Study and Halachic Rulings – Lesson 30

Table of Contents

• Presumptive possession and "the burden of proof is on the one who seeks to extract from another"
• Kuntres HaSfeikot: betrothal with money awarded on the basis of doubt
• Normative duality: monetary law versus prohibitions
• Blowing the shofar on the Sabbath, a commandment that comes through a transgression, and "if one did it, does it take effect"
• Betrothal versus acquisitions: court confiscation, rabbinic authority, and benefit of use
• First-order halakhic ruling and the need for a broad conceptual context
• Critique of analysis without decision, and the example of Rav Chaim and the Briskers
• Multidisciplinarity: translating structures between fields and collaboration
• Framework, creativity, and a transgression for its own sake
• Halakhic ruling in extreme contexts, interest in the Middle Ages, and a halakhic skeleton versus exceptions

Summary

General Overview

The lecture completes the discussion of presumptive possession and the meaning of a first-order halakhic ruling, and argues that "the burden of proof is on the one who seeks to extract from another" is a legal rule, not a probabilistic one. Therefore, the preference given to the defendant is not because he is right, but because that is the correct legal way to proceed. After a ruling in favor of the current possessor, when the claimant argues with certainty and the defendant argues from uncertainty, the question is raised about the status of the money: is it definite property for full use, or doubtful property? This is explored through the investigation in Kuntres HaSfeikot regarding betrothal with such money. The lecture proposes a broad conceptual framework of "normative duality" and distinguishes between monetary law, where such duality is not accepted, and prohibitions, where it is common. This is then used to explain the possible difference between buying a field and betrothing a woman. From there, a methodological claim is built about the need for context, abstraction, and multidisciplinarity in order to issue a first-order halakhic ruling. The lecture then opens into a new discussion about halakhic ruling in extreme contexts and the relationship between a fixed "halakhic skeleton" and exceptional rulings that apply to their specific moment.

Presumptive possession and "the burden of proof is on the one who seeks to extract from another"

Presumptive possession is presented as a legal rule and not as a probabilistic decision. So the ruling that favors the defendant is a legal instruction about how to act, not a determination that the defendant is actually right. The question about the status of the money after the ruling becomes especially sharp when the claimant argues with certainty and the defendant argues from uncertainty, because only then does the defendant himself not know whether the money is really his. The claim is that when a religious court rules that the money remains with the current possessor, the ruling has no practical meaning if it leaves the money unusable; so in the simple sense, the ruling also permits use of the money.

Kuntres HaSfeikot: betrothal with money awarded on the basis of doubt

Kuntres HaSfeikot asks what the law is regarding betrothal when the defendant betroths a woman with money awarded to him on the basis of doubt, or when the claimant seized that money and used it for betrothal, because betrothal depends on the money belonging to the man effecting the betrothal. The lecture argues that if one can buy a field with such money, it is hard to understand why one cannot betroth a woman with it. It is emphasized that Kuntres HaSfeikot itself does not focus the inquiry on purchasing a field, but specifically on betrothal. The distinction is explained by saying that buying a field is a monetary act that can be framed as a practical legal decision, whereas betrothal touches the realm of prohibitions, where the doubt may continue to remain in the background even after a monetary legal ruling.

Normative duality: monetary law versus prohibitions

In monetary law, the claim is that one cannot live with normative duality such as "mine at the Torah level and yours at the rabbinic level" or "a real doubt, but you may legally use it," because money always involves two parties, and a leniency for one is a stringency for the other. The example of a rabbinic acquisition in the presence of all three parties is brought to argue that if a rabbinic enactment determines a transfer of ownership, it is not plausible to say that ownership remains split between the rabbinic and Torah levels. In the area of prohibitions, examples are brought where duality is accepted, such as a bill of divorce that is "valid at the Torah level, invalid at the rabbinic level," creating a situation in which a woman is "divorced at the Torah level and still a married woman at the rabbinic level," and also the blowing of the shofar on Rosh Hashanah that falls on the Sabbath, where there is tension between a Torah-level commandment and a rabbinic prohibition.

Blowing the shofar on the Sabbath, a commandment that comes through a transgression, and "if one did it, does it take effect"

The lecture establishes the possibility that an act can be considered effective on one plane even while being forbidden on another. It brings the discussion attributed to Rabbi Akiva Eiger and the Magen Avraham about someone who blows the shofar on the Sabbath. It also brings the framework of "a commandment that comes through a transgression" and the need for the verse "I, the Lord, hate robbery in a burnt offering" in order to disqualify a commandment performed through a transgression, alongside the Talmudic principle, "if one did it, does it take effect or does it not take effect," and Abaye's view that "if one did it, it takes effect," as in the example of substitution of a consecrated animal. Within that, the claim is that there is no contradiction in saying that a person committed a transgression and at the same time a halakhic or real-world result of his act may still take effect; everything depends on the legal definitions involved.

Betrothal versus acquisitions: court confiscation, rabbinic authority, and benefit of use

An explanation is proposed for why purchasing a field can take effect even if the doubt about the money was not metaphysically resolved, because in monetary law there is the power of court confiscation, which allows monetary uses to be framed and authorized. Regarding betrothal, it is argued that the Sages cannot create betrothal where it does not actually take effect, and therefore the place of doubt may remain specifically there, even if monetary uses were permitted. The discussion also touches on the possibility of effecting betrothal not with the coin itself but with the benefit derived from the right to use it. A distinction is brought from tractate Kiddushin 6 between "one who betroths with a loan" and "one who betroths with the benefit of forgiving a loan," in order to stress that one has to define exactly with what the betrothal is being effected.

First-order halakhic ruling and the need for a broad conceptual context

The approach presents a first-order halakhic ruling as a decision made on the basis of reasoning after understanding the structure of the topic and its context, rather than as a choice between precedents or authorities. The claim is that dealing with general concepts like "normative duality" creates a broad map that connects different topics that seem unrelated, and makes it possible to form a halakhic position without decisive dependence on "Maimonides says this and the Rashba says that." An anecdote is told about a friend who kept asking Rabbi Nissim Karelitz and Rabbi Wosner the same question and knew in advance what each one would answer, to illustrate that a ruling should come out of one's own position; and if one has no position, then one acts according to the laws of doubt.

Critique of analysis without decision, and the example of Rav Chaim and the Briskers

The claim is that analytical ability that explains every view on its own terms may leave you in the end with two coherent positions and no ability to decide between them. An example is brought that is attributed to Rav Chaim, who sent a question to Rabbi Yitzchak Elchanan with a request for an answer of simply "yes or no," without proofs. It is explained that the Brisker stringency of "satisfying all views" is seen as the result of an inability to decide, not merely as an excess of piety. The approach argues that a first-order decision allows one to say, "this seems right to me and this does not seem right to me," and to conduct oneself accordingly.

Multidisciplinarity: translating structures between fields and collaboration

Multidisciplinarity is presented in two forms: identifying the same pattern of thought in different fields in order to import solutions, and collaboration among different fields in order to solve one problem. Examples are given of how in logic the same argument structure appears in law, science, literature, and mathematics, and how in philosophy of science and in history the same problem appears: choosing relevant facts without a theory, illustrated through Semmelweis and through Carr's What Is History?. The claim is that in learning Jewish law one has to abstract the problem from its local content in order to identify the conceptual structure, and then understand how different topics, such as a rabbinic acquisition, betrothal with doubtful money, and blowing the shofar on the Sabbath, are all manifestations of the same structure.

Framework, creativity, and a transgression for its own sake

The claim is that real creativity requires a binding framework, and that canceling the framework leads to nihilism rather than creation. A critique is brought of Amos Oz in the essay "The Full Wagon and the Empty Wagon" from Here and There in the Land of Israel, 1980, and it is said that describing Jewish law as a room that keeps filling up with furniture misses the fact that more tools create more possibilities. The example of a chessboard is used to illustrate that the more pieces there are, the more possibilities multiply. A distinction is then made between breaking a framework in cases where it is necessary and smashing it altogether, while "a transgression for its own sake" is defined as breaking the framework without canceling the very existence of the framework.

