what you should rule—even if the witnesses are relatives. There could be a case where the witnesses did not convince you. Rather, had they been valid witnesses, then there is a rule: “a matter shall be established by two witnesses.” So if you think they are lying, then in principle you can rule against them, until the enactment of the two academies. If… you don’t know, but you also weren’t convinced that they are telling the truth, in that situation the Torah says, “a matter shall be established by two witnesses.” And with relatives, not so? But if you were also convinced that they are telling the truth, then even with relatives you should extract the money. That’s what I think; it makes much more sense. What the Torah

[Speaker B] came to say—what the Torah came to say with “a matter shall be established by two witnesses”—that’s in a place where I don’t have, where I’m neutral.

[Rabbi Michael Abraham] Right—even after the testimony. Right. There is a rule that I accept the testimony of two witnesses, since I have no evidence against them, so fine—but not in a case where I was actually convinced that the defendant is lying. So fine, returning to our topic: what Maimonides says—what Maimonides says is what I said about judicial discretion, or what you brought from Rashbam. Regarding judicial discretion, that’s basically what Maimonides says about monetary law in general: that the judge is supposed to do what seems right to him in reality—not issue a halakhic ruling, but do what seems right to him in reality. Now, there is a Talmudic passage that says—one second, I’ll get back to judicial discretion—the Talmud says in tractate Shevuot, page 48, there’s some dispute there in the laws of oaths, if a person bequeathed an oath to his sons, not important right now, but the Talmud says as follows: “Now that no halakhic ruling was stated, neither like Rav and Shmuel nor like Rabbi Elazar, a judge who acted like Rav and Shmuel acted validly; one who acted like Rabbi Elazar acted validly.” Meaning, there is a dispute: Rabbi Elazar against Rav and Shmuel. Since no halakhic ruling was stated like one side or the other, a judge can do as Rav and Shmuel and that is fine and valid, and he can also do as Rabbi Elazar and that is valid. Now here the term judicial discretion is not mentioned, but it really seems pretty similar. You can do it this way and you can do it that way, and in fact the three possibilities I mentioned earlier also arise here. What is the difference between this and judicial discretion in the wording of the Talmud? In the wording of the Talmud you can see that we are dealing here with a sweeping rule, because what does the Talmud say? “Now that no halakhic ruling was stated, neither like Rav and Shmuel nor like Rabbi Elazar, a judge who acted like Rav and Shmuel acted validly; one who acted like Rabbi Elazar acted validly.” The Talmud says that because no halakhic ruling was stated either like Rav and Shmuel or like Rabbi Elazar, therefore a judge can do this and can also do that. Such wording says that this is basically a rule: everywhere no halakhic ruling was stated one way or the other, the judge can do this and can do that. It is not something said only about that specific dispute. With judicial discretion, there are many halakhic decisors who say that the rule of judicial discretion applies only in those places where the Talmud says “judicial discretion”; it is not a sweeping rule. But here the wording is “one who acted like this acted validly,” and the wording looks like the wording of a sweeping rule: everywhere no halakhic ruling was stated like this side and no halakhic ruling was stated like that side, the judge can act like this side and can act like that side. Right—the wording does look general: “Now that no halakhic ruling was stated,” meaning in every place where no halakhic ruling was stated you can do this and you can do that. So in principle there are now three possibilities here, as we saw earlier. One possibility: you can do whatever you want. What is the logic of your being able to do whatever you want—meaning, a lottery? What is the logic in that? The logic is that the Talmud itself says that both sides are correct, so you won’t make a mistake. Whatever you do, you won’t be making a mistake; you can flip a coin. There is no real way to decide this dispute, and therefore the Talmud says: if he acted like this side, he acted validly.

[Speaker B] It’s like with the afternoon prayer at plag hamincha.

