Study and Halachic Rulings – Lesson 27

This is an English translation (via GPT-5.4). Read the original Hebrew version.

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

🔗 Link to the original lecture

🔗 Link to the transcript on Sofer.AI

[0:00] Introduction and the importance of a priori analysis
[1:00] The ontic dimension and its connections to the laws of acquisition
[2:22] The critique of defining without searching for the why
[4:00] Kaveh’s talent and understanding the essence of the topic
[8:05] Presumptive possession: a priori analysis, context, and halakhic ruling
[9:16] The trees and the forest: the importance of context in saving details
[11:41] Free choice and the connection to experts
[14:38] Historical methodology: theory before facts
[20:11] The maternity ward and the role of microorganisms
[28:59] Summary: the importance of asking why in Torah study
[31:19] Intuition also in sacrificial law and purity law
[32:44] Demanding the reason of the verse in different cases
[36:43] Defining the commandment of the sukkah and its reason
[39:34] The connection between logic and intuition in Torah
[42:56] The law of presumptive possession and burden of proof
[48:11] Critique of the presumption that what is in your hand is yours
[55:28] Justification for the status of the possessor in the legal system
[59:04] The group of defendants and plaintiffs and the likelihood of theft

Summary

General Overview

The lecture presents a method in first-order learning and halakhic ruling that emphasizes a priori analysis of concepts and placing topics within a broad context in order to expose the deep assumptions that guide Jewish law. The speaker argues that one cannot make do with the question of “what” without also asking “why,” even if in the yeshiva analytic world it is common to speak about searching for definitions rather than reasons. He shows that broad questions naturally connect topics that seem disconnected. He demonstrates the idea through analogies from scientific research, mathematics, and philosophy of science, and then moves to a new example from the laws of presumptive possession in order to show how conceptual analysis and theoretical context also assist in actual halakhic decision-making.

Opening and a Missing Lecture

The speaker apologizes that attendance is a bit thin today and announces that tomorrow he cannot give a lecture because of a conference he must attend.

A Priori Analysis, Context, and an Ontic Assumption in Jewish Law

The speaker explains that last time he presented the importance of a priori analysis of conceptual definitions and of placing the topic in context, using an example from the laws of conditions and the understanding of “the condition is void but the act remains valid.” He argues that studying the topic of conditions leads to the insight that Jewish law assumes a real ontic-metaphysical dimension at the basis of its determinations, and from there natural connections emerge to issues in the laws of acquisition such as “something not yet in the world” and “something with no substance.” He claims that the gain from context is a deeper understanding of the topic itself and of the way Jewish law stands in relation to other legal systems, provided one is willing to ask one more “why” in order to clarify what lies behind the innovation.

Critique of Being Satisfied with Only “What” in the Brisker Tradition

The speaker says that in yeshivot people sometimes stop at defining the principles of a topic without asking a further “why,” and he attributes to Rabbi Chaim the ideology of searching for the definition rather than the reason. He argues that this is a misleading image, because it is impossible to answer the “what” without in some way relying on the “why,” even if it is hidden. He adds that the question of “why” is not only a tool for defining the “what,” but also a mechanism that connects to other topics and highlights recurring structures, like the ontic infrastructure in the laws of acquisition.

Analogy to Scientific Research and Moshe Kaveh’s Talent

The speaker recounts that Moshe Kaveh, his doctoral advisor at Bar-Ilan, would explain how one could have predicted a result in advance from the “essence” of the problem even without the calculation, and he describes an “urban legend” according to which Kaveh would also justify a different result if it turned out there had been a mistake. The speaker warns that “hand-waving” is a dangerous talent because with it one can justify almost anything. He defines the art of research as understanding what a result means beyond the local solution, so that a “negligible” paper can become fundamental when you connect the result to other phenomena and to a larger picture.

Seeing the Forest: General Structures, Expertise, and Thinking Outside the Discipline

The speaker presents an approach according to which an abundance of questions and answers are “trees,” but dealing with the fundamental structure is “the forest,” which allows one to skip many details and avoid unnecessary pilpul. He says that when one understands the a priori structure, many answers become self-evident, and specifically getting lost in details can blur the big question. He argues that experts can make mistakes about the big questions in their own field because, through too much detail, they fail to see the broader picture, and he gives as an example a future discussion he plans to have with experts about free choice.

Abstract Mathematics as a Model for General Inference

The speaker explains how abstract mathematics builds general theories and proves theorems at the structural level, so that the results apply to many models and not only to one specific case like the group of rotations. He argues that moving to an abstract structure both makes proof easier and clarifies that the result does not depend on the details of the example but on the properties of the structure.

Philosophy of Science: Carr and Hempel Against the Baconian Description

The speaker cites Carr in the book What Is History?, with the example of trying to explain Napoleon’s defeat at Waterloo, and argues that one cannot begin by collecting “facts” without a theory that indicates which facts are relevant. He describes a methodological back-and-forth in which there is movement between an initial intuition, collecting facts, building an explanation, checking it against additional cases, and correcting the theory. He presents Semmelweis’s story as described by Carl Hempel regarding maternal mortality, where people looked for random causes because there was no theoretical direction, until the idea arose that contamination from hands after dissections was involved, and handwashing reduced mortality. He emphasizes that without some concept of microorganisms the explanation would have sounded like “demons,” and claims that both sources show that theory, in a certain sense, precedes facts rather than being naively built from them.

Universal Logic and Theoretical Context

The speaker attributes to Dov Gabbay the idea that “the Holy One, blessed be He, scattered crumbs of logic all over the world,” and argues that logical structures are universal and therefore recur in history, medicine, physics, law, and more. He defines “putting something in context” as removing the details that conceal the structure in order to reveal the forest, and from this follows a multidisciplinary mode of thought that allows one to make broad statements even without specialized expertise.

Student Questions: Intuition in Jewish Law, Sacrificial and Purity Laws, and “We Do Not Expound the Reason of the Verse”

The speaker is asked how one asks “why” in areas where people say there is no intuition, such as sacrificial law and purity law. He answers that Briskers love those areas precisely because they seem to lack intuition, but in practice even there people use reasoning and intuitive judgment about plausibility. He repeats that the claim that “we ask only what” is an illusion because “why” is always present behind the definitions. He is asked about the principle “we do not expound the reason of the verse,” and he answers that this is not an absolute rule. He brings the Rif at the beginning of tractate Bava Kamma, who explains the exemption of tooth and foot damage in the public domain on the basis of normal walking, and he cites the Yam Shel Shlomo and Tosafot, who criticize this as deriving law from reason and infer practical consequences from it in the case of a board lying from one domain into another. He says he has no sharp criterion for distinguishing between a definition and a reason, and cites in the name of Magdalia an example from sukkah in which “you shall dwell as you normally dwell” is a defining principle that generates halakhic conclusions, whereas “so that your generations shall know” is the reason explicitly stated in the Torah.

Transition to a New Example: Presumptive Possession as an Arena for Three Points and for First-Order Halakhic Decision

The speaker presents the transition to the subject of presumptive possession from column 637 that he wrote, in order to demonstrate a priori analysis, context, and first-order halakhic ruling. He states that the principle is “the burden of proof is on the one who seeks to take from another,” and that this is sometimes formulated as “in monetary doubt, one is lenient,” meaning lenient toward the defendant. He asks why preference is given to the current possessor and why the burden of proof is on the claimant.

Rejecting the Statistical Explanation of “There Is a Presumption That What Is Under a Person’s Control Is His”

The speaker presents the common explanation that presumptive possession rests on a statistical presumption that most objects under a person’s control belong to him, and then rejects it. He brings cases where the statistics of actual physical possession have no meaning and yet the law of presumptive possession still functions, such as “trading a cow for a donkey” when there is doubt about when the cow gave birth, and “my goats ate your peeled barley,” where the goats roam around and so their presence with a person is not evidence. He argues that even where there is apparently a statistic, it is irrelevant because one has to look at the subset of objects involved in legal dispute, and there there is no majority that the defendant is right and no justification for assuming that the claimant is lying. He uses the distinction of conditional probability and illustrates that a rental car is a subset in which being in the possessor’s hands דווקא does not indicate ownership.

Two Alternative Explanations: A Principle of Court Action Versus Preventing Anarchy

The speaker offers a first explanation according to which the claimant is asking the religious court to perform an act and remove money, and an action requires a reason whereas inaction requires no justification; therefore, “one who has pain goes to the physician.” He offers a second, teleological explanation according to which without preference for the current possessor there would be anarchy, because even a minority of thieves could sue every person for half his property if the rule were simply to divide. He emphasizes that the concern is not that every claim is theft, but that a legal system cannot allow a mechanism that rewards claims without evidence. He addresses the comment that there could also be honest mistake, but argues that the question still remains: to whom does the object actually belong, and why should preference be given without evidence?

Presumptive Possession as a Non-Probabilistic Legal Principle: Maimonides, the Talmud, and a Presumption Not Undermined by Mere Claim

The speaker cites Maimonides’ wording: “All movable property is presumed to belong to the one under whose control it is… even if the claimant brought witnesses that these movable items are known to be his,” and illustrates a case where the claimant has witnesses that he is the original owner, yet the defendant swears a rabbinic oath and is exempt if he claims purchase or gift. He notes that here the fear of anarchy is less obvious because the claimant has a proven connection, yet the law remains the same. He presents the Talmud in Bava Kamma, which brings a scriptural source, alongside Rav Ashi who says, “It is logical,” and “one who feels pain goes to the physician,” and he emphasizes that delving into the question of “why” can reveal different types of explanations that have halakhic consequences.

