Study and Halachic Rulings – Lesson 23
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- Systematic analysis in in-depth study and the gap between yeshiva and academia
- Common sense, rosh yeshiva versus halakhic decisor, and the “two heads” model
- Theory versus reality: game theory, engineering, and the limits of the model
- Triggers, distress, and the distinction between discovery and justification: the epidural story and chapters in the development of Jewish law
- Two perspectives: anthropology, prayer, music, and surrounding light and filling light
- An example of a flaw in conceptual analysis: Rabbi Yosef Engel, the shaver and the one being shaved, and defining the prohibition
- Critique of Rabbi Chaim of Brisk and meta-questions about legal effect, ownership, money, and loans
- Common sense regarding the Ran: the law of the kingdom in the Land of Israel
- Secular courts, the courts in Israel, courts in Syria, and “no choice” as a meta-halakhic principle
- The custom of the land, the law of the kingdom in monetary law, and criticism of practical “Torah law”
Summary
General Overview
The text argues that yeshiva-style in-depth study suffers from a lack of system, lack of conceptual definition, lack of a priori thinking, and lack of attention to context and to the broader implications of conclusions, even though students of in-depth study can be brilliant and original. In contrast, the text sets modern/academic study, which excels more in methodology but lacks the “spark” and pilpul. It expresses a sense that what is missing is a fusion between these worlds. The text adds that down-to-earth common sense is sometimes lacking in yeshiva circles, and that proper halakhic ruling and leadership require an appropriate combination of theoretical analysis and direct familiarity with reality.
Systematic analysis in in-depth study and the gap between yeshiva and academia
The text lays out headings for systematic study: defining concepts, a priori analysis of what it makes sense to say before seeing the passage, and paying attention to context, overall meaning, and the broader implications of conclusions. The text states that in traditional yeshiva study halls these elements are generally missing, even though in-depth study should seemingly be the most natural place to apply them, and it describes repeated disappointment about this even among brilliant people. The text describes academic Talmud articles as tending to be “rather dry” and focused on boring “archaeologies,” and says that even when they do a better job with methodology, they lack the actual pilpul content of questions, resolutions, and distinctions. The text presents the strengths on both sides and argues that a fusion between them is rare.
Common sense, rosh yeshiva versus halakhic decisor, and the “two heads” model
The text cites Rabbi Beni Lau as saying that the problem is that spiritual leaders are usually roshei yeshiva rather than rabbis, and explains that roshei yeshiva develop analytical ability for building “intellectual structures” in front of yeshiva students who challenge logical consistency but almost never ask whether something actually “makes sense.” The text argues that in this way a rosh yeshiva can become a theoretician who imposes theories on reality, and when he is called upon to lead a public his decisions can seem detached. The text presents the halakhic decisor as someone rooted in the practical world and more driven by common sense, but says that this too has drawbacks, and that an intuitive gut-level decision is also not a recommended method, because logic and analysis also have a role in testing things. The text argues that correct decisions come from combining analytical system with common sense and a feel for reality, and distinguishes between “types” of rosh yeshiva and halakhic decisor rather than formal titles.
The text presents as a model the Haredi split between the Council of Torah Sages and members of Knesset, and argues that the split is correct because the one in the field understands practical limitations while the one who is detached allows abstract and critical vision. But it adds that two heads are “a recipe for problems,” and that we need to discuss how exactly to combine them. The text describes a personal change from looking down on practical Jewish law in Bnei Brak to understanding that practical halakhic ruling is a fascinating field because it puts theoretical models to the test of reality and common sense. The text states that a “significant halakhic decisor” is one who knows how to connect analytical halakhic categories with the real world, and that the art of application is never “as is,” because reality is far more complex than theory.
Theory versus reality: game theory, engineering, and the limits of the model
The text argues that theories provide directions for thought but do not solve real-life problems on their own, and gives the example of game theory, which in his view is “almost unusable in practice,” and in many cases common sense reaches the same solution without the mathematics. The text describes a personal experience working at Tadiran on a satellite filter and argues that the more mathematics there is, the smaller the chance that something will work. It distinguishes between “analog mathematics” and “digital mathematics” as a way of bypassing “the stubbornness of reality.” The text concludes that reality is a mixture of “a huge mess,” and that to see a law of nature you need a lab detached from reality, whereas in life you have to live reality and let theory serve as an aid rather than as the exclusive solution.
Triggers, distress, and the distinction between discovery and justification: the epidural story and chapters in the development of Jewish law
The text quotes, “A person does not fully grasp words of Torah unless he has stumbled over them,” and connects this to the idea that dealing with values requires encountering suffering and reality, not theory alone. The text brings a story attributed perhaps to Dr. Chana Katan, about a Haredi woman who refused an epidural because her father, a halakhic decisor, had forbidden it on the basis of “in pain you shall bear children,” and when the father arrived at the hospital and confronted her suffering, he permitted it. The text warns that the example is “tricky,” because personal involvement can also bias someone toward leniency improperly, but argues that in the epidural case it is reasonable that the distress served as a trigger for renewed examination that led to a rational change of position, and not merely favoritism.
The text uses the distinction between the “context of discovery” and the “context of justification” and argues that the paths by which one arrives at a theory can be strange, but the theory itself has to hold water. The text refers to Professor Gilat’s book, Chapters in the Development of Jewish Law, and says that the criticism of it claimed that it presents Jewish law as a reaction to reality, whereas in the speaker’s view “it’s really not what people made it out to be.” The text gives the example of the Sabbatical year in our time being rabbinic, and describes Gilat as presenting a process in which distress is a trigger that leads to renewed examination, not a direct reason to be lenient. It frames this as the distinction between a halakhic decisor “committed to Jewish law” and Reform Jews who use distress itself as a halakhic argument. The text combines this with the claim that halakhic ruling requires direct familiarity with reality, but also theoretical distance so as not to be driven only by emotion.
Two perspectives: anthropology, prayer, music, and surrounding light and filling light
The text describes a dispute in anthropology between an approach that requires living inside a tribe in order to understand it from within and an approach that requires detached observation “from a high mountain,” and says that the truth is a combination of the two perspectives. The text agrees that purely external understanding can miss the meaning of the religious world from the inside, but sharpens the point by saying that the contrast is not only “to ask why,” but to understand directly and not only theoretically. The text rejects the framing of this as a “religious experience” and argues that the distinction is intellectual, between two modes of the mind, formulating it in kabbalistic language as “surrounding light” versus “filling light” as forms of perception. The text adopts the example of a musicologist who has never heard a sound to illustrate that formal knowledge without inner perception is not really “knowing anything,” and emphasizes that this too is not necessarily only emotional, but also perceptual-intellectual.
An example of a flaw in conceptual analysis: Rabbi Yosef Engel, the shaver and the one being shaved, and defining the prohibition
The text describes Rabbi Yosef Engel’s books as investigations of broad topics, with analyses of a Torah-level fence, object/person distinctions, and laws dependent on time, but argues that they almost always lack conceptual analysis that organizes the discussion. The text gives an example from the question of someone who shaves his own head: did he violate two prohibitions, as the one doing the shaving and as the one being shaved? It argues that the question itself is not simple, because there is only one prohibition of shaving the corners of the head, and the Talmud innovated that both the shaver and the one being shaved violate it. The text asks what it means to “violate do not shave twice” in one act, and suggests that the discussion first requires clarification of the structure of the prohibition itself, similar to the prohibition of interest, which attributes a transgression to both sides. The text argues that without this kind of conceptual clarification, people go straight to sources and pilpul, and then compare mismatched sources and produce mistaken questions and resolutions, whereas analysis reveals different categories of cases that change the conclusions.
Critique of Rabbi Chaim of Brisk and meta-questions about legal effect, ownership, money, and loans
The text responds to the claim that “this is what Rabbi Chaim of Brisk does,” and says that in his view Rabbi Chaim raises possibilities like person/object, but does not provide good definitions for the concepts themselves. The text argues that the yeshiva world does Rabbi Chaim “excellently,” even “better than he himself did,” but still lacks an additional step of system and conceptual definition. The text gives as an example the chapter HaZahav and the need to define what money is, what a loan is, what legal acquisition is, what ownership is, and what legal effect is, and argues that such questions are almost never asked even though they precede classic yeshiva-style investigations such as whether the act of acquisition creates ownership or expresses finalized intent. The text mentions Rabbi Shimon Shkop as an exception who tries to deal with ownership, and adds that moving toward these questions unsettles accepted assumptions because it introduces thinking “from before the Torah was given” and a priori philosophical questions.
Common sense regarding the Ran: the law of the kingdom in the Land of Israel
The text gives as an example of blindness to common sense the Haredi use of the Ran in the eleventh derashah of Derashot HaRan as saying that “the law of the kingdom does not apply in the Land of Israel,” and argues that taken literally this is “inconceivable,” because then kings of Israel like David and Solomon would have had no authority and there would have been no monarchy. The text emphasizes that even if one accepts the Ran, it cannot be understood literally, and one must stop and ask what he does mean before moving on to practical ramifications and discussions. The text notes that he saw an article by Rabbi Ariel trying to explain the Ran, and uses this to illustrate the need to activate the householder’s question of “this can’t be” in order to open a genuine inquiry.