[Rabbi Michael Abraham] Right, that’s in prohibitions; here I’m talking about monetary law. There’s also an analogue in prohibitions—I’ll upload that article to WhatsApp maybe. Later in the article I also deal with prohibitions. One possibility is that he conducts a lottery. A second possibility is that he decides. And a third possibility is that he does what seems true to him for this case—yes, the three possibilities we saw earlier. Okay, those are the three possibilities for understanding this. The unique thing about the Talmudic passage here is that here it is presented as a rule. In every place where no halakhic ruling was stated like one side or the other, this is what you should do. And what does “this” mean? If I interpret it as simply deciding based on the judge’s own judgment, like all the sources we saw in the previous lecture, then basically we have here a Talmudic passage saying exactly that: that in all disputes left unresolved, there is also Bava Batra 62b, where there is a topic about someone who sold land and defined the bordering roads or boundaries—not important, some halakhic issue in the topic of land sales—and the Talmud says: “It was stated one way and it was stated the other way—judicial discretion.” Yes, there is one teaching supporting one direction, another teaching supporting the opposite direction, therefore here they apply judicial discretion. Notice that here the term is judicial discretion, not “one who acted like this acted validly,” even though it’s pretty similar, but terminologically it’s different. Rashbam says about this: “And when the Talmud rules judicial discretion”—this is, for example, the Rashbam you mentioned earlier, but it appears elsewhere too—“the judges cast it; since we are in doubt, we apply judicial discretion; everything depends on the matter as the judges see and as they recognize whether the seller had a generous eye or a stingy eye, all according to their assessment.” Notice: this is the third option I brought—the option saying that the judges should do what seems true to them in the circumstances here, not what the law says. “However, in other places where we are in doubt between two formulations, as to which the law follows, we do not say judicial discretion unless it is explicitly stated as it is here.” Yes—what is Rashbam basically saying? The rule of judicial discretion is a rule that is true only in places where the Talmud explicitly says “judicial discretion.” Okay, here yes—but only in places where the Talmud says it. But in other places where we have two opinions and no halakhic ruling was issued like either one, we do not say judicial discretion; rather, “the burden of proof is on the one who seeks to extract from another.” For Rashbam, judicial discretion means doing what seems right to the judge for this case. But Tosafot there says the following: “Even though elsewhere in every place we say ‘the burden of proof is on the one who seeks to extract from another’”—so why here do we say judicial discretion? Why not “the burden of proof is on the one who seeks to extract from another”? “That rule applies where the money is in the possession of its owner, whether where there is doubt about what happened in fact”—that is, doubt in reality—“or whether the court itself is in doubt, but here the sages saw fit to apply judicial discretion.” That’s the beginning of Tosafot. After that I’m skipping a little. He says: “And in all these cases the sages thought it fitting to divide; there is judicial discretion, there is division, there are various things. But where the Talmud explains nothing”—the Talmud says neither judicial discretion nor anything else, and does not explain what to do—“we say: the burden of proof is on the one who seeks to extract from another.” So the basic rule, if no other rule is stated, is “the burden of proof is on the one who seeks to extract from another.” “But where no halakhic ruling was stated, neither like this master nor like that master, and the judge holds like one of them and acted—whatever he did stands. For that is what is said in the chapter ‘All Who Swear’: now that no ruling was stated either like this one or like that one, one who acted like this one acted validly and one who acted like that one acted validly.” Yes—that same passage in Shevuot we saw above. Tosafot understands it not like Rashbam. Tosafot understands that what one has to do is issue a halakhic ruling, to decide who is right—not to decide, in this case too, to whom the money seems to belong based on impression, as we saw in Maimonides, but rather to rule on the law oneself, to enter the dispute and rule on the law. And he learns this from the passage in Shevuot. You can see that Tosafot understood that what is written in Shevuot is a sweeping rule: in every place where no halakhic ruling was stated either like this side or like that side, the rule is “one who acted like this acted validly.” What does that mean? That the judge must rule on the law himself according to what seems correct to him—according to what seems correct to him in law, not in reality. “And if the judge himself is uncertain as to whom the law follows”—what happens when the judge is uncertain and has no position? “The burden of proof is on the one who seeks to extract from another.” Yes, so from here you can see clearly that he is talking about that above too, because it also says there: “and the judge holds like one of them and acted.” The judge does not decide arbitrarily, nor according to impression, but rather the judge adopts one of the halakhic possibilities that are in doubt, and then rules on the law. So what Tosafot is basically saying is that every situation where no halakhic ruling was issued—all the rules of doubt stated in the Talmud are only for situations where the judge himself does not know how to decide. But if the judge does know how to decide, then he should do what he thinks. Remember in the previous lecture when we saw Terumat HaDeshen? He writes as follows: “Since we do not know according to whom the law stands, the law is to divide,” and so on. “And I wanted to say that all these cases of division are when they are truly cases of doubt. But a legal doubt that stems from a dispute among great authorities—if neither side has seized, we should say: whoever is stronger prevails. If so, we must distinguish between legal doubt due to a dispute among great authorities and legal doubt because the matter remains unresolved in the Talmud. There, the authorities wrote that they divide. But in our case, where it is a dispute among great authorities, this reasoning does not apply: who will testify for us that the law is according to the words of this authority or that authority? Therefore we require division.” So he says that in every place of a dispute among great authorities one must divide. And this is against Tosafot?

[Speaker B] What? This seems to go against Tosafot.