Halakhic ruling in extreme contexts, interest in the Middle Ages, and a halakhic skeleton versus exceptions

A new topic is opened concerning halakhic ruling in context, especially in extreme situations, with the emphasis that a halakhic ruling depends on clarifying facts that themselves depend on context. The lecture mentions Professor Haym Soloveitchik's book on the prohibition of interest in the Middle Ages, with the claim that in the medieval period one finds exceptional leniencies, sometimes even frontal departures from explicit Talmudic law, and that none of them entered the Shulchan Arukh. Haym Soloveitchik's picture is then presented as distinguishing between an objective "halakhic skeleton" that is always correct and rulings for a particular time and place that do not join the ongoing corpus. A different position is then suggested, according to which once the exceptions occurred, they need to be analyzed and, in a certain sense, incorporated into Jewish law as precedents that emerge from an understanding of their circumstances. The lecture stops before the examples and ends by announcing a move to the next chapter, which will deal with subjective and objective halakhic ruling, and with halakhic ruling in context.

Okay. Last time I continued dealing with the issue of possession status, and through that I tried to demonstrate a bit the meaning of first-order halakhic ruling, to place things in context, and basically to see how, at least in my view, it is more correct to approach Talmudic topics—but not only Talmudic topics. I want to complete this topic a bit more before moving on. Last time we talked about—yes, I began with the question of possession status: where it comes from, what grounds it, whether it is a legal rule or a probabilistic rule. In the end the conclusion was that it is a legal rule and not a probabilistic one. If so, then the ruling that “the burden of proof is on the one who seeks to take from another,” meaning giving priority to the defendant, to the one defending himself, is basically a legal instruction. Not because he is right, but because that is the proper legal way to proceed. I suggested two possible explanations for this—maybe there are more, but I suggested two. Now of course the obvious question arises, and I think I already began touching on it: what is the status of the money, of the property that was in dispute, after the religious court has already ruled? After all, someone sued me, brought no proof, and the court ruled that this money remains with me because the burden of proof is on the one who seeks to take from another; he did not bring proof, therefore the money stays with me, I am the possessor. Now the question is whether that money is considered certainly mine, or whether it is in fact money of doubtful ownership. And again, as with the previous question, I said that we are talking about a case where the plaintiff claims with certainty and the defendant claims uncertainty, because in any other case I have no reason to demand that people act according to the laws of doubt just because the court is in doubt. He himself is not in doubt; he claims certainty. I cannot expect him—tell him to be stringent because of a doubt when he himself is not in doubt. The fact that I am in doubt should not cause him to be stringent. I make the same claim here too. Meaning, this discussion also exists only when I claim uncertainty and the plaintiff claims certainty and the court ruled in my favor. Because if I were claiming certainty, then as far as I am concerned I know that the money is mine. The fact that the court ruled—even if the court merely withdrew—that is irrelevant. I see no reason in the world why I should be stringent because this is money cast into doubt if I myself am not in doubt about it. I know that the money is mine. So what if the court could not reach a positive decision? What does that have to do with me? I use the money because as far as I am concerned it is mine. Of course, if I lied, that is a different argument, and I mentioned that—but let’s talk about a case where I am not lying; that is my claim. But if I claim uncertainty and the plaintiff claims certainty, then in that situation I myself also do not know whether this money is mine or not. Now legally they leave it with me. “The burden of proof is on the one who seeks to take from another,” and the possessor has the upper hand; he has priority. So the money remains with me. Now the question that Kuntres HaSfeikot asks is basically—and I’ll share it for a second, I think we already saw it, but just as a reminder: “And I considered investigating, in every monetary doubt where we hold that everything goes to the defendant and the burden of proof is on the one who seeks to take from another, if the defendant betrothed a woman with this doubtful money, or similarly if the plaintiff seized it and betrothed with it, what is the law of such betrothal?” Meaning, I now take this money—it was ruled in my favor, and again, I claimed uncertainty; the money was ruled in my favor because I am the possessor and he brought no proof. Now I want to take this money and betroth a woman with it. Now if the money is not mine, I cannot betroth a woman with it. But if it is mine, then yes. Since there is doubt regarding this money, the question now is: what is the law if I betroth a woman with it? Does the legal determination that this money is mine also mean that I can betroth a woman with it, or not? Are they only telling me that I can keep it with me, but that does not mean that the doubt has been resolved and that this money is really certainly mine? It remains doubtful. So I said—and we discussed this—I said this is very, very implausible. That is, it is implausible that the court would issue a ruling that leaves the doubtful state intact. What is the meaning of saying I can keep the money if I cannot use it for anything? What does that mean? That I do not have to give it to the plaintiff? Obviously I do not have to give it to the plaintiff; he too is in doubt. So what is the difference? What does that have to do with me? I use the money because as far as I am concerned it is mine. The novelty in “the burden of proof is on the one who seeks to take from another”—what is it? This actually somewhat resembles “whoever is stronger prevails.” And with “whoever is stronger prevails,” there are those—some commentators—who claim that this ruling is basically a kind of withdrawal by the court. The court does not rule; it only says: you did not give me enough reason to act. So I am not acting; keep fighting among yourselves. There indeed everything remains doubtful; there is no court ruling; the court simply withdrew. But “the burden of proof is on the one who seeks to take from another” is not withdrawal in the full sense, because a ruling is being made here. They are saying that the money can remain with me; they are not saying, now go fight. So that means there is a ruling here, not a withdrawal. And if this is a ruling, then the ruling says I can keep the money with me—but without using it? So what is the meaning of saying it stays with me? Is it just a question of where we put it? In my house or in yours? On the face of it, the intention is that I can also make use of it. I’ll say more than that; we already discussed this. I’ll say more than that: after all, Kuntres HaSfeikot himself—notice—why doesn’t he ask what happens if I bought a field with this money? Right? I have money that was ruled to be mine because of doubt—“the burden of proof is on the one who seeks to take from another”—they told me, okay, you won the money. Now I want to buy a field with it. There too there is doubt whether I bought the field or not, because maybe the money is not mine. Why does Kuntres HaSfeikot focus—I don’t remember if I asked this too, maybe I did—why does he focus specifically… yes yes, the Rabbi discussed this last week… what? The Rabbi discussed this last week. I can’t hear. I’m saying the Rabbi discussed this last week. Ah, okay, so I’ll do it only briefly. Yes, so the question is why he focuses specifically on the case where I betroth a woman with this money and not on the case where I buy a field with it. Somehow it seems that regarding buying a field it is obvious to him that I can, and that is also very obvious, because as I said before, if the money is indeed—if the court ruled that I may keep it with me, that means I can also use it, otherwise what is the meaning of saying the money remains with me. Except then the question arises: so what is the basis for saying that I cannot betroth a woman with it? If I can buy a field with it or buy other things with it, why can’t I betroth a woman with it? Whichever way you look at it, if they decided that this money is mine, then it is mine. So it seems that Kuntres HaSfeikot agrees that there is no real doubt here. Meaning, when the court ruled, it ruled; after it ruled, it is indeed mine, and I can make use of it. And still he hesitates about what happens if I betroth a woman with this money, but he does not hesitate over the question of what happens if I buy a field with it. So we discussed this—the question whether seizure helps or does not help—and I also discussed how to rule on that question. I said that I would rule on this from reason alone, without getting into sources or the medieval authorities (Rishonim) or proofs one way or the other. It seems obvious to me that when the court rules, then it is mine. If it is mine, I can buy a field, I can betroth a woman, I can do anything. But still there is something here that Kuntres HaSfeikot is nevertheless uncertain about, and he even ties it to a dispute. Meaning, in his view there are opinions among the halakhic decisors that really say you cannot betroth a woman with it. According to the views that seizure is effective, then you cannot betroth a woman with it—that is his claim. I claim that the views saying seizure works are also incorrect, so in any case it is not relevant to say that you cannot betroth a woman with it. But never mind, such views exist. This ties into first-order ruling. The fact that such views exist—so what? I think they are wrong. If you want to make calculations based on every view that exists—you should try to understand what they are saying, fine—but in the end I ask myself what Jewish law is, and I need to rule what seems right to me. So that is a comment on first-order ruling. But let’s get back to our point. The claim is basically that Kuntres HaSfeikot apparently did see some angle here, and the later authorities (Acharonim) who came after him also saw some angle here, that despite the fact that the court ruled that the money is mine, and despite the fact that I can buy a field