Secular courts, the courts in Israel, courts in Syria, and “no choice” as a meta-halakhic principle
The text moves to the prohibition of going to secular courts and its application to the courts in Israel, and argues that the halakhic dispute runs between halakhic decisors who forbid it and religious judges who claim there is no prohibition on the basis of accepted jurisdiction and similar arguments. The text presents the courts in Syria as Jewish laymen appointed to judge in a place where there are no expert judges, and describes the Chazon Ish’s arguments against comparing them to the courts in Israel: in Israel there is an alternative legal system to Jewish law, and in Israel there are Torah scholars fit to judge, so there is no justification for appointing laymen. The text states that in his opinion the halakhic decisors are right on the strictly halakhic level that one may not go to the civil courts, but argues that in terms of motivation the judges are right, because a society cannot exist without an effective legal system, and when a broad public does not accept Torah law, the alternative of “no legal system at all” is impossible.
The text presents his own position as a meta-halakhic principle that has no clear halakhic source, and suggests viewing the courts in Syria as “inspiration” for the idea that sometimes a practical solution is allowed despite the severity of appointing an unfit judge, because social necessity requires a legal system. The text argues that even if the Chazon Ish rejects the technical comparison to the courts in Syria, the necessity that motivated that precedent still remains today, and therefore there is a need for a “new invention” not limited by the restrictions of Syria. The text argues that most halakhic decisors “agree” to this in practice but “don’t dare say it,” and points to the reality of Haredi campuses full of law students while people continue to speak about the severity of secular courts, as an example of behavior based on a wink and deliberate blindness.
The custom of the land, the law of the kingdom in monetary law, and criticism of practical “Torah law”
The text notes that laws perceived as reasonable, like “14 business days” to return a product, are in fact accepted even in the Haredi sector, and are sometimes explained as the custom of the land that developed because of the law. The text argues that in the rabbinical courts there is no real “option of going to Torah law today,” and that what is called “Torah law” is “a joke,” because there are no effective powers for summoning witnesses or enforcement. The text cites a case from an article by Nadav Shnerb in which a person refused to sign an agreement to accept the ruling whether legally correct or mistaken because he demanded Torah law, and the court issued a contempt notice against him; it presents this as an absurdity in which they require someone to come to a religious court but are not willing to provide Torah law. The text also brings a personal experience accompanying a kollel student to a private religious court where he demanded Torah law and was told that the court “is not willing to judge according to Torah law,” and describes the reality as one in which they rule according to “what seems right to them” within a compromise close to the law.
The text rejects the claim that this is “closer to the Torah” and says there is no scale of “closer”; either one is judging according to binding Torah law or not. Starting points and signs such as sources or a page in Rashi script do not turn compromise into Torah law. The text explains that the deviation stems from the fact that Torah law “doesn’t always seem just” in today’s reality, but argues that if one wants to justify change, one needs a halakhic path and not merely distress or a feeling of justice. The text ends by saying that in labor disputes and mandatory rights, rabbinical courts lack tools parallel to those of the labor court, and presents this as a sign that the system in practice relies more on compromises and external considerations than on binding Torah law.
Full Transcript
[Rabbi Michael Abraham] Last time I started talking—my brain, because of all the cleaning, still isn’t completely in focus—I started talking a bit about the importance of systematic thinking, defining concepts, a priori thinking, paying attention to context, to the broader meaning of things, and how all these forms of engagement are generally very lacking in the traditional yeshiva study halls. And as I said, that’s actually pretty surprising, because in in-depth study I would expect this to be maybe the most natural field in which to apply all these good things. But somehow, again and again, I find that it usually doesn’t really happen. So I want to take a few examples to illustrate it, because it’s hard to speak in general terms about everything I said here. Maybe I’ll just repeat the headings once more: A, defining concepts; B, an a priori analysis of what I would say before I approach or see the passage; C, paying attention to context—that is, if I’ve reached some conclusion, what is its broader significance? Usually it’s not just a conclusion about the specific passage I’m working on, but it contains some kind of statement or innovation that has wider implications too, a mode of thinking that should be conceptualized and noticed. And all these things, in my view, are somewhat missing in ordinary yeshiva study. And again, I’m saying this even about brilliant people, people who really have dazzling insights in the realm of in-depth learning, and still my feeling is that very often—in the overwhelming majority of cases, actually—these elements, which may indeed be more modern, are absent there. And in more modern study, those things do exist, but precisely there I miss the sparkle of yeshiva-style analysis. When you look, for example, at an academic article on the Talmud, an academic article on the Talmud is usually something frightfully dry, dealing with some boring sort of archaeology—at least to my taste. And even if it does a better job, and even then usually not really as it should, at the things I listed earlier, there I miss the content itself, the real pilpul of analysis, not just the good methodology that should surround it, but the substance itself—the insights, the questions, the resolutions, the distinctions. In that sense there are two sides here, each with its own advantages, and I really miss their fusion or connection. Here and there of course you can find such things, but it’s still rare. So as I said before, I want to discuss a few examples here. There’s maybe one first example—or maybe one more point, yes, sometimes common sense is also missing. Meaning, a kind of common sense that says: wait, wait, let’s stop for a second with all the pilpul and all the understandings and principles and distinctions and so on. Something here needs to be checked to see if it makes sense. I think—I may have mentioned this, I don’t remember anymore—I once heard or read that Rabbi Beni Lau wrote that one of the troubles of our generation is that the spiritual leaders are generally roshei yeshiva and not rabbis. And he says that roshei yeshiva—and I distinguished last time between roshei yeshiva and halakhic decisors, so this is definitely connected—roshei yeshiva are generally people with impressive intellectual abilities, impressive analytical ability, sometimes originality. And they know how to build impressive intellectual structures. But the people standing opposite them are yeshiva students, young men who can be brilliant and smart and well versed in the passage, and it really is a serious challenge to teach them. But one thing is rare to find among yeshiva students: common sense. Or let’s call it household common sense, not just common sense. When you give a class before yeshiva students, they’ll immediately catch where you’re inconsistent, and where one could say otherwise, and why what you’re saying is not necessarily correct. It’s a challenge; teaching yeshiva students is a challenge, not an easy one. But very few times will they say: what you’re saying doesn’t make sense, it doesn’t add up. Those are usually claims made by older laymen, who very often will miss the inconsistency or the various logical possibilities and so on, but in the bottom line they’ll understand that something here doesn’t hold water—that it’s not common sense. And when a rosh yeshiva sharpens himself in front of yeshiva students, he basically becomes this kind of theoretician who has a tendency to impose his theories on reality. And when he has to lead a public and make decisions on practical levels, and he makes them through all kinds of detached theoretical distinctions, then that’s exactly how it looks. On the other hand, a rabbi, a halakhic decisor, someone who deals with adults, who lives in the practical world, knows it and works with common sense, will often make decisions that are more reasonable under the actual circumstances in which he operates. Although, again, here too—and I’ve written about this in columns on the website too—in my opinion neither side does it perfectly. A halakhic decisor also has drawbacks in this context as a practical or public leader, because analytical ability and the power of analysis are very important also for making practical decisions. In other words, to go straight with intuitive reason, with ordinary common sense, and immediately reach a result—that, in my opinion, is not a recommended method. Common sense is excellent input; it gives you an initial direction, it’s the first thing I would check. But you have to check it. You have to examine it and see whether the distinctions hold water or not. Logic also has a role, not only common sense. It seems to me that the right decisions are made by someone who creates a combination—a proper combination, as they say—the proper combination between analytical system and common sense, the feeling for what is required in relation to the reality we are dealing with or operating in. And in that sense, I think that again, by halakhic decisor I mean that both a rosh yeshiva and a halakhic decisor can of course be excellent people who are immersed in both worlds and combine them. Right now I’m speaking about the type of a rosh yeshiva and the type of a halakhic decisor. Not everyone who serves as a rosh yeshiva is of the rosh yeshiva type, and the same goes for halakhic decisors. But I’m saying that neither of these types seems to me to make decisions correctly, and often that’s the feeling—not only in halakhic issues, of course, but in many other contexts as well. On the one hand there is—I think I spoke about this in the past too—the Haredi model where there is the Council of Torah Sages, the Torah sages or whatever you call it, and there are the members of Knesset. And this split into two heads seems to me a very correct split: on the one hand, the one who is inside the political muck, inside practical life, understands what things mean, knows the field, understands what can and can’t be said or done. A person shut up in a room doesn’t understand at all the reality he is sometimes discussing. On the other hand, it’s also not right for the members of Knesset or those deeply embedded in the practical world to make decisions entirely from that perspective, which is wholly immersed in that world. There is also value in detachment—in detached, abstract, intellectual, theoretical perspective—when it is applied to or tests reality. Reality. And therefore there needs to be some kind of symbiosis between the theoreticians, the academics, let’s call it that, the perspective from the study hall, and the perspective of the practical world, and some proper combination between the two. I think that is the correct model. Not to give this side exclusive decision-making power and not to give that side exclusive decision-making power. Now again, when there are two heads, that’s