[Rabbi Michael Abraham] In a moment we’ll see. So here the Rema writes in the Shulchan Arukh, Choshen Mishpat 139: “A matter over which the halakhic decisors disagree, and neither side has seized it—if it is something that can be divided, they divide it. And if it cannot be divided, whoever is stronger prevails.” He brings this from Terumat HaDeshen. Now look at the note of the Vilna Gaon: “See Tosafot at the beginning of the chapter ‘One Who Sells the House,’ 62b”—that’s the Tosafot we just saw—“even though there everything concerns a case where one party has possession, nevertheless Tosafot did not get to the heart of the explanation of the Talmud and said here it seems fit to rule,” and so on, see there. What is he saying? In Tosafot it says not like what the Rema and Terumat HaDeshen bring here. Tosafot says that there are no rules like “the burden of proof is on the one who seeks to extract from another”; rather, you can rule on the law according to what seems right to you. Not “the burden of proof is on the one who seeks to extract from another.” If you yourself are uncertain and have no position, then “the burden of proof is on the one who seeks to extract from another.” I said in the previous lecture that in a dispute among great authorities, the judge himself should really decide; it isn’t a state of doubt, because of the story of Rabbi Jonathan Eybeschütz and so on. The Vilna Gaon himself does not accept what Tosafot says. He says that Tosafot did not get to the heart of the explanation of the Talmud. But that is what Tosafot said. Okay? He understands that Tosafot disagrees with this Terumat HaDeshen, because Terumat HaDeshen, as I said, basically presents the second-order ruling approach. He says: go by the rules; you are in doubt, so go by the rules. A situation of doubt—go by the rules. Tosafot says: what do you mean? You are in a situation of doubt—decide the doubt; rule on the law; do what you think. And for example we saw here that Nimukei Yosef and also Rabbeinu Yonah write a bit differently: “The judges should judge according to what seems to them in reason and logic.” For example, they may see that the amount paid indicates something—even though according to the law the amount does not indicate anything. Yes, if there is a dispute, one can infer from the amount paid what the nature of the transaction was, but legally we do not follow the amount—or if the seller sold with a generous eye, and so on. In short, he says like Rashbam: do what seems correct to you in the case; don’t rule on the law as Tosafot suggested. In practice, in any event, what emerges is that Tosafot says there is a rule: in every place where no halakhic ruling was stated like one of the sides, the judge himself can rule on the law. By the way, Kovetz Shiurim, in Ahavat Shalom, on this Talmudic passage says: “Regarding this matter of ‘one who acted like this acted validly,’ and we do not say ‘the burden of proof is on the one who seeks to extract from another,’ I heard from my honored teacher and father-in-law, the gaon Rabbi Meir Atlas of blessed memory, that this is speaking of a judge who can decide by his own reasoning”—apparently it has to be a judge—“a judge who can decide by his own reasoning between the disputants. But one who cannot decide, we say ‘the burden of proof is on the one who seeks to extract from another’; and see Terumat HaDeshen, siman 372, for what he wrote on this.” Terumat HaDeshen is what we saw above. Meaning, he is basically claiming that if a judge can decide in his own mind in a dispute among great authorities, among the halakhic decisors, then he should decide himself. It is not a state of doubt, as Tosafot says. And he says “see there.” He directed the doubt-rule only to judges who do not know the truth, who have no position. But if the judge has a position and can decide, then let him decide. And he also says that Terumat HaDeshen agrees with first-order ruling. By the way, when you look at the language of Terumat HaDeshen, it doesn’t seem so. He says: “And in our case, in a dispute among great authorities, this reasoning does not apply, for who will testify for us that the law is according to so-and-so or according to so-and-so?” If there is a dispute among great authorities, say Rashba and Maimonides disagree—who can decide that Maimonides is right or that Rashba is right? No chance. So clearly Terumat HaDeshen is not speaking only to a judge who has no position and has not decided. He is making a principled claim: a judge cannot decide disputes among the halakhic decisors. Therefore I do not think Kovetz Shiurim is right, but that is his claim. There is also the Rosh, and in Bava Batra the Rosh writes as follows: “Where the Talmud does not explain and the halakhah was not decided, the judge has no right to extract money out of doubt.” Yes—if it is not explicit in the Talmud and the law was not decided, a judge cannot extract money out of doubt. “And the judge should not say: since no halakhic ruling was decided as to whom to follow, I will do whatever I want—judicial discretion.” Yes? “No ruling was stated, neither like this master nor like that master, so I will do whatever I want.” Rather, “he should leave the money in its established possession and not extract money out of doubt.” What do you say—is he like Tosafot or not like Tosafot? Apparently not like Tosafot, right?

[Speaker B] Apparently not. Fine—he says not to do whatever he wants, but that doesn’t mean he has no legal reasoning.

[Rabbi Michael Abraham] Exactly.