with it—meaning, that seems quite clear; Kuntres HaSfeikot does not seem uncertain about that, meaning it is clear—even assuming that I can buy a field with it, maybe I cannot betroth a woman with it. The question then arises: why not? In the end, what is the problem in betrothing a woman with money? The question is whether the money is mine. After all, if he can buy a field with it, then you decided that it is mine. If it is mine, why should I not be able to betroth a woman with it? What is the difference between those two things? Here by the way, this itself is a question that, for example, I did not see. I did not see, among those dealing with this inquiry of Kuntres HaSfeikot—I mean, maybe I did not dig enough—but I did not see anyone remark on why he speaks only about betrothal of a woman and not about purchase of a field. In my view that is an obvious question. And somehow people just pass over it—it is as though maybe it is obvious. Maybe it is intuitively obvious to them; I do not know exactly why. But it is not a question people ask. And to me, it is a basic question that should arise here, because it actually sheds somewhat different light on our whole discussion. Because if you say that according to all opinions one can buy a field with it, then this is not just the question whether this is really a ruling or a withdrawal. The fact is that there is a ruling here saying I can also use the money. Then the question arises: all right, if so, then why not betroth a woman with it? There is something here demanding explanation; this is not something you can just brush past. So it seems to me that the reasoning I gave also in the previous lesson—that it cannot be that the court rules and yet the money is not mine for my use, but I am merely allowed to keep it in my house—such a ruling has no meaning. Therefore it is clear that it is also available for my use. But it is available for my use to buy a field. What does that mean? Why? Meaning, in the background it is clear that the doubt about who is right in the case—meaning whose money it really is, not what the court ruled—apparently still remains in the background. Even after the court ruled, the doubt whether the plaintiff was right or whether I was right is still not erased from the world. And we see this in the inquiry of Kuntres HaSfeikot regarding betrothal. So why is it different with a field? It seems to me it works like this. In monetary law—and this is the point from which I want to begin today—I think up to here we have seen all this. In monetary law, it seems to me, one cannot live with normative duality. That is, you cannot say that the money belongs to you at the Torah level and to him at the rabbinic level, or that the money is in real doubt between the two of you but belongs to you legally. Meaning, if legally I determined that it is mine, then that is it, the doubt is erased. You cannot say it is both doubtful and yours. Why not? I think the reason is that in monetary law there are two sides to the dilemma. Right? As they say: in criminal law you need proof beyond a reasonable doubt in order to convict the defendant, but in civil law fifty-one percent is enough. Why? Because in civil law, if you exempt the defendant, then you ruled in his favor and against the plaintiff. If you obligate the defendant, then you ruled against him and in favor of the plaintiff. There is not one defendant here; there are two sides. Leniency for one is stringency for the other. So here, if you require the plaintiff to produce proof beyond reasonable doubt, then in effect you left the money with the defendant even though you have a very large doubt whether it is his or not. There is no escaping that. Therefore, in a place where there are two sides, the legal situation is different from the criminal one where we are speaking about one individual. That is just an example; I am only trying to illustrate an idea. And the claim is—let us look, say, at whether a rabbinic acquisition is effective at the Torah level; I think I also mentioned this, I no longer remember—whether a rabbinic acquisition is effective at the Torah level. Right? “In the presence of all three” when transferring debt documents—that is a rabbinic acquisition. I transfer to you a document, a promissory note, that someone owes me money on, and I want to transfer the document to you, so this can be done in the presence of all three: the borrower, the lender, and the buyer can, in the presence of all three, transfer the document. This is a rabbinic enactment. So it turns out that only rabbinically it is yours; at the Torah level it is not yours, because this acquisition works only rabbinically. So it comes out that at the Torah level it is mine and rabbinically it is yours. Now the question is whether you can betroth a woman with it. Is a rabbinic acquisition effective for Torah law? A question very similar to Kuntres HaSfeikot, and there too there is a dispute over whether a rabbinic acquisition is effective for Torah law. And there too it is clear to me that it is effective—personally, it is clear to me. You cannot say that it is not effective. Why? Because on the level of monetary law you cannot say that this money is yours rabbinically and mine at the Torah level. You can say that this acquisition was indeed instituted by the Sages, but after the Sages instituted it, now the money is yours. You cannot say that the money is yours rabbinically and mine at the Torah level. So can I betroth a woman with money that is in your possession and rightfully yours? Such a legal situation is intolerable. Why? Because whenever I have doubt about money, it is not a doubt of prohibition regarding my own status. Doubt about money is always a doubt between two people: is this money yours or is this money mine? Therefore specifically in monetary law, unlike prohibitions, we are apparently not willing to live with normative duality. That is, there will not be a gap between, say, rabbinic and Torah law. We will not determine that this money is yours rabbinically and mine at the Torah level. And by the same token we will also not be willing to accept that a doubt remains—this money still remains doubtful money—but you are legally allowed to use it. No. If you are allowed to use it, then the doubt does not exist; it does not exist. I am not claiming that I now know that it does not—but at the Torah level and not at the Torah level, or that it is doubtful whether it belongs to you or him but you are allowed to use it. No. If it is doubtful, then it is doubtful. Meaning, in monetary law we are not willing to accept normative duality. In prohibitions, by contrast, yes. For example? What happens even in matters of marriage law, which are legal prohibitions, not kosher-law prohibitions—right? not Yoreh De’ah, Even HaEzer. For example, there is a bill of divorce that is invalid rabbinically. I gave a woman a bill of divorce that is valid at the Torah level, invalid rabbinically. What happens in such a case? The woman is in effect divorced at the Torah level and a married woman rabbinically. Right? That is basically what comes out. Because at the Torah level there is a valid bill of divorce, so she is divorced, but rabbinically the bill of divorce is invalid, so rabbinically she is not divorced. There are several kinds of rabbinic invalidations, but this is one of them. One of the kinds where the woman remains a married woman rabbinically. So now what do we say to do with such a thing? Again, this is normative duality, right? Just like whether a rabbinic acquisition is effective at the Torah level or not effective at the Torah level—but every rabbinic enactment is like that. Every rabbinic enactment basically says: there is a certain Torah-level state, but I rabbinically enact that there should be another state. So there is always some kind of duality. Right? What Rabbi Akiva Eiger and the Magen Avraham discuss: what happens if someone blows the shofar on Rosh Hashanah that falls on the Sabbath. The Sages told him not to blow. Now there is a Torah commandment to blow according to the Babylonian Talmud. According to the Babylonian Talmud it is only a rabbinic enactment not to blow, lest one carry it four cubits. But at the Torah level there is a full commandment to blow even on Rosh Hashanah that falls on the Sabbath. So now today it is forbidden. Someone transgressed and blew. So on the one hand he has a Torah-level commandment in principle, and on the other hand he committed a rabbinic transgression. This is a commandment fulfilled through a transgression, so it could be that—well, not “could be,” rather—you are not supposed to do it. But there is still a Torah commandment there. Suppose, for example—I do not know—some change occurs: did he fulfill his obligation or not? Suppose he has another opportunity to blow the shofar, I don’t know, through a non-Jew, whatever, right? If he fulfilled his obligation, then he has no need to blow again; he already fulfilled it. If not, then he has to blow again. So is that blowing considered a valid blowing? After all, at the Torah level it is a valid blowing, only rabbinically it is not. Right? So there is a dispute—Rabbi Akiva Eiger and the Magen Avraham, that is the usual way this is understood. I am not entirely sure it is really a dispute—but the question is whether such blowing is effective or not effective. At the Torah level yes, rabbinically no—but perhaps at the Torah level it still works, and you even have a commandment to your credit. So we see that on the plane of prohibitions we are definitely willing to live with duality. At the Torah level you blew, and rabbinically you did not blow, and rabbinically you committed a transgression. What is every rabbinic law if not duality? At the Torah level it is permitted; rabbinically it is forbidden. Every rabbinic law is a kind of duality. Yes. Rabbi, doesn’t this technocracy make the whole thing ridiculous? I mean, in the end we are not doing all this in order to perform procedures—we want to obey the word of God. So God doesn’t know what He wants? He says, I want this, but I also want you to do what the Sages said, so really—I don’t know—do this, do that, everything is fine. It really makes the whole story absurd. God knows perfectly well, and I too know exactly what He wants. He wants me, at the Torah level, to blow, and rabbinically not to blow. No, that’s absurd. Is that the right thing to do or not the right thing to do? Is that the proper thing to do or not proper? Unless, again, we return to the repair of eternity within acknowledgment. It is right at the Torah level and not right rabbinically. What is the problem? No, but in the end a decision has to be made. It is very nice that they choose among many