of course a recipe for problems. Usually a body should be managed by one head and not two. So exactly how you create the combination between the two heads—that can be discussed; it’s not our topic right now. But what is important to me is really to see the relationship between them. I don’t remember whether I mentioned this last time: for many years, as is common in Bnei Brak, I had great contempt for the field of practical Jewish law. I didn’t deal with it; it was boring, bothersome, and only interfered with the wonderful abstract theoretical analysis we were doing in the study hall. And already there there was this picture, this feeling, that the two worlds don’t really fit together, at least not simply. And now you have to choose: either be there or be here. But the very fact that you feel you need to choose is because you understand that there is some tension between these two perspectives. And at some point I matured a bit and understood that practical halakhic ruling is an unbelievably fascinating field. Unbelievably fascinating because there you can take the abstract analytical theoretical models that you build, your conceptual system and so on, and put them to the test of common sense and reality, to see how I analyze reality in those categories and how I reach a decision about that reality. And again, someone who is not a rosh yeshiva but only a halakhic decisor will often simply issue a decision from the gut or from common sense, and that’s it. Someone who is a rosh yeshiva will issue a decision detached from common sense, a decision that is the result of abstract thought. A significant halakhic decisor is one who knows how to connect these two things. In some senses that is the essence of first-rate halakhic ruling. You use all your theoretical and analytical categories, but you enter the practical world and have to formulate a position about it. And not just find it in earlier books and apply it as is—it is never applied as is. The art of applying halakhic theory to given circumstances is an extraordinary art. It is simply an amazingly fascinating field. Reality is so much more complex than theory that theory is too small for it. In other words, theory will obviously give you directions of thought, draw your attention to this point or that point, but theory alone will never give you a good answer to reality. As I’ve said and written more than once, just like in game theory, all kinds of popular writers always like to explain how useful it is, how many applications it has, how it solves lots of life’s problems and so on—nonsense. No applications and no nothing. Game theory is generally an impractical field, almost unusable in practice. The places where I can use game theory to find a solution to a life problem are generally places where I don’t need game theory. Anyone with common sense will get to that solution even without game theory. You don’t need grand mathematics for that. And conversely, sometimes the game-theory solution is detached, theoretical, and it won’t really cope with the practical situation. There are very, very rare situations where you truly need serious mathematical work to arrive at a solution to a real-life problem. It almost never happens. By the way, one of my great disappointments—in my fourth year in engineering I went to work part-time at Tadiran. I worked there on some satellite filter, of blessed memory, and it’s good that it’s of blessed memory, because that filter would never have worked, that was obvious to me. And I saw that I was, in my soul, a theoretician—then even more than today; I was younger. And I tried, with all that, to create the filter, and of course no filter was going to come out of it. The chance of a filter working is one divided by the amount of mathematics in it—that seems to me the right rule of thumb. Or their product is constant. If you want something to work, use as little mathematics as possible. Mathematics doesn’t work—analog mathematics. Digital mathematics is the trick for bypassing the stubbornness of reality by digitizing it, but that’s another discussion. Anyway, so there too there is some tension, yes, between—you know, like we talked about forced interpretations and so on—like how theories never really materialize in reality. Reality is stubborn. You’ll never really manage to see the theory materializing and explaining reality as it is. It just doesn’t happen. In order to see theory in a real situation you have to create a laboratory very, very detached from reality, prepare it in a very, very special way, and then maybe there we’ll succeed in seeing some law of nature. But reality itself is a mix of lots and lots of chaos. The laws of nature give us directions of thought, not much more than that. In the end, you have to understand, to live reality and understand what it is saying. And your general education, the theory, can certainly help you, give you directions of thought, give you tools for how to cope. But it is not right to use theory in order to solve the problem—certainly not only theory in order to solve the problem. So that’s true in many fields, and when you get older you understand it, apparently. At least for me it took quite a long time to understand that point. Anyway, if I return to our topic, I want to demonstrate—by the way—
[Speaker C] By the way, maybe you can add a small thing to your earlier formulation about the difficulty in the learning of young yeshiva students and so on. It says, “A person does not fully grasp words of Torah unless he has stumbled over them.” There’s some element here: because we’re dealing with values, someone who hasn’t suffered enough a little bit talks about these things in theory—it isn’t the thing itself. So that’s also part of the difficulty.
[Rabbi Michael Abraham] There too you’re right, but I think only partially right. I once saw a story, maybe from Dr. Chana Katan—I don’t remember, I think it was from her, but I’m no longer sure—about a woman who came to give birth, a Haredi woman who came to the hospital, and she refused to take an epidural. Because her father, who was a very well-known halakhic decisor—she didn’t say who it was, but he was a very well-known Haredi halakhic decisor—forbade epidurals. “In pain you shall bear children.” I don’t know how a halakhic decisor reaches such a strange conclusion, but he forbade taking an epidural. And the daughter obeys her father’s rulings and refused to take an epidural, and she suffered terribly there. And the doctor—I think it was Dr. Chana Katan—tried to convince her to take it anyway, that it was completely fine, there was no prohibition at all, everything was fine, there were rabbis in the hospital and she could consult them too. No, absolutely not. So she said, all right, let’s call your father. So they called her father, her father came there, and he permitted it. And the lesson there was—and again, I don’t remember exactly who the story was about and who wrote it—but the lesson was: you see, when he encountered it directly, and of course it was also his daughter so he couldn’t be indifferent to the situation, then he permitted it. When he was sitting in the study hall, in his room, it seemed to him: “In pain you shall bear children,” don’t take an epidural. Yes—“in pain you shall bear children” as long as it’s you and not me, as they say. So that’s a nice example of the point, but notice: the example is a bit tricky, because it could be that if there really were a prohibition to take an epidural—which of course there isn’t—but if there really were such a prohibition, then going as her father and seeing your daughter suffer could certainly lead you to permit something that really should not be permitted.
[Speaker B] But it’s tricky in the opposite direction too, because it basically means that every time there’s some basis for leniency, a person who is strict—when it comes to him personally, at the level that touches the core of his being—then he’ll always go lenient.
[Rabbi Michael Abraham] “Every time” is a sweeping statement. You have to be careful that that not happen.
[Speaker B] The epidural case is a classic case, because—
[Rabbi Michael Abraham] I assume—again, I don’t know the person, I don’t know who it was—I assume that when he got there, he had enough motivation to reexamine his position, and he understood that he had been talking nonsense back in the study hall too. The motivation to reexamine it came because his daughter was suffering before his eyes. But in the end, once he examined it, he really understood that this ruling or instruction was incorrect.
[Speaker B] And he reached the conclusion—he changed his rational opinion, meaning he basically went and found the answers.
[Rabbi Michael Abraham] He changed the irrational one. You know, I’ve often talked about the context of discovery and the context of justification. How we arrive at a theory can be through very, very strange routes. That doesn’t mean the theory is incorrect. In the end the theory has to hold water. So it may be that a particular person—I may have spoken about this in this series—I talked about Gilat’s book, Professor Gilat, Chapters in the Development of Jewish Law, where there was very harsh criticism when the book came out, because he basically shows that Jewish law develops in response to reality—heaven forbid. And then there was a huge uproar. He was a former yeshiva student, from Hebron Yeshiva, yes, he’s already passed away, but he was a graduate of Hebron Yeshiva and became a professor of Talmud at Bar-Ilan. So of course, as soon as those criticisms appeared, I immediately bought the book, because I understood it must be interesting. And when I started reading the book, I saw that it really wasn’t what the shouting made it out to be. One example I remember is that he discussed the Sabbatical year in our time being rabbinic. And he said that after the destruction, when people saw the distress and so on—and the Sabbatical year is a problem because you declare the field ownerless and so forth—they decided that the Sabbatical year in our time is rabbinic, and therefore various leniencies could be adopted. But when you look closely, he showed, by Talmudic research, that in the earlier layers of the Talmud, the earlier passages, it doesn’t appear that the Sabbatical year in our time is rabbinic. It appears only in the later layers, which he identified roughly with the destruction. Now when you read it carefully, there is a difference there—a subtle nuance, but it is very, very important for our purposes and in general. He never said anywhere that the sages were lenient because of the distress. It is not written anywhere in that book, and I read it. What he writes there is that the distress was a trigger to reexamine the possibilities for leniency. And after they examined them, they reached the conclusion that there was room for leniency. In other words, they weren’t lenient because of the distress. Rather, the distress was a trigger that caused them to reexamine their position. Just like that halakhic decisor and his daughter. The daughter—I want to hope, at least—that he didn’t actually violate Jewish law according to his own view just because he wanted to pull strings for his daughter. Rather, his daughter’s distress was a trigger that caused him to reexamine his position, and then he truly understood that he had been talking nonsense, or that there was room to be lenient—let’s put it in more moderate terms. In other words, the claim—and with this opening people who cut corners can eat their bread more comfortably, as is known among Haredi halakhic decisors.
[Speaker B] Yes, but that really is a trigger. I think any psychologist who looked at this bias would find it obvious that it comes from a different emotional state, a different conscious state, which caused the person to change his opinion.
[Rabbi Michael Abraham] Obviously. And that’s why the psychologist would be wrong.