[Rabbi Michael Abraham] Meaning, at first glance he is not like Tosafot, because the judge cannot extract the money in a state of doubt, but rather must leave the money in its current possession. Apparently not like Tosafot: “the burden of proof is on the one who seeks to extract from another” if no halakhic ruling was stated. But that’s not precise. One can definitely understand that what he is saying is: I will not do whatever I want—that he cannot say. But if he has a reasoned position and can decide, then yes, why not? Definitely yes. Therefore this Rosh is still open, and in a moment we’ll see another Rosh who says it more explicitly. Look at this Rosh here. The Rosh in Sanhedrin—this is a well-known Rosh, and his conclusions are also brought in the Shulchan Arukh, Choshen Mishpat 25, in the fourth chapter of Sanhedrin, siman 6. He brings a discussion among the medieval authorities (Rishonim) regarding “one who errs in a matter of Mishnah” and “one who errs in judgment.” I’ll perhaps give a little introduction. In the Talmud they distinguish between two kinds of error: there is one who errs in a matter of Mishnah, and one who errs in judgment. Simply speaking, at least literally, one who errs in a matter of Mishnah is someone who goes against an established ruling—he errs frontally. One who errs in judgment is someone who exercised judgment, but his judgment was incorrect. It is not against a Mishnah, it is not against a clear halakhic ruling, but he exercised poor judgment. Of course one can always ask: who determines that the judgment was incorrect? My judgment is one thing; your judgment is something else. Fine. But how can you determine that my judgment is wrong? So the Talmud indeed says: what is a case of one who errs in judgment? When he goes against accepted practice. What does that mean? When in all the courts it is accepted to rule in a certain way. The halakhah was not formally decided that way, but that is the accepted ruling practice. And then if this judge rules the opposite, that is called erring in judgment. It is not erring in a matter of Mishnah, because it was not explicitly ruled anywhere, but it is called erring in judgment. On the face of it, there are those who want to understand that erring in judgment really just means going against common practice. I don’t think that is the intention. I think the common practice here is a sign, not a cause. Meaning: how can you determine that someone erred in judgment? You think differently? But that’s what he thinks—so what? You have a disagreement in reasoning. Who can determine that the judge erred in judgment? So the Talmud says: I have an indication. If in courts throughout the world it is accepted to rule in a certain way, and this one does not rule that way, then apparently the judge erred in judgment. But the reason, or the definition, of erring in judgment is someone who ruled on the basis of faulty reasoning. The fact that the whole world does not rule that way is only the indication that allows us to determine that his reasoning was faulty, not that there is some obligation to follow the practice of courts everywhere. Rather, the practice of courts everywhere is an indication that that is probably the correct reasoning, and if you ruled from different reasoning, then that is erring in judgment. Fine, that is the introduction—erring in judgment as opposed to erring in a matter of Mishnah. Now the Rosh says as follows, and begins by bringing Baal HaMaor. “Baal HaMaor of blessed memory wrote: I heard in the name of a great sage, one of the sages of our generation before us, that nowadays we no longer have ‘erring in judgment,’ for all the laws are decided in our hands, either from the Talmud or from the geonim after the Talmud.” Meaning, that sage brought by Baal HaMaor, and quoted in the Rosh—yes, all this is within the Rosh—that sage says that the concept of erring in judgment no longer exists, because we have the geonim and the Talmud, who have authority, and they already decided all the laws. Therefore whatever you do is either correct or an error in a matter of Mishnah; there is no such thing anymore as erring in judgment. There are no more judgment-calls; everything has been decided. “And I”—this is still Baal HaMaor, not yet the Rosh; all this is quoted in the Rosh—“these words do not seem correct to me. Rather, anyone whose error is not demonstrable from the Mishnah or from the explicit Talmud beyond doubt is not one who errs in a matter of Mishnah, but rather one who errs in judgment.” Yes—if there is no decision in the Talmud, all right? Then he is not erring in a matter of Mishnah, even if the geonim ruled otherwise, whatever the case may be. He is not erring in a matter of Mishnah; that is called erring in judgment, not erring in a matter of Mishnah. “And what the geonim ruled after the closure of the Talmud was from deciding reasoning, not from a clear and fixed halakhah from the Talmud; it is like accepted practice, and one who errs in this errs in judgment and not in a matter of Mishnah.” Yes—even if the geonim decided a dispute found in the Talmud by one line of reasoning or another, not because they demonstrated that the Talmud itself ruled that way, but because the geonim ruled from their own reasoning—then if I went against that, I am not erring in a matter of Mishnah; I am erring in judgment. This is not called a matter of Mishnah; the geonim do not have the authority of the Talmud or the Mishnah. But still, if I went against the geonim, there is an error in judgment here. The Raavad says: “And the Raavad wrote on the words of Baal HaMaor: the sage spoke truly”—that same sage whom Baal HaMaor brought was actually right—“for if one erred regarding the rulings of the geonim because he had not heard their words, and had he heard them he would have retracted truly and clearly, that is an error in a matter of Mishnah.” What does that mean? Even one who erred in the words of the geonim is erring in a matter of Mishnah—but only in a case where he did not know the words of the geonim, and then when he was told what the geonim say, he suddenly understood they were right. Not because of the mere fact that it is written by the geonim, but only if he himself agrees that what is written by the geonim is correct. So why is this called erring in a matter of Mishnah? Because he missed what was already written by the geonim. Had he known that this is what the geonim wrote, he would not have ruled that way. So he missed something already on record, and therefore it is called erring in a matter of Mishnah. “And I am close to saying that even if he disputed the ruling of a gaon on the basis that it appeared to him, according to his own opinion, not like the gaon and not like his interpretation, this too is an error in a matter of Mishnah.” Meaning, he claims that if I disagree with a gaon, that itself is an error in a matter of Mishnah, regardless of whether after hearing the words of the gaon I admitted he was right—even if not. The very fact that I went against a gaon is an error in a matter of Mishnah. “For nowadays we do not have license to disagree with the words of a gaon on the basis of our own opinion, to interpret the matter another way so that the law would change from the gaon’s words, unless there is a famous objection—and this is not something found.” Meaning, perhaps there is some unambiguous objection that all the sages of the generation agree on, and apparently these words of the gaon are an error or corruption or whatever—but that is not common. Therefore if you go against the geonim, that is an error in a matter of Mishnah. Fine. Up to here we have seen three views: that sage, Baal HaMaor, and the Raavad. Now let’s see the Rosh. “And I say”—and this is quoted in the Rosh—“certainly anyone who erred regarding the rulings of the geonim of blessed memory because he had not heard their words, and when he was told the ruling of the geonim it seemed proper to him, is one who errs in a matter of Mishnah. And not only one who errs regarding the rulings of the geonim, but even the sages of every generation after them are not reeds cut in the marsh.” It should read “reeds cut in the marsh.” “And if he ruled not in accordance with their words, and when he heard their words they seemed proper to him and he admitted he had erred, then he is one who errs in a matter of Mishnah, and the case is reversed.” Reversed meaning: the ruling is nullified. If one errs in a matter of Mishnah, the ruling is nullified. So that is someone who erred regarding the rulings of the geonim and when he heard them he understood that he had missed something. “But if their words did not seem proper to him, and he brings proofs for his own words accepted by the scholars of his generation, Jephthah in his generation is like Samuel in his generation; you have only the judge who shall be in those days. And he may overturn their words, for every matter not clarified in the Talmud compiled by Rav Ashi and Ravina, a person may destroy and build—even to disagree with the words of the geonim.” So he says: if he retracted after hearing that the geonim wrote otherwise, then this is an error in a matter of Mishnah. But if he did not retract, then it is not erring in judgment—it is not an error at all. Because he has the right to rule against the geonim. He does not need a famous objection and nothing of the kind. It is enough that he bring proofs for his words, accepted by the sages of his generation—meaning, you did not err in the proofs. You do not have to be right against the geonim, but there is no error here. Not a famous objection as the Raavad said. So basically the Rosh says: every matter, including the rulings of the geonim, the sage or judge sitting in judgment can decide for himself. If he disagrees with the geonim, let him disagree.