A Conceptual Practical Difference: Acquisition by Force of Presumptive Possession—Doubt or Certain Ownership

The speaker presents the inquiry of Kuntres HaSfeikot: whether one who prevails by force of “the burden of proof is on the one who seeks to take from another” is considered a definite owner, or whether the matter simply remains in doubt and the court has not resolved it. He suggests that the inquiry may depend on the two explanations: if it is only avoidance of action, perhaps the doubt has not been resolved; but if it is a mechanism to prevent anarchy, perhaps it creates a full determination of ownership. He connects this to the question whether one can betroth a woman with such money as definite betrothal or only as doubtful betrothal.

A Claim That Does Not Create Doubt and the Legal Presumption of Identity and Ownership

The speaker accepts the suggestion that a mere claim does not by itself create a legal state of doubt, and illustrates this through the Talmud in Sabbath about someone who says, “Your wife is my wife and your son is my son,” or “Your mother is my wife and you are my son,” and Rabbi and Rabbi Chiya reject him. He cites Rabbi Kook in Ein Ayah, who says that in order to arouse doubt, a statement is not enough; there must be “grounds for the matter.” He brings the principle “we execute and stone on the basis of presumptions” and explains that “most acts of intercourse are with the husband” is not a statistic but a legal assumption that stabilizes family reality until evidence is brought to undermine it.

Concluding Remarks, Continuation, and the Distinction Between Reasons for Commandments and “We Do Not Expound the Reason of the Verse”

The speaker concludes by saying that he will continue next week. He is asked about a case where the current possessor is a known thief and betroths a woman, and he says that the matter depends on whether a court ruling creates ownership or whether one can still speak of true ownership rooted in an ontic conception and a dimension of justice. He expresses an inclination to say that the betrothal would not take effect because it is a mistaken ruling. He clarifies that reasons for the commandments are proposed explanations for the commandments, whereas “we do not expound the reason of the verse” means not deriving halakhic conclusions from the reason, even if one does seek and propose reasons.