values. In the end there has to be a decision. That is the whole story. Take the chocolate example, right? The chocolate is not healthy; it is very tasty, but it is not healthy. So now if I decided to eat it, that probably means I prefer considerations of taste over considerations of health. No—but whoever made that decision, it is a real decision. That is the value in his eyes and not the other thing. What—does he dance at all the weddings? Has the Rabbi suddenly become a relativist? What? On the contrary, this is exactly the whole idea of decision. Exactly the opposite of relativism. This is what is called harmonism. Relativism means that both are right. No. Harmonism means there is one thing. What does it mean “both are right”? There are conflicting values, a conflict. But when someone decides within a conflict, then he knows what value matters in his eyes—that this is the right value in his eyes at this moment, in this matter, for him. It has nothing to do with conflict. It is not about conflicts. There is a question here with two sides. From one side it is worthwhile to eat the chocolate and from the other side it is not worthwhile to eat the chocolate. Two values. One value is the value of enjoyment. But someone has to decide, a person has to decide, a person has to decide. And when he decides something, then he decides—unless he does not want to decide. Wait. Now I ask: after I decided to eat the chocolate, did the chocolate become healthy? No, obviously not. But did you, the person, become healthy? The person? No, but you ask him what value matters to him. What matters to me is health—that is not important. Let me, let me—regarding blowing the shofar, rabbinically you are not supposed to blow, and at the Torah level you are supposed to blow. Those two sides remain forever; they both exist. No, I am talking about the point of view, so to speak, of God—wait. Fine, but now I ask myself what to do in practice, just as with the chocolate; it is exactly like the chocolate. You ask what to do in practice? What I will do in practice is not blow, obviously. What Jewish law requires of me is that the rabbinic level overrides the Torah level, and so I do not blow. But that does not mean that if I did blow, I did not fulfill the Torah-level obligation. Just as it does not mean that if I ate the chocolate even though—wait—even though if I ate the chocolate despite deciding it was not worthwhile to eat it, then did I not enjoy it? Obviously I enjoyed it. No, but I am doing this for God. And I am doing it for God. What does God want? If I could ask God, what did You decide—chocolate, pleasure or health? Then He would say: I don’t know, whatever you do is good. I answered that, and I will answer it again—I answered it and I will answer again. God wants you not to blow the shofar. Why? Because God says: true, at the Torah level there is value in this blowing, but rabbinically there is not, and I prefer the rabbinic level over the Torah level—exactly like the chocolate. Exactly like the chocolate. Wait. If the Holy One does not want us to blow and we blew, how did we fulfill a commandment by that? How can it be that I fulfilled the word of God? Because at the Torah level there is a commandment here. What do you mean, how do I fulfill the word of God? In the end the Holy One decided that in the presence of the rabbinic prohibition one should not blow. So I say no, He did not decide that. He established a rabbinic prohibition not to blow. But that does not mean that if you blew, you did not fulfill the Torah-level commandment. If you ate the chocolate despite deciding not to eat it, then did you not enjoy it? Did I fulfill the word of God? The Rabbi agrees that I did not fulfill the word of God here. So what commandment are we talking about? I fulfilled some potential of repairing some eternity within acknowledgment—that is the whole story. But the Rabbi understands what I am asking. I did not do what He told me in the bottom line, because in the bottom line the rabbinic level overrides the Torah level. But that does not mean that if you blew, you did not fulfill the Torah-level obligation. The Talmud says, “If one did it, does it take effect or not take effect,” and according to Abaye, “If one did it, it takes effect.” What does “takes effect” mean? It means that if I make a substitution of sanctified animals, even though the Torah prohibits making such a substitution, it will still take effect. Even though the Torah does not want there to be a substitution. So what does that mean? That I did God’s will? No. But it still takes effect; there is a reality. In reality I performed a Torah-level commandment. The Holy One does not want this commandment. Fine. But I still performed the commandment. These are two different aspects. Isn’t it an oxymoron to say that I fulfilled a commandment against the will of God? No, no, it is not. That is why a verse is needed: “I the Lord hate robbery in a burnt offering,” which speaks about a commandment fulfilled through a transgression. And what does the verse say? It says that a commandment fulfilled through a transgression invalidates the commandment. Because without the verse I would say: the commandment remains a commandment and the transgression remains a transgression. I committed a transgression and fulfilled a commandment. The verse comes to teach me that “I the Lord hate robbery in a burnt offering,” meaning that the commandment did not count for me either. But that is all in places where there is a commandment fulfilled through a transgression. But in places where there is some clash of one sort or another, it could be that I did this side and did not do that side—each thing on its own merits. And a rabbinic transgression is not considered a commandment fulfilled through a transgression? Do you hear? Blowing the shofar—is that not considered a commandment fulfilled through a transgression? So there is a question whether it counts as a commandment fulfilled through a transgression because it is a rabbinic transgression. There is room to hesitate about that. And in general, according to Tosafot in tractate Sukkah, a commandment fulfilled through a transgression is itself only a rabbinic rule. The fact that it invalidates the commandment is only rabbinic. He asks there: after all, why do we need the verse “for yourselves” regarding a stolen sukkah? In short, I see no problem at all. There are two sides here, and those two sides remain in place despite the existence of a bottom line. Exactly like the chocolate—there is no difference. And if I return to our issue, then basically the claim is that on the plane of prohibitions we are apparently willing to live with normative duality. Something can be one way at the Torah level and another way at the rabbinic level. Something can be—sorry—but in monetary law, in monetary law, no. Why? Because I think—and this is my suggestion—because in monetary law two people are involved. So there I cannot say that at the Torah level it is yours and rabbinically it is his. That is chaos. If both of us betroth a woman with it, then will she be your wife rabbinically and my wife at the Torah level? That is just unreasonable. Or the field is yours at the Torah level and mine rabbinically. That simply makes no sense. Therefore on the plane of monetary law, halakhah apparently—or at least reason suggests—there are those who disagree, clearly, because they say a rabbinic acquisition is not effective at the Torah level—but I say simple reason says that is not true. And why? Because reason says that on the plane of monetary law I am not willing to accept normative duality, even though on the plane of prohibitions there are many such examples. And now we can discuss the question of Kuntres HaSfeikot regarding betrothal of a woman. Because Kuntres HaSfeikot says there that if they ruled that this money is mine, then I can buy a field with it, right? That is implied by his words—that he has no doubt about that. Why? Because I can use the money to buy a field. But betrothing a woman is something else. There it may be something else, and there he has his inquiry: is it effective or not effective? What is the idea? Because betrothing a woman is a prohibition issue; it is not monetary law. So one can say that when I betroth a woman with it, then the woman is betrothed to me at the Torah level and not betrothed to me rabbinically, or she is betrothed or it is doubtful whether she is betrothed to me or not. That is it. In principle this is a doubt in the realm of prohibition, even though it belongs to marriage law and not dietary law. And with prohibitions we have already seen that normative duality can exist. What happens when I buy a field with this money? After all, the Sages have the power that “property declared ownerless by the court is ownerless,” so the Sages can allow me to use the money even if it is not mine. In principle they have the power to confiscate property, so likewise they can allow me to use the money even if they have not confiscated it, even if it still remains doubtful and they do not want to confiscate money that may belong to someone else, so they do not enter into the question of doubt. But since we ruled that the money may remain with you because you are the possessor, then you may also use it; otherwise there is no meaning at all to its remaining with you. But all that applies to uses that are monetary uses—buying a field. There the court says: we can confiscate the money, so we also recognize your purchase of the field. But when I come to betroth a woman, the Sages cannot say that the woman should be betrothed to me even though she is not betrothed to me. They have no such authority. Therefore with regard to betrothing a woman, it could be that the doubt concerning the money remains intact despite the court’s ruling that the burden of proof is on the one who seeks to take from another. Maybe. They could have declared the coin itself ownerless. What? They could have declared the coin itself ownerless too. Right. Ah, now I remember that actually we discussed that too. Yes, we did discuss it. The Rabbi also said that it is bizarre. Right, right—that is what I had not yet gotten to. Yes, so I said that apparently, according to that view, they do not want to declare the money itself ownerless. They do not want to, because they say: look, if the money belongs to someone else, we do not want to take the money from him. After all, it is his. True, for the time being, since he cannot do anything with it, we will allow this person to use the money, because there is no point in just keeping it such that neither I nor you can have it. So we allow you to use the money, but we do not confiscate it. For example, if later two witnesses