[Speaker E] Does he say that even against the Mishnah, or only against the geonim?

[Rabbi Michael Abraham] No, only against the geonim—not the Mishnah and not the Talmud.

[Speaker E] Why not the Mishnah? He’s going by his own reasoning. I can’t hear. Why not also against the Mishnah? Basically, if in the end I read the Mishnah and I think otherwise?

[Rabbi Michael Abraham] There is authority. The Mishnah and the Talmud have formal authority.

[Speaker E] No, we’re talking now about monetary law, and in the end the reasoning is what…

[Rabbi Michael Abraham] No. Once the halakhah has been decided, there is no reasoning. If the halakhah has been decided, there is no reasoning.

[Speaker E] Say that according to the halakhah it comes out that Reuven should win the money, but according to his reasoning Shimon is the one who should win—so then apparently he does not go with his own reasoning?

[Rabbi Michael Abraham] No, you have to distinguish. Right now you’re talking not in the time of the Rosh but in the period before the Rif. We’re talking about two hundred years earlier, or even more—three hundred years earlier—about what the law originally was. What the law originally was, then you could do what seemed right to you. Fine, that’s a different discussion. But the Rosh is not in that period. The Rosh is in a period where we do work with the law. We work with the law, but the one who determines what the law is, is the judge who is sitting. Not the geonim and nobody else. When there is a Talmud or a Mishnah, then you don’t dispute the Talmud or the Mishnah; that is binding. But geonim—I have the right to disagree with them. If after I hear the geonim I admit they were right and I missed something, then it is an error in a matter of Mishnah. But if I disagree with them and bring proofs for my words, very good—I can disagree with them. That’s what he says here: “every matter not clarified in the Talmud compiled by Rav Ashi and Ravina, a person may destroy and build, even to disagree with the words of the geonim.” There is no formal authority after the Talmud. There is no one after the Talmud whom one may not dispute. And that is what he says: “For the later amoraim sometimes dispute the earlier ones. On the contrary, we hold the words of the later authorities to be primary, since the law follows the later authority. Since they knew the reasoning of the earlier ones and their reasoning, and decided between those lines of reasoning, and arrived at the core of the matter.”

[Speaker B] Only according to the Rosh—do you hear? What? Only according to the Rosh there is no authority to the geonim?