Full Transcript

[Rabbi Michael Abraham] Okay, attendance is a little thin today, and I’m sorry for the disruption. I just have some conference I absolutely have to be at tomorrow, so I can’t give the lecture. Anyway, last time, within the framework of discussing first-order learning and halakhic ruling, I talked about the importance of a priori analysis of conceptual definitions, and also about the matter of placing things within a context. I gave the example of the laws of conditions, the analysis of the topic of conditions, and within that discussion we saw—mainly—the point of putting things in context and understanding what really lies behind those statements that appear in the topic of conditions. And we saw that we arrived there at certain insights: that Jewish law assumes some kind of ontic dimension—that is, metaphysical, real—at the basis of halakhic determinations. And that of course connected us to other topics in the laws of acquisition: something not yet in the world, something with no substance, and all sorts of things of that kind. So this illustrated that if we understand the foundation on which the topic rests, then links to other topics that on the face of it may seem unrelated emerge naturally. That of course allows us to understand much better the topic we’re dealing with, and maybe also gain some insight into Jewish law in general. Yes, this ontic aspect in Jewish law is really some kind of conception of Jewish law in relation to other legal systems—yes, you could call it comparative law. And all this really happens if we’re willing to ask maybe one more question of why. To understand what lies behind the innovation of the laws of conditions, and “the condition is void but the act remains valid,” and everything we discussed last time. In yeshivot, many times people stop at defining the principles of the topic. But with Rabbi Chaim it’s even an ideology—and he bequeathed it to yeshiva analytical thinking in general—that people don’t ask one more question of why. You’re satisfied with defining things this way: is the Torah’s innovation such-and-such, or is the Torah’s innovation such-and-such—and that’s it. You don’t stop and ask: wait, what does it mean that the Torah’s innovation is such-and-such? Or what does the Torah’s innovation assume at its foundation? Yes, so with Rabbi Chaim it’s well known that we ask only what and not why. Or in other language: we search for the definition and not the reason. We search for the definition of the law, but not for what stands behind it, the reason. So as I’ve mentioned more than once, that is of course an illusion. You can’t ask what without why, and people live under the illusion that they’re not asking why, but in fact they are asking it—even if in a hidden way. You can’t answer the what without resorting in one way or another to the question of why. But in the examples I gave, I tried to show that the question of why not only helps us define the what, but also connects us to other things. Once I understand that there’s some ontic infrastructure here in Jewish law, I start encountering more such phenomena in the laws of acquisition, in legal effects of one kind and another, all sorts of topics that if we looked at them simply, we wouldn’t see any connection between them and the topic of conditions. So that’s the gain produced when we place things in context. Yes, this reminds me—when I did my doctorate at Bar-Ilan, my advisor was Moshe Kaveh. Later he became president of the university, but at the time he was a professor in our department, later dean, rector, and president for many years. But then he was my advisor. Now he had a special talent, really a talent. You’d come to him with some result you had reached, he’d look at it, and immediately explain two things to you. First, that actually you could have known this in advance even without the calculation, if you understand the essence of the topic—of the problem you’re dealing with—then in practice, through hand-waving considerations, you could have reached the conclusion that this would be the result. By the way, the urban legend says there were cases where someone later discovered an error in the calculation and got a different result, and then went back to Moshe Kaveh. And he explained to him about the other result why it too was actually obvious and you could have known in advance that that’s where you’d end up. Well, that never happened to me, but that’s what the legend says, and I can believe it could happen. Hand-waving is dangerous. It’s a kind of talent, but a dangerous thing. With hand-waving you can justify a lot of things, almost anything you want to justify. And the second thing—and this is a great art in scientific research generally—many times, suppose you solve some particular problem and reach some result; suppose you managed to solve it, in the best case. The question is whether you really understand what you arrived at. Because you can publish some negligible, marginal article—this and this problem, I solved it, and the result is such-and-such. And you can also understand that there is something special and more general in this result, and connect it to other phenomena, and then suddenly the article becomes a fundamental article, a foundational article, an article that touches on many other fields. And that distinction—that difference—is exactly the difference I’m talking about here. Meaning, I feel that from a certain stage onward, I suddenly felt that every topic I entered into had difficulties, and you look for explanations, answers to difficulties, explanations for principles, for disputes, and so on. But at a certain point, when you stop and look at what you arrived at, what the significance of what you arrived at is, suddenly you can be exposed to a much more foundational and deep picture, connected to all kinds of other things. Almost every series I give here—I think the subjects are always general, principled subjects. Platonism, ontology, who knows what, all kinds of broad things. But the examples from the Talmudic topics are from specific topics. I brought an example from this topic, another from that topic, and I place it in the broader context because when I studied the topic and thought about the result I had reached, or the explanation I had reached, I understood that it was actually connected to some broader assumption or picture—just like I described with Kaveh in physics. So therefore there really is something here that is of course a kind of talent—not everyone has that talent—but it’s not only talent. There’s also a kind of orientation here. Meaning, if you’re oriented toward that kind of question, and after you reach a solution, an explanation, an answer, something like that, you always make a note to ask yourself: wait, what does this mean? What is the more general significance? Have I discovered some structure here that has some special character, some uniqueness? Then you can discover many things that are deeper, broader, more interesting. So that’s the meaning of placing things within a context. I now want to move to another example. This example is presumptive possession. I want to talk a bit about presumptive possession—also a column I wrote, number 637—and there I want to emphasize three points. First, a priori analysis. Second, putting things in context. And third, halakhic decision-making—first-order decision-making, first-order halakhic ruling—and to see why conceptual and a priori analysis, or context, actually also helps us rule on Jewish law at the first-order level. Many times—and this is another interesting point, also an insight written in blood, as they say in the army, like the sergeant says—many times when we enter a topic or some issue, then focusing on difficulties, or on such-and-such opinions, or on stages in the topic—that’s a lot of trees. But those trees make up a forest; that was the last post I wrote. Those trees make up a forest, and very often, because of all the trees, you don’t see the forest, as the saying goes. Meaning, if you try to look at the forest for a moment, many times you can skip a great many of the trees. In other words, when you enter a topic and understand what the fundamental idea behind it really is, that can save you a great deal of small accounting, a great many questions and answers and how to reconcile this and that and here and there. When you understand it on the a priori level, the answers become self-evident. It saves all the pilpul and all the bookkeeping—not everything, but many times it saves a tremendous amount. And again, this is experience I’ve had in many fields. I deal with quite a few areas. In most of them I’m far from being an expert. But still, yes, many times people ask me: what business does a priest have in a cemetery? What do you understand about neuroscience, about evolution, all sorts of things? Law, all sorts of things I’ve dealt with. Philosophy, logic, things like that. In some of these things I understand more, in some less; I’m certainly not an expert. I don’t have formal training and so on. But what? Suddenly I grasped that the questions I’m asking are not professional questions. Suppose tomorrow’s conference is about free choice. So I enter issues in neuroscience, but I don’t get into the small details of how they measured, how they averaged the results, and all sorts of things like that, which are important for professionals. But if you understand the way of thinking, and what interests you is really the fundamental question, the framework, many times you don’t need to deal with the details. On the contrary: if you get into all the details, the details will blur the issue for you and you won’t really understand the answer to the big question you’re asking. But if you step back for a second, don’t get into the details, and look at the fundamental structure, you see that in fact you can reach the answer from the fundamental structure. You don’t need the details for the answer at all. And on the contrary, many times that’s actually the expert’s disadvantage. The expert, who knows all the details and gets into them, can often make mistakes with respect to the big picture, because with so many trees he doesn’t see the forest. And many times I discover experts talking nonsense about their own field—not on the professional questions proper that they deal with, maybe that too exists, but that’s not what I’m talking about—but on the big questions that arise when you look at the field. And this is where experts often fall. Free choice is an excellent example of this. That’s what I’m going to talk about. I’m going to talk with experts and I want to explain to them where they’re falling down. So the point is that there’s something about the broad perspective, specifically from outside the discipline, outside the field of expertise and familiarity with all the details and all that, that can hand you the answer on a silver platter. Straight away. You don’t need all the bookkeeping, and on the contrary, the bookkeeping often confuses you. You get into all the details and you no longer see the broader picture. Many times, for example, the whole art in mathematics—in mathematics there’s group theory, set theory, Hilbert spaces, vector spaces, it doesn’t matter, all sorts of concepts like that or certain conceptual frameworks, which are really general frameworks. Each such framework is called a theory, and each theory has many models. Take group theory, for example—there are many models. Operators in quantum theory, or measurements in quantum theory, are somehow a model of group theory. Or rotations in space somehow behave according to the properties of group theory. Now, many times when I want to prove a theorem—what happens with rotations of a coordinate system in space—and I get into the geometry of the matter, I won’t manage to prove it. But if I step back and say: wait a second, there’s an abstract structure here. Leave rotations aside; there’s a structure here, I know the abstract components of the structure and the relation between them, and I can prove the theorem in general. And not only do I succeed in proving it, I actually understand that it’s not at all a result of the details of the group of rotations. It’s true of all groups of this type. And then I’ve proved a theorem that suddenly has significance for many different fields at once. Whereas someone who gets into the specific case, into that particular example, that particular model, might maybe—if at all—manage to prove something about the properties of rotations. But if I look at it in general abstract mathematics, then I can actually prove a very broad claim here that holds for all the models of this theory. In particular for the group of rotations, but not only for it. And that’s the whole point of abstract mathematics. Abstract mathematics is always doing exactly this. It builds general models, theories, and proves theorems in the theory, in the general theory, and then there are specific fields that constitute a model of that theory. Meaning, the theory describes them, with all kinds of additional details, but that doesn’t matter. If those fields satisfy the assumptions of the model, that’s enough for me to prove a great many properties of those fields. It’s enough for me to understand the general structure, and if I get into the details, specifically then I won’t succeed. Let me maybe give an example from a non-mathematical field—philosophy of science. There’s a book by a British historian named Carr, called What Is History? He’s a historian who takes a bit of a step back and looks at history and asks, what is history? A meta-disciplinary question. It’s not a question within history but questions about history. What is history? So in the book there’s a discussion about how one arrives at an explanation of historical phenomena. I spoke about this in one of the series in the past—I don’t remember which one—and actually in more than one. He gives there an example: suppose I want to know why Napoleon was defeated at the Battle of Waterloo—Blücher and Wellington, the Prussian and the British, defeated Napoleon—and I ask myself: okay, why did they win? I’m a military historian, I want to understand why in that battle Napoleon was beaten, lost. Now suppose I have no knowledge in military matters at all. None. I come tabula rasa. In the last post I wrote what I think about people who do have knowledge in military matters, but suppose I have none. What am I supposed to do? So Francis Bacon’s description or picture says this: collect the facts, analyze them, and then reach the explanation, the theory, the general law. The problem is that this can’t work like that. Why? Because suppose I now want to begin collecting the facts about Wellington’s and Blücher’s victory at Waterloo. So I want to collect the facts—what facts will I collect? How many soldiers did each side have? Sounds like a relevant fact. What was the adjutant’s height? Sounds less relevant. What was the name of the mother of the fourth company commander? Also doesn’t sound relevant. On what basis do I decide what is relevant and what is not relevant? Clearly I need some military understanding that tells me which parameters are relevant in explaining a military victory or defeat. But as long as I don’t have the theory—and I’m looking for the theory—I don’t have the theory, I have no military knowledge, so in fact I don’t know which facts to look at. Right? Meaning, in order to know—there are infinitely many facts—in order to know which facts to look at, I actually have to be equipped with a theory. Suppose the theory says that morale is what won the battle there. Then I get a fact that they drank a lot of wine the night before, I don’t know, got into duels and things like that, and I understand that morale was low in that army. Then those facts about duels and drunkenness are highly relevant, because I know morale is an important parameter. But if I don’t yet know the military theory, then I have no idea whether morale or the adjutant’s mother’s name are the important parameters. So I don’t know which facts to look at. You can’t begin with the facts and move to theory, because in order to approach the facts I need to be equipped with a theory. But if I’m equipped with a theory, then why do I need the facts? Don’t confuse me with facts—I already know the theory. So there’s some loop here that you can’t get out of. It’s pretty clear that what happens here is some process of back-and-forth. What does that mean? You have some intuition about what may affect a battle, a victory or defeat in battle, and what may not. An initial intuition, even without knowledge. Okay, that intuition tells you roughly which facts are worth collecting and which are irrelevant. Then I collect the facts; if I manage to build an explanation out of them, excellent. Usually I won’t manage to build a full explanation, because I’ll test it on other battles and there it won’t work. When I try to make it into a general law, I want to check it against more wars and more battles, I want to see that it really holds water. Usually it won’t work in general. So I go back to the intuition, adjust it a bit, collect more facts, produce a corrected theory, go back again to collect facts, corrected theory, and so on. It’s a kind of back-and-forth movement. The Baconian description—first collect the facts, then build, analyze them, and construct a theory from them—is a naive description. It doesn’t work that way. We need some initial idea of the theory before we even start. But of course afterward it gets feedback from the facts, and it gets worked on and corrected and refined, and then you go back again, and so on. It’s a process that can be very long, if it ever ends at all. That’s in Carr’s book. Now, unrelated to that, there’s a book by Carl Hempel, also a philosopher of science—well, not also, the other one was a historian. Hempel is a philosopher of science, and it’s an appendix to an Open University course, Philosophy of Science or Introduction to Philosophy of Science, I don’t remember what it’s called. I think it was Popper, and there they describe a case that happened in Austria-Hungary. There was some Hungarian Jewish doctor named Semmelweis, and this Semmelweis was head of a maternity ward in a hospital. This was in the nineteenth century. He headed a maternity ward in some hospital, and there were two maternity wards there. And there was a phenomenon that in Semmelweis’s maternity ward, there was very high maternal mortality—much higher than in the second ward—and they tried to understand why this was happening. They tried to look for the explanation: what was causing this mortality in that ward? Now they didn’t know in which direction to look, because they didn’t yet have the explanation, they didn’t yet have the theory. If you don’t have the theory, which facts do you look at? And there’s a fascinating description there of what facts they looked at. They looked at which door the priest entered through, whether the windows faced east or west, what the light was like, at what hours people ate lunch—I don’t know, I don’t remember exactly, but completely bizarre things. Because they had no idea what the explanation might be. Once you have no idea, you don’t know how to focus on certain facts and neglect others. In order to know which facts to focus on, you need some knowledge about the answer, about the theory—but you don’t have the theory, that’s exactly what you’re now looking for. So in fact you’re shooting in the dark. And indeed he describes there—you should look it up, it’s amazing—what happened, how the priest rang the bell in each ward. They just didn’t know; they were trying in every direction in order to understand how it worked. Now we do have some ways of checking. Suppose we discovered a correlation with the ringing of the bell. And there will always be correlations. Suppose the priest rings the bell, I don’t know, three times in this ward and twice in that ward. Okay, so here we see that apparently the priest’s bell causes maternal mortality—maybe three rings frighten them. Okay, but of course that may be true, but it may also be that there are many differences between the wards. Maybe the length of the corridor, maybe the number of rooms, maybe the name of the head of the ward, the age of the head of the ward—I don’t know, lots of things could be involved. So we test it in other places. Let’s see in other places, in other wards, whether they ring the bell twice or three times. So we have a way of doing some sort of elimination. But you understand that if for every fact we discover we start comparing it to other places and doing elimination, we’ll never get anywhere. There are infinitely many facts. For every such fact we’ll begin doing eliminations—this is insane, there’s no chance of making progress. At some point they discovered that the students in that ward came there after dissections, after pathology, whereas in the second ward they did not. And then suddenly they thought of the idea that maybe they had some contamination on their hands because they had touched corpses, and they didn’t understand that they had to wash their hands and maintain hygiene. In other words, microorganisms on the hands that could cause puerperal fever, which is why the women were dying. And they really tested it. They asked the students to wash their hands, and indeed the mortality dropped dramatically. Now you understand that before you think of—or know of—the effect of microorganisms on the health of women in childbirth, this explanation more or less sounds like demons. There are some demons in that ward killing the mothers. Tiny creatures on their hands because they had dealt with the dead are killing the mothers—basically demons. Don’t think in our terms today; think in terms from before people understood that such things existed. Okay, but still, because they were shooting in the dark in every direction, they decided to check this too, and lo and behold, it turned out to work. And if it really works, then suddenly they understood the role of microorganisms and the role of hygiene and all sorts of things of that kind, and that’s how medical science advanced. But notice that this is exactly the same phenomenon Carr the historian was dealing with—exactly the same thing. Because in both places they’re describing to us that Francis Bacon was wrong when he thought that first you collect facts and then you build a theory from them. Theory, in certain respects, precedes the facts; it is not built from the facts—or at least some idea of the theory precedes the facts. And those two writers wrote this independently, I think. I don’t think either one knew the other. At least neither mentions the other. I think Hempel was later, and he doesn’t mention Carr. And they write exactly the same thing. It’s just that one is a book about history and the other is a book about philosophy of science—natural science, I’d even say. So what does this actually mean? When you look at the picture on the logical level, leave puerperal fever aside, what the bacterium was, what they discovered, what they didn’t. Look at the methodology—how they advanced toward the solution. Did they collect facts and then move to theory, or not? And we see that this is a very general question. In order to ask this question, I don’t need to be a doctor. I don’t need to understand what microorganisms are, what puerperal fever is, what happened there—not at all, I understand nothing in medicine. But I do see the methodology of how they acted, the general idea. And when I see the general idea, suddenly I understand that there is some kind of structure here that is not unique specifically to medical research or to medicine, and also not unique specifically to history. It’s true always. In physics too it’s like this; everywhere it’s like this. And then I suddenly discover that the particular explanation of puerperal fever, when I look at it within the context of philosophy of science, is actually an example, a private case, of a very general law that has implications in many fields. And there are many fields where people haven’t figured this out, haven’t thought about it at all. Anthropology, who knows exactly what—it may be that there they didn’t think of this idea at all. And if they had understood that what they were doing methodologically was actually parallel to medical research or historical research or whatever, then they would have known how to make better progress in their own research. Because when you read this history book, you’re not looking at history—you’re looking at the conceptual framework, you’re looking at the idea. Intellectual peaks—yes, that’s Dov Gabbay, my partner in Talmudic logic, a professor at King’s College. He always used to say that the Holy One, blessed be He, scattered crumbs of logic all over the world—yes, flew on a plane together with Rabbi Kaduri and scattered crumbs of logic all over the world. And suddenly you discover—he’s a logician—that in fact the logic of all fields is the same. It’s the same. And if you look at the logical plane, then it doesn’t matter whether you’re looking at a question in history, in medicine, in physics, in anthropology, in law, in whatever. Logical structures are, by definition, universal. And that’s what I call putting something in context. Putting something in theoretical context means, among other things, understanding how to remove all the trees and reveal the forest. What is really here? What is the structure that stands behind all these things? Everything else is details that only blur my thinking. When I deal with this—if you’re a doctor, it’s good that you focus on the details too—but when I say: when you look at the general structure, many times dealing with the details only interferes. And specifically someone who isn’t an expert can sometimes grasp this structure better, and then immediately connect it also to history and to physics and to law and to all sorts of other things. And that’s how a kind of multidisciplinary engagement emerges: you discover that the same structures appear in many fields, and then you can say things about history, about medicine, about physics, about law, about chemistry, I don’t know, about any field whatsoever, without being an expert in those fields. Because you understand that this logic is really a logic that is true in all fields, including the one where you are an expert. So you can think through it, but arrive at much broader conclusions. Rabbi, Rabbi?