[Speaker D] Why can’t we start from the assumption—wait a second—
[Rabbi Michael Abraham] The psychologist looks for the coin under the streetlamp. He has a lamp, and with that lamp he looks at everything. But of course that’s nonsense. Nonsense in the sense that not that it never happens, but nonsense in the sense that this is his automatic interpretation of every reality of that kind. It can happen, of course, but to say it categorically, to say categorically that such a situation necessarily expresses dishonesty—that is simply not true. That’s the psychologist’s own psychological bias. A person can have all kinds of triggers that in the end lead him to examine things, and then he arrives at a different conclusion because he examined them. Without the trigger maybe he wouldn’t have examined them, but after he examined them, he examined them honestly and reached that conclusion. Things like that happen quite a bit. When the sages were lenient, are lenient in difficult situations—I’ve mentioned this—Reform Jews use distress as a halakhic argument. Meaning, if the situation is hard for you, then one should be lenient. That is exactly what distinguishes a halakhic decisor committed to Jewish law from Reform Jews. A halakhic decisor committed to Jewish law sees distress as a trigger: now I need to check whether there is a halakhic way to be lenient. But I can’t use distress as the reason for leniency.
[Speaker B] So that reminds me of what the Rabbi once said about halakhic rulings during the Holocaust, that you can’t judge rulings during the Holocaust through our eyes, because the reality was different.
[Rabbi Michael Abraham] Correct. That was the previous point I was making, not the current one. Right, the previous point I made: that one needs to experience reality directly in order to issue a halakhic ruling about it.
[Speaker B] So maybe that’s what I was aiming at. In the Rabbi’s example, when they brought him to see his daughter, that means he experienced it, he experienced the reality, he experienced the whole thing—meaning before that he was detached from everything.
[Rabbi Michael Abraham] But in principle he is supposed to return to the sources and check whether such a leniency can really hold water. In itself, that is not an argument for leniency.
[Speaker B] Yes, I understand, but maybe halakhic ruling should include expert testimony in this respect about the degree of suffering. Like is accepted in law.
[Rabbi Michael Abraham] Ah, that’s excellent. There’s no problem with that at all. But expert testimony is also not enough. Because expert testimony is not experiencing the matter yourself. With expert testimony, you know the information. You can know the information even without an expert. What, your daughter tells you she’s suffering—do you need an expert to know that the woman is suffering? You don’t need an expert for that. The point is that you live it, that you live that suffering.
[Speaker B] I’m saying a phone call from Chana Katan wasn’t enough for him; he had to see it with his own eyes.
[Rabbi Michael Abraham] Right, yes, but I—
[Speaker D] I’m saying this discussion starts from the assumption that he made a sweeping ruling never to use an epidural. It could be that he didn’t say it sweepingly; given certain reasons, one can be lenient.
[Rabbi Michael Abraham] Since I didn’t mention the halakhic decisor’s name, and I don’t know it either, what difference does it make? I’m bringing a case.
[Speaker D] No, but you started from the assumption that only when he got there and saw the suffering, or entered into it, then he had emotional involvement and so on and so on, and then he went and reexamined and reconsidered it.
[Rabbi Michael Abraham] I’m bringing it in order to highlight a point. What difference does it make now what really happened there? If I had named a specific halakhic decisor and spoken badly about him, then we’d have to look for ways to justify him or judge him favorably. But I’m bringing an illustrative case and trying, through that case, to show a point. I don’t care right now what actually happened there. It’s not important for our purposes. So the claim is that this is dangerous in both directions. On the one hand, you have to know reality from the inside and experience it in order to issue a halakhic ruling about it. On the other hand, being too influenced by that immediate experience is also problematic. You need both the theoretical intellectual distance and the familiarity from within. I think I mentioned—I don’t know if here, I no longer remember what I said where—there was a debate among the early founders of scientific anthropology about how to study, say, some tribe, some indigenous tribe, if you want to study the anthropology of that tribe. One school says you need to live inside the tribe in order to understand from within what they feel, how they experience reality. Another school says, absolutely not—that will only bias you. You should sit on a high mountain, observe them from above, record the facts, summarize the data, compile statistics, and work in a cold and detached way. And the truth is apparently that you need both—you need a combination of the two viewpoints. Neither one alone is good. You need both viewpoints. That is true in almost every field of life. You need both theory and common sense, or immediate connection. And the great art is how not to be only on this side and not only on that side, but to create a proper combination between these two perspectives. Rabbi, Rabbi—
[Speaker E] If an anthropologist who has never heard of God, someone who has never heard of this whole strange concept of divinity, of creation, of metaphysics—he’s never heard of it—comes and sits on a high mountain and looks at the Jewish people, looks at us, looks at the Rabbi, looks at all religious people, and says: these are strange behaviors, all kinds of abstract magical acts they do—obviously he wouldn’t manage to understand anything. Really. It would look ridiculous to him. If we were to look—
[Rabbi Michael Abraham] You’re taking it to an extreme. You’re taking it to an extreme, because obviously afterward he’ll question us and ask us, tell me, why are you doing this. But to question us still isn’t to sit on the mountain, on the principled level. I’m talking about participating with us, coming to the prayer quorum on Sukkot and waving the lulav together with us. Not asking us why you wave a lulav. That’s still the stance of the distant researcher.
[Speaker E] A person who has never prayed in his life, or never felt any kind of connection, never had any sort of relation to prayer or to divinity, will explain prayer as muttering words and trying to change reality. He’ll understand it and document it, but he won’t understand anything.
[Rabbi Michael Abraham] Well, that I agree with. That’s why I say the immediate experience is very important. But the antithesis is not to sit on the mountain, and not even not to understand why I wave a lulav. The antithesis is to understand it in your head but not to experience this thing directly.
[Speaker F] Rabbi, Rabbi, how can you agree to such a religious experience?
[Rabbi Michael Abraham] It’s not a religious experience. It’s not a religious experience at all, it’s, it’s, it’s a purely intellectual relation. When people talk—
[Speaker F] About—
[Rabbi Michael Abraham] about experiencing, when people talk about experiencing something, what that means is knowing it from within. But here I’m talking about something intellectual.
[Speaker F] Okay, fine, I was repeating what the… what the person who spoke before said regarding prayer and the like.
[Rabbi Michael Abraham] No, same thing. About prayer too I say the same thing. If you understand what prayer is, what it means, what this practice means, if you live this world from within, not necessarily in some experience. You can also have an experience, there’s nothing wrong with that, but that’s not what I’m talking about. Meaning, I’m talking about understanding things from within, understanding, in the intellectual sense. By the way, our intellect too operates in two modes. There’s the logical, scientific, distant, objective mode, and there’s the mode of familiarity from within, immediate familiarity. And both of them, if you want in kabbalistic language, are the surrounding light and the filling light. Yes, there’s the light that fills the vessels from within, and the light that surrounds them from outside. The light that surrounds them from outside is the detached scientific perspective, and the filling one is understanding things from within. But both are light in the intellectual sense, meaning these are two forms of perspective, at least they can be two forms of perspective. Okay. Rabbi, but in the example… practically, each person according to his own personality. But an example that… give—
[Speaker E] An example that the rabbi himself gave: a person who has never heard sounds, and studies musicology and studies Mozart and understands the whole complex structure of the… of his symphonies and sonatas, but has never been moved, not even by a single song and not by music at all. He has no… no ability at all to understand, to enter into the matter. He’ll know, he’ll be a professor of musicology, but he won’t know anything.
[Rabbi Michael Abraham] No, that’s, that’s another example of what I’m saying, I completely agree. Mary’s room, yes, these are examples I’ve already discussed in other contexts.
[Speaker E] But that’s completely emotional, completely emotional, not intellectual.
[Rabbi Michael Abraham] I really disagree. No, not emotional, intellectual. There is an intellectual side to grasping something from within and not from outside. It may be that very often, when you look at something from within, it also perhaps arouses in you more of the emotional-experiential dimension, the psychological connection or something like that, but that’s a result. As far as I’m concerned these are two forms of perspective. Good, so I want to illustrate this a bit with several topics, or several places where I think, feel, that this thing exists. One example—and I’ve also written about these things on the website in various columns—but one example, for instance, one of the things that I really recently ended up discussing with someone was Rabbi Yosef Engel. Rabbi Yosef Engel has several books that deal with broad issues. Is there a Torah-level safeguard? That is, are there Torah-level prohibitions that serve as a safeguard? Or are rabbinic prohibitions prohibitions of the object? Or whether produce—is, sorry, tevel—is that essentially a prohibition of terumah mixed into ordinary produce? Or all sorts of inquiries like these. And he shows these things in various prohibitions that depend on time, whether they are a prohibition on the person or a prohibition on the object, all kinds of inquiries like that, where he shows a great many implications in various passages based on his conceptual distinction, on his inquiry. And every time I read a passage of his, it really bothers me that he lacks conceptual analysis. And precisely in this kind of work I would expect the person to be aware of the importance of the matter, because this is someone who does look at things through the eyes of a researcher, looks at things in terms of their more general significance, not in one specific passage or another, and still my feeling is that almost always when I read a passage by Rabbi Yosef Engel, or a section in Rabbi Yosef Engel’s books, conceptual analysis is missing there—and that conceptual analysis would have created a different order there. One example I brought on the website on this matter: in one of his sections he deals with the question of what happens when a person commits a transgression on himself. Did he commit two transgressions or only one? For example, a person rounds the corners of the head. So if I round someone else’s head, I committed a transgression as the one doing the rounding, and the person whose head is rounded also committed a transgression. And what happens when I round my own head? So did I commit two transgressions, as the one doing the rounding and as the one whose head is rounded, or not? Now on the face of it this seems like a good question, you have to check it, I don’t know, an interesting question. But on further thought you quickly discover—and it’s strange, because I’ve already seen references to this discussion of Rabbi Yosef Engel and I didn’t find anyone doing this work, this conceptual work—the question is, what does it mean that he transgresses both as the one doing the rounding and as the one whose head is rounded? How many prohibitions in the Torah are there regarding rounding the head? One. But there is a novelty here, that both the one doing the rounding and the one whose head is rounded transgress that prohibition. Now if I am both the one doing the rounding and the one whose head is rounded, how can I transgress two prohibitions? There aren’t two prohibitions, there’s only one. There is a prohibition on rounding the head. Once? So what, I transgress the prohibition twice, as the one doing the rounding and as the one whose head is rounded? Why would I transgress the prohibition twice? I performed one act.