[Rabbi Michael Abraham] I’m talking about the Rosh. Now look at the concluding paragraph. “And where two great authorities disagreed in a halakhic ruling, the judge should not say: I will rule whichever way I want. And if he did so, this is a false judgment.” What is “whichever way I want”? Does it remind you of an earlier wording? Look at the Rosh. It’s the same Rosh from another place. “And where the Talmud does not explain…” —this is the Rosh in Bava Batra—“and where the Talmud does not explain and the halakhah was not decided, the judge has no right to extract money out of doubt. And the judge should not say: since no halakhic ruling was decided as to whom to follow, I will do whatever I want. Rather, he should leave the money in its established possession and not extract money out of doubt.” Remember what I said there? At first glance he is against Tosafot—to go with the rules, “the burden of proof is on the one who seeks to extract from another.” You can’t do whatever you want. And I said: not necessarily. Dov said it too a moment ago—not necessarily. Why? Because maybe what the Rosh means is: you can’t do whatever you want, but if you have a ruling, if you have a reasoned position, then you are allowed to rule on the law. And here it’s written explicitly in the Rosh in Sanhedrin. Look at the last paragraph of the Rosh: “And where two great authorities disagreed in a halakhic ruling, the judge should not say: I will rule whichever way I want. And if he did so, this is a false judgment. Rather, if he is a great sage, learned and understanding, and knows how to decide in favor of one of them with clear and compelling proofs, permission is in his hand.” You see? The judge should not say, “I’ll rule whichever way I want.” But if he is a sage and wants to rule—certainly that’s what he should do. Meaning, you see that the phrase “the judge should not say, I’ll do whichever way I want” means to act arbitrarily, however he wants. It does not mean he is forbidden to rule—on the contrary. That is what he writes here. If he is qualified and he can rule, then let him rule. “And even if another sage ruled on a matter, this sage may overturn his words with proofs and disagree with him, as I wrote above.” So the Rosh basically—and this is also brought in siman 25 in the Shulchan Arukh—the Rosh basically says that after the Talmud, in all disputes among the geonim, the medieval authorities (Rishonim), and the later authorities (Acharonim), in the end, if the judge decides that he has a clear position and resolves the dispute, he has the right to do so. There is no authority—not only may he decide a dispute, he can even disagree with all the medieval authorities. Not only decide among them. He can even disagree with them, because there is no authority after the Talmud of Ravina and Rav Ashi. And certainly he can decide among disputing authorities—that is what he says. “And even if another sage ruled on a matter, this sage may overturn his words with proofs and disagree with him, as I wrote above.” Meaning, you can go against earlier sages even without having someone else who disagrees with them. You disagree with them. And he says: “And all the more so if he has support from one of the disputing authorities.” Meaning, if there is a dispute, then certainly you can decide like one side, because then you are only joining one of the medieval authorities. But even if not, you can decide. This joins all the sources we saw in the previous lecture: that basically the judge who sits in judgment can decide. But there is one more important point I still want to sharpen before we finish. Look at this paragraph I marked. “When he brings proofs for his words accepted by the scholars of his generation, Jephthah in his generation is like Samuel in his generation.” What does that mean?

[Speaker C] It’s not clear at all, because Jephthah was a complete ignoramus. Why do people always attribute halakhic authority to him?

[Rabbi Michael Abraham] Exactly. On the contrary—that’s precisely the point.

[Speaker B] Even though we surely know that Samuel was more righteous, nevertheless—that’s what the Rabbi said.

[Rabbi Michael Abraham] Exactly. They take someone who is obviously—Samuel, Samuel was considered equal to Moses and Aaron by the sages, right? Samuel was equal to Moses and Aaron, the greatest there ever was. And Jephthah was like one of the emptiest people. You see? But Jephthah was the judge in his generation. Jephthah in his generation is like Samuel in his generation. Notice: this is an interesting justification from the Rosh. Because the Rosh brings it as a justification for saying that if the judge decides to rule by himself, then let him rule. But he says: this is not because the judge rules better than Maimonides and Rashba. They are greater Torah scholars. But he is the judge. And Jephthah in his generation is like Samuel in his generation.

[Speaker C] So he really did as he wanted, against what the Rosh wrote after the Talmud.

[Rabbi Michael Abraham] No—what he thinks, not what he wants.

[Speaker C] He doesn’t have the tools to think straight, to think according to the rules of Jewish law.

[Rabbi Michael Abraham] No, of course he does.

[Speaker B] Jephthah?

[Speaker C] No—someone qualified.

[Rabbi Michael Abraham] Yes, fine. Jephthah is a metaphor. I’m talking now about the judge. The judge sitting in judgment. He knows that Maimonides and Rashba disagreed on this topic. The Rosh says: you may rule on the law, even though it is against Maimonides or against Rashba, because Jephthah in his generation is like Samuel in his generation. What does that mean? It means that your ability to rule on the law is not because you are wiser than they are, not because you are more correct than they are. Rather, even if you are not more correct, if you are the judge sitting in judgment, the authority to rule rests upon you. What we discussed regarding Rabbi Meir and the duty of autonomy, and so on. That’s what this means: they come to you, you have to rule. Yes—I told a story, I don’t remember if I told it here, I think I did. Once, in one of the sessions of the rabbinical courts where we annulled a marriage, I saw in the rulings of the rabbinical courts that in one of the rulings they say: we think the woman is permitted, but the leading sages of the generation need to agree with us before we rule this as halakhah. I think I said this—I don’t remember.