[Speaker C] Yes. It could be that in those areas it’s fine, but usually people say that in Torah study we don’t have an initial intuition, especially in areas like sacrifices and sancta, in sancta and purity laws, and also in other areas—for example, we don’t derive the reason of the verse—so how can you ask “why” and arrive at facts and understand the theories if we don’t derive the reason of the verse? So basically that means not only that maybe we don’t have intuition, but even if we do have it, we don’t use it.

[Rabbi Michael Abraham] Okay, so I’ll answer both questions, because these really are important questions. First of all, you asked: in some areas of Jewish law, of the Torah, we don’t have intuitions. Sancta, purity laws, things like that. So that’s true; I think I already mentioned this—why the Briskers specifically like to focus on those areas of sancta and purity. Right, in Brisk yeshivot they usually study those areas; in other yeshivot, almost not. In yeshivot in general, not at all; even in kollels, much less. In Brisk they study mainly sancta and purity. Why? Their motivation is precisely that there we don’t have intuitions. So there we ask only the “what” and not the “why,” because we have no way of answering the “why.” We don’t have intuitions. But, as I said earlier, you can’t answer the question of “what” without answering the question of “why.” You can’t. How can you define the law for me if you don’t understand what its idea is, what its rationale is? So it’s an illusion to think that you’re asking the “what” without asking the “why.” Behind every “what” there’s also some kind of “why.” Like I heard a few days ago: behind every successful man stands a surprised mother-in-law. Just came to mind. Behind every question of “what” there really stands a hidden question of “why.”

And if we now go back to sancta and purity, this is the answer for you, Eliyahu—if we go back to sancta and purity, it turns out that even in those areas we do have intuition, surprisingly enough. You can see it when you study passages in sancta and purity: you can see that people offer reasoning and say, “This reasoning doesn’t sound logical to me; this reasoning does sound logical to me.” Both explanations account for the facts. If it contradicts the facts, fine—that’s not intuition, that’s just logically wrong. I’m talking about a case where I have two explanations in a passage, each of which explains all the facts, and still I say: this one seems intuitively right to me and this one doesn’t, or less so, whatever. In Rav Chaim’s writings you can see, “That’s not plausible,” and therefore he rejects it. In sancta and purity. He supposedly asks not the “why,” only the “what.” We have intuitions even in those areas. It’s surprising, but that’s how it is. It’s just a fact—just look. Maybe you’ll say: we have an illusion of intuition, but really we’re just talking nonsense. We think we understand, but we don’t understand anything. Fine, I don’t know—maybe that’s true. I have a hard time dealing with skepticism. But it’s clear that we do make intuitive assumptions even in those areas. There’s no doubt about that. And that’s regarding the first question.

As for the second question, about deriving the reason of the verse: first of all, with some laws that are learned from exegetical derivations, for example, there’s no issue of deriving the reason of the verse. It’s only regarding things explicitly written in the Torah that people say we do not derive the reason of the verse. But even in those things, we really do derive the reason of the verse all the time. There’s a famous example at the beginning of tractate Bava Kamma. The Talmud says that damage by tooth and foot is exempt in the public domain. Damage by tooth and foot is exempt in the public domain. So the Rif explains why: because a person has a right to walk his animal in the public domain, and if someone puts fruit there, that’s his problem; he should know that animals walk there. Therefore damage by tooth and foot is exempt in the public domain, because tooth and foot means damage done in the course of normal walking. Horn is something else—horn involves intent to damage, it’s abnormal, it’s something else. But tooth and foot are exempt in the public domain. Maimonides and the Rosh also explain roughly like the Rif—there are some differences, but roughly like the Rif. And the Yam Shel Shlomo, if I remember correctly, asks about the Rif: but that’s deriving the reason of the verse. You’re deriving the reason of the verse. You’re explaining a law written in the Torah—that tooth and foot, “and it consumed in another’s field,” means that liability is only in the injured party’s courtyard, not in the public domain. So how can you derive the reason of the verse by saying it’s because of his right?

More than that: Tosafot brings that he disagrees with the Rif in practical Jewish law because of this. What happens if an animal walks in the public domain and there’s a long board lying in the public domain, with its other end in the injured party’s courtyard? The animal walks normally, kicks the board—it’s damage by foot—and the board moves inside the injured party’s courtyard and breaks a jug belonging to the courtyard owner. Is that considered damage in the injured party’s courtyard or in the public domain? If I say it’s a scriptural decree, then the animal caused damage in the injured party’s courtyard, so if it caused damage there, it’s liable. But if I say no—the Rif’s rationale is what really underlies the exemption of tooth and foot—then here too the animal had a right to walk in the public domain. If someone left a board there, why is that its problem? It had a right to walk in the public domain, and it walked normally. Therefore I’m exempt for the damage. And Tosafot and the Rif really do disagree on this issue. A board lying from private domain into public domain—the question is whether an animal that kicks one end, while the damage occurs in the injured party’s courtyard, is liable or exempt. A dispute between Tosafot and the Rif.

Now here we see—what is deriving the reason of the verse? We even draw a halakhic conclusion from the reason of the verse that we explain. The Rif draws a halakhic conclusion from it. So where is this rule that we don’t derive the reason of the verse? Look, I don’t have a clear definition, but there’s no doubt that at least on the level of basic intuition, we do derive the reason of the verse. Because without deriving that reason, we also can’t answer questions of “what.” As I said: without “why,” there is no “what.” And it’s an illusion to think that one happens without the other. So the idea that we don’t derive the reason of the verse cannot be an absolute rule. On some level we always assume some understanding.