come, we will take the money from you. Meaning, this is not forever—you cannot keep it indefinitely. They said, fine, in the meantime use it, you may use it. And if something happens, then it happens; there is nothing to do. But all this is only about uses that are monetary uses. Rabbi, isn’t there benefit of use in this money, in this coin, even if it is not his? But after the Sages gave him permission to use it, that itself has value—the very right of use. So when he betroths a woman, even if the Sages were too lazy to make it ownerless for him, still there is benefit of use here and it is worth a perutah. So what—therefore what? Then he can betroth a woman not with the coin itself but with the benefit of use that the Sages allowed him for purposes like buying a field with it. I am talking about betrothing with the coin, not with the benefit. But what do you mean? When a woman receives a coin, does she care—what if the Rabbi says a novel thing here, that according to Kuntres HaSfeikot, if he says to her, take this shekel, but not with the shekel itself… The Talmud in tractate Kiddushin 6 distinguishes between one who betroths with a loan and one who betroths with the benefit of forgiving a loan. These are two different things. One who betroths with a loan—she is not betrothed. With the benefit of forgiving a loan—she is betrothed. Now according to you that is the same thing. Because when the woman owes me money and I betroth her with the loan, what do you mean? I gave her the benefit that she now has an extra hundred shekels that she does not need to repay me. No. There is betrothing with a loan, and there is betrothing with the benefit of forgiving a loan. Those are two different things. You have to decide with what exactly you are betrothing her. So if he says to her explicitly, look, I am not betrothing you with the coin itself but with the benefit of the coin, then all is well. So maybe indeed the Sages said there is no need to change anything here, because you can betroth her however you want. No, but in the case of a loan they did not say that. They make that distinction. No, I am saying in this specific case they did not make the coin ownerless because for the purposes of betrothing a woman it is not practical—it is not practical, because you can betroth with the benefit of forgiveness, so she will indeed be betrothed. But if you mean with the benefit of use, not the benefit of forgiveness—with the benefit of using the money. But with the money itself, then Kuntres HaSfeikot remains uncertain—maybe she would not be betrothed. And the question is: what is the source of his doubt? What is his side? I am trying to explain his side, not the side that says yes. No, I meant: why did the Rabbi ask why the Sages decided here not to make it ownerless and give him the shekel for purposes of betrothing a woman? Maybe because he can betroth a woman anyway, even in this situation… through the benefit involved. Yes, I understand. Maybe, I don’t know, that could be. In any case, apparently according to that view they did not declare the money itself ownerless—and that is fairly clear, because otherwise even regarding betrothal he would not have been able to betroth. In short, what we see here—and this is the important point for our purposes; one could elaborate here, but what I want to demonstrate through this matter is again a kind of question that usually you will not hear people asking when dealing with this topic. People discuss whether a rabbinic acquisition is effective at the Torah level; they discuss this Kuntres HaSfeikot, whether one can betroth a woman with it or not. But I am now asking a broader, meta-halakhic question: is a state of normative duality possible or impossible in halakhah? Understand that this is a more abstract and more general formulation of the same question. But once you place it in a much broader context, now I say: wait a second, every rabbinic enactment is normative duality. Whether a rabbinic acquisition is effective at the Torah level is also normative duality. Suddenly many, many topics connect to this question of Kuntres HaSfeikot. Why? Because I placed it within a broader theoretical conceptual context. And this is part of the same kind of thinking I have been talking about—first-order thinking. Basically, this means I do not look and say, because Kuntres HaSfeikot said yes, and that one said no, and there is this reasoning and that reasoning. Wait, wait—let us try to think for a moment what is really going on here, what is the conceptual framework within which this whole discussion is being conducted. In other words, placing things in context is one of the characteristics I spoke about in previous lessons. Placing things in context is one of the characteristics of first-order thinking, because when you place things in context you can suddenly form a position and say what seems right to you, instead of deciding: Maimonides says this, Rashba says that, a Torah-level doubt is treated stringently and a rabbinic-level doubt leniently. Rather, enter into the topic itself and ask whether it seems logical to you or not. That is the meaning of first-order ruling. Is Maimonides right or is Rashba right? Not “a Torah-level doubt is treated stringently.” Which one seems more plausible to you? I think I mentioned that story about my friend who was the representative of Mishmeret STa"M in Pardes Hanna. He was a committed Maimonidean, and he was the representative of Mishmeret STa"M in Pardes Hanna. People would ask him questions about scribal matters, such as mezuzot and tefillin and the like. And he once told me that there was a question that had come up for him several times, and he used to ask Rabbi Nissim Karelitz and Rabbi Wosner—both of blessed memory. And he knew that when he went to Rabbi Nissim Karelitz, he would answer, say, yes; and when he went to Rabbi Wosner, he would answer no. I no longer remember exactly what the question was or what each one answered, but that was the case, that was the situation. So he told me: look, now this same question has come up again. Now whichever one I go to, I already know the answer. So I only need to decide whom to go to. So what am I supposed to do in a case like that? I said to him: what do you mean decide? What do you think? Don’t go to either one. Decide what you think. And if you have no position, then there are laws of doubt—act according to the laws of doubt. I said, here again—but in order to do that, not to cling to precedents but to decide for yourself, you really need to enter into the topic, into the reasoning, and ask yourself what sounds more plausible. Not whether Rabbi Wosner is greater than Rabbi Nissim or Rabbi Nissim is greater than Rabbi Wosner—just as examples—or questions of that sort, which are second-order decisor questions. So very often first-order ruling, as I did and demonstrated here with possession status—for me it is clear that a rabbinic acquisition is effective at the Torah level, and clear to me that with “the burden of proof is on the one who seeks to take from another,” one can betroth a woman with it. In this case, most decisors agree with this too, so I am in good company. But it is clear—it is clear to me from reason; I do not even get into the proofs, as I said earlier. It is simple. Why is it simple? Now I know how to account for why it is simple, because I look at this concept, at this law, in a much broader context. I ask myself: wait, there is normative duality here. Does it make sense to live with normative duality in monetary law? No. In prohibitions yes; in monetary law no. Why? For example, because there are two sides. That is one possible explanation. But I am giving myself an account of why my intuition rebels so strongly against life with duality in monetary law. In prohibitions it happens every day—we live with duality very often in prohibitions. In monetary law, no. So the very distinction between monetary law and prohibitions, the very recourse to this question of living with normative duality, is not the kind of question people ask in the study hall. It is just not the kind of question that gets asked. And I think that is part of the problem—that people do not place things in the broader context. Meaning, almost all the series I give, both on Thursdays and on Fridays—they… no matter what else was there, there were many things: disputes, truth, doubts, and so on. All these things, the lessons move back and forth between philosophy and halakhah and various connections—mathematics, I don’t know, logic, all kinds of different and strange contexts that all really deal with the same issue. I think, it seems to me at least, that for me the transition is completely natural. I am not trying to create some artificial link between fields. For me, the philosophical inquiry is the inquiry with which I later go to halakhah and ask myself what my position is in the halakhic topic. I ask myself whether I am a Platonist or not a Platonist, or whether causality is conceived by me in this way or that way. And when I know how to define the issues in that fashion, then the decision I can make on the conceptual and philosophical level helps me rule in the halakhic issue on the first-order level, because I can form a position about what I think. And this use of—or this transition between different contexts or between different fields—is a transition that simply follows from the kind of questions you ask. If you ask the questions at their abstract level, you immediately find yourself in philosophy. You do not need to think what the parallel philosophical issue is to the halakhic issue you are dealing with. You arrive there immediately. All you need to do is define in a more theoretical, conceptual, general, more foundational way what is being discussed here. Then you say: in the question of whether a rabbinic acquisition is effective at the Torah level, I immediately arrive at the question of duality—what it means to live with duality, what the meaning of duality is. And then of course you can get to the chocolate example and all those things, which already have many implications, also in ethics and in many other areas. But the link is completely natural. It is not something that suddenly popped into my head—ah, interesting, this reminds me of what happens there, reminds me of what happens here. It is the same thing. You just need to enter the foundational conceptual context that underlies the halakhic discussion. And that, usually, even in the analytic Torah world where people deal in abstraction and try to provide definitions, is not done. They do not do it. The thinking is more local. In fact, when the thinking is broad, it is usually seen by analytic Torah scholars as casuistry. Meaning, one