[Speaker H] But it’s as though you had rounded two people.
[Rabbi Michael Abraham] That—so I’m saying, it’s more complicated than that, I won’t get into the details of this issue, but this question itself is a very non-simple question. And the answer to it is a pretty tricky answer, the answer that at least I was able to come up with. A very non-simple question, and it’s so obvious, and I don’t know, maybe there is, but I don’t remember seeing anyone ask this basic question, the conceptual question: what does it mean to transgress two prohibitions? To transgress twice the prohibition of “do not round” when you perform one act of rounding? To transgress “do not round” twice? How do you even define the transgression of the one doing the rounding and of the one whose head is rounded, when both emerge from the same prohibition? Yes? A little similar to interest, where the prohibition applies both to the lender and to the borrower. You have to understand how exactly such a prohibition is defined, one that has two people transgressing it and yet it is one prohibition. And then maybe you can try to ask what happens when a person does it to himself.
[Speaker B] Assuming there were two explicit prohibitions, one on the one doing the rounding and one on the one whose head is rounded, then there would be room for the question?
[Rabbi Michael Abraham] There wouldn’t be room for the question, then the answer would be obvious, that there are two.
[Speaker I] Meaning, to ask what the prohibition itself is?
[Rabbi Michael Abraham] There would be room for that side, only for that side. Meaning, then it’s obvious that I transgressed two prohibitions. I don’t understand, Rabbi—
[Speaker I] what the definition of the prohibition itself is, not the pilpul afterward, where they already derive from it that you transgress the prohibition. What is the definition of the prohibition itself?
[Rabbi Michael Abraham] I said—exactly, that’s what I said. Beyond Yosef Engel’s question, what does it mean that I transgress two prohibitions?
[Speaker I] Here there is—
[Rabbi Michael Abraham] the question of the prohibition on the one doing the rounding itself. How do you understand the prohibition on the one doing the rounding itself? What does it mean that both the one doing the rounding and the one whose head is rounded transgress it? What is the prohibition? Is it two different prohibitions under the same heading? Or maybe when the one doing the rounding rounds someone’s head, then the prohibition of being the one whose head is rounded is charged to the account of the one doing the rounding? But still, there is only a prohibition on being the one whose head is rounded. There is no prohibition on being the one doing the rounding. It’s just that when he rounds the other person’s head, the prohibition of being the one whose head is rounded is charged to his account. Fine, so never mind, I’m just raising possibilities here so that you see that this requires conceptual clarification before you even begin dealing with the topic. Now somehow, in the places where I saw people discussing it—not only Yosef Engel, others too who discuss what he writes—they go straight to his question. And they bring sources from here and sources from there. Now I think you’ll also see in the column—I don’t remember anymore, it was a long time ago—but I think there too I brought the sources Rabbi Yosef Engel brings and showed that after doing the analysis you see that these sources are actually different; it’s not correct to compare one to another. It’s not the same principle here and there. And therefore the difficulties aren’t really difficulties, the resolutions aren’t really resolutions, at least some of them. Because the conceptual analysis suddenly tells you, wait, wait, there are several kinds of cases here. Is this a type A case, is it a type B case? In a case like this there is room for two prohibitions, in a case like that there’s a question, in a case like that there’s no room at all. It depends on what is meant, how the prohibitions are defined. This analysis of course has direct implications for the discussion that follows. You don’t do it just because it’s important in itself; it has implications. All the analysis we do afterward looks different, clearer, more orderly, and also different—different in its conclusions. So that’s one example that comes to mind.
[Speaker J] That’s what Rabbi Chaim of Brisk does basically, no? How is it different from that? What? That’s what Rabbi Chaim of Brisk does, sort of.
[Rabbi Michael Abraham] No, in my view no. Not at all.
[Speaker J] In my view no.
[Rabbi Michael Abraham] Rabbi Chaim of Brisk raises two possibilities for understanding some halakhic principle, but there is no conceptual analysis there. The concepts as such—aside from the distinction he deals with, meaning whether this is a rule about the person or a rule about the object, you could call that conceptual analysis—but the concepts he uses, I don’t think you’ll find good definitions there for the concepts he uses. I mentioned this in the previous lecture: that even Rabbi Chaim, who is ostensibly the father of modern conceptual yeshiva-style thinking, even there in my opinion there isn’t any. Because Rabbi Chaim is the foundation the entire yeshiva world rests on, and if I say this is lacking in the yeshiva world, then it’s lacking in Rabbi Chaim too. It’s not because they don’t do Rabbi Chaim well; they do Rabbi Chaim excellently, better than he himself did. Meaning Rabbi Chaim, as the inventor of the method, he invented it, but those who came after him already do it better than he himself did. Meaning, it’s there, but it’s not conceptual analysis. Give another example.
[Speaker J] I think a distinction like the rabbi is talking about is pretty common, not something rare in yeshivot—an analysis, a distinction that handles a problem that way.
[Rabbi Michael Abraham] I think so too, even though it looks very similar to the inquiries done in yeshiva-style learning, it isn’t. It isn’t. There’s something there that is one step beyond yeshiva-style learning.
[Speaker E] Yeshiva-style learning immediately starts spinning out. Can the rabbi illustrate that? Illustrate what it means that Rabbi Chaim’s inquiry lacks conceptual analysis?
[Rabbi Michael Abraham] Like Rabbi Yosef Engel with the one doing the rounding and the one whose head is rounded, for example. Another example, an example here in another series in the past—
[Speaker I] When we learned Bava Kamma this year, we asked what the definition is of an ox’s liability. So immediately you start, you get to responsibility and guarding and so on and so on. But we asked about the basic definition. I mean, I don’t understand the difference between what we learned and what the rabbi is saying now—why isn’t that yeshiva-style learning, basically?
[Rabbi Michael Abraham] Because yeshiva-style learning deals with different possible formulations of the principle under discussion, but defining the concepts themselves—let me give you another example that may be more successful. Again, I could give several lectures on this, so I won’t do it here. I did—we had a series on this issue, and it’s also on my website, and also in the series on the chapter “HaZahav” that I taught this year. I gave three lectures on what money is and what a loan is. Okay? Now the lecture on what money is—even people who study the chapter “HaZahav,” at least from what I’ve seen, do not deal with a systematic conceptual introduction to what money is and what a loan is and what acquisition is in general, what does it mean to be an owner? Such broad questions, meta-questions. Before we get into whether ownership—whether the act of acquisition creates ownership, or whether it only expresses final intent, which is what creates ownership. That’s a classic yeshiva-style inquiry. But what is ownership? What is ownership? Is ownership a collection of rights? I spoke about legal effect, yes? What is a legal effect? And that’s a question that belongs to the world of concepts, and nobody asks it. What is a legal effect? Nobody asks what a legal effect is. Whether there is a legal effect for a goat or there isn’t a legal effect for a goat—that’s on the lips of the whole yeshiva world all the time—but what is this legal effect?
[Speaker B] Ownership—Rabbi Shimon Shkop, Rabbi Shimon Shkop deals with ownership. Hear me? Rabbi Shimon Shkop deals with ownership. Okay. He says yes, there is engagement with ownership, what ownership is. He does deal there with the conceptual definition.
[Rabbi Michael Abraham] Rabbi Shimon Shkop—Rabbi Shimon Shkop is indeed very dear to me because of this; he comes closer to these forms of analysis. Yes, I agree.
[Speaker B] And still, there too—by the way, that’s also a good example of why the yeshiva world has trouble with this—because he reaches the conclusion there that there is a certain ownership that exists beyond, even before, the Torah. And it may be that once you engage in conceptual definitions in many things, that gives a certain opening, shakes up accepted assumptions.
[Rabbi Michael Abraham] They opposed the systematization I talked about earlier—that prior thinking. What would I say before I see the topic and before the Torah was given—what would I say? That’s part of the characteristics I discussed, exactly. And even after Rabbi Shimon said this, everyone still gives him a bad name. Meaning, you see that his “Shaarei Yosher” does not speak of prohibitions at all, but only of factual determinations of who owns what, and not that there is actually a prohibition there against stealing someone else’s money from the perspective of jurisprudence, not because of “you shall not steal.” Because they’re not used to legal-halakhic conceptions. What?