[Speaker B] Yes, the Rabbi said it.

[Rabbi Michael Abraham] So those are people who don’t understand that the duty to rule rests on them, not on the leading sages of the generation. It’s not that—you have to rule. You are the judge and you have to rule. That is what “Jephthah in his generation is like Samuel in his generation” means. But notice what he says. Clearly, he writes: “Rather, if he is a great sage, learned and understanding, and knows how to decide in favor of one of them with clear and compelling proofs, permission is in his hand.” What does that mean? “A great sage”—does that mean greater than Maimonides and Rashba? Then he can decide against Maimonides or against Rashba? No. He says “Jephthah in his generation is like Samuel in his generation.” You are Jephthah and they are Samuel. So what does it mean that you can decide with proofs? It means that you are qualified. You can rule on the law. You don’t need to be on the level of Maimonides and Rashba, but of course not every hothead gets to do whatever he thinks in Jewish law—that’s not serious. But if you are a judge or a clear halakhic decisor, and you are qualified, then you can decide halakhah. You are not on the level of Rashba and Maimonides. You are Jephthah and they are Samuel, but “Jephthah in his generation is like Samuel in his generation.” So there is a kind of definition one can gather from these two paragraphs together that says the following: in principle there is a duty to rule—both a right and a duty—to rule autonomously. But of course not every child can act autonomously, because that is not called autonomy; that is just nonsense. On the other hand, the other side of the coin is not: well, only someone greater than Rashba can rule against Rashba. Obviously that would make this a dead letter. The Rosh says no—you do not need to be greater than Rashba. “Jephthah in his generation is like Samuel in his generation.” But you do need to be qualified. You need to be someone who has reached the point of being able to give rulings. Not just some random hothead. But in order to disagree with Rashba you do not need to be greater than Rashba; you need to be someone qualified to rule. If you have reached that level and you are sitting in judgment, then in that case you are the master of the house. If you rule this way, then that is the halakhah in that case. In this case that is the halakhah, even if it is against Rashba, against Maimonides, and against whoever you like. And this is the concept I call the concept of being qualified. If you are qualified, then you can rule—but you do not have to be… yes, it’s that well-known Hasidic story that Rabbi Zusha said that when he gets to heaven they won’t ask him why he wasn’t Moses our teacher; they’ll ask him why he wasn’t Zusha. And the claim—what I want to argue—is that you can rule on halakhah in the disputes of earlier authorities if you are Zusha. You do not need to be Moses our teacher, but you do need to be Zusha. Meaning, once you have become yourself—meaning that you have already studied, specialized, and become qualified to rule—then you can decide. As long as you haven’t learned enough, you’re not even Zusha yet. You’re still Zusha in potential. Okay? Once you’ve become Zusha, then you can decide. That is basically what the Rosh is saying here. That’s how I understand it. I once thought that one indication of this could be—and this also simply comes from my own experience—I think that in the early stages of learning, when I would study a passage and come to some conclusion, and then return to it two or three years later, study the same passage, I would understand how I had come to that conclusion, and it would be obvious that the truth is the opposite. I mean, it had been obvious to me then that this was the conclusion, and now suddenly I’d say: what are you talking about? That makes no sense. The truth is exactly the opposite. That means I still wasn’t Zusha. I myself wasn’t yet formed in what I think. Moses our teacher I probably won’t be either. But Zusha—you become that at a certain stage, when you already stand on your own judgment, when you are already seasoned and have realized your abilities—then you are Zusha. And the indication of that is that if you return to the same passage after some time and still agree with the conclusions you reached in previous rounds, then you are probably already formed. Then you have probably reached your own way of thinking. Once you are qualified, you can already rule on halakhah. Maybe that is some criterion that can help a person diagnose himself.

[Speaker C] Sorry, Rabbi—sorry that I’m going back to the same point; it’s not the main point—but regarding Jephthah, why do they bring him? Jephthah was a judge; he wasn’t a halakhic authority. In his days there were other authorities, it seems to me. Who was it—the High Priest there, in the story where he sacrificed his daughter? It was—I don’t remember. But why do they bring him as an authority for ruling, this Jephthah?

[Rabbi Michael Abraham] I don’t know—there are two possible answers to that. First: if Jephthah was a judge, then he was a judge—not just a leader, but apparently he was also engaged in judging. Even though he doesn’t seem to have been such a great Torah scholar, still, the fact is that he was the judge at the time—that’s one possibility. Second: it could be that they bring this only as a metaphor. As if to say: even if the judge in your own days is, so to speak, like Jephthah compared to Samuel, they still mean someone who really is a judge. They use Jephthah only to say that your authority to issue a halakhic ruling doesn’t depend on being on the level of Samuel. Even if you’re Jephthah in comparison with Samuel, if you’re the judge here, then you’re the one who has to rule. But they don’t mean to say something historical about Jephthah himself. They’re only using him to say that even if you’re like Jephthah, you still have to rule.