Now, among the later authorities, whenever people ask, “But you’re deriving the reason of the verse,” they immediately answer, “No, no, that’s a definition, not a reason.” Which of course just pushes the question back: okay, where is it a definition and where is it a reason? What’s the criterion? Nobody presents a criterion for that. What’s the difference between a definition and a reason? A definition is an attempt to define the law, and a reason is why the law exists. Rabbi Medalia gives an example of this in Rabbi Shilat’s book, From the Teaching of Rabbi Medalia. He gives an example there: for the dwelling in the sukkah, for the commandment of dwelling in the sukkah, the definition of the commandment is “You shall dwell as you live.” You have to live there as you live in your home. Therefore, for example, someone who is suffering is exempt from the sukkah, or a sick person. Why? Because even at home you don’t sit in a way that causes you suffering. That’s not “You shall dwell as you live.” Or if the sukkah is foul, you’re not supposed to live there because that’s not a dwelling—people don’t live like that—so you’re not supposed to live there, and so on. It has various implications. That’s the definition of the commandment. The definition of the commandment is that the sukkah is considered your home. And that has various halakhic implications.

For example, if I want to go out for a walk and eat outside the sukkah, in principle there’s no problem. You can go out for a walk and eat outside the sukkah. Why? Because there’s no commandment to eat in the sukkah; there’s a commandment to live in the sukkah. What you do at home, do in the sukkah. But even when you live at home, every so often you go out for a walk, so when I live in the sukkah I also every so often go out for a walk. And the meals that I would eat at home, I need to eat in the sukkah. The functions that the house normally fulfills for me—the sukkah has to fulfill them during the holiday. So it’s not that everything has to be done in the sukkah. That’s a result of the rule “You shall dwell as you live.” Is that the reason why we sit in the sukkah? Absolutely not. The reason why we sit in the sukkah is written explicitly in the Torah: “So that your generations will know that I made the children of Israel dwell in sukkot.” We sit in the sukkah in order to remember what the Holy One, blessed be He, did for our forefathers, that He made them dwell in sukkot. That is the reason for the commandment of sukkah, and it’s even written explicitly in the Torah. So here there really is a clear distinction between the definition and the reason. The definition means: this is the definition, what the character of the commandment is, and from that one can draw halakhic conclusions. Because I want to understand what is incumbent upon me—not why it is incumbent upon me, but what is incumbent upon me. Here I ask the “what” and not the “why.” The “what” is that the sukkah must be my dwelling. That’s the “what.” Why? I don’t know. The Torah says: because I made the children of Israel dwell in sukkot. Here these really are two separate questions.

But that’s a simple case. It’s not representative. In most places where people talk about definition and reason, it will be very hard to draw the line: from where does the definition start becoming a reason, and we no longer deal with it, and up to where is it only a definition so that it’s still permissible? The distinction is very far from unequivocal. I tried a bit in the article on the fifth root; we tried somewhat to characterize it there, but there’s no sharp line. It’s very hard to define these things.

Anyway, for our purposes I’m saying: this intuition that helps me answer the “what,” the intuition of the “why,” is a “why” at a level that we do use. That is not called deriving the reason of the verse. Yes, that’s the answer for Eliyahu. Okay, so that’s regarding the meaning of putting things in context. Now I want to get into this issue of possession, and through it to demonstrate, as I said before, the three things.

[Speaker D] Rabbi, may I ask? Yes. Yes. First of all, I apologize in advance, because I only connected five minutes ago, so maybe the Rabbi already answered this, and of course he’s not obligated to answer again. I understand that the Rabbi is trying to explain that the laws of logic really are the same laws in history, in physics, in chemistry—that’s clear—they really are the same laws in everything. But when studying Torah, are they not necessarily present and not necessarily needed?

[Rabbi Michael Abraham] The fact that we may not find the “why” doesn’t mean it isn’t right to ask why.

[Speaker D] No, obviously, obviously, but maybe you have to make do with the fact that you don’t find it.

[Rabbi Michael Abraham] Fine, and that’s true in science too. I can remain with “this requires further analysis” in science as well. And all that means is that I wasn’t able to find an answer to the question of “why.” But I’m talking about situations where I do succeed. And if I do succeed, then I’ve explained what value there is in that. You’re right that I won’t always succeed, but that’s true in many fields.

[Speaker D] But okay, so you’re saying Torah isn’t the only field where I don’t always find the “why.”

[Rabbi Michael Abraham] Right. It depends how smart I am, how accessible it is to me, I don’t know. I won’t always find an answer. But yes, I do think it’s proper to ask the question, to look for an answer.

[Speaker D] No, but if I don’t find the “why” in science, does that mean it doesn’t exist, or that I just didn’t find it?

[Rabbi Michael Abraham] Presumably that I didn’t find it. And in Torah too. In Torah too, the fact that I didn’t find the “why” doesn’t mean it doesn’t exist. I didn’t find it.

[Speaker D] I’m saying: in science it could be that I didn’t find it, but it does exist—I just didn’t find it. In Torah there could be situations where I didn’t find it because it doesn’t exist, the “why.”

[Rabbi Michael Abraham] In my view, no. And also in Maimonides’ view—I’m in good company on this point. I think that’s the view of most medieval authorities (Rishonim). Whenever people study reasons for the commandments, you know, it’s like in law school when they study intellectual property: they present all the possibilities, but the truth is that in practice almost everyone holds one particular view. Even though when you teach the topic you present all the possibilities. So in the context of reasons for the commandments, some say there are reasons for the commandments, there are no reasons for the commandments, they are accessible, they are not accessible—you present all the possibilities. There is almost no one among the medieval authorities (Rishonim) who says there are commandments without reasons. Maimonides goes on at length about this in Part III of Guide for the Perplexed, and he says there are those who think it’s not good to give reasons for the commandments, because if you give reasons for the commandments, you make the Holy One, blessed be He, human—like any person, He does it because of one reason or another. He says it’s exactly the opposite. If you think the commandments have no reason, then you’ve made the Holy One, blessed be He, worse than human beings. At least human beings act when they have a reason to do so; the Holy One, blessed be He, just does things for no reason.

[Speaker D] Yes, meaning the reason is not a physical reason but a spiritual, metaphysical reason.

[Rabbi Michael Abraham] The reasons can be of various kinds, but there is supposed to be a reason behind things. So that’s that. I have an article on scriptural decree—you can look it up on the site—where I explain these things well. And I argue that even in a scriptural decree there is a reason, and I also try to show it through examples. I think if this interests you, it’s worth reading there. Look for the article on “Prefer Buzzing and Scriptural Decree.” Okay. Thank you.

Anyway, for our purposes, I want to talk a bit about the question of possession. So first of all, some background. When a person comes to a religious court—two people have some monetary dispute and come to court—if one of them is holding the money or object over which the dispute exists, then he has the status of one in possession. And then the rule is: the burden of proof rests on the one who seeks to extract from another. In other words, the other person, who wants to take the money away from him, has to bring proof. Why, really? Sometimes among the later authorities they formulate this as: in a monetary doubt, we rule leniently. What does that mean, “in a monetary doubt, we rule leniently”? It means leniently for the defendant. Right? Being lenient for one is stringent for the other, and vice versa. There’s no “lenient” here; there are two sides. If you’re lenient for this one, you’re stringent for that one, and vice versa. When they say “in a monetary doubt, we rule leniently,” they mean leniently for the defendant. So usually the defendant should have been stringent, say, in a case of possible theft; they say no, in a monetary doubt we rule leniently for the defendant, and therefore he can keep the money with him. Even though he has no proof. As long as the other side didn’t bring proof, you can keep the money with you.

Why is there really such a rule? Why is there an advantage for the one in possession of the money? So there are medieval and later authorities who wanted to tie this law of possession—the rule that the burden of proof rests on the one seeking to extract—to the presumption that whatever is under a person’s hand is his. If you were to do statistics in the world, and check all the objects in all kinds of places, you’d see that an overwhelming majority of objects are in the possession of their owners; they belong to whoever has them. So there is a presumption called: whatever is under a person’s hand is his. So here too, if two parties are arguing over, say, a hammer, and the hammer is with me, then there is a presumption that if it’s with me, it’s probably mine. And if so, that can explain why the burden of proof falls on you. Because there is evidence in my favor—if the hammer is with me, that is evidence that this hammer is mine.

But that can’t be right, even though many give this explanation. Evidence—meaning probability? Yes. Statistical evidence? Yes. Okay. All evidence, in a certain sense, is statistical evidence. When two witnesses come and say something, that too is statistical evidence—maybe they’re mistaken? It’s just that usually witnesses are not mistaken. Fine. And sometimes they are mistaken. Maybe they’re mistaken, or lying. There is always some chance that what you did is incorrect. That always exists. I also have columns on the site about statistical evidence; I divide it into several types. It’s an issue both in legal theory and in the law of evidence. And I bring various comparisons there to civil law as well.

In any case, why can’t this explanation be correct—grounding possession, or the rule that the burden of proof rests on the one seeking to extract, in this presumption that whatever is under a person’s hand is his? For several reasons. First, there are places where that presumption doesn’t exist. For example: exchanging a cow for a donkey. In the case of exchanging a cow for a donkey, let’s say I exchanged: I received a cow from you and gave you a donkey. Now the cow gave birth. It has a calf. Now the question is: when did it give birth? Did it give birth before I bought the cow, in which case the calf belongs to the original owner, or did it give birth after I bought it, in which case it belongs to me? So the Talmud says that we follow, say, the original owner—maybe it’s a dispute between Sumchus and the Sages, it doesn’t matter—there is possession or original ownership, and we follow that. Now in this case there is no evidence in favor of the one holding the cow that it is his. We don’t know whether it gave birth after the sale or before the sale. That’s a question on which the presumption proves nothing. And yet according to practical Jewish law at least—Sumchus says they divide, but in practice we rule like the Rabbis that the burden of proof rests on the one seeking to extract. Or the original owner, or the one in possession, basically has the upper hand.