[Speaker B] Rabbi Fisher, I think, Rabbi Shlomo Fisher, I think.
[Rabbi Michael Abraham] For example, yes. And clearly he is mistaken. I mean, there is decisive evidence from Rabbi Shimon that Rabbi Shimon certainly did not mean that. By the way, Rabbi Shlomo Fisher doesn’t even accept that. Meaning, first he interprets Rabbi Shimon in a very thin way, and then he says even that is not plausible.
[Speaker H] Rabbi, when the Talmud debates payment for benefit, whether it comes because of the benefit itself or because of someone else’s loss—
[Rabbi Michael Abraham] No, that’s an example of a yeshiva-style inquiry, not conceptual analysis. I’m talking about a stage that is one step more abstract.
[Speaker H] So in that—
[Rabbi Michael Abraham] topic—
[Speaker H] for example, what is the earlier stage you could ask about? What is benefit? Right?
[Rabbi Michael Abraham] If you ask me whether the payment is for the benefit or for the loss, let’s talk about payment for benefit itself. What is payment for benefit? What does it mean to pay for benefit? What is the difference between that and payment for damages? What is the difference between that and payment for merchandise you buy? What are the connections between these categories of payment?
[Speaker I] Are you speaking only philosophically or also in terms of Torah? Like for example, if I talk about acquisition through pulling, then there’s some distinction, I think, whether the point is that it enters your domain, right? Or whether it is some sort of symbolic acquisition or agreement between the two sides. Are you talking about something like that, or something more, sort of—
[Rabbi Michael Abraham] That is a classic yeshiva-style inquiry. There are lots of those.
[Speaker I] So that’s not what you’re talking about. You’re talking about something beyond that, about philosophy, about the conceptual level itself.
[Rabbi Michael Abraham] There is analytic thinking in the yeshiva world, definitely there is. That’s exactly the point. And still, I find the systematization lacking.
[Speaker H] This analysis has to be universal, right? What? This analysis has to be universal. Even a non-Jew would agree with what I define as benefit.
[Rabbi Michael Abraham] That’s what someone here noted earlier. It may be that this is what deters yeshiva students in this matter, or yeshiva boys.
[Speaker B] They have a theological limitation. They have a theological limitation that prevents them from reaching those spaces.
[Rabbi Michael Abraham] Psychological, or I don’t know what you want to call it, but—
[Speaker B] More accurately psychological, really.
[Rabbi Michael Abraham] In any case, another example, for instance, regarding common sense. I also recently ended up talking about this. One of the principles very beloved by Haredi ideology is the Ran regarding “the law of the kingdom is law” in the Land of Israel. The Ran says that “the law of the kingdom is law” does not apply in the Land of Israel. And yes, this is joy and gladness for the Haredim. The problem is that it’s simply inconceivable. What do you mean, “the law of the kingdom is law” does not apply in the Land of Israel? What did the king do there—a Jewish king, King David? Solomon, I don’t know, yes, the great kings we had in the time of the Hebrew Bible—did they have no authority?
[Speaker B] Homily 11 in the Ran’s homilies. What? Homily 11 in the Ran’s homilies.
[Rabbi Michael Abraham] Yes. So you say they had authority, but someone who says that “the law of the kingdom is law” does not apply in the Land of Israel—I simply can’t understand it. How can you understand literally the statement that “the law of the kingdom is law” does not apply in the Land of Israel? So there is no place for kingship in the Land of Israel? Because without “the law of the kingdom is law,” there is no kingdom either. The king cannot rule if he has no authority. So what? And so many times they cite this Ran as though it were some kind of winning card—what do these Religious Zionists even want? It’s complete nonsense, “the law of the kingdom is law” does not apply in the Land of Israel. Never mind that one can also argue with this Ran—but even if I say that I accept this Ran, what does it mean? Now, what does it mean—that’s a good question, I don’t know, one has to think about it. I saw an article by Rabbi Ariel on this matter; in the series on Jewish law and modernity, I think I brought it in the course on Jewish law and modernity. There is an article by Rabbi Ariel that tries to explain this Ran, but first and foremost, literally, it just cannot be. It cannot be that “the law of the kingdom is law” does not apply in the Land of Israel. It cannot be that the Ran even entertained saying such a thing. You can’t say such a thing. What does he mean? Fine, that needs discussion; you can think this way, you can think that way, but it cannot be that he means that government in the Land of Israel has no validity. That’s simply ridiculous. Now people bring the Ran and can discuss practical ramifications and dispute, and whether they agree or disagree, and what the implications are, and so on—but first of all, here I’m not talking about conceptual analysis but about a kind of common sense. Use your common sense. Can that be? Can there be such a thing, that a king has no authority? Then how is there kingship in Israel? Maybe the king of—
[Speaker J] Israel has a different validity too, beyond “the law of the kingdom is law” — “You shall surely set a king over yourself.”
[Rabbi Michael Abraham] What? Maybe—
[Speaker J] “The law of the kingdom is law,” and what he means is that a king of Israel has additional validity beyond “the law of the kingdom is law.”
[Rabbi Michael Abraham] That is the same “law of the kingdom,”—
[Speaker J] What do you mean? “You shall surely set a king over yourself” is some idea that creates validity only for… Doesn’t “You shall surely set a king over yourself” give some extra authority beyond “the law of the kingdom is law”?
[Rabbi Michael Abraham] I don’t think so, but again, it could be that Jewish law says about it one thing or another. In any case, the point is that, once again, you can give this explanation, you can give other explanations, but first you need to deal with it.
[Speaker J] You need to… look, for example, “the law of the kingdom is law” is valid with respect to everyone, but “You shall surely set a king over yourself” applies only “from among your brethren,” and only here there are different rules. One could say it’s a different source of authority.
[Rabbi Michael Abraham] I didn’t understand. But Ahab, for example, who was a wicked king and not from the house of David and so on—did he have no authority? Or the Hasmoneans, who ruled despite being from the tribe of Levi—did they have no authority? “And sovereignty returned to Israel for more than two hundred years,” as Maimonides writes in the Laws of Hanukkah. How do I examine such a question? I don’t know. The question is whether it’s halakhic authority or coercive authority, I don’t know. I understand all the difficulties, but I expect that at least you would pay attention to the question, and then we’ll look for explanations. There may be explanations that would even save the Haredi view, like what you presented here. Fine. But you need to have this discussion. There’s something here that ought to bother you. Again, this is not conceptual analysis. Here I’m illustrating a different point: the matter of common sense. You have some theory, the Ran said something—stop and think, can that be? Does it make sense? That’s the question of ordinary householders, not of yeshiva students. Something here is illogical, it cannot be. And then you need to check what he was speaking about, what he was not speaking about, and then maybe you can also project that onto our current situation. Another example, for instance, would be recourse… this is already closer to second-order versus first-order, but here too very often it’s the result of a certain kind of shallowness in yeshiva-style thinking. Because think, for example, about the prohibition of secular courts, which is applied today to the courts in Israel. Yes, in the world—not only the Haredi world, by the way, also in the Religious Zionist world—it is common to think that going to court involves the prohibition of “before them and not before secular courts,” “before them and not before laymen,” and so on. And all kinds of discussions arise around this issue: whether there are certain areas where there is no prohibition, other areas where there is a prohibition, all kinds of discussions around this matter. But there is—as I wrote, I also wrote columns about this—the dispute in the halakhic world revolves broadly around halakhic decisors on one side and judges on the other. The halakhic decisors basically say there is a prohibition, while the religious judges, some of whom know how to learn, say no, there is no prohibition, for various reasons. They say there is no prohibition because they accepted it upon themselves, or all sorts of things. And then of course the question arises of “the Syrian courts,” which the Talmud mentions in passing in two or three places, I don’t know, something in tractate Sanhedrin, that there is such a concept called “the Syrian courts.” What are “the Syrian courts”? These were Jewish laymen appointed as judges in Syria because it was a community that didn’t have expert judges, there were no Torah scholars there. So they appointed lay judges who were not Torah scholars to judge for them; that is called “the Syrian courts.” So among other things the judges rely on that, saying that in Israel the courts are basically parallel to “the Syrian courts.” True, they are not fit to judge, they didn’t pass rabbinical judicial exams, but “the Syrian courts.” So against that, two claims arise, and they attribute this to the Chazon Ish, at least the first one, maybe both. The first claim is that “the Syrian courts” were supposed to judge not according to an alternative legal system. That is forbidden in any case, because it is essentially replacing Jewish law with a different system. What they were supposed to do was use common sense and decide each case as they saw fit so that there would be order. But once you legislate a legal system alternative to Jewish law, that is forbidden. And the Chazon Ish’s claim was that in Israel this is not “the Syrian courts,” because there is an alternative legal system, and the legal system according to which the courts rule is not Jewish law, it is another system, but there is such a system. It’s not that they do whatever seems right to them in the case before them. Some say they do, but that’s not what they are supposed to do. The second claim is that in Israel there are people fit to judge. Today in the State of Israel there are Torah scholars fit to judge, so there is no justification for appointing “Syrian courts,” judges—or judges who are not Torah scholars. In Syria there were no Torah scholars, what could they do? So these are the two prominent differences raised between the law of “the Syrian courts” and the courts in Israel. When I wrote the article about this, and also on the website, I said that from a halakhic standpoint, in my opinion the halakhic decisors are right, that it is forbidden to go to court. But it is clear that the motivation of the judges—not the reasoning, the motivation of the judges—is a correct motivation. Meaning, it cannot be that we remain without an effective legal system. A society cannot function that way. And since we do not have the option of putting a halakhic legal system here, because the public does not accept it, most of the public is not committed to Jewish law and does not want to operate according to Jewish law, then the alternative is that there be no legal system here at all. That is not an alternative. Meaning, that cannot be. Therefore what I argued is that even though the halakhic decisors are right that it is forbidden, nevertheless that is what must be done. It must be done not because it is permitted, not because we have, as the judges say, halakhic ways to justify it. No, there are no halakhic ways to justify it. But the reality is such that there is no choice. Meaning, the alternative in which there is no legal system at all is not an alternative. We see what happens in Haredi societies that do not make use of the legal system and set up for themselves various private systems of one kind or another—they do not function properly. It cannot function. Can’t hear?