who connects different topics because they share the same line of thought, like the Rogatchover and so on, is usually seen by analytic scholars as engaging in casuistry. They work locally, like Rabbi Chaim. Rabbi Chaim, the father of the analysts, with his excellent analytical ability and wonderful conceptual definitions, never asks the sort of questions I am asking, the kind I talked about here. It will always be local. And I think that is a pity, because it misses the understanding of the topic and also does not allow you to decide. And I already mentioned that Rabbi Chaim was exactly the rabbi of Brisk who was paid to be the rabbi of Brisk and did not decide halakhic questions. He would always send people to Rabbi Simcha Zelig. Or the famous story where he sent a question to Rabbi Yitzchak Elchanan of Kovno and said to him: answer me only yes or no, without proofs. If you bring proofs, for every proof I will bring counter-proofs. Just tell me yes or no. Meaning, he could not decide, he could not decide, because he was a type who knew how to analyze. But when you analyze each position on its own terms and resolve its difficulties and so on, in the end you are left with two positions, both coherent. So what do you do with that? Who is right? How do you decide? I mentioned, I think, that Briskers are stringent in accordance with all the views of the medieval authorities (Rishonim) in order to satisfy all the views of the medieval authorities, and people think that this is because of an excess of fear of Heaven. And maybe there is fear of Heaven there too, but this stringency is not because of fear of Heaven; it is because of inability to decide. Once you cannot decide, because you know how to explain every one of the medieval authorities and answer all the difficulties raised against them because you have excellent analytical ability, then you cannot decide who is right. Once you cannot decide who is right, you need to be stringent like all of them in order to be sure of fulfilling your obligation. But if you decide, you say: this seems right to me and that does not seem right to me—then that is it. So I think that a rabbinic acquisition is effective at the Torah level, and I know there is a dispute among medieval and later authorities about this. Okay, so what? This is what I think, and this is how I act. That is perhaps just a closing remark on this issue. There is—I thought about this—I wrote about it in a column dealing with complexity. Multidisciplinarity is a subject that occupies me quite a bit. And almost every time I encounter a multidisciplinary collection of essays or a multidisciplinary conference, I am disappointed that there is not really multidisciplinarity there. Because multidisciplinarity can be of two kinds. There is a kind that mixes. One can show that certain patterns of thought found here also exist there. That is one type of multidisciplinarity. By the way, logic was basically born from that insight: that the structure or schema of a logical argument is the same whether it appears in law, art, literature, philosophy, mathematics, physics, or whatever else. The logical schema is the same. Every X is Y; if A is X, then conclusion: A is Y. What you insert into A, X, and Y determines whether it is an argument in law, in biology, in philosophy, or wherever. But the schema is the same. That is basically a result of multidisciplinarity, because this kind of multidisciplinarity says that if I look at this in different disciplines, I can see that the same forms of thought appear in several places. And why does that help? Because perhaps in one discipline they have advanced further with it, and then you can use that as an aid in another discipline. And I already gave a few examples of this when we discussed—in what context was it? I no longer remember. I spoke in philosophy of science about Francis Bacon. Francis Bacon in the sixteenth century described, or claimed to describe, the way science works. He says: what do you do? First collect facts, then think and try to subsume them under a general law, then test the general law again, and so on. But you move from the facts to the law, to the theory. But in practice that is not how it works; it cannot work that way. It cannot work that way because if we do not know what the theory is, then we have no way to know what facts to look at. Right, the Rabbi gave the example with the hospital there. Yes, exactly. So I gave an example. On the one hand, in the philosophy of natural science there is the example of Semmelweis, who was searching for the cause of puerperal fever, and he did not know where to look because he had no idea what the theory was—what causes puerperal fever? If you do not know the cause, then how do you know? Maybe it is the color of the head nurse’s coat in the ward, the direction of the windows, the pitch of the priest’s bell, or things of that sort. You have no idea what fact to look at. So that was in the philosophy of natural science. But also in history, in the book by Carr, the well-known British historian from the early twentieth century, What Is History?, that is the name of the book—he asks the same question. When you want to know why Napoleon was defeated at Waterloo, you say to yourself: let us look at the facts, and from that we will arrive at the explanation of why he was defeated. But which facts should we look at? What was Napoleon’s height? What was the shape of his hat? What was his mother’s name? I don’t know—what facts should we look at? If you do not understand what parameters govern victory in battle, you have no way of knowing which facts are relevant and which are not. Again, I will not go into all of this because I already discussed it in the past, but this is exactly the same move found in Carr’s history book at the beginning of the twentieth century and the same move usually attributed to Carl Hempel, a philosopher of natural science, who relies on Semmelweis. It is exactly the same thing, the same logic, all the same. Only one is in history and one is in medicine. The exact same move. Now if they had known about one another, there would have been no need to develop it twice. There would have been no need to get tangled up; very often people get tangled up because they are not dealing with the problem, while in another field it may already have been solved. As for mathematicians, that is their craft: seeing that the same mathematical structure exists in all sorts of different places. Then you say: okay, let us handle the mathematical structure itself. If we solve the problem on that plane, then we have solved the entire set of problems in all the other fields that serve as models for the mathematical theory I am studying. Then I have solved all those problems at once, because fundamentally it is all the same structure. The same problem itself appears in all those fields. That is one kind of multidisciplinarity. Another kind of multidisciplinarity is using different disciplines in order to solve a problem. Meaning, you need help from experts in different fields who sit together or work together to solve a problem. The field that seems to me the most obviously multidisciplinary is brain research. In brain research there are physicists, mathematicians, computer scientists, psychologists, psychiatrists—did I say biologists?—whatever I already said, and philosophers of course. They sit there, and you really need the combination of all of them in order to make progress. No single field alone can make progress. But it is not that the same forms of thought appear in computer science and biology and… rather, each one contributes its own input, and together they may solve the problem that no one alone can solve. That too is multidisciplinarity. It is cooperation among different disciplines. It is not export or import from one discipline to another, but collaboration among many disciplines in order to solve a problem together. That is another type of multidisciplinarity. Now, if I return to study—to study or first-order ruling—placing things in context can basically make use mainly of the first kind of multidisciplinarity. It basically says that this form of thought also appears in philosophy or psychology or mathematics or I don’t know, in all sorts of other places. And I can see the parallels between the fields because one can basically translate the problems from one to another. Sometimes it is built that way, and sometimes it is built as the second type of multidisciplinarity. Meaning, mathematics can help me solve—a combination of mathematics and psychology can help me solve a problem in the Talmud that I cannot solve with either one alone; I need help from outside disciplines in order to understand what is going on here. That is multidisciplinarity of the second kind. But either way, in every case, to get there you need to try to understand what the cognitive structures are, what the essence of the topic is, what lies on the conceptual level without the halakhic details or the specific halakhic contexts in which I am working. I want to understand the structure. What is the structure found here? To strip it of the specific contents with which I am dealing. Because whether a rabbinic acquisition is effective at the Torah level is connected with the laws of acquisition. What is rabbinic? What is Torah-level? All kinds of things that need to be understood in halakhah in order to discuss it. I say: leave that aside. There is such a thing called rabbinic and such a thing called Torah-level. Those are two planes of reference. I have already forgotten that they are called rabbinic and Torah-level; there are two planes of reference. Can I handle the same problem on two planes of reference and arrive at different answers on each plane and live with both of them? You understand that if I formulate the question this way, you would not even recognize that this is actually the question whether a rabbinic acquisition is effective at the Torah level or not. And this is also the question of Kuntres HaSfeikot—whether, when a ruling from doubt leaves money with the possessor because the burden of proof is on the one who seeks to take from another, one can betroth a woman with it or not. And this is also connected to blowing the shofar on Rosh Hashanah that falls on the Sabbath. You see that things that apparently have nothing to do with one another are all really the same thing. Once you look at them on the conceptual, abstract level, you suddenly see that many topics really deal with this issue, or join up with it, or run parallel to it. That is, either the issue appears in all of them. Sometimes one helps the other, and sometimes it is just a parallel you can identify. Either way, it can definitely