And there are other cases. Goats that eat husks—say there are goats wandering around the world and they happen to be with me. Now someone claims those goats. There is no evidence that those goats are mine, because they wander around; right now they happen to be in my field. But yesterday they were there, and the day after tomorrow they’ll be somewhere else. So the fact that they are with me proves nothing. And still, if there is a dispute between me and someone else, I am the one in possession, and therefore the burden of proof is on him. There is no presumption here that whatever is under a person’s hand is his, and yet the law of possession still applies. So I can show all kinds of cases where the presumption does not exist and yet the law of possession does exist.

But more than that, it’s also not statistically true. Why? Even in places where the presumption ostensibly does exist, it still doesn’t. That presumption never exists. Why? Because when we look at all the objects in the world, and for each object we check whether it is with its owner or not with its owner, then we might discover that, say, 95% of objects are located with their owners, for the sake of argument. But when I have a dispute with someone over a hammer and the hammer is with me, and you want to say there is a presumption that whatever is under a person’s hand is his—if the hammer is with me, it is probably mine—that is not true. Because if it is mine, then it turns out that the plaintiff is lying and I am telling the truth. Do you really think that in most cases where there is a plaintiff and a defendant, the plaintiff is the liar? Why assume such a thing? Both have a presumption of honesty. Or in other words, what I want to say is this: if you look at the subset of all objects in the world, that’s where the statistic I described earlier applies. But we are not looking at all the objects in the world. We are looking at a subset of objects over which there is a legal dispute. In that subset, who says there is a majority in favor of the defendant—that the defendant is usually telling the truth and the plaintiff is lying?

[Speaker C] But no, you’re looking at the wrong group. The majority isn’t over the group of plaintiffs and defendants; it’s over the group of objects in the world. Most objects in the world belong to their owners and are under their control.

[Rabbi Michael Abraham] But the moment you want to apply that presumption to a case under legal dispute, you’re making a mistake. Because that presumption is not here. Since with regard to the subset of objects over which there is a dispute, that presumption does not exist—that usually the plaintiff is in the right. Objects over which there is no dispute usually sit with their owners. But if there is a dispute, both sides have a presumption of honesty; there’s no reason to assume that this one is lying and that one is telling the truth. One of them is lying, but why assume that specifically the plaintiff is the liar?

[Speaker C] Because the object belongs to a group in which by its nature it mostly stays with the one holding it.

[Rabbi Michael Abraham] Right. But among objects that are actually in dispute, there is no majority that belong to the defendant. And this object is an object in dispute. You know, by that logic, a rental car also always belongs to the person driving it. Why? Because most objects in the world belong to their owners. True. But in this subset—rental cars—the majority is actually the opposite. In most cases, it is specifically not with its owner. This is conditional probability. In conditional probability, you’re basically applying a probabilistic rule from the broader group, while in fact you’re talking about a specific subset in which the distribution is not necessarily the same. Therefore I think that this presumption—that whatever is under a person’s hand is his—is not a relevant presumption for explaining possession.

[Speaker E] But even if it’s true that the plaintiff’s and defendant’s claims cancel each other out, that one cancels the other, you still can’t ignore the fact that right now it’s in the possession of the one holding it.

[Rabbi Michael Abraham] Meaning—what do you mean, you can’t ignore it? Why do you think that gives him an advantage? So what if it’s with him?

[Speaker E] No, so how—why is it with him now? Fine, each one says, “It’s mine.”

[Rabbi Michael Abraham] Every presumption always comes with a claim. Otherwise, if you don’t raise claims, the court won’t hear the case. So the other one says, “You stole it from me.” And I say, “I didn’t steal it from you.” Or I say, “I lent it to you and you didn’t return it to me.” And you say, “No, it’s mine, I didn’t borrow it from you.” So there are explanations for why it’s with you. The plaintiff also has an explanation for why it is with the other party. It’s not that we have no explanation.

[Speaker B] Rabbi, your connection cut out—we didn’t hear you before. Could you start that explanation again?

[Speaker E] Yes, part of it was cut off.

[Rabbi Michael Abraham] What I’m trying to say is that when two parties come to court, each of them has to have a claim. Possession without a claim doesn’t help. You have to have a claim. Now, when I, the plaintiff, claim the hammer from you, I’m supposed to have an explanation for what it’s doing with you. I might say, for example, “I lent it to you and you didn’t return it,” or “You stole it from me,” or “It fell from my house into your yard and that’s why it’s with you.” I can have this explanation or another explanation, but I have an explanation. So you can’t ask me, “Wait, what’s it doing with him?” I have an explanation for what it’s doing with him. Now the whole question is: who is lying here? Am I the liar, or is he the liar?

[Speaker E] Yes, but the defendant also has a claim. Right. Okay. That’s true, but since each one has a claim and you can’t say one claim is better than the other, there is still the fact that right now it is with one of them.

[Rabbi Michael Abraham] So what? Then ignore—

[Speaker E] Ignore the fact and ignore the other side’s claim? No—but since the claims cancel out because each one is making a claim against the other, the only thing left is possession, the present state. What is possession?

[Rabbi Michael Abraham] What is the meaning of possession? And if the object is triangular, then what? It’s triangular—so what? Why should I care that it’s with me? If there’s no indication at all that it’s mine, then why leave it with me just because it’s with me? There’s no indication whatsoever.

[Speaker C] Then split it, like Sumchus says: money that is in doubt is divided. He wants to argue that this is a formal rule, not a substantive rule, that there is—

[Rabbi Michael Abraham] Here we’re moving to the next stage. And I’m saying therefore it’s probably not a statistical explanation. The explanation for this rule—that the burden of proof rests on the one seeking to extract—is not based on a presumption, or a majority, or statistics. So what is it based on? Two possibilities. I can think of two possibilities; maybe there are more.

One possibility is that when the plaintiff claims the hammer that is with me, he is basically asking the court to do something. He is asking the court to take the hammer from me and give it to him. But if you want to cause the court to act, give them a reason to act. Because if they have no reason, they won’t do anything. In order for the court to act, there has to be a reason to act. In order not to act, no reason is needed. It’s enough that there is no reason to act—that’s enough for me not to act. I don’t need a reason not to act. Okay? Therefore, I say to the plaintiff: “The one who feels pain should go to the doctor.” That’s how the Talmud explains it. Whoever is hurting—whoever is bothered—should go to the doctor. You want us to act? It hurts you? Give us a reason to act! And if you don’t give us a reason to act, why should we act? We are not deciding that it belongs to the defendant. We simply have no reason to intervene, so it stays with the defendant. That’s one possibility.

A second possibility is a more functional explanation. What does that mean? If we did not give an advantage to the one in possession, anarchy would arise in the world. Why? Because people would pounce on you and claim every object in your possession, and the law would be that they divide it—say, according to Sumchus—so I could lie about any object of yours and say it’s mine, and I would receive half of it. So you’ll say: yes, but most of the world aren’t robbers. There’s only a minority of robbers in the world. Most people are not robbers. That’s a mistake. Why? Because among those who make claims—it’s like I said earlier—among those who make claims, there is no majority that they are not robbers. Or alternatively, I’ll formulate it this way: among those who make claims, if you say they’re not robbers, then you’re saying the defendant is the robber. That’s not what I said earlier. Therefore among plaintiffs there is no majority that they are not robbers. The plaintiffs are in one of two possibilities: either the plaintiff is the robber or the defendant is the robber. There’s no third possibility. So it’s fifty-fifty if I have no information.

Or to put it differently: it’s enough that there be one robber in the world, and the whole world otherwise consists of innocent righteous people—but there is one robber. That robber will pounce on every one of us and demand half our property. You don’t need a majority of robbers in order to create anarchy. A minority is enough—even a tiny minority. That small minority can attach itself to whomever it wants and claim whatever object it wants and receive half. A legal system cannot allow itself such a thing, and therefore they say: if you don’t bring proof, you won’t get the object. The burden of proof rests on the one seeking to extract. Again, not because there is evidence that it’s mine, but because legally it makes no sense to view us as equal, because that would create legal anarchy. It’s preventive medicine, yes—it’s to prevent legal anarchy. Okay.

[Speaker D] There’s also a third possibility, besides one of them being a liar or a thief: one of them is mistaken. He thinks the object is his, but really it isn’t. He’s mistaken, he doesn’t remember correctly.

[Rabbi Michael Abraham] That’s possible, but it could be either of them.

[Speaker D] Right, but that doesn’t necessarily mean one of them is a thief or a liar.

[Rabbi Michael Abraham] I didn’t say necessarily.

[Speaker D] No, the Rabbi said there are only two possibilities: either he or—

[Rabbi Michael Abraham] Either the defendant is holding an object that is not his, or the plaintiff is claiming an object that is not his—there is no third possibility.

[Speaker D] No, of course. That’s it. I’m saying, within the claim itself, there doesn’t necessarily have to be a thief.