[Speaker K] Rabbi, what about the law of the king? Maimonides himself says that the king rules not exactly according to Jewish law—that is, a parallel legal system, more realistic to reality.
[Rabbi Michael Abraham] I didn’t understand—so what’s the question?
[Speaker K] So what is the problem with Knesset laws?
[Rabbi Michael Abraham] Knesset laws are perfectly fine. Knesset laws—everything is fine. In a place where “the law of the kingdom is law” applies in monetary law or something like that, fine. But still the judges need to be judges who are qualified to judge, and they should judge also according to—
[Speaker K] Did the king himself need to have halakhic competence? The king himself was not required to be a Torah scholar.
[Rabbi Michael Abraham] No, but alongside that you need a system of halakhic law. The king does not—
[Speaker K] replace—
[Rabbi Michael Abraham] the place of halakhic law.
[Speaker K] No one closed the rabbinical courts. Sorry.
[Rabbi Michael Abraham] So the claim, in short—at the first stage what I argued was that although the halakhic decisors are right that it is forbidden, it just doesn’t fit. Meaning, today there is no option to uphold Jewish law. The whole debate is conducted over whether it is permitted or forbidden. I claim that the debate is being conducted on the wrong plane. It is forbidden. But it needs to be done not because it is permitted, but because there is no choice. Because you cannot allow yourself a society without an effective legal system. Such a society cannot function. Now my claim was that you can bring an example for this from the law of “the Syrian courts.” Why? Because when they appointed laymen as judges in “the Syrian courts,” why did they do that? They did it because they had no expert judges, and remaining without a legal system is not an option, right? That is why they did it. More than that, I don’t know of a source for the law of “the Syrian courts.” I don’t remember anyone bringing a source for why they were permitted to do it at all. Now understand: someone who appoints an unfit judge is as though he planted an Asherah tree by the altar—it borders on idolatry, accessories of idolatry; these are very severe prohibitions. And they appoint an unfit judge and everything is fine. With no source, with nothing. Why? In my opinion, because this was done on the basis of reason, the same reasoning that I gave. Because there is no other option. You cannot leave a society functioning without a legal system. So what happens? Of course, if I take “the Syrian courts” as a precedent, then now the question is whether I can apply it today. Then the Chazon Ish comes and says no. There, there was no alternative legal system, and there were no judges fit to judge. Here we have an alternative legal system—that is forbidden to do—and we have judges fit to judge, so why appoint those unfit to judge? So one cannot compare this to “the Syrian courts.” Fine, you cannot compare it to “the Syrian courts.” But I am asking about the motivation that led to the law of “the Syrian courts.” That motivation basically said: it is impossible to leave a society without a legal system. Right? That is the reason they permitted “the Syrian courts.” Now true, that permission was, let’s say the Chazon Ish is right, only if you do not create an alternative legal system, an alternative law code, and only if there are no judges fit to judge. Okay. But here we do have a system. An alternative legal system, and there are judges fit to judge. So it is not similar to “the Syrian courts.” So what do you propose? That there be no legal system—that is, that we not recognize the legal system, not use it, not go to it, not cooperate with it, and there be no legal system? Then we have returned to the situation of “the Syrian courts.” The fact that today we have expert judges doesn’t help at all, because the public is not willing to appoint them as judges. Now true, that is very regrettable, everything is fine, but that is the situation. So what do you propose now? Do you propose that we remain without a legal system? What are all those who say this is the prohibition of secular courts, it is forbidden to go to court, and so on—what do they propose should exist here? After all, they propose that there be fit judges—there aren’t any; at the moment it is impossible to appoint fit judges. So what should be done now? What exists is the same situation as the one that prevailed in Syria before they invented this invention of “the Syrian courts.” So the fact that the invention of “the Syrian courts” was steered by restrictions—that there not be an alternative law code and that there not be fit judges—fine, but that too is itself an invention, an invention that is the result of necessity, because it cannot be that we have a society functioning without a legal system. That necessity exists today too, so let’s now invent a new invention that is not limited by the restrictions of “the Syrian courts,” in order to solve the same necessity that they too wanted to solve.
[Speaker F] But presumably the Chazon Ish would say that here it is the fault of those who don’t want to accept the system.
[Rabbi Michael Abraham] So what—
[Speaker F] If it’s their fault, then what do you suggest we do? No, no, I’m just saying—not just to distinguish, but I wanted to ask about your formulation, because I don’t understand. I’m saying the difference one could find is that here there is a system that could be accepted, it’s just that they refuse to accept it, let’s say according to the Chazon Ish; and in Syria there was no such system at all, nor people capable of it. Now I wanted to ask about your wording, which I don’t understand. You say that basically in the dispute between the judges and the rabbinic halakhic decisors, you say it remains forbidden, but there is no choice, therefore you do it. But is that “no choice” a kind of permission, or is it that one just does not take the halakhic prohibition into account?
[Rabbi Michael Abraham] I think it is a meta-halakhic principle, extra-halakhic, because I have no halakhic source for it. You could also tell me that “the Syrian courts” are the source, but then I’ll ask what their source was. How did they do it? After all, they have no source; they don’t bring a source. So from there I derive, let’s say, inspiration, not a source. The inspiration is “the Syrian courts.” From there I see how severe a situation it is when a society functions without a legal system, and therefore they even allow violating prohibitions. If so, then today too it is like that. The alternative is that we will be without a legal system, and that cannot be; you cannot run a society that way. You can say, look, then I’m leaving the state, I’ll set up a separate state for myself, the State of Judah, and it will operate according to Torah law. But you cannot say: I live in the same state together with everyone else, I don’t want there to be a legal system, I am not willing for there to be a legal system. That is not an option; you cannot function like that.
[Speaker B] The rabbi once wrote about the paradox that despite the prohibition of secular courts, the law faculties of the Haredi campuses are full, and it passes in silence. So perhaps this is a bit of the argument the rabbi is raising now, that out of sheer necessity, it lowers some of the pressure around the issue, because in the end they recognize the fact. How does it pass in silence?
[Rabbi Michael Abraham] In my opinion most halakhic decisors agree with what I’m saying here, they just don’t dare say it. They don’t dare say it even to themselves. Again, this is not—it’s liberal Orthodoxy.
[Speaker B] So I’m saying, therefore it finds expression in the fact that despite there being a prohibition of secular courts, the faculty at the Haredi campus in Ono is packed with hundreds and thousands of students, and that is despite the severe prohibition of secular courts.
[Rabbi Michael Abraham] Right, and at the same time they continue talking about the severe prohibition of secular courts, and of informing on Jews, of course, and everything. Independently. It’s classic Haredi conduct with a wink. Meaning, you do it, we won’t approve it, but we’ll stay silent, close our eyes, and we’ll go on with our slogans as usual. That’s standard procedure there.
[Speaker J] You can also see that there are state laws that pass and are immediately accepted. For example, 14 business days—I remember that came in, and I don’t recall Haredi places saying they don’t honor that rule.
[Rabbi Michael Abraham] What? Can’t hear?
[Speaker J] For example, the 14 business days in which you can return something. According to Jewish law, once you bought the merchandise, you can’t return it, but everyone honors it. Meaning, no one objected to it. You see that basically a state law that is perceived as reasonable—even that they don’t really think about.
[Rabbi Michael Abraham] Right, and there you can generally see that they don’t implement it as “the law of the kingdom is law” in Haredi rabbinical courts. Some do not honor it, but among those who do honor it, it’s usually because it is the local commercial custom. And the law created the custom, and now this is the custom. I don’t care that it was created by law.
[Speaker J] So let’s first call “the law of the kingdom is law” the local commercial custom.
[Rabbi Michael Abraham] In monetary law, local commercial custom has authority.
[Speaker B] He means to say that before it gets to the rabbinical court—say, in a Haredi store—he will use the consumer protection law, he’ll decide based on that regarding the product.
[Rabbi Michael Abraham] No, look further—
[Speaker B] But it is accepted by everyone.
[Rabbi Michael Abraham] Before it gets to the rabbinical court, would they obligate him to do it—that’s the bigger question. Some rabbinical courts certainly would not; they see it as custom or something like that.