help in analyzing the topic and understanding it. Good. So that is regarding the meaning of first-order and second-order. With that I have finished this part of the series on first-order and second-order. Now I want to move on to the next stage, or another chapter in this matter of study and ruling, and I want to talk a bit about what one might call subjective and objective ruling—or ruling… Rabbi, just before we move on, just a question regarding “the burden of proof is on the one who seeks to take from another.” If we say that “the burden of proof is on the one who seeks to take from another”—because after all the Talmud brings a verse there too, right? “Who is the master of words…”—I mean, even though the Talmud says it is a logical argument… First of all, the Talmud says it is a logical argument. But if you say it is from the Torah, does this whole doubt still make sense? Meaning, whether it is really still a doubt? Of course. The question is what the Torah said—what does that have to do with it? The Torah said that in a case of doubt, leave the money with its owner, with the possessor. What did it say? Did it say leave it with him and he can also betroth a woman with it, or leave it with him and he cannot betroth a woman with it? Okay, no, I just mean that if it is from the Torah then seemingly it is obvious that the Torah said that… Why? No, I don’t see why. Again, it is obvious to me even on the rabbinic level; it is obvious in any case, both from reason and at the Torah level. But for someone to whom it is not obvious, he can ask the same question even if it were a verse. Good, thank you. So I now want to move on to something—to ruling in context, because this too is really connected to first-order ruling, but it is nevertheless a somewhat different aspect. So the claim—or the issue—I want to examine is what happens when I need to rule halakhically in extreme situations. And when I rule halakhically in extreme situations, from my point of view this is really only a case that sharpens the more general question of halakhic ruling in a given context. When the context is extreme, you can see the problem and its sides more sharply. But really this exists in every ruling in context. Right? That is basically the claim. I will clarify this in a moment and it will become clearer. So first of all, it is obvious that when I am dealing with a certain context—as we already discussed—you have to clarify the facts related to that context. After I have clarified the facts, I need to rule halakhically in relation to the facts as they have become clear to me. But of course the facts are context-dependent; in every context the facts are different facts, they have different significance, and so on, and you need to rule halakhically in relation to those facts. Now, sometimes this is simple, like swimsuits and so on, which I will not go back to now. Sometimes it is simple, but there are situations where it is not so simple, and that is what I want to talk about a bit. So I might preface this with a comment I once saw in a book by Professor Chaim Soloveitchik, who wrote a book on the prohibition of interest in the Middle Ages—Jewish Law, Economy, and Self-Image, I think it is called. And he surveys, among both Ashkenazic and Sephardic sages in the Middle Ages—the medieval authorities (Rishonim)—various very unusual rulings in the laws of interest. Far-reaching leniencies in the laws of interest, openly against the law of the Talmud. Meaning, against what the Talmud says: they simply permit a Torah prohibition of interest or a rabbinic prohibition of interest. And he argues there—and this is an interesting claim; after all, he is a Brisker, right? He is, I think, the nephew of Rabbi Soloveitchik… the son of Rabbi Soloveitchik… so he is a kind of Rabbi Chaim, or Brisker, and appropriately for a Brisker he really makes a very interesting point there. He argues that there are far-reaching leniencies among the medieval authorities regarding the laws of interest, and not one of them entered the Shulchan Arukh. Meaning, the Shulchan Arukh gathers from the books of the medieval authorities, halakhic decisors, responsa—yes, the medieval authorities—and tries to summarize the laws and arrange them in the Shulchan Arukh, in Yoreh De’ah, the laws of interest. He says: you will find there many rulings taken from those books, but you will not find any of these exceptional rulings that go against the Talmud. And his argument basically—and it is a very interesting one—is that there is the halakhic skeleton, which is the pure halakhah, and that is always correct; that is the Torah itself or pure halakhah. And there are rulings that are called for and correct for their time, and they can go against the skeleton and against the halakhah, but only for their time. Meaning, once the circumstances change, it is no longer relevant; you can throw the book away. That is, this is not really part of the halakhic corpus at all. The halakhic corpus that the Shulchan Arukh gathers—let us say the Shulchan Arukh is its representative—it gathers the objective part, the part that is always true in every state and every situation, that has accumulated through the generations—not only things that always existed, but things valid for all time, including things that developed over the generations. But those things that are local deviations, relevant to a specific place and time where that leniency was needed for one reason or another, against the halakhah—he does not claim it was wrong to do it. It was fine to do it, but only for their time, their place, their circumstances. On what basis is it fine? What? What do you mean, it is fine? I did not understand. There are situations in which ruling follows “It is a time to act for the Lord; they have violated Your Torah.” You go against halakhah; the halakhic authority issues a ruling against halakhah. Fine. So then you are not saying that interest is permitted. You have to see what exactly the ruling was there. If the ruling says there is no interest there, then clearly that is not what he means. What do you mean there is no interest? The medieval authorities ruled there that it is permitted to do this—not for a private person. Period. So the Shulchan Arukh will bring what appears in that same book, in that same topic, but not that. None of those halakhot will enter the Shulchan Arukh. Meaning, there is something—I read an article once about ruling during the Holocaust—there I read the phrase “by the authority of Heaven and by the authority of the public.” Meaning, there is ruling “by the authority of Heaven,” the Holy One, and there is ruling “by the authority of the public.” That is, there are certain circumstances, a certain community, a certain place, where one needs to deviate from the authority of Heaven and follow the authority of the public. But our halakhot are only the authority of Heaven. That is what continues on, gets transmitted through the generations—that is only the authority of Heaven. Of course, “authority of Heaven” includes the interpretations added by the Sages, everything. But when this is done as interpretation of Torah that passes through tradition. When it is done as a deviation for a local need at a specific time and under certain circumstances, then it will remain there and stop there and disappear there. Yes, did someone want to say something? Rabbi, couldn’t one formulate it the opposite way? That in principle halakhah should really be specific to each hour and time and people and situation. That is the truth. The ideal higher state is that halakhah is ruled specifically for each event. The problem is that we got stuck with the whole halakhic corpus the Rabbi mentioned—the books and the Oral Torah that became written Torah—and then we are enslaved to everything that was written and to all the generalizations and all that, and then we are forced to call these “temporary exceptions,” but really they are flashes of truth and not flashes of… I would accept the first half of what you said; I do not agree with the second half. Meaning, it could be that—I don’t know, it is partly a matter of definition—but I am willing to accept the claim that in some theoretical world or another, what should have been is that in every circumstance halakhah would be ruled according to those circumstances, and there would not be one general objective binding body for all fields. But I do not accept the second half of your words, which says that we are stuck because it was written down and now what can you do. No. I think it is important for us because we do not live in a utopian world; we live in a real world. And in a real world, with real human beings, if everyone did whatever they wanted in every community and every place, there would be nothing left of halakhah. In the end, you still need some framework. Even if in some place or another you decide to deviate from it, you know that you deviated from the framework and you know the boundaries of the framework. And you will return to it after you finish deviating. Because if that did not exist, we would not be here today. So in a utopian world you may be right, but for us that is not a malfunction; for us it needs to be this way. That is what I do not agree with. We need that framework. You know, I once wrote about this too—I think I also talked about it once. In Yeruham, once a week—I think on Thursdays—some celebrity would come give a talk on the weekly Torah portion, and people would come from all over the area, from the kibbutzim, from Be’er Sheva, all kinds of study groups would come to hear a lesson on the Torah portion. And once Amos Oz was supposed to come, and he didn’t. He said he could not come, and they asked me to replace him. So I used the opportunity to argue with him, even though not in his presence—but I had no way to argue with him in his presence. So I used the opportunity to argue with him, and I took an article of his from Here and There in the Land of Israel 1980—he has such a book. One of the articles there is called “The Full Wagon and the Empty Wagon.” And he claims there that at Sinai there was some huge explosion, the halakhic space was created, and ever since then we have just had this big room, this big empty space, and since then we have only been filling the room with furniture, filling and filling, and not taking anything out, and in the end we are stuck, we have no air, we are completely trapped inside the room that we ourselves filled because we do not allow ourselves to take anything out. And I argued against that picture that it is no achievement if you can take out and bring in whatever you want into the room, because that means you have no framework at all. You are basically doing whatever you