[Rabbi Michael Abraham] There doesn’t need to be a thief. I still want the object to remain with the one to whom it really belongs, even if the other person is acting in good faith. I don’t want him to receive half of something that isn’t his. Not because he’s a thief. The anarchy that would arise—when I spoke about anarchy—that referred to thieves. Because the anarchy we fear is that a deliberate robber would pounce on people and claim objects from them. And here it would be deliberate. That’s what we fear. Not that in every claim that comes before us we determine that it is a robber’s claim, but we fear that if we do not give priority to the one in possession, then the few robbers that exist in the world will pounce on many people and claim objects or money from them.

[Speaker D] Fine. But that means it’s not correct to say that within this subset of plaintiffs and defendants there may be a majority or half who are robbers or liars. That’s not necessarily correct, because it could be that in most cases it’s actually a case of innocence—the person is mistaken.

[Rabbi Michael Abraham] Of course not; I answered that before. I said so. But it makes no difference for our purposes, because I am still asking to whom the object really belongs, not who the robber is. There’s a fifty percent chance the object is yours and a fifty percent chance it is his—even if you’re not a robber, even if it’s in good faith, still the chance that you are right is fifty percent, so why give you priority? Fine.

[Speaker C] So Rabbi, if “the burden of proof rests on the one seeking to extract” is a formal or functional rule like that, why don’t we apply it to land? Why is it applied only to movable property and not to land as well?

[Rabbi Michael Abraham] There are all kinds of reasons, but there too there is such a rule. There’s another rule that regulates the matter: the original owner. The original owner is the equivalent of possession in land.

[Speaker C] And is the original owner an issue of probability, or—?

[Rabbi Michael Abraham] No. It’s the same as possession with movable property. The question is whether it’s connected to a prior presumption; Kuntras HaSfeikot discusses this. Is the presumption of original ownership basically a kind of prior presumption, like a mikveh that was valid, so the presumption is that it remains valid until I know it has become invalid? But again, it’s not probability in any case. The question is whether this is another rule in monetary law, or whether it is really a special case of prior presumption. But that doesn’t matter for our purposes; in any event it’s a formal rule. Fine.

So that is apparently the explanation—apparently the explanation for this rule of possession. Let’s look at Maimonides’ language. Maimonides says: “All movable property is presumed to belong to the one under whose hand it is found, even if the plaintiff brought witnesses that these movables are known to him.” How so? “This garment or this utensil in your hand or in your house is mine,” or “I deposited it with you,” or “I lent it to you,” and the witnesses testify that they knew it previously in my possession. In other words, he has witnesses that he is the original owner. And the defendant says, “No, rather, you sold it to me,” or “gave it to me as a gift.” In that case, the defendant takes a rabbinic oath and is exempt. What does that mean? It means this is a case where clearly there is really no evidence as to who is right. Here there is even some monetary pull for both sides. Right? Both sides have some connection to this property. The plaintiff is not just pouncing for no reason. In this case, for example, there isn’t the same concern about anarchy, right? Because we’re talking about someone who has—it’s not just some random person who pounced on me and asked for an object. There are witnesses that he has a connection to this object; he’s not just pouncing. Fine, you can still worry that every person who sold an object will later come and sue the buyer: “I have witnesses that it was mine,” and then sue the buyer in order to get it back. But that really is already a much more specific case. The previous concern was a real concern of anarchy—that anyone could sue anyone and get half of his property. That’s a serious concern. Anyone who sold something later suing the buyer? No, that’s already a much less serious concern. In any case, for our purposes this is a case where the anarchy explanation is less convincing, or less relevant.

Now first of all, maybe a comment on what we’ve done so far. Notice that what I’ve done so far is really try to understand what the principle of possession is based on. Why does the one in possession have an advantage over the plaintiff? Why does the burden of proof rest on the one seeking to extract? Now, in the Talmud they also ask this question. The Talmud in Bava Kamma: Rav Shmuel bar Nachmani said, from where do we know that the burden of proof rests on the one seeking to extract from another? As it is said: “Whoever has a matter shall approach them”—he shall bring evidence to them. They learn it from a verse. Rav Ashi objects: why do I need a verse? It is logical reasoning: the one who feels pain should go to the doctor. Whoever is hurting should go to the doctor. So the verse isn’t needed because I have a logical argument. Okay? This is an interesting question. Even those who cite the verse may mean this reasoning. The verse teaches that reasoning, so it doesn’t necessarily contradict it, but that’s another matter.

When you look at the Talmud here, at least from what I know—and many deal with these passages; they’re very broad, classic yeshiva topics—I hardly know anyone who dealt with the question: but why really? Why really does the one in possession have an advantage over the plaintiff? Like the two explanations I gave earlier. So “the one who feels pain should go to the doctor” already appears in the Talmud, and everyone says yes, yes, whoever is hurting should go to the doctor. But try for a moment to sharpen it, to define the concepts more precisely. What is really the issue? Then you discover there are two kinds of explanations. And those two kinds of explanations, for example, can have implications.

For example, if we determine—according to the first explanation I gave—that for the court to act you have to give it a reason to act, then I would say that one who prevailed by virtue of the rule that the burden of proof rests on the one seeking to extract—it can’t really be said that the property is entirely his. The doubt has not been resolved; the court simply does not intervene because it has no reason to perform an act. The court did not rule that it is yours; it only says, “I’m not intervening.” In contrast, if the explanation is that we must give preference to the one in possession so that people do not pounce on one another and demand their property, then it is much more reasonable to say that we have actually determined that the one holding the object, who prevailed by force of the rule that the burden of proof rests on the one seeking to extract, is the owner in every respect—not by doubt, but certainly. Kuntras HaSfeikot asks this very question—we’ll get to it later—whether one who prevailed in law due to doubt, where the plaintiff had no evidence but neither did he, but since he was in possession the object was left with him because of the rule that the burden of proof rests on the one seeking to extract—whether one who prevailed by such a mechanism in court is considered a true owner. Can he betroth a woman with it—will she be betrothed? Is it his? Or is it only doubtful that it is his—so the court does not intervene, but if he betroths a woman with it, she is only doubtfully betrothed? Kuntras HaSfeikot discusses this matter. And at first glance—again, I haven’t seen anyone explain what the two sides of the doubt are. But here, for example, if you think a bit about the idea—what does it mean that the court does not act, what is the reasoning behind that? Let’s define that idea. We can discover that this inquiry of Kuntras HaSfeikot—whether it is mine by doubt or mine with certainty—may depend on these two explanations. And that has many implications. Then suddenly I discover that there are enormous implications. What happens now if I go and betroth a woman—will she be betrothed or only doubtfully betrothed to me with money that I obtained because the burden of proof rests on the one seeking to extract? The moment I asked the question or did the initial a priori analysis, it has many implications in other areas.

[Speaker D] Rabbi, Rabbi—but the doubt about betrothing a woman with the object, is that regarding the plaintiff or the defendant? The defendant. Because he’s currently holding the object, but since someone is claiming it from him, there’s a doubt whether it’s his or not.

[Rabbi Michael Abraham] The court simply didn’t intervene, but it didn’t say it was his.

[Speaker D] Yes, but couldn’t we use the Rabbi’s first answer, which says that basically if you want the court to act, give it a reason to act? What if we said the rule in reverse: the one holding the object bears the burden of proof?

[Rabbi Michael Abraham] Why should the one holding it bear the burden of proof? I don’t understand.

[Speaker D] No, because the Rabbi explains this rule by saying, okay, you want me, the court, to act? Give me proof. But what if we said the opposite rule—not that the burden of proof rests on the one seeking to extract from another, but that the burden of proof rests on the one holding the object?

[Rabbi Michael Abraham] That makes no sense. Why say that? Why is a triangle round? A triangle isn’t round.

[Speaker D] What do you mean? No, but why doesn’t it make sense? Why is that rule not a logical thing to say?

[Rabbi Michael Abraham] Because when the court removes the object from you and gives it to the other person, it is doing something. But when the court doesn’t intervene and leaves the object with you, it did nothing—it left the object with you. To do something, you need a reason. To refrain from doing something, you don’t need a reason; it’s enough that there is no reason to act. You don’t need there to be a reason not to act.

[Speaker D] You need there not to be reasons to act. The action is transferring the object?

[Rabbi Michael Abraham] Yes. The court takes active action: it takes the object from you and gives it to someone else. To take active action, you need reasons.

[Speaker D] No, but I understood that the action was the court’s intervention, the ruling, not necessarily the physical act.

[Rabbi Michael Abraham] No, no, no—the removal of the object from you to him. It changes the state of affairs. The object is currently with you; the court intervenes, takes it from you, gives it to him. It is acting. Whereas if the court merely says, “Fine, leave it with you, I have nothing to say about this matter,” for that you don’t need reasons. If I have nothing to say, I don’t say anything. You don’t need reasons why not to say something. You only need there not to be reasons to say yes.

[Speaker D] So that means this answer works only with physical products, supposedly? Things that can be physically moved? Why? Because it requires an action. Ah, because intellectual property can also be transferred from one to another.

[Rabbi Michael Abraham] Of course—that’s also an action. The action of ruling that you have to transfer the intellectual property to him is also an action; you don’t have to physically take it. The action is a legal action. Yes. By the way, if a judge actually took and handed over something himself, there are practical implications for that in tractate Sanhedrin. If he physically took it by hand, it could be that he would have to pay for mistakes. If he didn’t physically take and hand over, then even though he erred in the ruling, maybe he would not have to pay because it would only be indirect causation. So that relates to the question whether it is indirect causation or not, but regarding whether he acted or did not act, I don’t think there is reason to distinguish.