[Speaker B] I think there is no option—
[Rabbi Michael Abraham] to go to Torah law adjudication today. What people call Torah law adjudication today is simply a joke. You go to Torah law adjudication—they have no authority to summon witnesses, no authority—they are not, it is not an effective court, it cannot function. Not to mention, I once brought this too from an article by Nadav, my friend, Nadav Shnerb. He once wrote that he brought a case where a person came to a rabbinical court and demanded that they judge him according to Torah law. There they make you sign that you accept them “whether for judgment or for error.” Meaning, you accept upon yourself that they will not judge according to Torah law—that’s just legal cover. Meaning, so that if they make a mistake, you won’t be able to sue them. Fine. So they make you sign such an agreement, that you accept them whether for judgment or for error. The person did not want to sign that. He said: I want Torah law adjudication. No, I’m not waiving Torah law, I want you to judge me according to Torah law. The rabbinical court issued a contempt notice against him. A contempt notice is issued against someone who refuses to adjudicate in rabbinical court and instead goes to court, yes, to secular courts. They issued a contempt notice against him because he wanted Torah law, not because he didn’t want Torah law—because he did want Torah law. Meaning, you say it is forbidden to go to the courts, forbidden to go to court, and one must go to rabbinical courts, but when you go to rabbinical courts they do not give you Torah law. So why do I need to go to rabbinical courts? It’s absurd. Meaning, then why do I care whether they make the compromise or whether a judge makes the compromise? What difference does it make? By the way, I personally had such a case. I accompanied some kollel fellow who got into trouble in Jerusalem. He was sued, never mind, by his community and so on—they mistreated him a bit, not important. So through mutual friends they asked me to accompany him a bit, because he was terrified by this whole Torah-law-adjudication business. This was in some private rabbinical court, and I accompanied him there, and I thought that under Torah law I would be able to get him acquitted. Otherwise they wouldn’t acquit him. Under Torah law I had arguments that in my opinion could get him acquitted. So I said: we want Torah law. We don’t want—don’t want to sign accepting you whether for judgment or for error, we want Torah law. Now of course they didn’t agree. So they said, fine, then go to another rabbinical court. We are not willing, not willing to judge according to Torah law. Now they didn’t issue a contempt notice against me, at least—but you understand that they tell me it’s forbidden to go to secular courts and one must go to rabbinical courts, but when you get to rabbinical courts they are not willing to judge you according to Torah law. Not that they are unwilling to commit themselves—they are unwilling to judge according to Torah law.
[Speaker D] Wait, can the rabbi sharpen what “not Torah law” means?
[Rabbi Michael Abraham] What do they actually judge there? There are all kinds of strange concepts there like “a compromise close to the law” or something like that.
[Speaker D] Wait, can the rabbi really sharpen what “not Torah law” means? What do they actually judge there?
[Rabbi Michael Abraham] Whatever seems right to them. A compromise close to the law or something like that.
[Speaker D] Wait, but the source is a Torah source. They can come and say: we don’t want to undertake that it will be exactly precise according to Jewish law, but the source is halakhic, that’s the starting point, no?
[Rabbi Michael Abraham] No. When, for example, justice seems to lean in a certain direction, they’ll do what seems just to them.
[Speaker D] So I don’t understand—are the rabbis sitting there ruling contrary to the Torah and to Jewish law?
[Rabbi Michael Abraham] Clearly.
[Speaker B] It
[Speaker D] It sounds, it sounds—no, arbitration, fine, but—
[Rabbi Michael Abraham] It doesn’t hold up.
[Speaker D] I can’t understand why.
[Speaker B] Why do people come to a compromise—not arbitration, because they come to a compromise, no, arbitration because they come to a compromise with the agreement of both sides. But they use the cloak of a Torah court.
[Rabbi Michael Abraham] From the standpoint of the law, that’s arbitration. From the standpoint of the law, because under the law the rabbinical courts have no status. So how could they have legal force? So legally they treat it as arbitration. And I’m not talking about the question of how the legislator gives this legal validity; that’s fine. From the legislator’s standpoint it’s arbitration, because they’re not judging according to Israeli law but according to whatever they want. So the legislator says: arbitration.
[Speaker B] But if they issue a letter of refusal over it, the fact that they issued one against that person means they don’t believe—also they think of themselves as arbitrators, that that’s how it’s treated. They relate to themselves as arbitrators. They’re simply using the cloak of the name of a rabbinical court.
[Speaker D] Wait, that’s how it is in all the rabbis’ courts.
[Rabbi Michael Abraham] A religious court, for example—“compromise close to the law”—uses halakhic sources, but allows itself to move right and left. All in all, the rulings won’t be substantially different from the rulings of a civil court.
[Speaker D] I didn’t understand. So they do look in the Torah, they do look at a halakhic source?
[Rabbi Michael Abraham] But they don’t adhere to it—
[Speaker D] One hundred percent?
[Rabbi Michael Abraham] Yes, they bring sources, they’ll even write in the decision “Rashi.”
[Speaker D] That’s how it is in all the rabbinical courts.
[Speaker J] In the Torah court that I took part in, there wasn’t any halakhic source that I can even imagine reconstructing—just a discussion of what people think.
[Rabbi Michael Abraham] Usually they do bring halakhic sources, but I’m not familiar enough, not often enough. In what I know, they usually bring halakhic sources, they also hold a discussion and so on, but in the end they can say, okay, so there’s three-quarters, not full damages, after bringing all the halakhic sources. “A compromise close to the law,” or something like that.
[Speaker D] Okay, so the beginning and the point of departure is Torah law, and they just don’t stick to it one hundred percent?
[Rabbi Michael Abraham] But Torah law is not a point of departure; Torah law is the binding law. A point of departure—I can also pray every morning, every morning say “Modeh Ani,” and afterward judge the way a civil court judges. What does “point of departure” mean? Either you judge according to Torah law or you don’t.
[Speaker D] No, we judge according to Torah law, but we’re flexible in certain circumstances.
[Rabbi Michael Abraham] Right, meaning we’re not judging.
[Speaker D] In the sense that it’s still—
[Rabbi Michael Abraham] More—
[Speaker D] Closer to the Torah than a regular court, no? Why?
[Rabbi Michael Abraham] Why? Just because it’s close? No, there’s no such thing as “closer.” Either you judge Torah law or you don’t judge Torah law.
[Speaker D] No, but there are concepts—the Rabbi gave classes on halakhic concepts that weren’t adopted in law, connected to Hebrew law, but ultimately weren’t adopted by some of the judges from the secular side, and were adopted by judges from the religious side, where the source is a Torah-based outlook regarding certain concepts that the Rabbi taught about.
[Rabbi Michael Abraham] Outlook—obviously they’re closer to a Torah outlook, they use Torah sources more, but they are not judging Torah law. Is that supposed to be there for the sake of the Torah atmosphere? What is this—I’m going to a religious court in order to be educated in Torah and fear of Heaven? I’m going to a religious court in order to receive Torah law.
[Speaker D] Fine, so why really does it end up not being Torah law? Why do they deviate from it?
[Rabbi Michael Abraham] Because Torah law doesn’t always seem just to them in today’s reality, but they don’t—
[Speaker D] Okay, fine, so they judge Torah law according to reality.
[Rabbi Michael Abraham] Then let them establish factors that would change Torah law, and recognize it as a new law binding for today. If there were such a thing, that could be considered Torah law. But they don’t do it that way. They call it “a compromise close to the law.”
[Speaker D] It’s like classes the Rabbi gave about women being disqualified from testimony, and today that it’s no longer relevant—so maybe they could say today it really also isn’t relevant, and we’ll accept a woman’s testimony.
[Rabbi Michael Abraham] I answered, I answered. That they don’t accept. If I were sitting there, I could call it Torah law, but they say it’s not Torah law—they call it “a compromise close to the law.” They’re also not sufficiently—when I do something like that, I justify it. No, distress by itself is not enough to change the law; you also have to find the route.
[Speaker B] What tools do they have to judge—what tools do they have to judge an employee who sues his employer? Meaning, an employee who sues his employer over violation of laws. Not violation of laws—violation of mandatory statutory provisions.
[Rabbi Michael Abraham] Violation of mandatory statutory provisions is in principle in the labor court. That’s not something done in a rabbinical court. True, but if there is agreement between the two sides, then the religious court will usually take the mandatory legal provisions into account.
[Speaker B] I’m saying, if a person comes to a rabbinical court to sue his employer over violation of rights he has as a worker, they have no tools at all similar to a labor court, because in Jewish law there is no such concept, these laws of workers—it doesn’t have—
[Rabbi Michael Abraham] They usually judge according to labor law.
[Speaker B] Okay, fine, that says everything. Okay. Well,
[Rabbi Michael Abraham] The—
[Speaker B] the windows I’ll have to do a third time.
[Rabbi Michael Abraham] What didn’t you hear?
[Speaker B] The windows—that’ll be the third time. Ah, okay. Thank you very much, Sabbath peace, happy holiday.
[Rabbi Michael Abraham] Sabbath peace, happy holiday.
[Speaker G] Thank you very much, goodbye. Happy holiday, Sabbath peace.