want. Once you are not doing whatever you want, that means there is some framework within which you are working, and within that framework you can be creative. Sometimes you can also break the framework, not just be creative within it. But if you smash the framework in that deviation, then you have thrown out the baby with the bathwater. And I brought an example for this from art. Right? There is modern art, or more accurately postmodern art. And it is art that basically—at least in part, and I am a very limited expert in these things, and I also do not believe there are experts in these things—throws out the baby with the bathwater. Because once everything goes, then nothing has any value. In the end, if you need to express creativity, if you want to express something, you have to do it within some framework, some agreed-upon framework. And within that you operate. Then sometimes you can also break it, when the situation is difficult. But you know that you broke a framework. There is a framework here that you broke, and afterwards you come back. But you know that there is some framework here. If you shatter it and simply work without a framework—everyone doing whatever he wants, one putting a toilet and calling it a work of art, yes, Duchamp—everyone doing whatever he wants, then it is worth nothing. It is just nonsense. And yes, one is not allowed to say that today; it is not politically correct. But it is true. Like most things one is not allowed to say today. And I said—yes, the example I gave there—I said: take a chessboard. If there is one piece on the board, okay? How many possibilities are there for arranging the board? Sixty-four. You can put it on any of the sixty-four squares. If there are two pieces, sixty-four times sixty-three. If they are identical then divide by two, it doesn’t matter, but sixty-four times sixty-three, right? For the first you choose one of sixty-four squares, and then sixty-three remain for the second. Meaning, there are sixty-three times more possibilities when you have two pieces than when you have one. When you have three pieces: sixty-four times sixty-three times sixty-two—sixty-two times more. Meaning, the more pieces you add to the board, the more your possibilities multiply; they do not diminish. People think that the more furniture there is in the room, the less possibility you have to be creative, to play with it, to arrange it. Mistake. The more furniture there is in the room, the more creative you can be, because you have many tools to play with. But someone who has no tools in the room can do whatever he wants—his creativity has no meaning. You bring in a tool, take out a tool, do whatever you want. No. I have these tools in the room, and that is a given. I cannot remove them or add them. But I can arrange them in different ways within the room. That is creativity, not existence without a framework. Without a framework, that is not creativity; it is just nihilism. If you want creativity—yes, there is a difference between someone escaping from a guarded prison and someone running in an open field, even though the one in the field runs faster. Because the one escaping from a guarded prison is more creative. Why? Because there is a framework that does not allow him to do it in the ordinary way. You need to be creative to maneuver within the framework. But someone running in an open field, where nothing limits him—that is not creative, that is just running. I once talked about freedom and liberty, and that was the analogy. What I basically want to say is: even when I want to break a framework, there has to be a framework. Smashing a framework is a mistake; breaking a framework is sometimes necessary. That is the concept of a transgression for the sake of Heaven. A transgression for the sake of Heaven is breaking the halakhic framework, but without smashing it. Meaning, understanding that what you did was a transgression. It is necessary; under these circumstances you have no choice—but it is a transgression. I will not break the halakhic framework and turn things—in answer to what Shmuel said—I will not turn things into something completely subjective where in every circumstance I do whatever I think and everything is wonderful. No. There is some framework, and within that framework, in different circumstances, we maneuver in different ways. We need to adapt the existing framework to the circumstances in which we act. That is our creativity—but not to smash the framework or give it up. That is a mistake. It would leave nothing of halakhah. If, say, we were in an ideal situation where everyone adopted the Rabbi’s approach and acted accordingly, and we were all Torah scholars deciding autonomously, and everyone really did—he asks only when he doesn’t know something, but usually he knows and decides as he thinks—then what would happen? Would you then call that a breach of the boundaries of halakhah? No. People… different halakhot would emerge. No, but I am not telling him to work outside the framework. I am working within the framework. I am only asking more foundational questions about the meaning of the framework or the meaning of the principles of the framework. I am not breaching the framework. According to my view at least, I am not trying to breach the framework at all. On the contrary, what I am trying to do is characterize and deal with questions from within the framework. No, but I am asking what would happen to the framework in such a state of halakhic autonomy for each and every person among Israel? That is a very good question. I have wrestled with it quite a bit, and my conclusion is that it is very good that there are conservatives in the world. Even though I want to kill them. Because if everyone were like that, then indeed nothing might remain. But on the other hand, why is that my fault? I think I am right. So in my view it is very good that there are those who preserve the framework, even with too much rigidity, and I need to struggle against them and fight with them and round out the framework and break it and define it and show that the framework is not so narrow but wider, and so on—but there are people who will stop that. And that is very good. You need the yin and the yang, right? You need judgment and kindness. You need those who close things off—judgment—and you need kindness, which says: wait, wait, wait, but it can also be this way, and there is room here, and it can be interpreted this way, and so on. If everyone were of that latter type, I tend to agree with you that nothing would remain. But on the other hand, I believe in what I am doing. That is, I think it is like Rabbi Kook—you know, Rabbi Kook often wrote that every phenomenon in the world is very important, every phenomenon has a contribution. Including secularism, yes, and including things that in the religious world are usually seen as negative phenomena—Rabbi Kook says no, these are positive things. That does not mean he thought the secular person was right; it does not mean Rabbi Kook went and became secular. But once they exist, they have a very important role. Among other things, so that I have something to fight against—but not only. Also because they created things that my religious limitations did not allow me to create. It may be that after they created those things, I can use them or understand them or adopt them into the religious framework—and of course that happens often—but they would not have been created inside a religious framework. You need someone outside the framework in order to create that thing. So if you ask whether both sides are needed—yes, both are needed. That does not mean both are right, and it does not mean I will not fight against the other side when I think it is wrong. I will fight. But still, in the back of my mind I understand its positive role, and I appreciate its existence; I think its existence contributes a great deal. And in that sense—fine—one can suggest another option: that our spheres of culture, indeed our whole way of life—each of us could think differently, but for some reason almost all of us like the same things, in dress, speech, conduct; we are influenced by one another. And by whom are we influenced? Precisely by the more significant people. So probably even if each person ruled for himself, when he saw the people he values acting this way, then in the end the “fashion,” in quotation marks, the halakhic fashion, would still lead to a good deal of halakhic stability. That is basically what happens today too, only the fashion has become almost the whole story. Fine, it is a question of dosage. I agree. I do not think that is different from what I said. Anyway, let me return to our subject—wait—but what the Rabbi says means that this is not really an argument in the whole story, because if he thinks he is right, then what the Rabbi says against him—that nothing will remain of halakhah—is not really an argument. Fine, nothing will remain of halakhah because… Again, I did not claim he is not right. I only claimed that this is not a religious option. He is not religious. This is not a religious option. In my view it is also not a creative option, by the way—that is part of my disagreement with him in fields that are not specifically religious. But fine, I am not saying he is not right. I am only talking about the meaning of his conceptual framework. One has to understand what it means. Whether he is right or not—everyone can decide for himself. In any case, if I return to our point: what I basically want to claim is that there is a halakhic corpus, a halakhic core, which is essentially pure halakhah, and this gets transmitted while developing from generation to generation. And there are local deviations in a certain place and time that, for their time and place, were probably what had to be done—but they disappear. That is the picture Chaim Soloveitchik presents. I want to present a somewhat different picture, based on his, but taking it one step further. I tend to claim that after these deviations occurred, one somehow has to bring them into halakhah in some sense. But that requires a certain kind of analysis, which is also a kind of first-order analysis, because without that you will not manage to integrate them. They do not fit the precedents. They do not fit the precedents, but once you understand the circumstances in which they were done, that itself becomes an additional precedent, and then it can join the halakhic corpus. I will illustrate this with examples I will bring later, but that is the framework—that is what I want to do. So I will stop here because I cannot really begin the discussion itself now. Okay—any questions or comments? Okay then, goodbye, Sabbath peace. Thank you very much. Thank you very much.