[Speaker E] Rabbi, does every claim by a plaintiff necessarily create a state of doubt? Why not? Okay, because then anyone who sues—how do you define doubt?

[Rabbi Michael Abraham] If you define doubt as “I don’t know whose object this is,” then I don’t know whose object it is.

[Speaker E] But regarding the practical implication the Rabbi mentioned—betrothing with this object?

[Rabbi Michael Abraham] From a legal standpoint, we are not prepared to let a claim by itself create doubt. Okay? That’s basically another way of saying what I said earlier. That’s why the burden of proof is on the one who seeks to take from another. Because we are not prepared for you to create a state of doubt merely by making a claim without evidence. In order to create a state of doubt, you need something positive; it’s not enough just to make an argument. Yes, it’s a bit similar to what appears in the Talmud in tractate Sabbath on page 30, one passage about Rabbi Chiya, another passage about Rav. Someone comes to Rabbi Chiya and says to him, “Your wife is my wife and your son is my son.” Your son is a mamzer; I had relations with your wife, and your son is actually mine. He’s a mamzer. Or: “Your mother is my wife and you are my son.” Meaning, you’re a mamzer; you’re my son, not the son of your known father. So Rabbi and Rabbi Chiya, after someone comes to them with something like that, say to him: “Would you like to drink a cup of wine?” Want to drink some wine? He drank and burst. He drank and died. What does that mean? Don’t talk nonsense. So Rabbi Kook explains there in Ein Ayah—a beautiful passage—he explains there that in order to arouse doubt, a mere claim is not enough. Anyone can say whatever he wants. The fact that I don’t know the answer does not mean I’m in doubt. If there is an established state of affairs in the world that this fellow is my son, then he is my son. And if someone says otherwise, then he said otherwise. In order to arouse doubt you have to bring evidence; there has to be some basis for the claim. Not necessarily to bring evidence that he isn’t my son—because then that’s already evidence that he isn’t my son. I’m talking not about evidence, but about bringing some indication that you can’t say there’s no doubt here. There is doubt here. But if you’re just making a claim, making a claim is not enough to arouse doubt.

[Speaker E] Okay, so that answers the question—so that answers the question—will the woman be betrothed with this object?

[Rabbi Michael Abraham] No, I brought that in order to answer your question. I’m saying that you’re right on that level: merely raising a claim is not enough to arouse doubt. I’m only saying that this itself is a legal statement, not a probabilistic one. So really it’s only repeating what I said before, that’s all. And you’re right: after what I said, after the explanations I gave earlier, you’re right—a claim by itself is not enough to arouse doubt. Yes, what the Talmud says in tractate Kiddushin: “We execute and stone based on presumptive status.” Right? Someone struck his father—“One who strikes his father or his mother shall surely be put to death.” Who says that this is his father? There is a presumption: most sexual relations are with the husband. And based on that majority you execute a person? Maybe he isn’t his father. There is a minority possibility that he isn’t his father. Based on a majority you execute someone? The answer is yes. Not because “most sexual relations are with the husband” is statistics. Rather, if he grew up in your home and was known in the world as your son, then he is your son, period. And in order to undermine that you need to bring evidence. That presumption that “most sexual relations are with the husband” is not a probabilistic presumption; it is a legal presumption. It says that once there is a married couple, the children growing up in their home are their children, period—not because of statistics, but because that is our legal assumption. And in order to undermine that—even just to arouse doubt about it—you need to bring evidence. It’s not enough to say, “Maybe not.” You know all these skeptical questions? You make a good argument, and then they say, “Yes, but maybe not.” Maybe not—fine. “Maybe not” is not doubt. Bring a counterargument, even if it’s not decisive—then I also have an argument—but then at least doubt has arisen. If you say “Maybe not,” “maybe not” is not doubt. All right? Good, I really need to stop here already, so we’ll continue next week. Any comment or question?

[Speaker F] I just didn’t understand: according to both approaches by which the Rabbi explained presumptive possession—whether it’s pragmatic, or whether there has to be a reason for the religious court to intervene—still, suppose the possessor knows that he stole it, and he betrothed a woman with it. According to both approaches, what would we say about that from his own point of view? A person who knows the truth, that it’s stolen.

[Rabbi Michael Abraham] From his own point of view, he can think whatever he wants, and the question is what we will do.

[Speaker F] No, I’m asking: he betrothed a woman—is she betrothed or not?

[Rabbi Michael Abraham] Is she betrothed? If he knows it is his and he betrothed her with it, then apparently she is betrothed, but we as a religious court will not recognize her as betrothed because we—

[Speaker F] No, no, the opposite. I mean, he—suppose the possessor knows that he is a thief.

[Rabbi Michael Abraham] Ah, that’s a different question. The question is whether after the ruling it is considered his. I don’t think you’ll have proof for that. My inclination is to think not—that she is not betrothed. It’s a mistaken ruling. Unless—

[Speaker F] Unless we say that there’s no such thing as ownership in itself. Ownership is ultimately what society decides.

[Rabbi Michael Abraham] And if society—

[Speaker F] The religious court decided, so that’s called ownership, even if the world is not perfect.

[Rabbi Michael Abraham] And that connects to what I said last time: I think that the laws dealing with ownership, the norms, are grounded in some ontic, meta-legal conception of reality. And if not, then not, yes. There is still justice too—understand—even if you don’t view it as reality, justice says that if it really is his, then it is his, regardless of whether that is “reality” or not. You can make that argument too.

[Speaker E] Sorry, just one small point: what you mentioned earlier about “we do not derive the reason of the verse” and reasons for the commandments—is that the same thing, or are those different things?

[Rabbi Michael Abraham] No. Reasons for the commandments is an area many people deal with; it’s an attempt to explain the commandments. The plain meaning of the Torah, Maimonides in the Guide, part 3—many people deal with reasons for the commandments. “We do not derive the reason of the verse” does not mean don’t look for reasons for the commandments; rather, don’t derive from those reasons—that is, don’t draw halakhic conclusions from them. You can suggest a reason for a commandment, but not derive a halakhic conclusion from it. Okay.

[Speaker E] All right, goodbye then.

[Rabbi Michael Abraham] Thank you very much. Good night.

Study and Halachic Rulings – Lesson 27

Table of Contents

Summary

General Overview

Opening and a Missing Lecture

A Priori Analysis, Context, and an Ontic Assumption in Jewish Law

Critique of Being Satisfied with Only “What” in the Brisker Tradition

Analogy to Scientific Research and Moshe Kaveh’s Talent

Seeing the Forest: General Structures, Expertise, and Thinking Outside the Discipline

Abstract Mathematics as a Model for General Inference

Philosophy of Science: Carr and Hempel Against the Baconian Description

Universal Logic and Theoretical Context

Student Questions: Intuition in Jewish Law, Sacrificial and Purity Laws, and “We Do Not Expound the Reason of the Verse”

Transition to a New Example: Presumptive Possession as an Arena for Three Points and for First-Order Halakhic Decision

Rejecting the Statistical Explanation of “There Is a Presumption That What Is Under a Person’s Control Is His”

Two Alternative Explanations: A Principle of Court Action Versus Preventing Anarchy

Presumptive Possession as a Non-Probabilistic Legal Principle: Maimonides, the Talmud, and a Presumption Not Undermined by Mere Claim

A Conceptual Practical Difference: Acquisition by Force of Presumptive Possession—Doubt or Certain Ownership

A Claim That Does Not Create Doubt and the Legal Presumption of Identity and Ownership

Concluding Remarks, Continuation, and the Distinction Between Reasons for Commandments and “We Do Not Expound the Reason of the Verse”

Full Transcript

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Table of Contents

Summary

General Overview

Opening and a Missing Lecture

A Priori Analysis, Context, and an Ontic Assumption in Jewish Law

Critique of Being Satisfied with Only “What” in the Brisker Tradition

Analogy to Scientific Research and Moshe Kaveh’s Talent

Seeing the Forest: General Structures, Expertise, and Thinking Outside the Discipline

Abstract Mathematics as a Model for General Inference

Philosophy of Science: Carr and Hempel Against the Baconian Description

Universal Logic and Theoretical Context

Student Questions: Intuition in Jewish Law, Sacrificial and Purity Laws, and “We Do Not Expound the Reason of the Verse”

Transition to a New Example: Presumptive Possession as an Arena for Three Points and for First-Order Halakhic Decision

Rejecting the Statistical Explanation of “There Is a Presumption That What Is Under a Person’s Control Is His”

Two Alternative Explanations: A Principle of Court Action Versus Preventing Anarchy

Presumptive Possession as a Non-Probabilistic Legal Principle: Maimonides, the Talmud, and a Presumption Not Undermined by Mere Claim

A Conceptual Practical Difference: Acquisition by Force of Presumptive Possession—Doubt or Certain Ownership

A Claim That Does Not Create Doubt and the Legal Presumption of Identity and Ownership

Concluding Remarks, Continuation, and the Distinction Between Reasons for Commandments and “We Do Not Expound the Reason of the Verse”

Full Transcript

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