[Speaker E] Okay, thank you. Rabbi, I connect with the dichotomy between the autonomy we have—the need to decide on our own—and the fact that there’s supposedly some reliance on other sources. But even מתוך our own autonomy, sometimes we also have a demand to look outward—like, say, in medicine, I’d prefer to go to the best doctor available to me, or the best one I can access. So too in wisdom, I’d say: okay, let’s go to the wisest person. And if the sages think that Rabbi Meir is deeper than they are, then the question still remains: why wouldn’t they say that, for the sake of clarification, like circumstantial clarification, there is circumstantial clarification through a wise person who reaches a certain conclusion?

[Rabbi Michael Abraham] You’re assuming that the goal is to arrive at the truth, and then you’re right. You should go to the greatest sage. What difference does it make that I don’t understand? He’s the sage; he presumably gets at the truth. And I’m arguing that a halakhic ruling expresses not only truth but also autonomy. And therefore, you are supposed to rule even though you yourself understand that Rabbi Meir is probably right and not you.

[Speaker E] But I can also use rules of circumstantial evidence, right? No.

[Rabbi Michael Abraham] Circumstantial evidence is not autonomous ruling. If Maimonides said it, then he’s probably right. Ad hominem—ad hominem is not proof.

[Speaker E] Like, say, a circumstantial proof where it seems reasonable to me that Reuven really is the thief because of all kinds of evidence—I can rely on that.

[Rabbi Michael Abraham] That’s something else. That’s circumstantial evidence about the matter itself. We’re talking about circumstantial evidence in terms of people. If Maimonides said this, then it’s probably true. In logic that’s called the ad hominem fallacy—the reliance on the person. That’s not autonomous ruling.

[Speaker E] Why shouldn’t that at least count as circumstantial evidence? Why should I care about the person here?

[Rabbi Michael Abraham] As circumstantial evidence, it’s more than circumstantial evidence. If you ask me what the truth is, the truth is what Maimonides said. But I don’t have to issue a halakhic ruling according to the truth, so why should I care that it’s circumstantial evidence? That circumstantial evidence is only evidence that this is the truth. I understand. But I’m not supposed to rule according to the truth.

[Speaker E] But with circumstantial evidence I still do have to take it into account, don’t I?

[Rabbi Michael Abraham] Circumstantial evidence about the matter itself—yes. I was convinced that this is the truth. But if Maimonides said it and I wasn’t convinced? Then no, because I’m relying on Maimonides and not on myself.

[Speaker E] So that means, basically, there isn’t that much disagreement here. All the people who quote Maimonides or authoritative sources are really saying: we were convinced that these are sources that must be taken seriously, like circumstantial evidence.

[Rabbi Michael Abraham] Good—but in my view, that conviction is based on the wrong foundation. Because when you’re convinced because Maimonides said it and he was probably a great man, then in fact you’re relying on Maimonides; you weren’t really convinced. You were convinced that this is the truth. But you need to be convinced, on the merits of the matter itself, why this is the truth. If you’re convinced that this is the truth, that’s not enough—it’s like Rabbi Meir. And again, you’re right that it’s the truth—not because it isn’t the truth, but because truth is not the only parameter in halakhic ruling. Autonomy is also important.

[Speaker E] Right, but circumstantial evidence doesn’t—it doesn’t care what its sources are, right? I mean, in the end it’s circumstantial evidence that brings me closer to some conclusion.

[Rabbi Michael Abraham] It’s not the same thing. I’ll repeat the same answer. Circumstantial evidence proves that this is the truth. You’re right—but I don’t care that this is the truth. It’s like asking: suppose two brothers come and testify that Reuven borrowed money from Shimon. And the truth is that Reuven did borrow, right? Because the two brothers know. It’s only a scriptural decree not to accept their testimony. Okay? So then that means the truth is that Reuven borrowed—so why don’t I… or forget borrowing; in monetary law maybe in ancient times they could even issue a death sentence, execute someone, yes? Two brothers come and testify that he is liable to death. What is the truth? The truth is that he is liable to death. That’s the truth. But there is a scriptural decree that brothers are disqualified. What does that mean? It means that apparently there are other considerations besides truth when we issue halakhic rulings. Of course, this is only an analogy to our case. So here too, the consideration of autonomy is no less important than the consideration of truth. And when I hear that Rabbi Meir said something, that is circumstantial evidence that it’s the truth—I agree. But I’m supposed to rule according to what I think will be the truth, not according to the truth itself. So I don’t care that it’s circumstantial evidence. Okay? Okay. Well then, goodbye, Sabbath peace.

[Speaker E] Sabbath peace.